High Court forces Maharashtra to take credible action against Lavasa

Environment ministry to pass order on Lavasa’s application for environmental clearance in three weeks

By Ashwin Aghor
Published: Saturday 22 October 2011

After being pulled up by the Bombay High Court, the Maharashtra government  assured the court on October 20 that “credible action” will be taken against Lavasa Corporation Limited (LCL) for violating environmental laws. The company is developing Lavasa city near Pune, which is India’s first planned hill city post Independence. The state government told the court that action will be taken within two weeks, following which, the Union Ministry of Environment and Forests (MoEF) could reconsider its earlier order.

The five pre-conditions for environmental clearance
  • Credible action by government of Maharashtra under Environment (Protection) Act, 1986
  • Submission of a written commitment by Lavasa Corporation Limited (LCL) in the form of a resolution by the Board of Directors of the company that violations of Environmental (Protection) Act, shall not be repeated
  • The scale and intensity of development of the hill town shall be as per Hill Station Regulations and shall be revised based on developable/buildable area. A clear demarcation of “no development/construction zone/area” shall be identified comprising (a) all water bodies, (b) forest lands/forest like lands and (c) areas steeper than 1:3 The developable/buildable areas shall be verified through state government/director, town planning and the calculation of floor space index (FSI) shall be made accordingly. No development shall be taken in areas steeper than or equal to 1:3. The FSI calculations shall be worked out separately based on land use and shall not be averaged for calculation of FSI
  • At least 50 per cent of the total cost of the project shall be earmarked for Corporate Social Responsibility (CSR) and item-wise details along with time bound action plan shall be prepared and submitted to the Ministry’s regional office at Bhopal. Implementation of such programme shall be, accordingly, in a time bound manner
  • LCL shall submit an undertaking/commitment to earmark necessary/adequate funds as per report to be submitted shortly regarding the quantum of penalty/recompense and creation of environmental restoration fund
On October 13, MoEF had passed an order, saying the final decision about giving environmental clearance to the project would be considered only after the five pre-conditions laid down by the ministry are complied with by Lavasa and the state government  (see ‘The five pre-conditions for environmental clearance’). The first and most important pre-condition is that Maharashtra should take credible action against Lavasa for violating the Environment (Protection) Act of 1986. But the state government has not done anything about it till date. The MoEF order was sent back and forth between the environment and the law and judiciary departments of Maharashtra, ostensibly for obtaining legal opinion.

The letter was eventually referred back to MoEF for further clarification. The Maharashtra government said it could not “understand” what MoEF had implied in the order. A division bench of Justice D D Sinha and V K Tahilramani while censuring the state asked, "MoEF had sent a letter to the government on June 10 this year asking it to take credible action but till date nothing has been done. What does the government propose to do? Will it take action or will it not?"

Counsel for government, S K Shinde told the court that since the matter was sub-judice, action was not taken and clarification had been sought from MoEF in July, and that no reply had been given. After the court sought to know if the state government would now take action, Shinde said the government would initiate action within two weeks. "We have taken instructions from the secretary of environment, who said positive action would be initiated against Lavasa for violations," he said.

Additional solicitor general Darius Khambata, who appeared in court on behalf of MoEF, told the court that the ministry would reconsider Lavasa’s application seeking environmental clearance and pass its final order within three weeks. The bench, after studying the MoEF order, gave the opinion that the order was vague and not decisive. "The order should have been decisive and conclusive. Why doesn't the order say whether Lavasa's application has been rejected or accepted? By saying that it is unable to issue clearance, the ministry has kept the issue pending," Justice Sinha said.

After the government initiates action, MoEF should reconsider the application and pass its final order within three weeks. "This order will have to clearly say whether the application is accepted or rejected. The ministry will not be given extension after three weeks under any circumstances," the court said while posting the matter for final hearing on November 16. If the ministry fails to pass its final order, either rejecting or accepting the application, the court would hear Lavasa's petition on merits and pass appropriate orders, the bench said.

Senior counsel Shekhar Naphade, appearing for Lavasa, argued that MoEF has been taking time to pass the order since June this year and is financially crushing the township. "Since four months there has been no construction. Lavasa is losing crores of rupees every day," he argued. The National Alliance of People’s Movement has challenged the city project in the court through a public interest petition.

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