To get a fair idea of the subjective implementation of laws and how it adversely impacts ordinary law-abiding citizens, who cannot even sue the government for compensation, you don?t have to look too far. The recent show cause notice issued by the ministry of environment and forests to the Lavasa Corporation, which asks it to explain within 15 days why the unauthorised structures erected without environmental clearance since March 2004 should not be removed in entirety, is the best example.
And if you are surprised at why the ministry took more than half a decade to notice any infringement of the statutes by Lavasa, you would be even more astonished by the reasons for enforcing such large-scale demolition of a few thousand buildings. The biggest charge now levied is that Lavasa?s construction activities on 47.3 hectares, of its total land area of 2,000 hectares, was above 1,000 metres. This is pointed out to be a clear refutation of the company?s claim that the height of the lake city project was only in the 640-900 metres range, which ensured that it needs to secure environmental clearance only from the state government.
Whatever be the validity of these accusations, which will now most likely be scrutinised by the courts, the biggest sufferer is not just Lavasa and its shareholders, who has invested around Rs 3,000 crore, with the share value plummeting and its IPO deferred, but the hundreds of ordinary people who have purchased homes in the new city.
But can you really blame these ordinary folks who have brought homes or commercial areas in Lavasa after knowing fully well that it was a perfectly legal project? After all, the department of environment of the Maharashtra government had issued a provisional NOC to the Lake City Corporation to develop the hill station as early as December 2002 and the provisional NOC was converted to a final environmental clearance in March 2004. Can anyone get a more secure proof of the legal standing of the project?
If the clearance given by the Maharashtra government in early 2004 was not valid, why did the ministry of environment not challenge the validity of the clearance given by the Maharashtra government in the courts, or warn the citizens that the construction activities were illegal and that they would be buying the homes at their own risk.
Equally pertinent are the issues of compensating the house buyers if the demolition demand is finally validated by the courts. Can the house owners then sue the state governments for leading them up the garden path by providing the final environmental clearance to a project over which they have no jurisdiction or the central government for keeping mum over the whole issue for almost half a dozen years?
The current statutes that protect the government from paying out of such damages is obviously an important reason why the government has ignored governance issues and allowed the circumvention of the law. The best example of this is the ministry of environment itself, which hardly has any resources to the implement the innumerable laws it is called to enforce.
This is brought out by a recent study by Kalpavriksh, a Delhi-based environmental organisation, which investigated the environmental impact assessment clearance made by the ministry over the last decade. Their study, done in 2009, which is based on the data on clearances given between 1986 and 2008, showed major lapses in governance. The ministry, which is expected to collect follow-up monitoring reports from each builder once every six months, has been unable to implement the rules, as it had just two to four scientists in each of its six offices across India to collect information on 4,016 clearances given. And the ministry officials were able to visit only a small fraction of the projects in the different regions.
Of the 223 projects cleared in 2003, only 150 projects have provided compliance reports at least once between 2003 and 2007. And of the 75 projects in the south, 30 had given not even one single compliance report. The authenticity of the compliance reports was also suspect as one company had submitted as many as five identical reports.
These facts indicate why, despite the impressive array of environmental laws, the ministry of environment takes as much time as it wants to investigate or monitor progress of the projects and allows it to pick and chose the projects to be investigated. No wonder that the ministry has taken more than half a decade to notice an apparent infringement of the environment regulations at Lavasa. But then who will compensate the home buyers if the ministry is allowed to go ahead with demolition, a punishment that seems disproportionately larger than the infringement justifies? And can a poor country like India afford to waste such scarce capital as the mandarins in the environmental ministry would like to do.
p.raghavan@expressindia.com