Goan Real Estate And... v. Union Of India Throu...

J.M Panchal, J.— 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 ongoing constructions pursuant to the Coastal Regulation Zone Notification dated 19-2-1991 as amended by the Notification dated 16-8-1994 issued by the Central Government are valid.

2. The relevant facts emerging from the records of the case are as under: Petitioner 1 is the 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 the Ministry of Environment and Forests (“MoEF”, for short), issued the Coastal Regulation Zone Notification dated 19-2-1991 in exercise of powers under Rule 5(3)(d) of the Environment (Protection) Rules, 1986. As per the said notification, the area up to 100 metres from the high tide line was earmarked as “No-Development Zone” and no construction was permitted within this zone except for repairs, etc.

3. However, the Central Government issued another Notification on 16-8-1994 amending Notification dated 19-2-1991 and relaxing the “No-Development Zone” to 50 metres from 100 metres. In view of the said relaxation, the petitioners who had earlier obtained construction permissions in respect of a project beyond 100 metres, submitted an additional proposal to the Panchayat of Village Curca, Bambolim and Taloulim, Taluka Tiswadi, Goa for construction of 18 blocks between 50 metres and 100 metres. 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 metres and 100 metres vide order dated 31-7-1995. Based on this approval, vide its order dated 31-7-1995, 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.

4. 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 19-2-1991 by which Coastal Regulation Zones (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 the said petition, Goa Foundation, a society registered under the Societies Registration Act, 1860 filed an application challenging the vires of Notification dated 16-8-1994 by which main Notification dated 19-2-1991 was amended. This Court took into consideration the salient features of the main Notification dated 19-2-1991 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 16-8-1994. After noticing that six amendments were made in the main notification, this Court found that reduction of the ban on construction from 100 metres to 50 metres was illegal and power given to the Central Government for relaxation of developmental activities in the entire 6000 kilometres long coast line was unbridled and capable of being abused.

5. Thus, by judgment dated 18-4-1996 which is reported as Indian Council for Enviro-Legal Action v. 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 para 47 of the judgment, it is evident that this Court partly accepted the petition by striking down two amendments which were introduced by the Notification dated 16-8-1994. From para 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 metres 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 metres to 50 metres.

6. This Court in Indian Council for Enviro-Legal Action case (1996) 5 SCC 281 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 metres and more along rivers, creeks, etc. This Court found that reduction of the ban on construction from 100 metres to 50 metres 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 (Protection) 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.

7. From the record, it becomes clear that the petitioners had made an application to the Panchayat to inspect the construction made on Survey Nos. 12/1 and 99/2 which were stretches of lands lying between 50 metres and 100 metres. In view of the contents of the said letter, a Panchayat official had inspected the site on 25-9-1996 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.

8. However, People's Movement for Civic Action i.e Respondent 4 herein made a complaint to the local Goa Coastal Zone Management Authority i.e Respondent 3 regarding constructions made by the petitioners between 50 metres and 100 metres. Pursuant to the said complaint, the Goa Coastal Zone Management Authority on 22-10-2006 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 metres to 100 metres of “high tide line”. By the said letter, Respondent 3 requested the Additional Collector to ascertain whether clearance under CRZ norms had been obtained.

9. On 22-10-2006, an order was passed by the Collector, North Goa District 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 22-12-2006 and directed the police and the Town and Country Planning Authority to maintain the status quo at the site.

10. On 28-12-2006, Petitioner 1 made a representation to the MoEF to issue clarification that the project of Petitioner 1 was an ongoing 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.

11. The Central Government, through the Ministry of Environment and Forests (“MoEF”, for short) vide Letter dated 24-1-2007 addressed to the petitioner with a 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 metres and 100 metres 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 Court (1996) 5 SCC 281 i.e from 18-4-1996. 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, Petitioner 1 made another representation to the Central Government with a request to issue necessary clarifications to the authorities.

12. A further clarification dated 13-2-2007 was issued by the Additional Director of the MoEF. In the said clarification, earlier communication dated 24-1-2007 was referred to and it was clarified that any developmental activity which had been initiated between 16-8-1994 and 18-4-1996 after obtaining all the requisite clearances from agencies concerned including the Town and Country Planning Authority should be construed as an ongoing project. Even after this clarification, the stop-work order was not lifted.

13. The Goa Coastal Zone Management Authority (“Gczma”, for short) addressed a communication dated 28-3-2007 to the Additional Collector stating that it was decided that on the property of Petitioner 1, “No-Development Zone” should be marked at 100 metres and the stop-work order, if any, in operation beyond such “No-Development Zone” should be vacated. On receipt of communication dated 28-3-2007 from the Goa Coastal Zone Management Authority, the Additional Collector, Goa, passed an order dated 23-5-2007 purporting to vacate the stop-work order dated 12-12-2006 but, in fact, permitting the construction beyond 100 metres and not 50 metres.

14. The petitioners, therefore, made third representation to MoEF and requested to issue fresh clarifications. The petitioners had also annexed copy of the letter dated 28-3-2007 addressed by the GCZM Authority to the Additional Collector.

15. On receipt of the said representation, the MoEF, Government of India, issued clarification dated 16-5-2007. A reference was made to its earlier Letter dated 13-2-2007, it was mentioned therein that it was not clear as to why Gczma had not taken into consideration the clarification dated 13-2-2007 of MoEF before addressing letter dated 28-3-2007 to the Additional Collector, Goa in relation to the development made in property bearing Survey Nos. 12/1 (pt.), 12/2 and 99/2 of Village Bambolim, Taluka Tiswadi, Goa. By the said 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 13-2-2007.

16. 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 22-12-2006 and 23-5-2007 passed by the Additional Collector, Goa.

17. During the course of hearing of the writ petition on 24-7-2007, 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 ongoing 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 the stop-work orders dated 22-12-2006 and 23-5-2007 to the extent they imposed an embargo on construction between 50 metres and 100 metres 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 the 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 24-7-2007.

18. 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 8-10-1998 passed by the Panchayat of Curca, Bambolim and Talaulim, Goa by which permission to construct was renewed in favour of the petitioners.

19. 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 affidavit. The record shows that in compliance with the said direction, an affidavit affirmed on 12-9-2007 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 16-8-1994 and 18-4-1996 after obtaining all the requisite clearances from the agencies concerned including the Town and Country Planning Authority should be construed as an ongoing 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 People's Movement for Civic Action, etc. as also the communications dated 17-7-2007 of the Goa Coastal Zone Management Authority and the contentions of the petitioners would be examined by the said Authority.

20. 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 after giving a personal hearing to all the parties concerned. 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 Zone Management Authority 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 People's Movement for Civic Action and Goa Foundation would also be at liberty to move the Court for appropriate relief in case the report of the National Coastal Zone Management Authority was adverse to it.

21. The record shows that the National Coastal Zone Management Authority considered the matter in detail in its meeting held on 30-10-2007. 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 completed or was in progress pursuant to the Notification dated 16-8-1994. Therefore, the Authority concluded that the stand taken by the MoEF vide Letters dated 24-1-2007, 13-2-2007 and 16-5-2007 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.

22. What was reported by the said Authority was that this Court while setting aside two out of six amendments dated 16-8-1994 in Writ Petition No. 664 of 1993 (Indian Council for Enviro-Legal Action v. Union of India (1996) 5 SCC 281) 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 16-8-1994 and 18-4-1996 during which the setback line was changed from 100 metres to 50 metres were 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 “ongoing” by the Goa Coastal Zone Management Authority was incorrect and all the properties and assets constructed or under construction during the period between 16-8-1994 and 18-4-1996 should be maintained and should not be destroyed.

23. 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 metres and 100 metres 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 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. The petitioners were also directed to maintain status quo and, therefore, feeling aggrieved by the said order, they have preferred SLP (C) No. 19767 of 2008 which is also heard along with this writ petition.

24. The case of the petitioners is that this Court in its judgment dated 18-4-1996 (1996) 5 SCC 281 had not specifically directed demolition of the existing structures nor the directions of the Court had affected the ongoing constructions which were coming up as per plans sanctioned during the period when the said amending Notification dated 16-8-1994 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 24-1-2007, 13-2-2007 and 16-5-2007 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 Enviro-Legal Action (1996) 5 SCC 281 on 18-4-1996 does not prejudice or affect either the completed construction or ongoing construction.

25. Under the circumstances, the petitioners have filed the instant petition and claimed the relief to which reference is made earlier.

26. On service of notice, Dr. A Senthil Vel, Additional Director, Ministry of Environment and Forests has filed reply-affidavit and supported the case of the petitioners. After filing of the additional affidavit by the petitioners, Mr Claude Alvares, has filed affidavit in opposition on behalf of Respondent 5 whereas affidavit-in-rejoinder is filed by Mr Vijender Kumar Sharma, on behalf of the petitioners.

27. 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.

28. The question which falls for consideration is whether the constructions made or ongoing pursuant to the plans sanctioned on the basis of the Notification dated 16-8-1994 would be affected or not. For this purpose, it will be necessary to construe the judgment rendered in Indian Council for Enviro-Legal Action (1996) 5 SCC 281.

29. A critical study of the judgment in Indian Council for Enviro-Legal Action (1996) 5 SCC 281 makes it clear that this Court had examined the validity of six amendments made by the Notification dated 16-8-1994 in the Notification dated 19-2-1991. 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.

30. The tenor of the judgment indicates that this Court intended to give prospective effect to the judgment dated 18-4-1996 rendered in Indian Council for Enviro-Legal Action (1996) 5 SCC 281. It is to be noted that this Court in its judgment dated 18-4-1996 (1996) 5 SCC 281 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 ongoing as per sanctions during the period when the said amending Notification dated 16-8-1994 was valid and in force. In view of the circumstances, now it has become essential to understand the real intention of this Court ingrained in the judgment dated 18-4-1996 (1996) 5 SCC 281.

31. It is well settled that an order of a 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 not be read in isolation and out of context. On perusal of para 10 of the judgment, it is abundantly clear that even under the 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 the Notification of 1991 was to protect the past actions/transactions which came into existence before the approval of the 1991 Notification.

32. In para 39 of the judgment in Indian Council for Enviro-Legal Action (1996) 5 SCC 281, 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 metres 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 (Protection) Act, 1986 and not because of the reason that there was evidence before the Court that constructions already made or ongoing pursuant to the plans sanctioned on the basis of the Notification of 1994 had, in fact, frustrated the object of the Act. Thus, para 39 clearly reflects intention of this Court that the 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 Government and other authorities formed within the purview of the Environment (Protection) Act, 1986 and those directions are to be followed in future.

33. While interpreting the judgment in Indian Council for Enviro-Legal Action (1996) 5 SCC 281, it is important to take into consideration the view expressed over the matter in controversy by various governmental authorities formed under the purview of the Environment (Protection) Act, 1986 to implement the provisions of the Environment (Protection) Act, 1986 although such view or opinion is not binding on the Court. By communications dated 24-1-2007, 13-2-2007 and 16-5-2007 issued by the Additional Director of Ministry of Environment and Forests and decision of the National Coastal Zone Management Authority dated 30-10-2007, it is brought on record that all the authorities unanimously opined that judgment of this Court dated 18-4-1996 (1996) 5 SCC 281 will operate prospectively and further clarified that any developmental activity which has been initiated between 16-8-1994 and 18-4-1996 after obtaining all requisite clearances from the agencies concerned including the Town and Country Planning Authority should be construed as ongoing projects and are not hit by the judgment of this Court dated 18-4-1996 (1996) 5 SCC 281.

34. It is pertinent to note that while interpreting the judgment, public interest should be taken into consideration. In ECIL v. B. Karunakar (1993) 4 SCC 727, (1993) 25 ATC 704 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 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.

35. 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.

36. 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 (1996) 5 SCC 281 in a manner which would give it a retrospective effect. It is clear from the tenor of the judgment and from other background circumstances, more importantly in view of decisions of Nczma which is a statutory body that the three-Judge Bench decision in 1996 case (1996) 5 SCC 281 intended to give it prospective effect.

37. The contention of Mr K.K Venugopal, learned Senior Counsel for the respondents that decision should not have been taken by Nczma on 30-10-2007 stating that all the properties and assets constructed or under construction during the period between 16-8-1994 and 18-4-1996 when the setback line stood changed from 100 metres to 50 metres, 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 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.

38. 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 (1996) 5 SCC 281 but incomplete construction cannot be permitted to be completed is devoid of merits. Two amendments made in the year 1994 were declared to be illegal vide judgment dated 18-4-1996 (1996) 5 SCC 281. 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 crystallised 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.

39. The plea that the petitioner would get benefit of interpretation placed by the 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 Nczma held on 30-10-2007 makes it more than clear that it was concluded by the Authority that the stand taken by the Ministry vide Letters dated 24-1-2007, 13-2-2007 and 16-5-2007 was correct and was in accordance with the Coastal Regulation 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.

40. 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 18-4-1996 rendered in Indian Council for Enviro-Legal Action (1996) 5 SCC 281 will not affect the ongoing 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.

41. For the foregoing reasons, the petition partly succeeds. It is declared that the judgment dated 18-4-1996 in Indian Council for Enviro-Legal Action v. Union of India (1996) 5 SCC 281, declaring part of the amending Notification dated 16-8-1994 to be illegal, will not affect the completed or the ongoing constructions being undertaken pursuant to the said notification. The rule is made absolute to the extent indicated hereinabove. There shall be no order as to costs.