Executive Instructions Cannot Supplant Statutory Notifications: Bombay High Court Holds on Environmental Clearances

Bombay High Court delivered a significant ruling in the case of Vanashakti & Anr. v. Union of India & Ors. (PIL No. 7 of 2023), addressing the legality of an Office Memorandum issued by the Ministry of Environment, Forest, and Climate Change. The Court quashed the Office Memorandum dated February 19, 2021, which allowed post facto Coastal Regulation Zone (CRZ) clearances for projects initiated without prior environmental approval. The Court held that the Memorandum was in conflict with the statutory CRZ Notification, 2019, which mandates prior clearance for all CRZ projects. The ruling emphasized that executive instructions cannot override statutory provisions and set a precedent reaffirming the hierarchy of laws.

The case arose from a Public Interest Litigation (PIL) filed by the environmental NGO Vanashakti, challenging the validity of the Office Memorandum issued by the Ministry of Environment, Forest, and Climate Change (MoEFCC) on February 19, 2021. The Memorandum permitted project proponents to apply for post facto CRZ clearance, a mechanism that regularized projects that commenced without prior CRZ clearance, contrary to the Coastal Regulation Zone (CRZ) Notification, 2019. Vanashakti argued that the 2019 Notification, which superseded the CRZ Notification of 2011, mandated prior environmental clearance and did not provide for post facto approvals.

The core legal issue was whether the Office Memorandum, a non-statutory executive order, could authorize post facto clearances in contravention of the statutory requirements under the CRZ Notification, 2019. The petitioners contended that the Memorandum violated Section 3 and Rule 5 of the Environment (Protection) Act, 1986 and the Environment (Protection) Rules, 1986, which empower the government to issue CRZ notifications through a prescribed statutory process.

The Union of India, represented by Shri Y.R. Mishra, defended the Memorandum, arguing that it was necessary to address violations due to inadequate knowledge of environmental regulations by project proponents. The government cited judicial precedents, including the Supreme Court's judgment in Alembic Pharmaceuticals Ltd. v. Rohit Prajapati & Ors., to support the permissibility of post facto environmental clearances.

The Court decisively held that the Office Memorandum of February 19, 2021, was ultra vires and could not override the statutory CRZ Notification, 2019. The 2019 Notification, issued under the statutory authority of the Environment (Protection) Act, mandates prior environmental clearance for projects in CRZ areas and contains no provisions for post facto clearances.

"Executive instructions cannot supplant statutory provisions," the Court reaffirmed the principle that administrative circulars like the impugned Office Memorandum cannot bypass statutory notifications. The Bench further held that the Memorandum did not follow the statutory procedure outlined in Rule 5 of the Environment (Protection) Rules, 1986, which mandates public notice and consultation before making amendments to environmental regulations.

The Court also clarified that the Supreme Court's judgment in Alembic Pharmaceuticals Ltd. did not endorse post facto clearances in violation of statutory provisions like the CRZ Notification, 2019. Instead, the Alembic ruling emphasized that post facto clearances violate the precautionary principle and sustainable development.

The Bombay High Court also addressed the Union of India's reliance on the superseded CRZ Notification, 2011. The Court noted that the CRZ Notification, 2019, had explicitly superseded the 2011 version, rendering any references to the earlier notification legally irrelevant.

The Court concluded that the Office Memorandum dated February 19, 2021, was legally impermissible and quashed it. Applications for CRZ clearance from the interveners, including the State of Nagaland and M/s. Patel and Associates, were directed to be processed by the competent authority based on their individual merits and in compliance with applicable law.

Date of Decision: September 24, 2024

Vanashakti & Anr. v. Union of India & Ors.