Statutory "Existing Unit" Status Shields Prior-Approved Projects from Retrospective Eco-Sensitive Zone Construction Prohibitions

In brief

The question

1. Whether the Petitioner’s hotel project qualifies as an "existing unit" or a "new proposal" under the ESZ Notification dated 08.03.2019

The court held

The Court answered the issues in favor of the Petitioner, holding that the hotel is an "existing unit" and the Standing Committee's decision was based on a manifest error of fact and law

It also directed

The writ petition was allowed, and the impugned findings/decision of the SCNBWL dated 28.02.2024 (Para 78.3.23) were quashed. The Court declared the Petitioner's project valid and not subject to the restrictive rigors of "new" constructions under the 2019 Notification

01Facts

The Petitioner, a hospitality company, purchased land at Village Chimanpura, Jaipur, between 1995 and 1998, which was converted for industrial/tourism use

¶ 2–3

Between 2007 and 2017, the Petitioner obtained various statutory approvals, including a Hotel Policy approval, JDA building plan approval, and Environmental Clearance (EC) dated 23.06.2017

¶ 3–4, 7

Construction was completed by February 2019

¶ 5

Subsequently, the Nahargarh Wildlife Sanctuary (NWS) was notified as an Eco-Sensitive Zone (ESZ) on 08.03.2019

¶ 8

Despite the Deputy Conservator of Forests recommending wildlife clearance in 2020, the Standing Committee of the National Board for Wildlife (SCNBWL) rejected the proposal in its meeting on 22.02.2024, treating it as a "fresh proposal" for construction within 1 km of a protected area

¶ 6, 36, 43.6

The Petitioner challenged this rejection as arbitrary and violative of natural justice.

02Issues

i.1. Whether the Petitioner’s hotel project qualifies as an "existing unit" or a "new proposal" under the ESZ Notification dated 08.03.2019

¶ 31

ii.2. Whether the requirement for prior clearance from the SCNBWL was mandatory for the Petitioner's project given its status and location

¶ 31

iii.3. Whether the impugned decision dated 28.02.2024 was passed in violation of the principles of natural justice and due application of mind

¶ 31

03Law Applied

ESZ Notification dated 08.03.2019, which prohibits new commercial construction within 1 km of a sanctuary but protects "approved existing land use"

¶ 39

Para 10.4 of the Zonal Master Plan (ZMP), which defines "existing units" as those possessing electricity connections, building approvals, or ECs prior to 08.03.2019

¶ 40

Office Memorandum dated 08.08.2019, clarifying that projects outside notified ESZs but within 10 km of a sanctuary do not require prior SCNBWL clearance

¶ 41–42

The court followed the principle of lex prospicit non respicit (law looks forward, not backward)

¶ 29

The requirement for reasoned administrative orders as established in CCT v. Shukla & Bros.

¶ 44.2

04Reasoning

The Court found that the Petitioner secured all material approvals (land conversion, building plans, and EC) years before the ESZ Notification of 08.03.2019, thus squarely meeting the definition of an "existing unit" under Para 10.4 of the ZMP

¶ 41, 42.3

The SCNBWL erred by misclassifying a fully constructed and operational hotel as a "fresh proposal for construction"

¶ 43.7

Because the project was located outside the specific boundaries of the notified ESZ (though within a 10 km radius), the requirement for SCNBWL clearance under the 2019 OM was not applicable

¶ 42.1, 43.4

The Court determined that the SCNBWL arrived at a perfunctory decision without considering the favorable recommendations of the State Wildlife Board or affording the Petitioner a hearing

¶ 43.6, 45

05Holding

The Court answered the issues in favor of the Petitioner, holding that the hotel is an "existing unit" and the Standing Committee's decision was based on a manifest error of fact and law

¶ 43.7, 45

¶ 45–46

LawLens.Rajasthan High Court

Original Court PDF