TMI Blog2010 (3) TMI 1231X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 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. 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 - A critical study of the judgment in Indian Council For Enviro-Legal Action [ 1996 (4) TMI 534 - SUPREME COURT] makes it clear that this Court had examined validity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udgment 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 prospective effect. 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. 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 amendments made in the year 1994 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 fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 February 19, 1991 as amended by the Notification dated August 16, 1994 issued by the Central Government are valid. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in property bearing Survey No.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 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 Man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erred to it by the Ministry and submit a report to the Court 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 67 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 petition and claimed the relief to which reference is made earlier. 11. On service of notice, Dr. A Senthil Vel, Additi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irety. 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. 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 perm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation 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 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 rendere ..... X X X X Extracts X X X X X X X X Extracts X X X X
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