Civil Appeal Nos. 3434-3435, 3436-3437, 3438 and 3439 of 2001. Case: Gulf Goans Hotels Company Ltd. Vs Union of India (UOI). Supreme Court (India)
| Case Number | Civil Appeal Nos. 3434-3435, 3436-3437, 3438 and 3439 of 2001 |
| Judges | Ranjan Gogoi and M. Yusuf Eqbal, JJ. |
| Issue | Environment Protection Act, 1986 - Sections 3, 5, 6; Constitution of India - Articles 13(3), 21, 48A, 51A, 73, 77, 77(1), 77(2), 136, 166(1), 166(2); Air (Prevention and Control of Pollution) Act, 1981; Forest Conservation Act, 1980; Air Corporations Act, 1953 - Section 34; Jaipur Opium Act; Authentication (Orders and Other Instruments) Rules, ... |
| Judgement Date | September 22, 2014 |
| Court | Supreme Court (India) |
Judgment:
Ranjan Gogoi, J.
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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.
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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.
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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.
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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.
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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 and Anr. v. Union of India through Secretary, Ministry of Environment and Ors. 2010 (5) SCC 388; in para 31 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...
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