Gulf Goans Hotels Company Ltd. & ANR. Vs. Union of India & Ors.
[Civil Appeal Nos.3434-3435 of 2001]
[Civil Appeal No.3438 of 2001]
[Civil Appeal Nos.3436-3437 of 2001]
[Civil Appeal No.3439 of 2001]
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. 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., 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. 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. 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.,, 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., 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 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. .
11. The cases of the respective parties having been noticed the necessary discourse may now commence. In Bennett Coleman & Co. vs. Union of India, 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, 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 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 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 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). 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]
September 22, 2014.
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