NEW DELHI — Maharashtra Chief Minister Devendra Fadnavis lobbied union environment minister Prakash Javadekar to ask the environment ministry to take the blame for a Pune-based real estate company’s violation of environmental laws after the Supreme Court imposed damages of at least Rs 105 crore on the firm.
The penalty was imposed on Goel Ganga Developers (India) Pvt. Ltd, the Pune-based real estate firm, for violating green laws and as environmental compensation cost to undo the ecological destruction caused by it while constructing a project.
Justifying the amount levied, the Supreme Court had said on 10 August 2018 that the “damages should be higher” in this case because of “the totally intransigent and unapologetic behaviour” of the developer.
Less than a year later, when Fadnavis and Javadekar met in Mumbai on 7 June 2019, the state government requested the environment ministry to recognise that Goel Ganga Developers violated environmental laws “due to ambiguity” in the ministry’s notifications and office memoranda, reveal documents obtained exclusively by HuffPost India under the Right To Information Act.
The language of Fadnavis’s request to Javadekar echoed that of petitions filed by Goel Ganga Developers and real estate lobby group Builders’ Association of India (BAI) in the Supreme Court.
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Both the Pune firm and the lobby group had told the apex court that the definition of Built-Up Area in the environment ministry’s Environment Impact Assessment notification 2006 was “ambiguous”, challenging the Supreme Court judgement given on 10 August 2018 which clearly stated that there was no ambiguity.
The Fadnavis government’s stance—while being the same as that of the real estate industry—is nevertheless contrary to the union environment ministry’s stated position in court. In 2018, during the hearings of the Goel Ganga case, the environment ministry had argued that the definition of Built-Up Area in the 2006 notification was clear.
There are at least 154 cases of violations in Maharashtra like the ones committed by Goel Ganga Group, according to a formal presentation given by the state’s environment secretary Anil Diggikar to Javadekar during his meeting with Fadnavis.
As per estimates by the lobby group BAI, cited in its Special Leave Petition filed in the Supreme Court, there are more than 5,000 such cases across the country.
The numbers indicate that the construction industry is breaking green laws with impunity. Environmentalists and city planners have blamed unregulated construction by Maharashtra’s notorious builder lobby for many of the state’s environmental problems, including the devastating flooding in urban centres.
In May 2019, HuffPost India had reported efforts made by Sharad Pawar of the opposition Nationalist Congress Party to lobby for Goel Ganga. Now Fadnavis’s lobbying for the same company suggests that a willingness to help big real estate companies violate green laws is one of the few things Maharashtra’s politicians agree on.
In an email reply to HuffPost India’s questions, Fadnavis said the state government was not interceding on behalf of one particular project, but the real estate industry as a whole.
“The state has not preferred to back any entity but industry as a whole,” Fadnavis told HuffPost India. “The government has been told that the interpretation of the [10 August 2018] judgement shows certain grey areas which can jeopardise the future of the industry. It has been the argument of the CREDAI.”
But according to Lara Jesani, a Mumbai-based lawyer with experience of handling environmental matters, “it is obvious that the state authorities colluded with Goel Ganga developers to cover up their violations”.
She also believes that “the Fadnavis government has bent backwards to favour the real estate lobby in Mumbai”.
“Needless to add this is at the cost of the people, environment, public health and safety, sustainability and even public revenue,” she said.
What was discussed at the Fadnavis-Javadekar meeting?
“I have decided to review long-pending projects, including ecologically sensitive ones, that need immediate attention,” Javadekar told reporters at the time. In the meeting, The Times of Indiareported, Fadnavis asked the environment ministry to expedite “pending environment clearances”.
Yet, some of the issues Fadnavis and Javadekar discussed at the meeting, which they co-chaired, were controversial enough for them to be not mentioned publicly.
For instance, in a formal presentation given by Maharashtra’s environment secretary Diggikar at the meeting, significant space was given to, among other things, the following legal matters: a) the Supreme Court’s judgement dated 10 August 2018 penalising Goel Ganga Developers for violating green laws b) a related special leave petition filed by the Builders Association of India and c) a request for a “new dispensation” for real estate companies that have violated environmental laws.
A note prepared by the union environment ministry’s then Additional Secretary Anil Kumar Jain summarised Diggikar’s presentation thus: “On the issue of the recent Supreme Court judgement in the matter of M/s Goel Ganga Developers Pvt. Ltd., the State Government requested that the Ministry may recognise that the above violation took place due to ambiguity in the Ministry’s OMs/Notifications,” Jain’s note says. “Accordingly, the number of cases that have now come under the violation category need to be sorted out through a new dispensation.”
On the issue of the recent Supreme Court judgement in the matter of M/s Goel Ganga Developers Pvt. Ltd., the State Government requested that the Ministry may recognise that the above violation took place due to ambiguity in the Ministry’s OMs/Notifications.Summary note prepared by additional secretary, MoEF&CC, Anil Kumar Jain
Jain has since been appointed the new Coal Secretary.
The text of Diggikar’s formal presentation also shows that the Maharashtra government wanted Javadekar’s environment ministry to take a “strong stand” in the Supreme Court in the matter of BAI’s petition.
In his email response to HuffPost India, Fadnavis explained why his administration sought a “strong stand” from the environment ministry in favour of the overall real estate industry, saying, “The central government intervention is inevitable as it (the Builders’ Association of India petition) speaks about notifications issued by them.”
The Maharashtra government’s “request” to recognise “ambiguity” in the ministry’s notifications, though, was in contradiction to what the Apex court said in its judgement dated 10 August 2018.
It was also similar to what Goel Ganga Developers told the SC in its recall application filed in April 2019 against the August 2018 judgement.
Diggikar strongly denied any suggestion that the state government, or he personally, was lobbying for the Goel Ganga Group.
“We are mentioning facts. Bringing facts to the notice of the ministry,” Diggikar told HuffPost India over the phone. “I have just given the facts, I am not justifying.”
Diggikar’s fervent disavowals are understandable, given that the Supreme Court said in its August 2018 judgement that Goel Ganga Developers had “manoeuvred and manipulated officials and authorities”.
A brief history of the “ambiguity” argument
The so-called ambiguity in the environment ministry’s notifications and office memoranda, cited by the Maharashtra government in its presentation to Javadekar as well as mentioned in a special leave petition filed before the Apex Court by BAI, has its roots in the case involving Goel Ganga Developers cited earlier in this report.
At the heart of this case lies a dispute over what is the right definition of Built-Up Area— a technical term that denotes the actual extent to which construction has been carried out in a building project. In the report of Pawar’s lobbying efforts, published in May this year, HuffPost India has explained the relevance of the definition of Built Up Area for the Goel Ganga case in detail.
In a nutshell, Goel Ganga Developers was granted environmental clearance to construct 12 buildings. The company erected 18 buildings instead, arguing that it had not exceeded the total Built-Up Area as defined in the Development Control Rules, 1982, of the Pune Municipal Corporation.
The Supreme Court, however, said that—for environmental clearances—Built-Up Area is calculated as defined in the Environmental Impact Assessment Notification of 2006. Going by this definition, the extent of construction in the building project was way above the limit set in the project’s environment clearance.
But the violation committed by the real estate firm, the court held, did not just result due to an innocent mistake over which definition to apply when calculating Built-Up Area.
“The National Green Tribunal and Supreme Court have both taken serious note of the role of Pune Municipal Corporation, State Environment Impact Assessment Authority and state’s Department of Environment in not only ignoring and hence allowing the violations of the environmental clearance but also their attempt to give the developer a clean chit by conveniently misinterpreting the definition of built up area,” said Jesani, the environment lawyer.
SC dismisses Goel Ganga’s “ambiguity” claim
In 2011, a three-judge bench of the Supreme Court ruled on a matter regarding the Built-Up Area of an open to sky public park in Noida, Uttar Pradesh. In this particular case, the court held that the definition of built-up area in the 2006 notification of the environment ministry cited earlier in this article “needs to be freed from its present ambiguity and vagueness”.
But the Goel Ganga case, the Supreme Court said last month in response to the Pune-based firm’s recall application, was different. The 2011 observation on “ambiguity” was not applicable in this matter.
“Though the observations in Para 84, at first blush, support the contention of the applicant, one has to appreciate the factual background in which these observations were made,” the court’s judgement dated 11 September 2019 said.
In other words, the SC said that it had used the term ambiguity in the context of the specific facts of that case and not as a general observation about the 2006 notification.
Yet, the BAI continues to pursue its petition which relies upon the 2011 judgement to demand the legalisation of hundreds of illegal constructions across Maharashtra, and thousands more across the country. The matter acquired great urgency after 5 March 2019, when the environment ministry asked state governments to take action against projects that violated the Environment Impact Assessment notification 2006, based on the SC’s directions given in its 10 August 2018 judgement.
But Maharashtra environment secretary Diggikar said action could not be taken against violators in the state as, in an interim order, the apex court ordered that no coercive action can be taken against them.
While the SC has not yet passed its judgement in the BAI petition, the interim order gives temporary relief to real estate developers. That is because the environment ministry’s direction to state governments about acting against violators can’t be implemented until a final decision is taken in the matter. The environment ministry has not contested or responded to this order in court yet.