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Hindustan Times
5 days ago
- Politics
- Hindustan Times
SC nixes retrospective green nods, but loophole still open
The Supreme Court on May 16, in the Vanashakti Vs Union of India case, struck down two of the Union government's office memoranda (OMs) and a notification that allowed retrospective environmental clearances to projects that began construction without prior approval -- but experts point out that retrospective forest clearances (which are very common) do almost the same damage. For example, the minutes of the latest Forest Advisory Committee meeting, held on April 15, available on Parivesh website, has several cases of ex post facto forest clearances considered by the Committee. These include: ex post facto clearance for regularisation of diversion of 11.562 ha of forest land for establishment of Integrated Steel Plant in Odisha; a similar clearance for diversion of 0.8935 ha reserved forest land for construction of a substation and electrification of 33 KV transmission line through Melghat Tiger Reserve; and approval for diversion of forest land for setting up of mobile towers in parts of Kashmir. FAC has provisions to penalise the violators who seek ex post facto clearance. For example, in the case of the steel plant in Odisha in which construction on the embankment and construction of a boundary wall had already taken place, FAC imposed a penalty for violation which is equal to net present value (NPV) of forest land per hectare for each year of violation from the date of actual diversion as reported by the inspecting officer with maximum up to five (5) times the NPV plus 12% simple interest from the date of raising of such demand till the deposit is made. NPV is the valuation or cost of forests diverted determined based on ecological role and value of forests which is graded based on quality and type of forests. The project proponent shall maintain/develop the green belts within the project area(wherever feasible) in consultation with the state forest department, the minutes dated April 16 added. HT reported on January 6 that FAC has granted post-facto approval for a Commando Battalion Camp in Assam's protected forest area, while simultaneously levying a penalty for violations of forest conservation laws. The approval pertained to the diversion of 26.1 hectares within the Geleky Reserved Forest, along the volatile Assam-Nagaland border in Sivasagar forest division and diversion of 11.5 ha of forest land in favour of Assam Police Housing Corporation for establishment of a second Commando Battalion Camp at Damchera. The case has a controversial history. Hindustan Times first reported on April 25 that MK Yadava, then Assam's Principal Chief Conservator of Forests (now special secretary, forests, Assam) approved these two major forest diversions for police installations without prior forest clearance. 'Such regularisations stem from a 2018 guideline issued to states and UTs on activities which constitute violations of provisions of Forest Conservation Act 1980 and rules made thereof regarding common guideline to be followed by FAC/regional committees while considering such violations. The 2018 guideline laid down a graded approach depending on the violations. But the question is whether penalties prescribed or directed by Centre are a deterrent or not. Considering the number of such instances, it does not seem so,' said a legal expert who did not wish to be named. The Handbook on Consolidated Guidelines and Clarifications issued under Van (Sanrakshan Evam Samvardhan) Adhiniyam 1980 also has details of how ex post facto forest clearances should be dealt with. 'Proposals seeking ex-post-facto approval of the Central Government under the Van (Sanrakshan Evam Samvardhan) Adhiniyam, 1980 are normally not to be entertained. The Central Government will not accord approval under the Act unless under exceptional circumstances that may justify the case,' it states. In case of public utility projects of the government, the penalty s is 20 % of the general NPV penalty. State government will initiate disciplinary action against the official concerned for not being able to prevent use of forest land for non-forestry purpose without prior approval of Centre etc, the 2018 guidelines state. 'But it is important to remember that the Forest Conservation Act 1980 only allows prior forest clearance. There is no provision for ex post facto clearances. Only the guidelines make way for it. But, once a forest area is cleared and a project has started construction, the damage is already done,' he added. On May 21, Debadityo Sinha, Managing Trustee, Vindhyan Ecology & Natural History Foundation, also a legal researcher sent a representation to union environment ministry about an Office Memorandum dated March 29, 2022 (not covered by Vanashakti judgement) which allows for fencing of the project site by boundary wall using civil construction, barbed wire or precast/ prefabricated components ; construction of temporary sheds using pre-fabricated / modular structure, for site office/guards and storing material and machinery ; and provision of temporary electricity and water supply for site office/guards only. Sinha has said the 2022 OM is inconsistent with the EIA (Environmental Impact Assessment) Notification, 2006 and the Environment (Protection) Act, 1986, and with the recent judgment of the Supreme Court in the Vanashakti Vs Union of India case dated May 16. 'It is important to note that permitting these construction activities—whether permanent or temporary—without an environmental clearance (EC) leads to a change in land use and alters the physical and ecological conditions of the site, before any EIA studies have been conducted,' Sinha wrote to MoEFCC. Provisions of ex post facto clearances are however extremely important to the industry. Office bearers of Federation of Indian Mineral Industries expect the government to seek a review of the Supreme Court's judgement. 'We feel the government should file a review petition on the judgement. This is because the judgement will impact small mines and livelihoods of people in tribal areas,' said BK Bhatia, director general, Federation of Indian Mineral Industries (FIMI). The Union environment ministry did not respond to a query on the court's judgment and whether there will be curbs on retrospective forest clearances. But, on May 26, the government issued an office memorandum stating, 'The Hon'ble Supreme Court, vide its judgment dated 16.05.2025, in W.P. 1394/2023 titled Vanashakti vs. Union of India and connected struck down the above mentioned Notification S.O. 804(E) dated 14/03/2017 and SoP dated 07/07/2021. The copy of the order which is self-explanatory is enclosed herewith for compliance.'
Hindustan Times
29-04-2025
- Politics
- Hindustan Times
Will raze a part of illegal battalion: Assam govt to NGT
The Assam Police Housing Corporation Limited, in an affidavit filed last week to the National Green Tribunal, apologised for illegally clearing forest land to house a police battalion in Innerline Reserved Forest under Hailakandi Division, and also offered to demolish part of the facility so as to make the project eligible for prior environmental clearance. This undertaking was given by the Assam government after it came to light that they had gone ahead with the construction of the battalion, involving diversion of 11.5 ha of forest land, not only without prior forest clearance but also prior environmental clearance. In February, the Supreme Court temporarily halted the process of granting ex-post facto or retrospective environment clearance by which mining projects with admitted environmental violations were getting the green nod for operations in violation of the environment impact assessment (EIA) notification of 2006 that mandates prior environmental clearance before starting any project. A bench of justices BR Gavai and Sandeep Mehta stayed two orders issued by the Ministry of Environment Forests and Climate Change (MoEFCC) in this regard on July 7, 2021 and January 28, 2022 on a petition filed by NGO Vanashakti. In its affidavit, the state proposed to dismantle part of the facility. The NGT bench headed by NGT chairperson, Prakash Shrivastava, weighed in on the importance of prior environmental clearance and the concerns posed post facto clearances during the hearing of its suo moto case based on a news article titled: 'Assam PCCF MK Yadava accused of illegally clearing protected forest for Commando Battalion.' HT reported on April 10 last year that the Union environment ministry took notice of the illegal diversion of forests in 2023 at Hailakandi (Assam-Mizoram border) and directed the state government, in March this year, to immediately halt construction. HT also reported on April 25 that former Assam principal chief conservator of forests (PCCF), MK Yadava, who made news for approving the construction of a commando battalion unit on the Assam-Mizoram border through the diversion of around 44 ha of forests in 2023, a decision criticised by the Union environment ministry, also approved at least one more project of this nature, documents seen by HT showed. The state submitted that they have already been granted final (Stage-II) post facto forest clearance by the Centre. The proponent has also received the Terms of Reference (ToR) for environmental clearance through PARIVESH 2.0 portal, they added. The State Level Expert Appraisal Committee (SEAC), Assam referring to a 2022 OM of environment ministry, found that the project fits categorically as 'Educational institute' and hence is exempted from prior environmental clearance. 'They have considered the additional area of 8,233 Sq. mtr, comprising of non-residential buildings, under the ambit of educational institution and opined that no EC is required for that part too,' the state submitted but NGT noted that SEAC can only make recommendations. Its observation is not final. The Assam government also acknowledged that a police battalion is not an educational institution. Following the Supreme Court's order of February 24 in Vanashakti Vs Union of India, the Assam government offered to dismantle the excess construction. Thereafter on April 15, the Union environment ministry issued an Official Memorandum (OM) stating that the Supreme Court had stayed the operation and implementation of OMs allowing ex post facto clearances. 'Under such circumstances, the answering deponent, on behalf of the state of Assam, solemnly undertakes that the state government is ready to dismantle all the constructions beyond 20,000sq. mtr and shall not undertake any further construction beyond the said limit, for which no EC is required ...,' Assam Police Housing Corporation submitted. The NGT bench observed that prior EC is considered from scoping stage of the project, not post-facto. 'If at the scoping stage the area is more than 20,000 sqmtrs, then prior EC is required.' 'Violation is a violation even if they demolish, then sanction plan (based on the project conceived) also needs to change...'observed the bench. The bench also had questions for the Union environment ministry: 'Can you tone down the word prior approval? How will you enforce the Enviroment Protection Act without prior approval?' NGT also sought details of what action had been taken against the official retired IFS officer and special chief secretary (forests), MK Yadava who approved the construction of the police battalion without prior environmentl and forest clearance. The Union ministry told the bench that Yadava's response to show cause notice will be examined, after which action would be taken. And on being pressed by the bench, the Assam government admitted that the construction was a violation of the law and offered an unconditional apology. NGT has reserved its order on the matter.
