Goan Real Estate & Constrn.Ld.& Anr vs Union Of India Tr.Sec.Min.Of Env.& Ors

Goan Real Estate & Construction Ltd. & Anr. ... Petitioners

Versus

Union of India through Secretary, Ministry of Environment & Ors. ... Respondents

JUDGMENT

J.M. Panchal, J.

1. By filing this petition under Article 32 of the

Constitution, the petitioners have prayed to declare that the

building plans sanctioned and constructions made and on-

going constructions pursuant to the Coastal Regulation Zone

Notification dated February 19, 1991 as amended by the

Notification dated August 16, 1994 issued by the Central

Government are valid.

2

2. The relevant facts emerging from the records of the case

are as under :

The Petitioner No.1 is owner of the land situated near

river Zuari at Goa. It submitted plans in the year 1993 for

construction of a hotel and residential complex. The Central

Government, through Ministry of Environment and Forests

(`MOEF', for short), issued Coastal Regulation Zone

Notification dated February 19, 1991 in exercise of powers

under Rule 5(d) of the Environment (Protection) Rules, 1986.

As per the said notification, the area upto 100 meters from the

High Tide Line was earmarked as `No Development Zone' and

no construction was permitted within this zone except for

repairs etc. However, the Central Government issued another

notification on August 16, 1994 amending notification dated

February 19, 1991 and relaxing the `No Development Zone' to

50 meters from 100 meters. In view of the said relaxation, the

petitioners who had earlier obtained construction permissions

in respect of a project beyond 100 meters, submitted an

additional proposal to the Panchayat of Village Curca,

Bambolim & Taloulim, Taluka Tiswadi, Goa for construction of 3

18 blocks between 50 meters and 100 meters. The Village

Panchayat referred the matter to the Town and Country

Planning Authority, as required under the Rules for technical

evaluation. The Town and Country Planning Authority

approved the abovementioned additional construction to be

made between 50 meters and 100 meters vide order dated July

31, 1995. Based on this approval, vide its order dated July

31, 1995, the Village Panchayat sanctioned the plans and

granted permission to construct. It is the case of the

petitioners that they had commenced construction in

accordance with newly approved plans which were revalidated

from time to time and are valid till this date.

3. An NGO by the name of Indian Council for Enviro-Legal

Action filed a public interest litigation in this Court under

Article 32 of the Constitution against the Union of India

making prayer to direct the Central Government to implement

notification dated February 19, 1991 by which CRZs were

formed and restrictions on development were placed. The

grievance made was that the non-implementation of the said

notification had led to continued degradation of ecology. In 4

the said petition, Goa Foundation, a society registered under

the Societies Registration Act, 1960 filed an application

challenging the vires of notification dated August 16, 1994 by

which main notification dated February 19, 1991 was

amended. This Court took into consideration the salient

features of the main notification dated February 19, 1991 and

noticed that the said notification was issued to ensure that the

development activities were consistent with the environmental

guidelines for beaches and coastal areas and, therefore, by the

said Notification, restrictions on the setting up of industries

which had detrimental effect on the coastal environment were

imposed. The Court thereafter proceeded to examine validity

of notification dated August 16, 1994. After noticing that six

amendments were made in the main notification, this Court

found that reduction of the ban on construction from 100

meters to 50 meters was illegal and power given to the Central

Government for relaxation of developmental activities in the

entire 6,000 kilometers long coast line was unbridled and

capable of being abused. Thus, by judgment dated April 18,

1996 which is reported as Indian Council for Enviro-Legal 5

Action vs. Union of India, (1996) 5 SCC 281, the

abovementioned two amendments were held to be bad in law

by this Court. From the final directions given by this Court in

paragraph 47 of the judgment, it is evident that this Court

partly accepted the petition by striking down two amendments

which were introduced by notification dated August 16, 1994.

From paragraph 39 of the judgment, it transpires that during

the course of arguments, the learned Additional Solicitor

General of India brought to the notice of this Court, the fact

that construction had already taken place along such rivers,

creeks etc. at a distance of 50 meters and more. This Court

observed that there could not have been uniform basis for

demarcating `No Development Zone' and it would depend upon

the requirements by each State Authority concerned in their

own management plan, but no reason had been given as to

why in relation to tidal rivers, there was a reduction of the ban

on construction from 100 meters to 50 meters. This Court

also took into consideration the fact that no explanation had

been given in the affidavit filed on behalf of the Union of India

as to why the construction was permitted at a distance of 50 6

meters and more along rivers, creeks etc. This Court found

that reduction of the ban on construction from 100 meters to

50 meters would permit new constructions to take place and,

therefore, the reduction could not be regarded as a protection

only to the existing structures. Further, this Court noticed

that there was absence of a categorical statement in the

affidavit to the effect that such reduction would not be

harmful or result in serious ecological imbalance. The Court

expressed its inability to conclude that the amendment was

made in the larger public interest and was valid. The said

amendment was held to be contrary to the object of the

Environment Act and found not to have been made for any

valid reason. Thus, the two amendments out of six

amendments introduced by the amending Notification were

declared to be illegal.

4. From the record, it becomes clear that the petitioners

had made an application to the Panchayat to inspect the

construction made on Survey No.12/1 and 99/2 which were

stretches of lands lying between 50 meters and 100 meters. In

view of the contents of the said letter, a Panchayat official had 7

inspected the site on September 25, 1996 and prepared a site

inspection report. The said report indicated that the

petitioners had completed foundation work up to the plinth

level and in some of the areas of the property, the construction

work of the building was complete and ready for occupation.

5. However, People's Movement for Civic Action, i.e.,

Respondent No.4 herein made a complaint to the local Goa

Coastal Zone Management Authority, i.e., the respondent No.3

regarding constructions made by the petitioners between 50

meters and 100 meters. Pursuant to the said complaint, the

Goa Coastal Zone Management Authority on October 22, 2006

issued communication through its Secretary, to the Additional

Collector stating that on a joint inspection of the site at Survey

Nos.99/2, 12/1 and 96, it was found that the construction

work was going on in violation of CRZ Guidelines inasmuch as

construction was made between 50 meters to 100 meters of

`High Tide Line'. By the said letter, the respondent No.3

requested the Additional Collector to ascertain whether

clearance under CRZ had been obtained. On October 22,

2006, an order was passed by the Collector, North Goa District 8

directing the petitioner to stop the construction at the site.

Based on a complaint by Goa Bachao Abhiyan to the Chief

Secretary regarding alleged violation of CRZ norms, the

Additional Collector, North Goa issued a stop work order dated

December 22, 2006 and directed the Police and Town Planning

Authority to maintain the status quo at the site. On December

28, 2006, petitioner No.1 made a representation to the MOEF

to issue clarification that the project of the petitioner No.1 was

an on-going project and as the same was sanctioned according

to the rules and regulations then applicable, the stop work

notice by the Additional Collector was illegal. The Central

Government, through the Ministry of Environment and Forests

(`MOEF' for short) vide letter dated January 24, 2007

addressed to the petitioner with copy to the Director and Joint

Secretary, Department of Science, Technology and

Environment, Government of Goa, clarified that new

developmental activities to be carried out in the zone between

50 meters and 100 meters in the High Tide Line along with

inland tidal water bodies would attract the provisions of CRZ

notification of 1991 from the date of the order of the Supreme 9

Court, i.e., from April 18, 1996. In spite of the receipt of

abovementioned communication, the Goa Coastal Zone

Management Authority did not act upon the directions issued

by the MOEF. Therefore, the Petitioner No.1 made another

representation to the Central Government with a request to

issue necessary clarifications to the authorities. A further

clarification dated February 13, 2007 was issued by the

Additional Director of the MOEF. In the said clarification,

earlier communication dated January 24, 2007 was referred to

and it was clarified that any developmental activity which had

been initiated between August 16, 1994 and April 18, 1996

after obtaining all the requisite clearances from concerned

agencies including the Town and Country Planning Authority

should be construed as an on-going project. Even after this

clarification, the stop work order was not lifted. The Goa

Coastal Zone Management Authority (`GCZMA', for short)

addressed a communication dated March 28, 2007 to the

Additional Collector stating that it was decided that on the

property of the petitioner No.l, `No Development Zone' should

be marked at 100 meters and the stop work order, if any, in 10

operation beyond such `No Development Zone' should be

vacated. On receipt of communication dated March 28, 2007

from Goa Coastal Zone Management Authority, the Additional

Collector, Goa, passed an order dated May 23, 2007

purporting to vacate the stop work order dated December 12,

2006 but, in fact, permitting the construction beyond 100

meters and not 50 meters. The petitioners, therefore, made

third representation to MOEF and requested to issue fresh

clarifications. The petitioners had also annexed copy of the

letter dated March 28, 2007 addressed by the G.C.Z.M.

Authority to the Additional Collector. On receipt of the said

representation, the MOEF, Government of India, issued

clarification dated May 16, 2007. A reference was made to its

earlier letter dated February 13, 2007, it was mentioned

therein that it was not clear as to why GCZMA had not taken

into consideration the clarification dated February 13, 2007 of

MOEF before addressing letter dated March 28, 2007 to the

Additional Collector, Goa in relation to the development made

in property bearing Survey No.12/1 (pt.) 12/2 and 99/2 of

Village Bambolim Taluka Tiswadi, Goa. By the said 11

communication, the Member-Secretary, Department of

Science, Technology and Environment of Government of Goa

was requested to get the matter examined by the Goa Coastal

Zone Management Authority keeping in view the clarifications

issued by the Ministry vide letter dated February 13, 2007.

6. In spite of the receipt of the communication from MOEF,

the stop work orders were not lifted and allowed to operate.

Therefore, the petitioners filed writ petition No.365 of 2007 in

the High Court of Bombay at Goa challenging the stop work

orders dated December 22, 2006 and May 23, 2007 passed by

the Additional Collector, Goa. During the course of hearing of

the writ petition on July 24, 2007, the learned Additional

Solicitor General appearing for the MOEF made a statement

before the Court that from the records it was clear that the

project of the petitioners had been treated by the Central

Government acting through the MOEF as an on-going project.

In view of this statement made on behalf of the Central

Government, the learned Advocate-General appearing for the

Goa Coastal Zone Management Authority and for the State of

Goa stated at the Bar that the State of Goa would withdraw 12

the stop work orders dated December 22, 2006 and May 23,

2007 to the extent, they imposed an embargo on construction

between 50 meters and 100 meters and that the withdrawal

letter would be issued to the petitioners within a period of one

week from the date of the order. The record shows that the

statements made at the Bar by the learned Additional Solicitor

General and learned Advocate-General were accepted by the

Court and, therefore, the petitioners had not pressed the said

writ petition. The writ petition was accordingly disposed of by

order dated July 24, 2007.

7. The record further shows that thereafter writ petition

No.403 of 2007 was filed by People's Movement for Civic Action

and Goa Foundation, a society registered under the Societies

Registration Act challenging the order dated October 8, 1998

passed by the Panchayat of Curca, bambolim and Talaulim,

Goa by which permission to construct was renewed in favour

of the petitioners. Initially, the Court had directed the parties

to maintain status quo. The Court had also directed the

Secretary, MOEF to place the stand of the Environment

Ministry of the Central Government on the record by filing an 13

affidavit. The record shows that in compliance of the said

direction, an affidavit affirmed on September 12, 2007 by Mr.

K. Uppily, Additional Director in the MOEF, Government of

India was filed expressing the view of the Ministry that any

developmental activity which had been initiated between

August 16, 1994 and April 18, 1996 after obtaining all the

requisite clearances from the concerned agencies including the

Town and Country Planning Development should be construed

as an on-going project. In the said affidavit, it was also

mentioned that the Ministry had decided to place the matter

before the National Coastal Zone Management Authority in its

meeting which was scheduled to be held in October 2007 and

the contentions of the People's Movement for Civic Action etc.

as also the communications dated July 17, 2007 of Goa

Coastal Zone Management Authority and the contentions of

the petitioners would be examined by the said Authority.

In the light of the facts mentioned in the affidavit filed on

behalf of the Ministry, the High Court directed the National

Coastal Zone Management Authority to consider the matter

referred to it by the Ministry and submit a report to the Court 14

after giving a personal hearing to all the concerned parties.

The High Court clarified that the National Coastal Zone

Management Authority should decide the matter on merits

without being influenced in any way by the filing of writ

petition or the observations made by the Court. It was also

clarified that if the order was adverse to the petitioners, they

would be at liberty to challenge the same. Further, the Goa

Coastal Management was directed to take action in accordance

with law subject to the rights of the petitioners to challenge

the said report. The Court further stated in its order that the

Peoples Movement for Civic Action and Goa Foundation would

also be at liberty to move the court for appropriate relief in

case the report of National Coastal Zone Management

Authority was adverse to it.

8. The record shows that the National Coastal Zone

Management Authority considered the matter in detail in its

meeting held on October 30, 2007. The Authority, after

detailed discussions, was of the view that there would be

several cases all over the coast wherein there would be some

instances indicating that constructions work had been 15

completed or was in progress pursuant to the Notification

dated August 16, 1994. Therefore, the Authority concluded

that the stand taken by the MOEF vide letters dated January

24, 2007, February 13, 2007 and May 16, 2007 was correct

one and was in accordance with the CRZ notification of 1991.

The Authority also noticed that the clarification given by the

MOEF was applicable to all cases in the coastal areas of the

country. What was reported by the said Authority was that

this Court while setting aside two out of six amendments

dated August 16, 1994 in Writ Petition No.664 of 1993 had not

passed any orders with regard to cases in which the

construction had been completed or was in progress and,

therefore, all the properties and assets constructed or under

construction in the period between August 16, 1994 and April

18, 1996 during which the set back line was changed from

100 meters to 50 meters was valid. The Authority noted that if

it would have been otherwise, this Court would have passed

specific orders. The Authority ultimately expressed the view

that the interpretation of phrase `on-going' by the Goa Coastal

Zone Management Authority was incorrect and all the 16

properties and assets constructed or under construction

during the period between August 16, 1994 and April 18, 1996

should be maintained and should not be destroyed.

Thereafter, the public interest Litigation was placed for

final hearing before the High Court. The Court was of the

opinion that as the Supreme Court had struck down the

notification amending the earlier notification, ordinarily all

activities between 50 meters and 100 meters from the high

tide line must cease. Having expressed this view, the Court

considered the report of the National Coastal Zone

Management Authority (`NCZMA' for short) and noticed that

the said report/order was not challenged by the petitioners

who had instituted the public interest litigation. On the

request of the petitioners, the Court permitted them to amend

the petition so as to enable them to challenge the order of the

NCZMA. The said order permitting the original petitioners to

amend the petition was challenged by the present petitioners

by filing SLP (C) No.16728 of 2008 before this Court.

9. The petitioners were also directed to maintain status quo

and, therefore, feeling aggrieved by the said order, they have 17

preferred SLP (C) No.19767 of 2008 which is also heard along

with this writ petition.

10. The case of the petitioners is that this Court in its

judgment dated April 18, 1996 had not specifically directed

demolition of the existing structures nor the directions of the

Court had affected the on-going constructions which were

coming up as per plans sanctioned during the period when the

said amending notification dated August 16, 1994 was valid

and in force. It is mentioned by the petitioners that the

Central Government and thereafter NCZMA after considering

the facts and circumstances of the case and in the larger

public interest had concluded that the stand taken by the

MOEF vide its letters dated January 24, 2007, February 13,

2007 and May 16, 2007 was correct and, therefore, a case is

made out for issuance of a clarification that the judgment of

this Court rendered in Indian Council for Inviro-Legal Action

(supra) on April 18, 1996 does not prejudice or affect either

the completed construction or on-going construction. Under

the circumstances, the petitioners have filed the instant 18

petition and claimed the relief to which reference is made

earlier.

11. On service of notice, Dr. A Senthil Vel, Additional

Director, Ministry of Environment and Forest has filed reply

affidavit and supported the case of the petitioners. After filing

of Additional Affidavit by the petitioners, Mr. Claude Alvares,

has filed affidavit in opposition on behalf of the respondent

No.5 whereas affidavit in rejoinder is filed by Mr. Vijender

Kumar Sharma, on behalf of the petitioners.

12. This Court has heard the learned counsel for the parties

at great length and in detail. This Court has also considered

the documents forming part of the petition and other

proceedings.

13. The question which falls for consideration is whether the

constructions made or on-going pursuant to the plans

sanctioned on the basis of Notification dated August 16, 1994

would be affected or not. For this purpose, it will be necessary

to construe the judgment rendered in Indian Council for

Enviro-Legal Action (supra). A critical study of the judgment 19

in Indian Council For Enviro-Legal Action (supra) makes it

clear that this Court had examined validity of six amendments

made by Notification dated August 16, 1994 in the Notification

dated February 19, 1991. Two out of the six amendments

were found by this Court to be arbitrary and illegal and,

therefore, they were struck down. When one part of the

Notification was found to be legal and another part of the said

Notification to be bad in law, it would not be proper to

construe the judgment affecting past transactions.

Tenor of the judgment indicates that this Court intended

to give prospective effect to the judgment dated April 18, 1996

rendered in the case of Indian Council for Enviro-Legal Action

(supra). It is to be noted that this Court in its judgment dated

April 18, 1996 had not specifically directed demolition of

existing structures. It is also pertinent to note that this Court

had not stated as to what will be the fate of ongoing

constructions which were coming up or on-going as per

sanctions during the period when the said amending

Notification dated August 16, 1994 was valid and in force. In

view of the circumstances, now it has become essential to 20

understand the real intention of this Court ingrained in the

judgment dated April 18, 1996. It is well settled that an order

of Court must be construed having regard to the text and

context in which the same was passed. For the said purpose,

the judgment of this Court is required to be read in its

entirety. A judgment, it is well settled, cannot be read as a

statute. Construction of a judgment should be made in the

light of the factual matrix involved therein. What is more

important is to see the issues involved therein and the context

wherein the observations were made. Observation made in a

judgment, it is trite, should be read in isolation and out of

context. On perusal of paragraph 10 of the judgment, it is

abundantly clear that even under 1991 Notification which is

the main Notification, it was stipulated that all development

and activities within CRZ will be valid and will not violate the

provisions of the 1991 Notification till the Management Plans

are approved. Thus, the intention of legislature while issuing

Notification of 1991 was to protect the past

actions/transactions which came into existence before the

approval of 1991 Notification.

21

In paragraph 39 of the judgment, this Court considered

the argument proposed by the learned Additional Solicitor

General that construction has already taken place along such

rivers, creeks etc. at a distance of 50 meters and more. This

plea was specifically answered by observing that even if this be

so, such reduction would permit new constructions to take

place and this reduction could not be regarded as a protection

only to the existing structures. Thus, on perusal of the above

statement, it is clear that this Court had quashed the

amendment because the amendment would permit new

constructions to take place which was contrary to the

provisions of the Environment Act, 1986 and not because of

the reason that there was evidence before the Court that

constructions already made or on-going pursuant to the plans

sanctioned on the basis of Notification of 1994 had, in fact,

frustrated the object of the Act. Thus, paragraph 39 clearly

reflects intention of this Court that Court wanted to give the

judgment prospective effect.

On perusal of the judgment in entirety, it is abundantly

clear that the judgment is in form of directions to the Central 22

Government and other authorities formed within the purview

of Environment Act, 1986 and those directions are to be

followed in future.

While interpreting the judgment, it is important to take

into consideration the view expressed over the matter in

controversy by various Governmental Authorities formed

under the purview of Environment Act, 1986 to implement the

provisions of Environment Act, 1986 although such view or

opinion is not binding on the Court. By communication dated

January 24, 2007, February 13, 2007 and May 16, 2007

issued by Additional Director of Ministry of Environment and

Forests and decision of National Coastal Zone Management

Authority dated October 30, 2007, it is brought on record that

all the authorities unanimously opined that judgment of this

Court dated April 18, 1996 will operate prospectively and

further clarified that any developmental activity which has

been initiated between August 16, 1994 and April 18, 1996

after obtaining all requisite clearances from the concerned

agencies including the Town and Country Planning should be 23

construed as on-going projects and are not hit by the

judgment of this Court dated April 18, 1996.

It is pertinent to note that while interpreting the

judgment, public interest should be taken into consideration.

In Managing Director, ECIL, Hyderabad & Ors. v. B.

Karunakar & Ors. (1993) 4 SCC 727, this Court considered

the factors which are to be taken into consideration while

giving prospective operation to a judgment. When judicial

discretion has been exercised to establish a new norm, the

question emerges whether it would be applied retrospectively

to the past transactions or prospectively to the transactions in

future only. This process is limited not only to common law

traditions, but exists in all jurisdictions. It is, therefore, for

the Court to decide, on a balance of all relevant

considerations, whether a decision which unsettles the

previous position of law should be applied retrospectively or

not. The Court would look into the justifiable reliance on the

previous position by the Administration; ability to effectuate

the new rule adopted in the overruling case without doing

injustice, whether its operation is likely to burden the 24

administration of justice substantially or would retard the

purpose. All these factors are to be taken into account while

determining whether a judgment is prospective or otherwise.

The Court would adopt either the retroactive or non-retroactive

effect of a decision after evaluating the merits and demerits of

a particular case by looking to the prior history of the rule in

question, its purpose and effect and whether retroactive

operation will accelerate or retard the object of the judgment.

The purpose of the old rule, the mischief sought to be

prevented by the judgment and the public interest are equally

germane and should be taken into account in deciding

whether the judgment has prospective or retrospective

operation. It is well known that the courts do make the law to

prevent administrative chaos and to meet ends of justice.

Taking into consideration all these factors, this Court refuses

to interpret the 1996 judgment in a manner which would give

it a retrospective effect. It is clear from the tenor of judgment

and from other background circumstances, more importantly

in view of decisions of NCZMA which is a statutory body that

Three Judge Bench decision in 1996 case intended to give it 25

prospective effect.

14. The contention of Mr. K.K. Venugopal, learned senior

counsel for the respondents that decision should not have

been taken by the NCZMA on October 30, 2007 stating that all

the properties and assets constructed or under construction

during the period between August 16, 1994 and April 18, 1996

when the set back line stood changed from 100 meters to 50

meters, is valid and the said authority should have directed

the parties to approach the High Court for appropriate orders,

cannot be accepted. As observed earlier, the whole matter was

reconsidered by the NCZMA pursuant to the order passed by

the Division Bench of the Bombay High Court. It is well to

remember that the said order was never challenged by the

respondents before higher forum and by their conduct, the

respondents had permitted the said order to attain finality.

15. The contention raised on behalf of the respondents that

the construction already completed would not be affected in

any manner by decision of this Court in Indian Council for

Enviro-Legal Action (supra) but incomplete construction

cannot be permitted to be completed is devoid of merits. Two 26

amendments made in the year1994 were declared to be illegal

vide judgment dated April 18, 1996. Till then, its operation

was neither stayed by this Court nor by the Government.

Therefore, a citizen was entitled to act as per the said

notification. This Court finds that the rights of the parties

were crystallized by the amending notification till part of the

same was declared to be illegal by this Court. Therefore,

notwithstanding the fact that part of 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.

16. The plea that the petitioner would get benefit of

interpretation placed by statutory bodies and others would not

get any benefit and, therefore, the petition should be

dismissed has no substance. A bare glance at the minutes of

the 16th meeting of the NCZMA held on October 30, 2007

makes it more than clear that it was concluded by the

authority that the stand taken by the Ministry vide letters

dated January 24, 2007, February 13, 2007 and May 16, 2007

was correct and was in accordance with Coastal Regulation 27

Zone Notification of 1991. What is relevant to notice is that

the said authority has in terms held that the clarification given

by the MOEF is applicable to all such cases in the coastal

areas of the country. Therefore, the plea that only petitioners

have been favoured by the authority and, therefore, the

petition should be dismissed cannot be accepted.

17. On the facts and in the circumstances of the case, this

Court is of the opinion that a good case has been made out by

the petitioners for issuance of a declaration that the judgment

dated April 18, 1996 rendered in the case of Indian Council for

Enviro-Legal Action (supra) will not affect the on-going

constructions or completed constructions pursuant to the

plans sanctioned under the amending Notification of 1994 till

two clauses of the same were set aside by this Court.

18. For the foregoing reasons, the petition partly succeeds.

It is declared that the judgment dated April 18, 1996 in Indian

Council for Enviro-Legal Action vs. Union of India, (1996) 5

SCC 281, declaring part of the amending Notification dated

August 16, 1994 to be illegal, will not affect the completed or

the on-going constructions being undertaken pursuant to the 28

said Notification The rule is made absolute to the extent

indicated hereinabove. There shall be no order as to costs.

...........................CJI.

..............................J. [J.M. Panchal]

New Delhi;

March 31, 2010.