2014 (9) TMI 1216 - SC - Indian Laws

Demolition of the allegedly illegal constructions raised by the Appellants - Scope of Government's order - interpretation of statute - HELD THAT - 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 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. 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 - 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. 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 - 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. The orders impugned in the writ petitions filed by the Appellants cannot be sustained.

Issues Involved:
1. Legality of constructions by appellants.
2. Applicability and enforcement of environmental guidelines.
3. Interpretation of international commitments and executive action under Article 73 of the Constitution.
4. Authentication and promulgation of guidelines under Article 77 of the Constitution.
5. Impact of the Environment Protection Act, 1986 and CRZ Notification, 1991.

Detailed Analysis:

1. Legality of Constructions by Appellants:
The appellants, owners of various properties in Goa, faced demolition orders upheld by the High Court. The constructions were not inherently illegal as they had permissions from competent authorities. However, the state alleged these constructions violated environmental guidelines, being within 90 to 200 meters from the High Tide Line (HTL), whereas guidelines prohibited constructions within 500 meters of the HTL, except under strict conditions.

2. Applicability and Enforcement of Environmental Guidelines:
The appellants contended that at the time of construction, the prohibition was only within 90 meters from the HTL. They argued that the guidelines were not 'law' and lacked enforcement authority. The guidelines, though in place, were not backed by statutory power to impose penal consequences until the Environment Protection Act, 1986, and the subsequent CRZ Notification in 1991.

3. Interpretation of International Commitments and Executive Action under Article 73:
The state argued that the guidelines were in line with India's international commitments, particularly the Stockholm Declaration of 1972, and could be enforced through executive action under Article 73. However, the court noted that the guidelines lacked a clear mandate and purpose, appearing more as suggestions rather than enforceable law. The guidelines did not conform to the form and clarity required to be considered law.

4. Authentication and Promulgation of Guidelines under Article 77:
The guidelines were not authenticated or promulgated as required under Article 77 of the Constitution. They were not expressed in the name of the President or published in the official gazette, thus lacking the force of law. The court emphasized that for any executive action to bind citizens, it must be properly authenticated and made public.

5. Impact of the Environment Protection Act, 1986 and CRZ Notification, 1991:
The Environment Protection Act, 1986, provided the statutory framework for environmental protection, with the CRZ Notification of 1991 setting specific parameters for coastal areas. The court held that until the CRZ Notification came into force, the guidelines could not be enforced to the prejudice of the appellants. The guidelines, lacking statutory backing, could not impose adverse consequences on constructions completed before the notification.

Conclusion:
The Supreme Court set aside the High Court's orders and the demolition orders against the appellants. The guidelines relied upon by the state lacked the necessary legal form and authority to be enforceable, and the constructions, completed before the CRZ Notification, could not be penalized under the subsequently enacted statutory framework. The appeals were allowed, and the impugned orders were quashed.

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