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TMI Blog2014 (9) TMI 1216X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assed 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 Febr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ternative 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... holm 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 mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... try 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 and Hotels Limited and Anr. v. Minguel Martins and Ors. 2009 (3) SCC 571. 11. The cases of the respective parties having been noticed the necessary discourse may now commence. In Bennett Coleman and Co. v. Union of India [(1972) 2 SCC 788-5J], a 'Newsprint Policy', notified by the Central Govt. for imposing conditions on import of newsprint came t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 sugges ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 v. State of Karnataka) (1987) 1 SCC 658. Admittedly, the 'guidelines' were not gazetted. 21. If the guidelines relied upon by Union of India in the present case fail to satisfy the esse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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