In a landmark judgment recently National Green Tribunal (NGT) has imposed a penalty of Rs 76.192 crore on seven private builders from Tamilnadu for raising structures without “ prior environment clearance”. NGT has also quashed two Office Memoranda (O.M.) dated December 12, 2012 and June 27, 2013, of Union Ministry of Environment terming them as 'ultra vires' the provisions of the Act of 1986 and the EIA notification of 2006.
This judgement is big blow to
builders all over India and specially
for Pune being hub of illegal constructions where many residential and
commercial projects are on without obtaining necessary “Prior Environment
clearance” (PEC). As the big politicians and babus are indirectly involved in
this racket earlier no project proponent of such activities was scared of any law in India. However latest NGT
judgment may be a nightmare for builders
who have cheated innocent property buyers for crores of rupees. The NGT is the
institution that has dedicated jurisdiction in environmental
matters to provide speedy environmental justice and help reduce the burden of
litigation in the higher courts.
Last November list of real estate projectsin and around Pune against whom criminal cases had been filed, Environmentclearance had been rejected and notices were served for violation ofenvironment clearance norms was published on this blog. Even after list was
published the projects were in full swing without any fear of law.
Actually builder can start the construction
only after he obtains the environmental clearance. However many builders had
started construction without even applying for it. When property buyers asked
about EC Builders use to mislead them by telling that - the builder can
construct up to 2 lakh sq.ft. Without obtaining EC. We have applied for EC Or We will launch next
phase only after obtaining EC. The NGT judgement may put some check on such builder’s
gammon.
Earlier if project proponent
was found to have started construction without “ prior Environmental clearance”,
under the garb of above memorandum on recommendation of SEAC’s SEIIA used to send notices for such violation then Project
Proponent used to file an undertaking to ensure that violations will not be repeated. Then proposal would be considered
for environmental clearance. However NGT has described this process as violation
of law condoning illegal act.
The EIA Notification 2006 mandates the requirement of ‘prior
Environmental Clearance’ without exception. However as per NGT the entire
mandate of prior Environmental Clearance has not only been diluted but
completely rendered infructuous or ineffective by issuance of these Office Memoranda dated
AS per NGT, if construction is found to be started without
prior environmental clearance. Authorities have to send stop work notice. Take
penal action against project proponent. Demolish or regularize the construction
as per NGT act. And then only proposal for fresh “Prior environmental clearance
“should be heard.
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| Photo Courtsey www.zameen.com |
The NGT held Office Memoranda (O.M.) dated December
12, 2012 and June 27, 2013 under which violations of PEC were being condoned ,
to be ineffective and prohibited the MoEF and the SEIAA in the entire country
from giving effect to these Office Memoranda in any manner, whatsoever.
NGT also levelled a fine of five
per cent of the total cost incurred i.e
Mr. Y. Pondurai: Rs. 7.4125
crores.
M/s Ruby Manoharan Property
Developers Pvt. Ltd.: Rs. 1.8495 crores.
M/s Jones Foundations Pvt. Ltd.:
Rs. 7 crores.
M/s SSM Builders and Promoters:
Rs. 36 crores.
M/s SPR and RG Construction Pvt.
Ltd.: Rs. 12.5505 crores.
M/s Dugar Housing Ltd.: Rs.
6.8795 crores.
M/s SAS Realtors Pvt. Ltd.: Rs.
4.5 crores.
All from Tamilnadu.
NGT also made it clear that The
above environmental compensation was being imposed on account of the intentional
defaults and the conduct attributable only to the Project Proponents. NGT directed that the Project Proponents shall not pass on this compensation to the purchasers
/ prospective purchasers, as an element of sale.
The other key points of the
judgment are
1) The impugned Office Memoranda
(dated December 12, 2012 and June 27, 2013) were not only in conflict with the
Notification of 2006, but in fact run contra thereto. What was not only
intended but in fact was prohibited to be done, was being permitted by the impugned
Office Memoranda. They had been issued without reference to any power or source
of law and were neither pronounced nor authenticated in the name of the
prescribed executive authority.
2)The requirements of the
Notification of 2006 are mandatory in character (PEC). Their default or
non-compliance is liable to be punished. The intention of the Legislature is to
protect the environment for which words of specific nature like ‘prior’ and
‘shall’ have been used. The impact of non-compliance of these provisions would
be of serious consequence, not only on environment but upon the society at
large. All these enactments are unambiguous and framed in no uncertain terms
and this conveys that projects commenced without obtaining Environmental
Clearance would invite the penalty postulated under the Act of 1986 the
provisions of Notification 2006 are mandatory and not procedural simplicitor.
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| Photo courtsey www.indianrealestatefordummies.in |
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| Photo Courtsey www.polyp.org.uk |
3)The contention that the Project Proponents were under a
bonafide belief that they could start the construction without obtaining the
Environmental Clearance which they were expected to obtain prior to grant of
completion certificate only. NGT held This submission fallacious at the face of it. Every person is
expected to know the law. Ignorance of law cannot be a plea. The Project
Proponents were not persons who can be presumed to be in ignorant of law, they
were into this business for years and the Notification of 2006 came into the
existence in the year 2006. All the projects in question commenced in the year
2010 and subsequent thereto
4)The illegal and indiscriminate
development activity that has been carried out by the Project Proponents is
bound to have serious impacts on environment, ecology and biodiversity and a
very comprehensive and stringent study would be required to dilute or mitigate
adverse environmental impacts of the projects in question
5)To obtain Environmental
Clearance prior to commencement of any activity or project is the mandate of
law. This language has to be given its proper and purposive meaning. It is
undoubtedly mandatory. When the law mandates prior approval, it ought not to be
averred as post activity approval or ex-post facto permission.
This judgement will have long
term impact on real estate business in India. However that doesn’t mean
builders will stop cheating property buyers. As public authorities in India are
stooges in the hands of such notorious builders . they will find new ways to
cheat. However if property buyers don’t want their hard earned money to go
waste, they should take following precautions.
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| Photo Courtsey snagesh.wordpress.com |
1) If you are booking or have booked
a flat in new scheme and if that project requires prior environment clearance,
ask for it..
2) If such project proponent (PP)
has started construction without PEC ,
then immediately lodge a complaint with concerned authority
3) If environmental clearance
granted is conditional one. Then it is not clear recommendation. It becomes
full clearance only after PP fulfills the conditions
4) In case of conditional recommendations
adequate precaution should be taken. Because some times to comply with
condition like water supply or sewage treatment PP provide fake or certificates
from any tom dick and harry who do not have authority to issue such certificates.
Especially in case of water supply PP produces certificates from village heads
and authorities blindly believe in those certificates however in such cases nobody
takes responsibility of actual water supply. In this case you have to obtain
information on what grounds such certificate has been issued. It is fact that verifying
such documents is responsibility of public authorities. But when they are hand
in gloves with real state mafia’s property buyers have to take adequate
precaution.
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