Is ban on construction activity to curb air pollution justified?
The Commission for Air Quality Management in the National Capital Region was instituted last year to replace the over 2-decade old EPCA as the nodal body to curb air pollution in north India.
With rising incidence of stubble burning and falling AQI (Air Quality Index) levels, restrictions on industrial and construction activity may be imposed in North Indian states like every year. Already reeling under the effects of the pandemic and rising cement and steel prices, the construction industry will have to brace for another 2-month moratorium on its activity.
The Commission for Air Quality Management in the National Capital Region was instituted last year to replace the over 2-decade old EPCA [Environmental Pollution (Prevention and Control) Authority] as the nodal body to curb air pollution in north India. The Commission has members from various central ministries and state governments of North Indian states and is supposed to issue directions to curb air pollution whenever it deems necessary.
Pankaj Goel, Secretary at CREDAI National, has urged the governments to not penalise the struggling construction industry as the delay in completion of projects increases the overall cost. Citing various studies over the minimal contribution of the construction industry towards air pollution, he rued that it is difficult to quantify the loss suffered by the real estate industry due to 2-month long bans on construction every year.
He is of the view that most of the construction work doesn’t mean dust pollution, and even minor restrictions on demolition activity will solve the purpose. Seeking relief for the industry beset with disruptions, he termed “construction ban” as an unnecessary measure which ends up penalizing customers who in turn have to pay more EMIs due to cost escalation and more rent due to delay in project completion.
Advocate Aditya Parolia, who is currently representing over 50,000 homebuyers in legal disputes across various courts, opines that government-mandated bans and restrictions fall under the doctrine of “force majeure”, where the inability to perform one’s obligations can’t be attributed as default by any party. Force majeure includes situations that fall beyond the control of any party and can’t be reasonably foreseen by any party entering into the contract.
However, Pankaj Goel rued that there’s no automatic provision to exempt developers from such government-mandated delays, rather realtors have to approach the authorities for each specific case and project, which adds to the cost and paperwork amidst their bleeding balance sheets.
Former Solicitor General of India, senior lawyer Ranjit Kumar, outlines the legal position in absence of a clear exemption under RERA. He feels that the right to life is paramount and overrides any possible exemption for an activity deemed as “polluting” by experts. He pointed out that deterioration in air quality bothers all citizens, including those who will go on to inhabit the flats whose construction gets delayed.