2010 (3) TMI 1231 - SC - Indian Laws

Petition challenging the vires of notification dated August 16 1994 by which main notification dated February 19 1991 was amended - building plans sanctioned and constructions made and ongoing constructions pursuant to the Coastal Regulation Zone - Construction made between 50 meters to 100 meters of High Tide Line - No Development Zone should be marked at 100 meters and the stop work order - Whether a judgment in the case of Indian Council for Enviro-Legal Action is prospective or retrospective effect? - HELD THAT - 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 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. 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 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. 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 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 construed as on-going projects and are not hit by the judgment of this Court dated April 18 1996. Taking into consideration all the 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 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 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. 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. We are 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. Therefore 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 (4) TMI 534 - SUPREME COURT 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 said Notification The rule is made absolute to the extent indicated hereinabove. There shall be no order as to costs.

Summary

Issues Involved:
1. Validity of building plans and constructions under Coastal Regulation Zone (CRZ) Notifications.
2. Impact of the Supreme Court's 1996 judgment on ongoing and completed constructions.
3. Interpretation and application of the 1996 judgment by various authorities.
4. Public interest and environmental considerations.

Issue-wise Detailed Analysis:

1. Validity of Building Plans and Constructions under CRZ Notifications:
The petitioners filed under Article 32 of the Constitution, seeking a declaration that building plans sanctioned and constructions made pursuant to the CRZ Notification dated February 19, 1991, as amended by the Notification dated August 16, 1994, are valid. The Central Government initially restricted development within 100 meters of the High Tide Line (HTL) but later relaxed this to 50 meters. The petitioners obtained permissions for additional construction within this relaxed zone, which were approved by the Town and Country Planning Authority and sanctioned by the Village Panchayat.

2. Impact of the Supreme Court's 1996 Judgment on Ongoing and Completed Constructions:
The Supreme Court, in its 1996 judgment in Indian Council for Enviro-Legal Action vs. Union of India, struck down two amendments from the 1994 Notification, which reduced the 'No Development Zone' from 100 meters to 50 meters. The Court found these amendments illegal as they allowed new constructions that could harm the coastal environment. However, the judgment did not specifically address the fate of ongoing or completed constructions that were sanctioned during the validity of the 1994 Notification.

3. Interpretation and Application of the 1996 Judgment by Various Authorities:
The petitioners faced stop work orders based on alleged violations of CRZ Guidelines. Despite clarifications from the Ministry of Environment and Forests (MOEF) that ongoing projects initiated between August 16, 1994, and April 18, 1996, should be considered valid, local authorities did not lift these orders. The National Coastal Zone Management Authority (NCZMA) later supported the MOEF's stance, stating that constructions during this period should be maintained and not destroyed. The High Court directed the NCZMA to review the matter, which reaffirmed that the 1996 judgment should operate prospectively.

4. Public Interest and Environmental Considerations:
The Supreme Court emphasized that the 1996 judgment was intended to have prospective effect, ensuring that ongoing and completed constructions during the period when the 1994 Notification was valid would not be affected. The Court considered factors such as public interest, administrative reliance on the previous legal position, and the potential for administrative chaos if the judgment were applied retrospectively. It was concluded that applying the judgment retrospectively would not serve the public interest and would unjustly affect constructions that were legally sanctioned at the time.

Conclusion:
The Supreme Court declared that the 1996 judgment would not affect ongoing or completed constructions sanctioned under the 1994 Notification. The ruling emphasized prospective application, ensuring that constructions initiated with valid permissions during the period of the 1994 Notification remain unaffected. The petition was partly successful, with the rule made absolute to the extent indicated, and no order as to costs.