In a landmark ruling, the Bombay High Court has overturned the Central government’s policy allowing post-facto environmental clearances for projects within Coastal Regulation Zone (CRZ) areas. The decision came from a division bench led by Chief Justice D K Upadhyaya and Justice Amit Borkar, striking down a February 2021 Office Memorandum from the Ministry of Environment, Forests and Climate Change (MOEFCC) as legally impermissible.
The court’s decision was prompted by a public interest litigation (PIL) initiated by the environmental NGO Vanshakti, which argued that allowing post-facto clearances would essentially regularize illegal constructions that flout the mandatory prior CRZ clearances stipulated by the CRZ Notification of 2019. The NGO contended that such measures would severely undermine the environmental regulations designed to protect India’s coastal areas.
In its ruling, the court noted that while the executive can issue instructions to supplement statutory rules, it cannot replace them with non-statutory directives such as the memorandum in question. “Since the CRZ notification of 2019 requires prior clearance for any projects within the CRZ areas, post facto clearances were not permissible,” the bench stated.
The controversial memorandum had set out procedures to regularize projects initiated without the necessary CRZ clearances. The Union government defended the memorandum in court, citing requests from several state governments for post-facto approvals due to projects that had started without prior clearances, often due to a lack of awareness about the regulatory requirements.
Despite these arguments, the High Court held that the memorandum conflicted directly with the existing CRZ regulations, which unequivocally require prior clearance for all projects within designated coastal zones.
