Goan Real Estate & Construction Ltd. and Anr. vs. Union of India through Secretary, Minister of Environment & Ors.:Decided On 31.3.2010

IN THE SUPREME COURT OF INDIA

Decided On 31.3.2010

Goan Real Estate & Construction Ltd. and Anr. vs. Union of India through Secretary, Minister of Environment & Ors.

Judges: K.G. Balakrishnan, C.J., J.M. Panchal, J.

Ratio Decidendi: “Judgment in form of directions to the Central Government and other authorities cannot be read as a statute.”

This Writ Petition No.329 of 2008 was filed by the petitioners under Article 32 of the Constitution seeking that the building plans sanctioned and constructions made or on-going pursuant to the Coastal Regulation Zone Notification dt. February 19, 1991 as amended by the Notification dated August 16, 1994 issued by the Central Government be declared as valid. The facts of the case are as follows:

On February 19, 1991 the Central Government through the Ministry of Environment and Forests (MOEF) in exercise of its powers under Rule 5(d) of the Environment (Protection) Rules 1986 had issued a Coastal Regulation Zone Notification stipulating that the area upto 100 m from the High Tide Line was earmarked as ‘No Development Zone’ and no construction was to be permitted within this zone except for repairs etc. This was amended by another Notification dt. August 16, 1994 reducing the ‘No Development Zone’ from 100 m to 50 m. Petitioner No.1 who owns land near the river Zuari in Goa had submitted plans in the year 1993 for constructing a hotel and residential complex, and had obtained permission for construction beyond 100 m. After the alteration of the extent of the ‘No Development Zone’, the petitioner submitted a proposal for additional construction of 18 blocks between 50 and 100 m from the High Tide Line which was approved by the Town Planning Authority as required under the Rules. Sanction was also obtained from the Village Panchayat following which construction was commenced.

Subsequently the amendment to the Notification was held to be bad in law by the Supreme Court in Indian Council for Enviro-Legal Action v. Union of India, as it was contrary to the object of the Environment Act and could result in serious ecological imbalance. Following this judgment, a complaint was made by People’s Movement for Civic Action (Respondent No.4) to the local Goa Coastal Zone Management Authority (Respondent No.3) that the constructions made by the petitioner between 50 and 100 m of High Tide Line in violation of CRZ Guidelines. On October 22, 2006 an order to stop construction was passed by the Additional Collector, Goa and this was followed by a stop work order on December 22, 2006. The Police and Town Planning Authority was directed to maintain status quo at the site.

The petitioner on December 18, 2006 made a representation to the MOEF that the project was an on-going one sanctioned under the rules and regulations applicable at the time and hence the stop work notice was illegal. The Central Government through the MOEF clarified that only new developmental activities would attract the provisions of the CRZ Notification of 1991 from the date of the Supreme Court’s order i.e. from April 18, 1996. This was followed by another clarification on February 13,2007 that those developmental activities which had been initiated at any time between August 16, 1994 and April 18, 1996 should be considered as an on-going project. Despite these the stop work order was still not vacated, and the petitioner was not allowed to continue construction work except beyond 100 m of the High Tide Line.

The petitioner filed a petition [Writ Petition No. 365 of 2007] in the High Court of Bombay at Goa challenging the stop work orders passed by the Additional Collector. In light of a statement made by the Additional Solicitor General on behalf of the MOEF that the petitioner’s project had been treated by the Central Government as an ongoing project, the Advocate-General appearing on behalf of the State of Goa and the Goa Coastal Zone Management Authority stated that the stop order prohibiting construction between 50 and 100 m would be withdrawn. This was accepted by the court as well as the petitioner and so the writ petition was disposed of on July 27, 2007.

Thereafter the People’s Movement for Civic Action and Goa Foundation challenged the 1998 order of the Panchayat initially granting permission to the petitioner to construct. The High Court directed the National Coastal Zone Management Authority to decide the matter on merits. In its meeting on October 30, 2007, the Authority came to the conclusion that all those properties and assets completed or under construction between August 16,1994 and April 18, 1996 were valid and hence should be maintained and not destroyed. Further, the interpretation of on-going as given by the Goa Coastal Zone Management Authority was incorrect.

A Special Leave Petition was then filed before the Supreme Court stating that its earlier judgment did not affect constructions already completed or ongoing during the period when the amending Notification was in force, and seeking a clarification to this effect. The question was therefore whether the constructions made or ongoing on the basis of the Notification dt August 16, 1994 would be affected by the judgment in Indian Council for Enviro-Legal Action. On examining the judgement, the Supreme Court found that it did not specifically direct demolition of existing structures and did not state what should be the fate of on-going constructions which had begun during the period when the amending Notification was in force. Further, a reading of the judgment as a whole indicates that the intention of the court was to give prospective effect to it. Also, the court had quashed the amending Notification because it would permit new constructions to take place which was contrary to the provisions of the Environment Act, 1986. This view was supported by various Government Authorities which felt that those developmental activities initiated between August 16, 1994 and April 18, 1996 after obtaining clearances should be construed as on-going projects and should not be hit by the court’s judgment in Indian Council for Enviro-Legal Action. Therefore, even though the amending Notification was declared to be illegal, those orders passed and actions taken pursuant to it would not be affected. As such, the judgment in Indian Council for Enviro-Legal Action would not affect completed or on-going constructions undertaken pursuant to the said Notification.