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June 9, 2021

Court Case Bulletin (CCB): Environmental Clearances to be Obtained From Central Authority in Absence of a State Authority

Author: Nayantara Malhotra

In the matter of Confederation of Real Estate Developers Association of India v. Union of India & Ors. [W.P.(C) No. 3119 of 2020], a Single Judge [Rajesh Shankar, J] of the High Court of Jharkhand vide judgement dated May 13, 2021 has refused to set aside a decision of the National Green Tribunal (“NGT”) whereby construction activities undertaken without obtaining a prior environmental clearance (“EC”) were ordered to be stopped.

According to the Environment Impact Assessment Notification, 2006 (“EIA Notification, 2006”), prior EC is required for initiating any construction activity listed in the schedule of the notification. On March 14, 2017, the government issued a notification which gave defaulters a window of 6 months to obtain an ex-post facto EC. By a subsequent notification, the power of conducting appraisal of projects was delegated to the States. Thereafter, the validity of the notification dated March 14, 2017 was challenged, and eventually upheld. Aggrieved by this, one R.K. Singh filed an application before the NGT assailing the non-compliance of the EIA Notification, 2006. Consequently, the NGT ordered that all construction activities being run without having a prior EC be stopped.

Challenging the aforesaid order, the Petitioner argued that it could not obtain an EC due to non-existence of state level appraising authority. The Petitioner further argued that shutting down of its construction activities would lead to loss of livelihood of 3 lakh construction workers, 15 lakh dependent members and 200 MSME industries, hence the court should take a balanced approach by applying the doctrine of sustainable development between ecology and development.

The Respondents, on the other hand, argued that as per Clause 4 of the EIA Notification, 2006, which states ‘In the absence of a duly constituted SEIAA…shall be considered at Central Level…’ , the Petitioner should have approached the appraising authority at the central level for obtaining an EC.

Accepting the Respondent’s contentions, the Court observed, “…even if it is assumed that the projects of the members of the petitioner had started during the period when the SEIAA, Jharkhand was not functioning, the petitioner cannot claim the benefit of the said fact, since its members could have applied before the EAC at Central level for grant of EC and thus the contention of the…petitioner that the EC could not be obtained by the members of the petitioner due to non-functioning of SEIAA, Jharkhand at the relevant time, has no leg to stand.”

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

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