Real Estate Development and Environment Laws

    The Real Estate sector in India gained a boom when the government in March 2005 allowed the foreign investors to invest 100% directly into real estate. Since India is a developing nation, real estate plays a major role in shaping the future of India. But with development in real estate, there is also an increase in environment pollution. The construction at the development site contributes to a great amount of land, air and water pollution. The corporate social responsibility of the government binds it to take measures to control the pollution over time which, as a result, introduced a number of legislations for the protection of the environment. 

    India became part of the 1st Conference on the Environment and Sustainable Development i.e. the Stockholm Conference in 1972 and agreed to the principles of ecological management after which the Government of India introduced Article 48A which states that “the state shall endeavor to protect and improve the environment and to safeguard the forest and wildlife of the country” in Directive Principles of State Policy and 51-A(g) which states that “it shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for the living creature” in Fundamental duties. 

     

    Environment Protection Legislation in India

    The above articles of the Constitution of India gave birth to the following legislations relating to environment protection:

    •  The Wildlife (Protection) Act, 1972 :

    This Act provides for the protection and administration of the flora and fauna in their natural habitat. Section 4 of this Act provides that the government may appoint a chief wildlife warden to look after the sanctuary. The section 33 of this Act forbids such wardens to construct real estate property within the borders of the Wildlife Sanctuaries except with the prior permission of the National Board. 

    •  The Water (Prevention and Control of Pollution) Act, 1974:

    This Act is comprehensive legislation that checks and regulates water pollution at both centre and state levels. Under Sections 3 and 4, a “Board” is formed at Centre and State, respectively, that monitors the water pollution in their respective territories. Before the construction of any real estate, it is required to get clearance from this board if the construction is affecting any water body.

    • The Air (Prevention and Control of Pollution) Act, 1981:

    The Preamble of this Act states that this Act is for the prevention, control and abatement of air pollution. Under this Act, a board at the centre and state levels, namely ‘Central pollution control board’ and ‘state pollution control board’, is set up that will make efforts for the prevention and control of air pollution in the country at both the levels. This Act also provides for the penalty of imprisonment for a term of 6 months to 1 year with a fine. The Supreme Court in the case of M.C. Mehta v. Union of India, stated that air pollution is the violation of Right to life under Article 21 of the Constitution which includes right to a healthy and safe environment.[1]

    • The Forest (Conservation) Act, 1980:

    This Act provides for the restrictions on construction of industries for the protection and conservation of forest. Section 2 provides that for such construction the party must take prior approval from the central government. For granting such approval under section 2 of the Act, an Advisory Committee will be formed under section 3 of the Act.  This Act also provides for the penalty under section 3A. 

    •  The Environment (Protection) Act, 1986:

    The Act provides for the protection and improvement of the environment and for matters connected with the prevention of hazard to human beings and other living creatures, plants and property. This Act acts as umbrella legislation. It was introduced after the tragic incident of Bhopal gas leak in 1984 at the union carbide India Limited pesticide plant in Bhopal. This Act provides for the constitution of authority for authorities under section 3 and appointment of the officers by the central government under Section 4 of the Act that would take necessary measures in protecting and improving the quality of the environment and preventing controlling and abating environmental pollution at the construction area. 

    • Environment Impact Assessment (under Environment (Protection) Act, 1986):

    After the Bhopal gas tragedy case[2], the Government of India introduced a new assessment called the Environment Impact Assessment under The Environment (Protection) Act, 1986 for assessing the process of any project that will impact the environment. It is applied to all projects including the real estate projects. Without clearance from this assessment report, no construction could be held. The process includes site selection then providing no objection certificate to the party constructing the real estate property (commercial or personal) then a public hearing is done and finally in the report is published in which they also suggest recommendations to the builders. 

    The central government regularly from time to time releases environment impact assessment notification on how the assessment is to be conducted. 

    • The first notification was released on 27 January, 1994 which stated that it is necessary for any construction which includes real estate to get Environment Clearance(EC) from the Ministry of Environment, Forest and Climate Change (MoEFC).
    • One of the major changes to this legislation was in the notification of 2006 that made it mandatory for various projects to get EC. However, this notification imposes the burden of environmental clearance on the State Pollution Control Board. It involved approvals from various departments of the state like from the local Municipal Committee or Panchayat, Department of Aviation, Department of Mining, Department of Ground Water Board or any other State Authorities as applicable in the case. 
    • The Government of India introduced a new Environment Impact Assessment draft in 2020 that became quite controversial as the new assessment paved the way for violation projects to apply for an environment clearance at any given time after the construction starts. Unlike the 2006 notification that had ex-ante approval compliance from the authority which the new draft lacked. Also, the public hearing time was reduced to 20 days which was 30 days in the 2006 draft. Due to the controversy, the MoEFC issued a notification that the public has the opportunity to submit their suggestions on the draft in the period of 60 days. A writ is filed in the High Court of Delhi regarding this draft to extend the  period of 60 days for the comments on the draft as the draft was only released in the English language[3]

     

    • Hazardous Waste (Management and Handling) Rules, 1989:

    Since real estate development is at its pace, hazardous waste management is the prime concern for the Builders. The Ministry of Environment, Forest and Climate Change defines hazardous waste as “waste, which due to its physical-chemical or biological composition, is likely to harm health or environment whether alone or in contact with other waste or substances”. A chemical named ‘formaldehyde’ which is used in building materials can cause respiratory problems and cancer in animals this is why hazardous waste management rules must be considered while constructing a real estate.

    • Coastal Regulation Zone Notification, 2011:

    First coastal regulation zone notification was issued in 1991 that prohibited the development activities on the coastline. However, the 2011 notification allowed constructions on all coastal zones with certain exceptions but made it mandatory to get prior clearance from the authority.  It also explains the types of construction that can be done at the shoreline. 

     

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    Authorities

    Environment protection legislation in India concerning real estate development has the following authorities that look after the management and protection of the environment at the development site:

    •  Ministry of  Environment, Forest :

    India has a ministry dedicated entirely to the Environment. This ministry from time to time has come out with many legislation concerning real estate development like the Wildlife Protection Act, Environment Protection Act etc., and responsible for the regulation, planning and promotion of environment and forestry plans in India. 

    •  Central and State Pollution Control Board:

    It is a statutory organisation formed under the Water (Prevention and Control of Pollution) Act, 1974. Any major real estate project could not be started without the prior clearance from this board. 

    •  National Green Tribunal:

    It is a Quasi-Judicial body established in 2010 under the National Green Tribunal Act. All the cases related to the environment and real estate development are handled by this Tribunal. 

    • Coastal Regulation Zone Management Authority:

    All the constructions at the coastal region must have a clearance from this authority.

    •  Forest Settlement Officer:

    Forest settlement officer is appointed under Section 4 of the Forest Act. The power of this officer is to take surveys on the land authorized to him. 

    • National Board of Wildlife:

    It is formed under the Wildlife Protection Act, 1972. Its work is also to advise the central government on framing policies for the conservation of wildlife in the country.

     

    Conclusion

    From the above legislations and authorities, it can be seen that the government is taking steps from time to time to curb environmental pollution due to real estate development. It is mandatory for the builders to look after these regulations and get clearance from the respected authorities before the construction.  The main aim of these legislations is not only to impose duties and penalties on the builders but also to promote technologies that make minimal pollution in the environment.

     

    Endnotes

    1. 1991 SC R(1) 866.
    2. Union Carbide Corporation v. Union of India Etc. 1989 SCC(2).
    3. Vikrant Tongad v. Union of India, W.P. (c) 3474/2020.

    BY ROOPAM VISHWAKARMA | GAUTAM BUDDHA UNIVERSITY

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