Bombay HC Quashes Centre's Decision to Permit Post-Facto CRZ Clearance

The Bombay High Court has quashed the Union government's decision permitting post-facto clearance for projects constructed in Coastal Regulation Zone (CRZ) areas in violation of rules.

A division bench of Chief Justice D K Upadhyaya and Justice Amit Borkar set aside an Office Memorandum issued in February 2021 by the Ministry of Environment, Forests and Climate Change (MOEFCC).

The court in its order of September 24, a copy of which was made available on Wednesday, said the issuance of such an OM was legally impermissible.

The order came on a public interest litigation filed by NGO Vanshakti that claimed that post-facto clearances would undermine the legal requirement of prior CRZ clearance, and effectively regularise illegal constructions.

The court held that the memorandum contravened the provisions of the CRZ Notification, 2019. Executive instructions, such as the memorandum in question, can only supplement statutory rules, not replace them, the HC said.

"Since the CRZ notification of 2019 requires prior clearance for any projects within the CRZ areas, post facto clearances were not permissible," the bench said.

The memorandum outlined a procedure to regularise projects that had commenced without the requisite prior CRZ clearances.

The Union government argued before the court that several state governments had requested post-facto clearances for activities that had begun without prior approval due to inadequate knowledge.

The court, however, said the memorandum was non-statutory in nature, and conflicted with the CRZ regulations which mandate prior clearance for all projects within the zone