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TMI Blog2010 (3) TMI 1231X X X X Extracts X X X X X X X X Extracts X X X X ..... sued 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' to 50 meters from 100 meters. In view of the said relaxation, the petitioners who had earlier obtained construction permissions in respect of a project beyond 100 meters, submitted an additional proposal to the Panchayat of Village Curca, Bambolim & Taloulim, Taluka Tiswadi, Goa for construction of 18 blocks between 50 meters and 100 meters. 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 meters and 100 meters vide order dated July 31, 1995. Based on this approval, vide its order dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned 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 of the ban on construction from 100 meters to 50 meters. This Court 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 meters and more along rivers, creeks etc. This Court found that reduction of the ban on construction from 100 meters to 50 meters 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 seri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 and 100 meters 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, i.e., from April 18, 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, the Petitioner No.1 made another representation to the Central Government with a request to issue necessary clarifications to the authorities. A further clarification dated February 13, 2007 was issued by the Additional Director of the MOEF. In the said clarification, earlier communication dated January 24, 2007 was referred to and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Management Authority and for the State of Goa stated at the Bar that the State of Goa would withdraw the stop work orders dated December 22, 2006 and May 23, 2007 to the extent, they imposed an embargo on construction between 50 meters and 100 meters 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 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 July 24, 2007. 7. The record further shows that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oundation 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 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. The Authority also noticed that the clarification given by the MOEF was applicable to all cases in the coastal areas of the country. What was reported by the said Authority was that this Court while setting aside two out of six amendments dated August 16, 1994 in Writ Petition No.664 of 1993 had not passed any orders with regard to cases in which the construction had been completed or was in progress a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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, Additional Director, Ministry of Environment and Forest has filed reply affidavit and supported the case of the petitioners. After filing of Additional Affidavit by the petitioners, Mr. Claude Alvares, has filed affidavit in opposition on behalf of the respondent No.5 whereas affidavit in rejoinder is filed by Mr. Vijender Kumar Sharma, on behalf of the petitioners. 12. 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. 13. The question which falls for consideration is whether the constructions made or on-going pursuant to the plans sanctioned on the basis of Notification dated August 16 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 Act, 1986 and not because of the reason that there was evidence before the Court that constructions already made or on-going pursuant to the plans sanctioned on the basis of Notification of 1994 had, in fact, frustrated the object of the Act. Thus, paragraph 39 clearly reflects intention of this Court that Court wanted to give the judgment prospective effect. On perusal of the jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. 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 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. 14. The contention of Mr. K.K. Ven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 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. 18. For the foregoing reasons, 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) 5 SCC 281, 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 ..... 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