Environment Protection Act, 1986. - Coastal Regulation Zone (CRZ) were enacted (w.e.f.19th
February, 1991) - The guidelines,-Hotels, Beach Resorts and Beach Bungalows in Goa - orders to demolish as the buildings were situated with in 500 meters from HTL permitted - High court allowed the Writ Pil - Apex court held that admittedly the all the buildings constructed before the commencement of the Act and guidelines which are not gazetted no force of law - all are prospective - and as such the apex court held that Violation of Article 21 on account of alleged environmental violation cannot be subjectively and individually determined when parameters of permissible/impermissible conduct are required to be legislatively or statutorily determined under Sections 3 and 6 of the Environment Protection Act, 1986 which has been so done by bringing into force the Coastal Regulation Zone (CRZ) Notification w.e.f. 19th February, 1991.In view of the foregoing discussion, the orders impugned in the writ petitions filed by the appellants cannot be sustained. Consequently, the said orders as well as each of the orders dated 13th July, 2000 passed by the High Court of Bombay will have to be set aside which we hereby do while allowing the appeals.=
The appellants are the owners of Hotels, Beach Resorts and Beach
Bungalows in Goa who have been facing the prospect of demolition of their
properties for the last several decades. =
The respondent-
Goa Foundation had filed parallel writ petitions before the High Court for
demolition of the allegedly illegal constructions raised by the appellants.
Both sets of writ petitions i.e. those filed by the appellants against the
orders of demolition by the State Authorities and the writ petitions filed
by the Goa Foundation seeking demolition of constructions raised by each of
the appellants were heard together by the Bombay High Court.
The High
Court, by separate impugned orders dated 13th July, 2000, had upheld the
orders passed by the authorities requiring the appellants to demolish the
existing structures.
It is against the aforesaid orders passed by the High
Court that the present group of appeals have been filed upon grant of leave
by this Court under Article 136 of the Constitution of India.=
The constructions raised by the appellants are not per se illegal in
the conventional sense. They are not without permission and sanction of the
competent authority.
What has been alleged by the State and has been
approved by the High Court is that such constructions are in derogation of
the environmental guidelines in force warranting demolition of the same as
a step to safeguard the environment of the beaches in Goa.
Specifically, it
is the case of the State that the constructions in question are between 90
to 200 meters from the High Tide Line (HTL) despite the fact that under the
guidelines in force, which partake the character of law, constructions
within 500 meters of the HTL are prohibited except in rare situations where
construction activity between 200 to 500 meters from the HTL are permitted
subject to observance of strict conditions.
Admittedly, all constructions,
though completed on different dates and in different phases, were so
completed before the Coastal Regulation Zone (CRZ) were enacted (w.e.f.19th
February, 1991) in exercise of the powers under the Environment Protection
Act, 1986.=
Though the Coastal
Regulation Zone (CRZ) Notification under the Act was issued on 19th
February, 1991 and admittedly is prospective in nature, till such time that
the said notification came into force it is the guidelines which held the
field being administrative instructions having the effect of law under
Article 73 of the Constitution.=
The guidelines, detailed
reference to which are made in the succeeding paragraphs of the present
order, are not ‘law’ so as to constitute activities contrary thereto as
acts of infringement of the law and hence illegal. Such guidelines do not
confer the power of enforcement and lack the authority to bring about any
penal consequences.
It may, therefore, be understood that a Govt. policy may acquire the
“force of ‘law’” if it conforms to a certain form possessed by other laws
in force and encapsulates a mandate and discloses a specific purpose.
In the event the statute does not contain
any prescription and even under the subordinate legislation there is
silence in the matter, the legislation will take effect only when it is
published through the customarily recognized official channel, namely, the
official gazette (B.K. Srivastava vs. State of Karnataka)[14]. Admittedly,
the ‘guidelines’ were not gazetted. =
We cannot appreciate the above view.
Violation of Article 21 on account of alleged environmental violation
cannot be subjectively and individually determined when parameters of
permissible/impermissible conduct are required to be legislatively or
statutorily determined under Sections 3 and 6 of the Environment Protection
Act, 1986 which has been so done by bringing into force the Coastal
Regulation Zone (CRZ) Notification w.e.f. 19th February, 1991.
23. In view of the foregoing discussion, the orders impugned in the
writ petitions filed by the appellants cannot be sustained. Consequently,
the said orders as well as each of the orders dated 13th July, 2000 passed
by the High Court of Bombay will have to be set aside which we hereby do
while allowing the appeals.
2014 - Sept. Month - http://judis.nic.in/supremecourt/imgst.aspx?filename=41945
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.3434-3435 OF 2001
GULF GOANS HOTELS CO. LTD. & ANR. . ..APPELLANTS
VERSUS
UNION OF INDIA & ORS. ...RESPONDENTS
WITH
CIVIL APPEAL NO.3438 OF 2001
WITH
CIVIL APPEAL NOS.3436-3437 OF 2001
WITH
CIVIL APEAL NO.3439 OF 2001
J U D G M E N T
RANJAN GOGOI, J.
1. The appellants are the owners of Hotels, Beach Resorts and Beach
Bungalows in Goa who have been facing the prospect of demolition of their
properties for the last several decades. The respondent-Goa Foundation is a
non- Governmental body who claims to be dedicated to the cause of
environmental and ecological well being of the State of Goa. The respondent-
Goa Foundation had filed parallel writ petitions before the High Court for
demolition of the allegedly illegal constructions raised by the appellants.
Both sets of writ petitions i.e. those filed by the appellants against the
orders of demolition by the State Authorities and the writ petitions filed
by the Goa Foundation seeking demolition of constructions raised by each of
the appellants were heard together by the Bombay High Court. The High
Court, by separate impugned orders dated 13th July, 2000, had upheld the
orders passed by the authorities requiring the appellants to demolish the
existing structures. It is against the aforesaid orders passed by the High
Court that the present group of appeals have been filed upon grant of leave
by this Court under Article 136 of the Constitution of India.
2. The constructions raised by the appellants are not per se illegal in
the conventional sense. They are not without permission and sanction of the
competent authority. What has been alleged by the State and has been
approved by the High Court is that such constructions are in derogation of
the environmental guidelines in force warranting demolition of the same as
a step to safeguard the environment of the beaches in Goa. Specifically, it
is the case of the State that the constructions in question are between 90
to 200 meters from the High Tide Line (HTL) despite the fact that under the
guidelines in force, which partake the character of law, constructions
within 500 meters of the HTL are prohibited except in rare situations where
construction activity between 200 to 500 meters from the HTL are permitted
subject to observance of strict conditions. Admittedly, all constructions,
though completed on different dates and in different phases, were so
completed before the Coastal Regulation Zone (CRZ) were enacted (w.e.f.19th
February, 1991) in exercise of the powers under the Environment Protection
Act, 1986.
3. The above basis on which the impugned action of the State is founded
has been sought to be answered by the appellants by contending that at the
relevant point of time when building permissions and sanctions were granted
in respect of the constructions undertaken, the prohibition was with regard
to construction within 90 meters from the HTL. Admittedly, none of the
constructions are within the said divide. The guidelines, detailed
reference to which are made in the succeeding paragraphs of the present
order, are not ‘law’ so as to constitute activities contrary thereto as
acts of infringement of the law and hence illegal. Such guidelines do not
confer the power of enforcement and lack the authority to bring about any
penal consequences.
4. Having very broadly noticed the contours of the adjudication that the
present case would require, we may now proceed to consider the stand of the
rival parties with some elaboration. The Stockholm declaration of 1972 to
which India was the party is the foundation of the State’s claim that the
guidelines in question, being in implementation of India’s international
commitments, engraft a legal framework by executive action under Article 73
of the Constitution. The said guidelines are in conformity with the
Nation’s commitment to international values in the matter of preservation
of the pristine purity of sea beaches and to prevent its ecological
degradation. Such commitment to an established feature of International Law
stands engrafted in the Municipal Laws of the country by incorporation. The
guidelines commencing with the instructions conveyed by the Prime Minister
of India in a letter dated 27th November, 1981 addressed to the Chief
Minister of Goa; the environmental guidelines for development of beaches
published in July, 1983 by the Government of India and the 1986 guidelines
issued by Inter Ministerial Committee by the Ministry of Tourism,
Government of India by order dated 11th June, 1986 have been stressed upon
as containing the responses of the Union of India to the Stockholm
Declaration. It is contended that enactment of laws by the legislature is
not exhaustive of the manner in which India’s International commitments can
be furthered. Executive action, in the absence of statutory enactments, is
an alternative mode authorised under Article 73 of the Constitution. In the
present case, the exercise of executive power is traceable to Entry 13 and
14 of List I of the Seventh Schedule to the Constitution. The power to give
effect to the guidelines and to penalize violators thereof may not have
been available at the time when the guidelines became effective. However,
with the enactment of the Environment Protection Act, 1986 (hereinafter
referred to as ‘the Act’) with effect from 19th November, 1986, sections 3
and 5 empowered the Central Government to pass necessary orders and issue
directions which are penal in nature. It is in the exercise of the said
power under the Act read with the guidelines referred to above that the
orders impugned by the appellants have been passed. Though the Coastal
Regulation Zone (CRZ) Notification under the Act was issued on 19th
February, 1991 and admittedly is prospective in nature, till such time that
the said notification came into force it is the guidelines which held the
field being administrative instructions having the effect of law under
Article 73 of the Constitution.
5. The stand of the State in support of the impugned action has been
noticed at the outset for a better appreciation of the arguments advanced
by the appellants. Shri K. Parasaran, Shri C.U.Singh and Shri Raju
Ramachandran, learned senior counsels who had appeared on behalf of the
appellants in the different appeals under consideration have submitted that
the purport and effect of the CRZ Notification published on 19th
February, 1991 in exercise of the powers conferred by the Act and the Rules
read together has been considered by this Court in Goan Real Estate and
Construction Limited & Anr. vs. Union of India through Secretary, Ministry
of Environment & Ors.[1] to hold that: “Thus, the intention of legislature
while issuing the Notification of 1991 was to protect the past
actions/transactions which came into existence before the approval of the
1991 Notification.” It is further submitted that in Goan Real Estate &
Construction Ltd. (supra) construction which had commenced after the
amendments made in the year 1994 to the notification dated 19th February,
1991 till the same were declared illegal on 18th April, 1996, were
protected by this Court by holding that though the amending notification
was declared illegal by this Court – “all orders passed under the said
notification and actions taken pursuant to the said notification would not
be affected in any manner whatsoever.” (Para 38). According to the learned
counsels, the above is the approach that this Court had indicated to be
appropriate for adoption while considering the Regulations and its impact
on environmental issues in so far as coastal areas and sea beaches are
concerned.
6. In so far as the guidelines of 1983 and 1986 are concerned, it is
contended that the Stockholm Declaration saw the emergence of the concept
of sustainable development in full bloom. In Vellore Citizens’ Welfare
Forum vs. Union of India & Ors.[2], this court understood Sustainable
Development to mean “development that meets the needs of the present
without compromising the ability of the future generations to meet their
own needs”. In Vellore Citizen’s Welfare Forum (supra), it is further held
that “Sustainable Development” as a balancing concept between ecology and
development has been accepted as a part of customary international law
though its salient features are yet to be finalised by the international
law jurists. The Stockholm Declaration, naturally, does not and in fact
could not have visualized specific and precise parameters of sustainable
development including prohibitory and permissible parameters of industrial
and business activities on the sea beaches that could be universally
applied across the board. The very text and the language of the guidelines,
according to learned counsels, make it clear that there is no mandate of
law in any of the said guidelines which are really in the nature of
evolving parameters embodying suggestions for identification of the correct
parameters for enactment of laws in the future. It is accordingly argued
that the guidelines do not amount to an exercise of law making by the
executive under Article 73 of the Constitution. In any case, the guidelines
were never published or authenticated as required under Article 77 of the
Constitution. Pointing out the provisions of the Air (Prevention and
Control of Pollution) Act, 1981, it is argued that the aforesaid Act was
enacted to implement the decisions taken in the Stockholm Conference of
1972. Parliament though fully aware of the resolutions and decisions taken
in the Stockholm Conference as well as the commitments made by the India as
a signatory thereto did not consider it necessary to enact a comprehensive
law to protect and safeguard ecology and environment until enactment of the
Environment Protection Act with effect from 18th November, 1986. Even
thereafter, the parameters for enforcement of the provisions of the Act
insofar as the sea coast and beaches are concerned had to await the
enactment of the CRZ Notification of 19th February, 1991. Shri Parasaran
has particularly relied on a decision of this Court in the State of
Karnataka & Anr. vs. Shri Ranganatha Reddy & Anr.[3] to contend that even
if the court is to hold otherwise what would be called for is a “balancing
act” which would lean in favour of the protection of the property having
regard to the long period of time that has elapsed since the impugned
action was initiated against the appellants.
7. In reply, Shri Chitale, learned senior counsel appearing for the
Union of India has placed before the Court the several documents which the
Union would like the Court to construe as the ‘law in force’ to regulate
commercial/business activities on the sea beaches in order to maintain
environmental health and ecological balance. It is contended that the
aforesaid guidelines, though had existed all along, could not be
specifically enforced in the absence of statutory powers to penalize the
violations thereof. Such power, learned counsel contends, came to be
conferred with the enactment of the Environment Protection Act with effect
from 19th November, 1986. The guidelines which all along had laid down the
parameters for application of the provisions of the Act were replaced by
the CRZ Regulations with effect from 19th February,
1991. Learned counsel has contended that the guidelines issued are
traceable to the power of the Union executive under Entry 13 and 14 of List
I of the Seventh Schedule read with Article 73 of the Constitution. Learned
counsel has also drawn the attention of the Court to its earlier decision
in the case of Gramophone Company of India Ltd. vs. Birendra Bahadur Pandey
& Ors.[4] to contend that it was not necessary to enact a specific law to
give effect to Stockholm Declaration inasmuch as the understanding and
agreement reached in the International Convention to which India was a
party stood embodied in the Municipal Laws of the country by application of
the doctrine of incorporation.
Particular emphasis was laid on the views expressed by this Court in Para 5
of the decision in Gramophone Company of India (supra) which may be
extracted below:-
“5. There can be no question that nations must march with the international
community and the municipal law must respect rules of international law
even as nations respect international opinion. The comity of nations
requires that rules of international law may be accommodated in the
municipal law even without express legislative sanction provided they do
not run into conflict with Acts of Parliament. But when they do run into
such conflict, the sovereignty and the integrity of the Republic and the
supremacy of the constituted legislatures in making the laws may not be
subjected to external rules except to the extent legitimately accepted by
the constituted legislatures themselves. The doctrine of incorporation also
recognises the position that the rules of international law are
incorporated into national law and considered to be part of the national
law, unless they are in conflict with an Act of Parliament. Comity of
nations or no, municipal law must prevail in case of conflict. National
courts cannot say yes if Parliament has said no to a principle of
international law. National courts will endorse international law but not
if it conflicts with national law. National courts being organs of the
national State and not organs of international law must perforce apply
national law if international law conflicts with it. But the courts are
under an obligation within legitimate limits, to so interpret the municipal
statute as to avoid confrontation with the comity of nations or the well
established principles of international law. But if conflict is inevitable,
the latter must yield.”
8. Shri Sanjay Parikh, learned counsel appearing for the respondent NGO,
Goa Foundation, has submitted that the Prime Minister’s letter dated 27th
November, 1981; the 1983 guidelines as well as guidelines of 1986 have to
be construed to be law within the meaning of Article 73 of the
Constitution. Placing reliance on the decision of this Court in Vishaka &
Ors. vs. State of Rajasthan & Ors.,[5], Shri Parikh has submitted that in
framing the guidelines to ensure prevention of sexual harassment at work
place this Court has placed reliance on the fact that the Government of
India has ratified some of the resolutions adopted in the convention on the
elimination of all forms of discrimination against women and had made known
its commitments to the cause of women’s human rights in the Fourth World
Conference of Women held in Beijing. Similarly, relying on the observations
of this Court in Para 52 in Vineet Narain & Ors. vs. Union of India &
Anr.[6], it is contended that “it is the duty of the executive to fill the
vacuum by executive orders because its field is coterminous with that of
the legislature.” Shri Parikh has also relied on a judgment of old vintage
in Rai Sahib Ram Jawaya Kapur & Ors. vs. The State of Punjab[7] to contend
that the executive power of the union is wide and expansive and –
“comprises both the determination of the policy as well as carrying it into
execution. This evidently includes the initiation of legislation, the
maintenance of order, the promotion of social and economic welfare, the
direction of foreign policy, in fact the carrying on or supervision of the
general administration of the State.” (sub-para of Para 13).
9. Shri Parikh has further contended that commitments of the country
made at an international forum which are in tune with the constitutional
philosophy i.e. to preserve and maintain ecology and environment, must be
understood to have been incorporated in the Municipal Laws of the country
and executive decisions to the above effect will fill in the void till
effective statutory exercise is made which in the instant case came in the
form of CRZ Notification dated 19th February, 1991.
10. Shri Parikh has also submitted that passage of time resulting in
astronomical rise of property value; use of the otherwise illegally
constructed property during the pendency of the present proceeding and such
other events cannot be the basis of any claim in equity for protection of
the product of an apparently illegal act. Reliance in this case has been
placed on a decision of this Court in Fomento Resorts & Hotels Limited &
Anr. vs. Minguel Martins & Ors.[8] .
11. The cases of the respective parties having been noticed the
necessary discourse may now commence. In Bennett Coleman & Co. vs. Union of
India[9], a ‘Newsprint Policy’, notified by the Central Govt. for imposing
conditions on import of newsprint came to be challenged on the ground of
violation of fundamental rights. Beg, J., in a concurring judgment,
observed:
“What is termed “policy” can become justiciable when it exhibits itself in
the shape of even purported “law”. According to Article 13(3)(a) of the
Constitution, “law” includes “any Ordinance, order, bye-law, rule,
[pic]regulation, notification, custom or usage having in the territory of
India the force of law”. So long as policy remains in the realm of even
rules framed for the guidance of executive and administrative authorities
it may bind those authorities as declarations of what they are expected to
do under it. But, it cannot bind citizens unless the impugned policy is
shown to have acquired the force of “law”.
(para 93 – emphasis added)
12. The question ‘what is “law”? has perplexed many a jurisprude; yet,
the search for the elusive definition continues. It may be unwise to posit
an answer to the question; rather, one may proceed by examining the points
of consensus in jurisprudential theories. What appears to be common to all
these theories is the notion that law must possess a certain form; contain
a clear mandate/explicit command which may be prescriptive, permissive or
penal and the law must also seek to achieve a clearly identifiable purpose.
While the form itself or absence thereof will not be determinative and its
impact has to be considered as a lending or supporting force, the
disclosure of a clear mandate and purpose is indispensable.
13. It may, therefore, be understood that a Govt. policy may acquire the
“force of ‘law’” if it conforms to a certain form possessed by other laws
in force and encapsulates a mandate and discloses a specific purpose. It is
from the aforesaid prescription that the guidelines relied upon by the
Union of India in this case, will have to be examined to determine whether
the same satisfies the minimum elements of law. The said guidelines are -
1. Directives to the State Governments in letter dated 27th November,
1981 of the then Prime Minister;
2. Notification dated 22nd July, 1982 of the Governor setting up the
Ecological Development Council for Goa, inter alia, for scrutiny of beach
construction within 500 meters of HTL;
3. Environmental Guidelines for Development of Beaches of July 1983;
4. Order dated 11th June, 1986 of Under Secretary, Ministry of Tourism,
also addressed to Chief Secretary, Govt. of Goa, constituting an inter-
Ministerial Committee for considering tourist projects within 500 meters.
14. The genesis of the Executive’s decision to restrict construction
activity within 500 meters of the HTL can be traced to the Stockholm
Conference. It is India’s participation in the conference that led to the
introduction of Articles 48A and 51A(g) in the Constitution and the
enactment of several legislations like the Air Act 1981,Forest Conservation
Act, 1980, Environment Protection Act, 1986 etc. all of which seek to
protect, preserve and safeguard the environment. It may be possible to view
the aforesaid guidelines as “affirmative action”, aimed at implementation
of Articles 21 and 48A of the Constitution and, therefore, outlining a
visible purpose. The search for a clear, unambiguous and unequivocal
command to regulate the conduct of the citizens in the said guidelines must
also be equally fruitful. However, we are unable to find in the said
guidelines any expressed or clearly defined dicta. In fact, having read and
considered the guidelines, we are left with a reasonable doubt as to
whether what has been spelt out therein are not mere suggestions or
opinions expressed in the process of a continuing exploration to identify
the correct parameters that would effectuate the purpose i.e. safeguarding
and protecting the environment (sea beaches) from human exploitation and
degradation. The above is particularly significant in view of the fact that
the Stockholm Declaration in its core resolutions, merely enunciate very
broad propositions and commitments including those concerning the sea
beaches as distinguished from specific parameters that could have
application, without variation or exception, to all the signatories to the
declaration. The Stockholm Conference having nowhere expressed any
internationally approved parameters of acceptable distance from the HTL,
incorporation of any such feature of international values in the Municipal
Laws of the country cannot arise even on the principle enunciated in
Gramophone Company of India (supra). The position is best highlighted by
noticing in a little detail the objectives sought to be achieved in the
Stockholm Conference and the core principles adopted therein so far as they
are relevant to the issues in hand.
“The United Nations Conference on the Human Environment, met at Stockholm
from 5 to 16 June, 1972, to consider the need for a common outlook and
common principles to inspire and guide the peoples of the world in the
preservation and enhancement of the human environment -
The Conference called upon Governments and peoples to exert common efforts
for the preservation and improvement of the human environment, for the
benefit of all the people and for their posterity.”
Extract of the relevant Principles –
“Principle 7- States shall take all possible steps to prevent pollution of
the seas by substances that are liable to create hazards to human health,
to harm living resources and marine life, to damage amenities or to
interfere with other legitimate uses of the sea.
Principle 11 - The environmental policies of all States should enhance and
not adversely affect the present or future development potential of
developing countries, nor should they hamper the attainment of better
living conditions for all, and appropriate steps should be taken by States
and international organizations with a view to reaching agreement on
meeting the possible national and international economic consequences
resulting from the application of environmental measures.
Principle 14- Rational planning constitutes an essential tool for
reconciling any conflict between the needs of development and the need to
protect and improve the environment.
Principle 23- Without prejudice to such criteria as may be agreed upon by
the international community, or to standards which will have to be
determined nationally, it will be essential in all cases to consider the
systems of values prevailing in each country, and the extent of the
applicability of standards which are valid for the most advanced countries
but which may be inappropriate and of unwarranted social cost for the
developing countries.
Principle 24- International matters concerning the protection and
improvement of the environment should be handled in a cooperative spirit by
all countries, big and small, on an equal footing.
Cooperation through multilateral or bilateral arrangements or other
appropriate means is essential to effectively control, prevent, reduce and
eliminate adverse environmental effects resulting from activities conducted
in all spheres, in such a way that due account is taken of the sovereignty
and interests of all States.”
15. Article 77 of the Constitution provides the form in which the
Executive must make and authenticate its orders and decisions. Clause (1)
of Article 77 provides that all executive action of the Government must be
expressed to be taken in the name of the President. The celebrated author
H.M.Seervai in Constitutional Law of India, 4th Edition, Volume 2, 1999
describes the consequences of Government orders or instructions not being
in accordance with Clauses (1) or (2) of Article 77 by opining that the
same would deprive of the orders of the immunity conferred by the aforesaid
clauses and they may be open to challenge on the ground that they have not
been made by or under the authority of the President in which case the
burden would be on the Government to show that they were, in fact, so made.
In the present case, the said burden has not been discharged in any manner
whatsoever. The decision in Air India Cabin Crew Association vs.
Yeshaswinee Merchant[10], taking a somewhat different view can, perhaps, be
explained by the fact that in the said case the impugned directions
contained in the Government letter (not expressed in the name of the
President) was in exercise of the statutory power under Section 34 of the
Air Corporations Act, 1953. In the present case, the impugned guidelines
have not been issued under any existing statute.
16. Clause (2) of Article 77 also provides for the authentication of
orders and instruments in a manner as may be prescribed by the Rules. In
this regard, vide S.O. 2297 dated 3rd November, 1958 published in the
Gazette of India, the President has issued the Authentication (Orders and
Other Instruments) Rules, 1958. The said Rules have been superseded
subsequently in 2002. Admittedly, the provisions of the said Rules of 1958
had not been followed in the present case insofar as the promulgation of
the guidelines is concerned.
17. In the absence of due authentication and promulgation of the
guidelines, the contents thereof cannot be treated as an order of the
Government and would really represent an expression of opinion. In law, the
said guidelines and its binding effect would be no more than what was
expressed by this Court in State of Uttaranchal vs. S.K. Vaish[11] in the
following paragraph of the report :
“It is settled law that all executive actions of the Government of India
and the Government of a State are required to be taken in the name of the
President or the Governor of the State concerned, as the case may be
[Articles 77(1) and 166(1)]. Orders and other instruments made and executed
in the name of the President or the Governor of a State, as the case may
be, are required to be authenticated in the manner specified in the rules
made by the President or the Governor, as the case may be [Articles 77(2)
and 166(2)]. In other words, unless an order is expressed in the name of
the President or the Governor and is authenticated in the manner prescribed
by the rules, the same cannot be treated as an order on behalf of the
Government.” [Para 23]
“A noting recorded in the file is merely a noting simpliciter and nothing
more. It merely represents expression of opinion by the particular
individual. By no stretch of imagination, such noting can be treated as a
decision of the Government. Even if the competent authority records its
opinion in the file on the merits of the matter under consideration, the
same cannot be termed as a decision of the Government unless it is
sanctified and acted upon by issuing an order in accordance with Articles
77(1) and (2) or Articles 166(1) and (2). The noting in the file or even a
decision gets culminated into an order affecting right of the parties only
when it is expressed in the name of the President or the Governor, as the
case may be, [pic]and authenticated in the manner provided in Article 77(2)
or Article 166(2). A noting or even a decision recorded in the file can
always be reviewed/reversed/overruled or overturned and the court cannot
take cognizance of the earlier noting or decision for exercise of the power
of judicial review.” [Para 24]
18. It is also essential that what is claimed to be a law must be
notified or made public in order to bind the citizen. In Harla vs. State of
Rajasthan[12] while dealing with the vires of the Jaipur Opium Act, which
was enacted by a resolution passed by the Council of Ministers, though
never published in the Gazette, this Court had observed :-
“Natural justice requires that before a law can become operative it must be
promulgated or published. It must be broadcast in some recognisable way so
that all men may know what it is, or, at the very least, there must be some
special role or regulation or customary channel by or through which such
knowledge can be acquired with the exercise of due and reasonable
diligence. The thought that a decision reached in the secret recesses of a
chamber to which the public have no access and to which even their
accredited representatives have no access and of which they can normally
know nothing, can nevertheless affect their lives, liberty and property by
the mere passing of a Resolution without anything more is abhorrent to
civilised man.” [Para 10]
19. The Court in Harla vs. State of Rajasthan (supra) noticed the
decision in Johnson vs. Sargant & Sons[13] and particularly the following:-
“The principle underlying this question has been judicially considered in
England. For example, on a somewhat lower plane, it was held in Johnson v.
Sargant, (1918) 1 K.B. 101: 87 L.J. K.B. 122 that an order of the Food
Controller under the Beans, Peas and Pulse (Requisition) Order 1917, does
not become operative until it is made known to the public, and the
differences between an Order of that kind and an Act of the British
Parliament is stressed. The difference is obvious. Acts of the British
Parliament are publicly enacted. The debates are open to the public and the
acts are passed by the accredited representatives of the people who in
theory can be trusted to see that their constituents know what has been
done. They also receive wide publicity in papers and, now, over the
wireless. Not so Royal Proclamations and Orders of a Food Controller and so
forth. There must therefore be promulgation and publication in their cases.
The mode of publication can vary; what is a good method in one country may
not necessarily be the best in another. But reasonable publication of some
sort there must be.” (Para 11)
20. It will not be necessary to notice the long line of decisions
reiterating the aforesaid view. So far as the mode of publication is
concerned, it has been consistently held by this Court that such mode must
be as prescribed by the statute. In the event the statute does not contain
any prescription and even under the subordinate legislation there is
silence in the matter, the legislation will take effect only when it is
published through the customarily recognized official channel, namely, the
official gazette (B.K. Srivastava vs. State of Karnataka)[14]. Admittedly,
the ‘guidelines’ were not gazetted.
21. If the guidelines relied upon by Union of India in the present case
fail to satisfy the essential and vital parameters/requirements of law as
the trend of the above discussion would go to show, the same cannot be
enforced to the prejudice of the appellants as has been done in the present
case. For the same reason, the issue raised with regard to the authority of
the Union to enforce the guidelines on the coming into force of the
provisions of the Environment Protection Act so as to bring into effect the
impugned consequences, adverse to the appellants, will not require any
consideration.
22. An argument had been offered by Shri Parikh, learned counsel
appearing for the respondent, Goa Foundation, that while dealing with
issues concerning ecology and environment, a strict view of environmental
degradation, which Shri Parikh would contend has occurred in the present
case, should be adopted having regard to the rights of a large number of
citizens to enjoy a pristine and pollution free environment by virtue of
Article 21 of the Constitution. We cannot appreciate the above view.
Violation of Article 21 on account of alleged environmental violation
cannot be subjectively and individually determined when parameters of
permissible/impermissible conduct are required to be legislatively or
statutorily determined under Sections 3 and 6 of the Environment Protection
Act, 1986 which has been so done by bringing into force the Coastal
Regulation Zone (CRZ) Notification w.e.f. 19th February, 1991.
23. In view of the foregoing discussion, the orders impugned in the
writ petitions filed by the appellants cannot be sustained. Consequently,
the said orders as well as each of the orders dated 13th July, 2000 passed
by the High Court of Bombay will have to be set aside which we hereby do
while allowing the appeals.
……………………………J.
[RANJAN GOGOI]
…………………..………..J.
[M.Y.EQBAL]
New Delhi;
September 22, 2014.
-----------------------
[1] 2010 (5) SCC 388; in para 31
[2] (1996) 5 SCC 647 Para 10
[3] (1977 (4) SCC 471)
[4] 1984 (2) SCC 534
[5] 1997 (6) SCC 241 para 13
[6] 1998 (1) SCC 226
[7] AIR 1955 SC 549
[8] 2009 (3) SCC 571
[9] [(1972) 2 SCC 788 – 5J]
[10] (2003) 6 SCC 277 – para 72
[11] (2011) 8 SCC 670
[12] [AIR 1951 SC 467]
[13] [(1918) 1 KB 101]
[14] (1987) 1 SCC 658
-----------------------
29
February, 1991) - The guidelines,-Hotels, Beach Resorts and Beach Bungalows in Goa - orders to demolish as the buildings were situated with in 500 meters from HTL permitted - High court allowed the Writ Pil - Apex court held that admittedly the all the buildings constructed before the commencement of the Act and guidelines which are not gazetted no force of law - all are prospective - and as such the apex court held that Violation of Article 21 on account of alleged environmental violation cannot be subjectively and individually determined when parameters of permissible/impermissible conduct are required to be legislatively or statutorily determined under Sections 3 and 6 of the Environment Protection Act, 1986 which has been so done by bringing into force the Coastal Regulation Zone (CRZ) Notification w.e.f. 19th February, 1991.In view of the foregoing discussion, the orders impugned in the writ petitions filed by the appellants cannot be sustained. Consequently, the said orders as well as each of the orders dated 13th July, 2000 passed by the High Court of Bombay will have to be set aside which we hereby do while allowing the appeals.=
The appellants are the owners of Hotels, Beach Resorts and Beach
Bungalows in Goa who have been facing the prospect of demolition of their
properties for the last several decades. =
The respondent-
Goa Foundation had filed parallel writ petitions before the High Court for
demolition of the allegedly illegal constructions raised by the appellants.
Both sets of writ petitions i.e. those filed by the appellants against the
orders of demolition by the State Authorities and the writ petitions filed
by the Goa Foundation seeking demolition of constructions raised by each of
the appellants were heard together by the Bombay High Court.
The High
Court, by separate impugned orders dated 13th July, 2000, had upheld the
orders passed by the authorities requiring the appellants to demolish the
existing structures.
It is against the aforesaid orders passed by the High
Court that the present group of appeals have been filed upon grant of leave
by this Court under Article 136 of the Constitution of India.=
The constructions raised by the appellants are not per se illegal in
the conventional sense. They are not without permission and sanction of the
competent authority.
What has been alleged by the State and has been
approved by the High Court is that such constructions are in derogation of
the environmental guidelines in force warranting demolition of the same as
a step to safeguard the environment of the beaches in Goa.
Specifically, it
is the case of the State that the constructions in question are between 90
to 200 meters from the High Tide Line (HTL) despite the fact that under the
guidelines in force, which partake the character of law, constructions
within 500 meters of the HTL are prohibited except in rare situations where
construction activity between 200 to 500 meters from the HTL are permitted
subject to observance of strict conditions.
Admittedly, all constructions,
though completed on different dates and in different phases, were so
completed before the Coastal Regulation Zone (CRZ) were enacted (w.e.f.19th
February, 1991) in exercise of the powers under the Environment Protection
Act, 1986.=
Though the Coastal
Regulation Zone (CRZ) Notification under the Act was issued on 19th
February, 1991 and admittedly is prospective in nature, till such time that
the said notification came into force it is the guidelines which held the
field being administrative instructions having the effect of law under
Article 73 of the Constitution.=
The guidelines, detailed
reference to which are made in the succeeding paragraphs of the present
order, are not ‘law’ so as to constitute activities contrary thereto as
acts of infringement of the law and hence illegal. Such guidelines do not
confer the power of enforcement and lack the authority to bring about any
penal consequences.
It may, therefore, be understood that a Govt. policy may acquire the
“force of ‘law’” if it conforms to a certain form possessed by other laws
in force and encapsulates a mandate and discloses a specific purpose.
In the event the statute does not contain
any prescription and even under the subordinate legislation there is
silence in the matter, the legislation will take effect only when it is
published through the customarily recognized official channel, namely, the
official gazette (B.K. Srivastava vs. State of Karnataka)[14]. Admittedly,
the ‘guidelines’ were not gazetted. =
We cannot appreciate the above view.
Violation of Article 21 on account of alleged environmental violation
cannot be subjectively and individually determined when parameters of
permissible/impermissible conduct are required to be legislatively or
statutorily determined under Sections 3 and 6 of the Environment Protection
Act, 1986 which has been so done by bringing into force the Coastal
Regulation Zone (CRZ) Notification w.e.f. 19th February, 1991.
23. In view of the foregoing discussion, the orders impugned in the
writ petitions filed by the appellants cannot be sustained. Consequently,
the said orders as well as each of the orders dated 13th July, 2000 passed
by the High Court of Bombay will have to be set aside which we hereby do
while allowing the appeals.
2014 - Sept. Month - http://judis.nic.in/supremecourt/imgst.aspx?filename=41945
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.3434-3435 OF 2001
GULF GOANS HOTELS CO. LTD. & ANR. . ..APPELLANTS
VERSUS
UNION OF INDIA & ORS. ...RESPONDENTS
WITH
CIVIL APPEAL NO.3438 OF 2001
WITH
CIVIL APPEAL NOS.3436-3437 OF 2001
WITH
CIVIL APEAL NO.3439 OF 2001
J U D G M E N T
RANJAN GOGOI, J.
1. The appellants are the owners of Hotels, Beach Resorts and Beach
Bungalows in Goa who have been facing the prospect of demolition of their
properties for the last several decades. The respondent-Goa Foundation is a
non- Governmental body who claims to be dedicated to the cause of
environmental and ecological well being of the State of Goa. The respondent-
Goa Foundation had filed parallel writ petitions before the High Court for
demolition of the allegedly illegal constructions raised by the appellants.
Both sets of writ petitions i.e. those filed by the appellants against the
orders of demolition by the State Authorities and the writ petitions filed
by the Goa Foundation seeking demolition of constructions raised by each of
the appellants were heard together by the Bombay High Court. The High
Court, by separate impugned orders dated 13th July, 2000, had upheld the
orders passed by the authorities requiring the appellants to demolish the
existing structures. It is against the aforesaid orders passed by the High
Court that the present group of appeals have been filed upon grant of leave
by this Court under Article 136 of the Constitution of India.
2. The constructions raised by the appellants are not per se illegal in
the conventional sense. They are not without permission and sanction of the
competent authority. What has been alleged by the State and has been
approved by the High Court is that such constructions are in derogation of
the environmental guidelines in force warranting demolition of the same as
a step to safeguard the environment of the beaches in Goa. Specifically, it
is the case of the State that the constructions in question are between 90
to 200 meters from the High Tide Line (HTL) despite the fact that under the
guidelines in force, which partake the character of law, constructions
within 500 meters of the HTL are prohibited except in rare situations where
construction activity between 200 to 500 meters from the HTL are permitted
subject to observance of strict conditions. Admittedly, all constructions,
though completed on different dates and in different phases, were so
completed before the Coastal Regulation Zone (CRZ) were enacted (w.e.f.19th
February, 1991) in exercise of the powers under the Environment Protection
Act, 1986.
3. The above basis on which the impugned action of the State is founded
has been sought to be answered by the appellants by contending that at the
relevant point of time when building permissions and sanctions were granted
in respect of the constructions undertaken, the prohibition was with regard
to construction within 90 meters from the HTL. Admittedly, none of the
constructions are within the said divide. The guidelines, detailed
reference to which are made in the succeeding paragraphs of the present
order, are not ‘law’ so as to constitute activities contrary thereto as
acts of infringement of the law and hence illegal. Such guidelines do not
confer the power of enforcement and lack the authority to bring about any
penal consequences.
4. Having very broadly noticed the contours of the adjudication that the
present case would require, we may now proceed to consider the stand of the
rival parties with some elaboration. The Stockholm declaration of 1972 to
which India was the party is the foundation of the State’s claim that the
guidelines in question, being in implementation of India’s international
commitments, engraft a legal framework by executive action under Article 73
of the Constitution. The said guidelines are in conformity with the
Nation’s commitment to international values in the matter of preservation
of the pristine purity of sea beaches and to prevent its ecological
degradation. Such commitment to an established feature of International Law
stands engrafted in the Municipal Laws of the country by incorporation. The
guidelines commencing with the instructions conveyed by the Prime Minister
of India in a letter dated 27th November, 1981 addressed to the Chief
Minister of Goa; the environmental guidelines for development of beaches
published in July, 1983 by the Government of India and the 1986 guidelines
issued by Inter Ministerial Committee by the Ministry of Tourism,
Government of India by order dated 11th June, 1986 have been stressed upon
as containing the responses of the Union of India to the Stockholm
Declaration. It is contended that enactment of laws by the legislature is
not exhaustive of the manner in which India’s International commitments can
be furthered. Executive action, in the absence of statutory enactments, is
an alternative mode authorised under Article 73 of the Constitution. In the
present case, the exercise of executive power is traceable to Entry 13 and
14 of List I of the Seventh Schedule to the Constitution. The power to give
effect to the guidelines and to penalize violators thereof may not have
been available at the time when the guidelines became effective. However,
with the enactment of the Environment Protection Act, 1986 (hereinafter
referred to as ‘the Act’) with effect from 19th November, 1986, sections 3
and 5 empowered the Central Government to pass necessary orders and issue
directions which are penal in nature. It is in the exercise of the said
power under the Act read with the guidelines referred to above that the
orders impugned by the appellants have been passed. Though the Coastal
Regulation Zone (CRZ) Notification under the Act was issued on 19th
February, 1991 and admittedly is prospective in nature, till such time that
the said notification came into force it is the guidelines which held the
field being administrative instructions having the effect of law under
Article 73 of the Constitution.
5. The stand of the State in support of the impugned action has been
noticed at the outset for a better appreciation of the arguments advanced
by the appellants. Shri K. Parasaran, Shri C.U.Singh and Shri Raju
Ramachandran, learned senior counsels who had appeared on behalf of the
appellants in the different appeals under consideration have submitted that
the purport and effect of the CRZ Notification published on 19th
February, 1991 in exercise of the powers conferred by the Act and the Rules
read together has been considered by this Court in Goan Real Estate and
Construction Limited & Anr. vs. Union of India through Secretary, Ministry
of Environment & Ors.[1] to hold that: “Thus, the intention of legislature
while issuing the Notification of 1991 was to protect the past
actions/transactions which came into existence before the approval of the
1991 Notification.” It is further submitted that in Goan Real Estate &
Construction Ltd. (supra) construction which had commenced after the
amendments made in the year 1994 to the notification dated 19th February,
1991 till the same were declared illegal on 18th April, 1996, were
protected by this Court by holding that though the amending notification
was declared illegal by this Court – “all orders passed under the said
notification and actions taken pursuant to the said notification would not
be affected in any manner whatsoever.” (Para 38). According to the learned
counsels, the above is the approach that this Court had indicated to be
appropriate for adoption while considering the Regulations and its impact
on environmental issues in so far as coastal areas and sea beaches are
concerned.
6. In so far as the guidelines of 1983 and 1986 are concerned, it is
contended that the Stockholm Declaration saw the emergence of the concept
of sustainable development in full bloom. In Vellore Citizens’ Welfare
Forum vs. Union of India & Ors.[2], this court understood Sustainable
Development to mean “development that meets the needs of the present
without compromising the ability of the future generations to meet their
own needs”. In Vellore Citizen’s Welfare Forum (supra), it is further held
that “Sustainable Development” as a balancing concept between ecology and
development has been accepted as a part of customary international law
though its salient features are yet to be finalised by the international
law jurists. The Stockholm Declaration, naturally, does not and in fact
could not have visualized specific and precise parameters of sustainable
development including prohibitory and permissible parameters of industrial
and business activities on the sea beaches that could be universally
applied across the board. The very text and the language of the guidelines,
according to learned counsels, make it clear that there is no mandate of
law in any of the said guidelines which are really in the nature of
evolving parameters embodying suggestions for identification of the correct
parameters for enactment of laws in the future. It is accordingly argued
that the guidelines do not amount to an exercise of law making by the
executive under Article 73 of the Constitution. In any case, the guidelines
were never published or authenticated as required under Article 77 of the
Constitution. Pointing out the provisions of the Air (Prevention and
Control of Pollution) Act, 1981, it is argued that the aforesaid Act was
enacted to implement the decisions taken in the Stockholm Conference of
1972. Parliament though fully aware of the resolutions and decisions taken
in the Stockholm Conference as well as the commitments made by the India as
a signatory thereto did not consider it necessary to enact a comprehensive
law to protect and safeguard ecology and environment until enactment of the
Environment Protection Act with effect from 18th November, 1986. Even
thereafter, the parameters for enforcement of the provisions of the Act
insofar as the sea coast and beaches are concerned had to await the
enactment of the CRZ Notification of 19th February, 1991. Shri Parasaran
has particularly relied on a decision of this Court in the State of
Karnataka & Anr. vs. Shri Ranganatha Reddy & Anr.[3] to contend that even
if the court is to hold otherwise what would be called for is a “balancing
act” which would lean in favour of the protection of the property having
regard to the long period of time that has elapsed since the impugned
action was initiated against the appellants.
7. In reply, Shri Chitale, learned senior counsel appearing for the
Union of India has placed before the Court the several documents which the
Union would like the Court to construe as the ‘law in force’ to regulate
commercial/business activities on the sea beaches in order to maintain
environmental health and ecological balance. It is contended that the
aforesaid guidelines, though had existed all along, could not be
specifically enforced in the absence of statutory powers to penalize the
violations thereof. Such power, learned counsel contends, came to be
conferred with the enactment of the Environment Protection Act with effect
from 19th November, 1986. The guidelines which all along had laid down the
parameters for application of the provisions of the Act were replaced by
the CRZ Regulations with effect from 19th February,
1991. Learned counsel has contended that the guidelines issued are
traceable to the power of the Union executive under Entry 13 and 14 of List
I of the Seventh Schedule read with Article 73 of the Constitution. Learned
counsel has also drawn the attention of the Court to its earlier decision
in the case of Gramophone Company of India Ltd. vs. Birendra Bahadur Pandey
& Ors.[4] to contend that it was not necessary to enact a specific law to
give effect to Stockholm Declaration inasmuch as the understanding and
agreement reached in the International Convention to which India was a
party stood embodied in the Municipal Laws of the country by application of
the doctrine of incorporation.
Particular emphasis was laid on the views expressed by this Court in Para 5
of the decision in Gramophone Company of India (supra) which may be
extracted below:-
“5. There can be no question that nations must march with the international
community and the municipal law must respect rules of international law
even as nations respect international opinion. The comity of nations
requires that rules of international law may be accommodated in the
municipal law even without express legislative sanction provided they do
not run into conflict with Acts of Parliament. But when they do run into
such conflict, the sovereignty and the integrity of the Republic and the
supremacy of the constituted legislatures in making the laws may not be
subjected to external rules except to the extent legitimately accepted by
the constituted legislatures themselves. The doctrine of incorporation also
recognises the position that the rules of international law are
incorporated into national law and considered to be part of the national
law, unless they are in conflict with an Act of Parliament. Comity of
nations or no, municipal law must prevail in case of conflict. National
courts cannot say yes if Parliament has said no to a principle of
international law. National courts will endorse international law but not
if it conflicts with national law. National courts being organs of the
national State and not organs of international law must perforce apply
national law if international law conflicts with it. But the courts are
under an obligation within legitimate limits, to so interpret the municipal
statute as to avoid confrontation with the comity of nations or the well
established principles of international law. But if conflict is inevitable,
the latter must yield.”
8. Shri Sanjay Parikh, learned counsel appearing for the respondent NGO,
Goa Foundation, has submitted that the Prime Minister’s letter dated 27th
November, 1981; the 1983 guidelines as well as guidelines of 1986 have to
be construed to be law within the meaning of Article 73 of the
Constitution. Placing reliance on the decision of this Court in Vishaka &
Ors. vs. State of Rajasthan & Ors.,[5], Shri Parikh has submitted that in
framing the guidelines to ensure prevention of sexual harassment at work
place this Court has placed reliance on the fact that the Government of
India has ratified some of the resolutions adopted in the convention on the
elimination of all forms of discrimination against women and had made known
its commitments to the cause of women’s human rights in the Fourth World
Conference of Women held in Beijing. Similarly, relying on the observations
of this Court in Para 52 in Vineet Narain & Ors. vs. Union of India &
Anr.[6], it is contended that “it is the duty of the executive to fill the
vacuum by executive orders because its field is coterminous with that of
the legislature.” Shri Parikh has also relied on a judgment of old vintage
in Rai Sahib Ram Jawaya Kapur & Ors. vs. The State of Punjab[7] to contend
that the executive power of the union is wide and expansive and –
“comprises both the determination of the policy as well as carrying it into
execution. This evidently includes the initiation of legislation, the
maintenance of order, the promotion of social and economic welfare, the
direction of foreign policy, in fact the carrying on or supervision of the
general administration of the State.” (sub-para of Para 13).
9. Shri Parikh has further contended that commitments of the country
made at an international forum which are in tune with the constitutional
philosophy i.e. to preserve and maintain ecology and environment, must be
understood to have been incorporated in the Municipal Laws of the country
and executive decisions to the above effect will fill in the void till
effective statutory exercise is made which in the instant case came in the
form of CRZ Notification dated 19th February, 1991.
10. Shri Parikh has also submitted that passage of time resulting in
astronomical rise of property value; use of the otherwise illegally
constructed property during the pendency of the present proceeding and such
other events cannot be the basis of any claim in equity for protection of
the product of an apparently illegal act. Reliance in this case has been
placed on a decision of this Court in Fomento Resorts & Hotels Limited &
Anr. vs. Minguel Martins & Ors.[8] .
11. The cases of the respective parties having been noticed the
necessary discourse may now commence. In Bennett Coleman & Co. vs. Union of
India[9], a ‘Newsprint Policy’, notified by the Central Govt. for imposing
conditions on import of newsprint came to be challenged on the ground of
violation of fundamental rights. Beg, J., in a concurring judgment,
observed:
“What is termed “policy” can become justiciable when it exhibits itself in
the shape of even purported “law”. According to Article 13(3)(a) of the
Constitution, “law” includes “any Ordinance, order, bye-law, rule,
[pic]regulation, notification, custom or usage having in the territory of
India the force of law”. So long as policy remains in the realm of even
rules framed for the guidance of executive and administrative authorities
it may bind those authorities as declarations of what they are expected to
do under it. But, it cannot bind citizens unless the impugned policy is
shown to have acquired the force of “law”.
(para 93 – emphasis added)
12. The question ‘what is “law”? has perplexed many a jurisprude; yet,
the search for the elusive definition continues. It may be unwise to posit
an answer to the question; rather, one may proceed by examining the points
of consensus in jurisprudential theories. What appears to be common to all
these theories is the notion that law must possess a certain form; contain
a clear mandate/explicit command which may be prescriptive, permissive or
penal and the law must also seek to achieve a clearly identifiable purpose.
While the form itself or absence thereof will not be determinative and its
impact has to be considered as a lending or supporting force, the
disclosure of a clear mandate and purpose is indispensable.
13. It may, therefore, be understood that a Govt. policy may acquire the
“force of ‘law’” if it conforms to a certain form possessed by other laws
in force and encapsulates a mandate and discloses a specific purpose. It is
from the aforesaid prescription that the guidelines relied upon by the
Union of India in this case, will have to be examined to determine whether
the same satisfies the minimum elements of law. The said guidelines are -
1. Directives to the State Governments in letter dated 27th November,
1981 of the then Prime Minister;
2. Notification dated 22nd July, 1982 of the Governor setting up the
Ecological Development Council for Goa, inter alia, for scrutiny of beach
construction within 500 meters of HTL;
3. Environmental Guidelines for Development of Beaches of July 1983;
4. Order dated 11th June, 1986 of Under Secretary, Ministry of Tourism,
also addressed to Chief Secretary, Govt. of Goa, constituting an inter-
Ministerial Committee for considering tourist projects within 500 meters.
14. The genesis of the Executive’s decision to restrict construction
activity within 500 meters of the HTL can be traced to the Stockholm
Conference. It is India’s participation in the conference that led to the
introduction of Articles 48A and 51A(g) in the Constitution and the
enactment of several legislations like the Air Act 1981,Forest Conservation
Act, 1980, Environment Protection Act, 1986 etc. all of which seek to
protect, preserve and safeguard the environment. It may be possible to view
the aforesaid guidelines as “affirmative action”, aimed at implementation
of Articles 21 and 48A of the Constitution and, therefore, outlining a
visible purpose. The search for a clear, unambiguous and unequivocal
command to regulate the conduct of the citizens in the said guidelines must
also be equally fruitful. However, we are unable to find in the said
guidelines any expressed or clearly defined dicta. In fact, having read and
considered the guidelines, we are left with a reasonable doubt as to
whether what has been spelt out therein are not mere suggestions or
opinions expressed in the process of a continuing exploration to identify
the correct parameters that would effectuate the purpose i.e. safeguarding
and protecting the environment (sea beaches) from human exploitation and
degradation. The above is particularly significant in view of the fact that
the Stockholm Declaration in its core resolutions, merely enunciate very
broad propositions and commitments including those concerning the sea
beaches as distinguished from specific parameters that could have
application, without variation or exception, to all the signatories to the
declaration. The Stockholm Conference having nowhere expressed any
internationally approved parameters of acceptable distance from the HTL,
incorporation of any such feature of international values in the Municipal
Laws of the country cannot arise even on the principle enunciated in
Gramophone Company of India (supra). The position is best highlighted by
noticing in a little detail the objectives sought to be achieved in the
Stockholm Conference and the core principles adopted therein so far as they
are relevant to the issues in hand.
“The United Nations Conference on the Human Environment, met at Stockholm
from 5 to 16 June, 1972, to consider the need for a common outlook and
common principles to inspire and guide the peoples of the world in the
preservation and enhancement of the human environment -
The Conference called upon Governments and peoples to exert common efforts
for the preservation and improvement of the human environment, for the
benefit of all the people and for their posterity.”
Extract of the relevant Principles –
“Principle 7- States shall take all possible steps to prevent pollution of
the seas by substances that are liable to create hazards to human health,
to harm living resources and marine life, to damage amenities or to
interfere with other legitimate uses of the sea.
Principle 11 - The environmental policies of all States should enhance and
not adversely affect the present or future development potential of
developing countries, nor should they hamper the attainment of better
living conditions for all, and appropriate steps should be taken by States
and international organizations with a view to reaching agreement on
meeting the possible national and international economic consequences
resulting from the application of environmental measures.
Principle 14- Rational planning constitutes an essential tool for
reconciling any conflict between the needs of development and the need to
protect and improve the environment.
Principle 23- Without prejudice to such criteria as may be agreed upon by
the international community, or to standards which will have to be
determined nationally, it will be essential in all cases to consider the
systems of values prevailing in each country, and the extent of the
applicability of standards which are valid for the most advanced countries
but which may be inappropriate and of unwarranted social cost for the
developing countries.
Principle 24- International matters concerning the protection and
improvement of the environment should be handled in a cooperative spirit by
all countries, big and small, on an equal footing.
Cooperation through multilateral or bilateral arrangements or other
appropriate means is essential to effectively control, prevent, reduce and
eliminate adverse environmental effects resulting from activities conducted
in all spheres, in such a way that due account is taken of the sovereignty
and interests of all States.”
15. Article 77 of the Constitution provides the form in which the
Executive must make and authenticate its orders and decisions. Clause (1)
of Article 77 provides that all executive action of the Government must be
expressed to be taken in the name of the President. The celebrated author
H.M.Seervai in Constitutional Law of India, 4th Edition, Volume 2, 1999
describes the consequences of Government orders or instructions not being
in accordance with Clauses (1) or (2) of Article 77 by opining that the
same would deprive of the orders of the immunity conferred by the aforesaid
clauses and they may be open to challenge on the ground that they have not
been made by or under the authority of the President in which case the
burden would be on the Government to show that they were, in fact, so made.
In the present case, the said burden has not been discharged in any manner
whatsoever. The decision in Air India Cabin Crew Association vs.
Yeshaswinee Merchant[10], taking a somewhat different view can, perhaps, be
explained by the fact that in the said case the impugned directions
contained in the Government letter (not expressed in the name of the
President) was in exercise of the statutory power under Section 34 of the
Air Corporations Act, 1953. In the present case, the impugned guidelines
have not been issued under any existing statute.
16. Clause (2) of Article 77 also provides for the authentication of
orders and instruments in a manner as may be prescribed by the Rules. In
this regard, vide S.O. 2297 dated 3rd November, 1958 published in the
Gazette of India, the President has issued the Authentication (Orders and
Other Instruments) Rules, 1958. The said Rules have been superseded
subsequently in 2002. Admittedly, the provisions of the said Rules of 1958
had not been followed in the present case insofar as the promulgation of
the guidelines is concerned.
17. In the absence of due authentication and promulgation of the
guidelines, the contents thereof cannot be treated as an order of the
Government and would really represent an expression of opinion. In law, the
said guidelines and its binding effect would be no more than what was
expressed by this Court in State of Uttaranchal vs. S.K. Vaish[11] in the
following paragraph of the report :
“It is settled law that all executive actions of the Government of India
and the Government of a State are required to be taken in the name of the
President or the Governor of the State concerned, as the case may be
[Articles 77(1) and 166(1)]. Orders and other instruments made and executed
in the name of the President or the Governor of a State, as the case may
be, are required to be authenticated in the manner specified in the rules
made by the President or the Governor, as the case may be [Articles 77(2)
and 166(2)]. In other words, unless an order is expressed in the name of
the President or the Governor and is authenticated in the manner prescribed
by the rules, the same cannot be treated as an order on behalf of the
Government.” [Para 23]
“A noting recorded in the file is merely a noting simpliciter and nothing
more. It merely represents expression of opinion by the particular
individual. By no stretch of imagination, such noting can be treated as a
decision of the Government. Even if the competent authority records its
opinion in the file on the merits of the matter under consideration, the
same cannot be termed as a decision of the Government unless it is
sanctified and acted upon by issuing an order in accordance with Articles
77(1) and (2) or Articles 166(1) and (2). The noting in the file or even a
decision gets culminated into an order affecting right of the parties only
when it is expressed in the name of the President or the Governor, as the
case may be, [pic]and authenticated in the manner provided in Article 77(2)
or Article 166(2). A noting or even a decision recorded in the file can
always be reviewed/reversed/overruled or overturned and the court cannot
take cognizance of the earlier noting or decision for exercise of the power
of judicial review.” [Para 24]
18. It is also essential that what is claimed to be a law must be
notified or made public in order to bind the citizen. In Harla vs. State of
Rajasthan[12] while dealing with the vires of the Jaipur Opium Act, which
was enacted by a resolution passed by the Council of Ministers, though
never published in the Gazette, this Court had observed :-
“Natural justice requires that before a law can become operative it must be
promulgated or published. It must be broadcast in some recognisable way so
that all men may know what it is, or, at the very least, there must be some
special role or regulation or customary channel by or through which such
knowledge can be acquired with the exercise of due and reasonable
diligence. The thought that a decision reached in the secret recesses of a
chamber to which the public have no access and to which even their
accredited representatives have no access and of which they can normally
know nothing, can nevertheless affect their lives, liberty and property by
the mere passing of a Resolution without anything more is abhorrent to
civilised man.” [Para 10]
19. The Court in Harla vs. State of Rajasthan (supra) noticed the
decision in Johnson vs. Sargant & Sons[13] and particularly the following:-
“The principle underlying this question has been judicially considered in
England. For example, on a somewhat lower plane, it was held in Johnson v.
Sargant, (1918) 1 K.B. 101: 87 L.J. K.B. 122 that an order of the Food
Controller under the Beans, Peas and Pulse (Requisition) Order 1917, does
not become operative until it is made known to the public, and the
differences between an Order of that kind and an Act of the British
Parliament is stressed. The difference is obvious. Acts of the British
Parliament are publicly enacted. The debates are open to the public and the
acts are passed by the accredited representatives of the people who in
theory can be trusted to see that their constituents know what has been
done. They also receive wide publicity in papers and, now, over the
wireless. Not so Royal Proclamations and Orders of a Food Controller and so
forth. There must therefore be promulgation and publication in their cases.
The mode of publication can vary; what is a good method in one country may
not necessarily be the best in another. But reasonable publication of some
sort there must be.” (Para 11)
20. It will not be necessary to notice the long line of decisions
reiterating the aforesaid view. So far as the mode of publication is
concerned, it has been consistently held by this Court that such mode must
be as prescribed by the statute. In the event the statute does not contain
any prescription and even under the subordinate legislation there is
silence in the matter, the legislation will take effect only when it is
published through the customarily recognized official channel, namely, the
official gazette (B.K. Srivastava vs. State of Karnataka)[14]. Admittedly,
the ‘guidelines’ were not gazetted.
21. If the guidelines relied upon by Union of India in the present case
fail to satisfy the essential and vital parameters/requirements of law as
the trend of the above discussion would go to show, the same cannot be
enforced to the prejudice of the appellants as has been done in the present
case. For the same reason, the issue raised with regard to the authority of
the Union to enforce the guidelines on the coming into force of the
provisions of the Environment Protection Act so as to bring into effect the
impugned consequences, adverse to the appellants, will not require any
consideration.
22. An argument had been offered by Shri Parikh, learned counsel
appearing for the respondent, Goa Foundation, that while dealing with
issues concerning ecology and environment, a strict view of environmental
degradation, which Shri Parikh would contend has occurred in the present
case, should be adopted having regard to the rights of a large number of
citizens to enjoy a pristine and pollution free environment by virtue of
Article 21 of the Constitution. We cannot appreciate the above view.
Violation of Article 21 on account of alleged environmental violation
cannot be subjectively and individually determined when parameters of
permissible/impermissible conduct are required to be legislatively or
statutorily determined under Sections 3 and 6 of the Environment Protection
Act, 1986 which has been so done by bringing into force the Coastal
Regulation Zone (CRZ) Notification w.e.f. 19th February, 1991.
23. In view of the foregoing discussion, the orders impugned in the
writ petitions filed by the appellants cannot be sustained. Consequently,
the said orders as well as each of the orders dated 13th July, 2000 passed
by the High Court of Bombay will have to be set aside which we hereby do
while allowing the appeals.
……………………………J.
[RANJAN GOGOI]
…………………..………..J.
[M.Y.EQBAL]
New Delhi;
September 22, 2014.
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[1] 2010 (5) SCC 388; in para 31
[2] (1996) 5 SCC 647 Para 10
[3] (1977 (4) SCC 471)
[4] 1984 (2) SCC 534
[5] 1997 (6) SCC 241 para 13
[6] 1998 (1) SCC 226
[7] AIR 1955 SC 549
[8] 2009 (3) SCC 571
[9] [(1972) 2 SCC 788 – 5J]
[10] (2003) 6 SCC 277 – para 72
[11] (2011) 8 SCC 670
[12] [AIR 1951 SC 467]
[13] [(1918) 1 KB 101]
[14] (1987) 1 SCC 658
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