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TMI Blog1996 (4) TMI 534X X X X Extracts X X X X X X X X Extracts X X X X ..... referred to as 'the Regulation Zones which regulates the activities in the said zones has not been implemented or enforced. This has led to continued degradation of ecology in the said coastal areas. There is also a challenge to the validity of the Notification dated 18.8.1994 whereby the first Notification dated 19.2.1991 has been amended, resulting in further relaxations of the provisions of 1991 Notification and such relation, it is alleged, will help in defeating the intent of the main Notification itself. 3. The petitioner is a registered voluntary organisation working for the case of environment protection in India. India has a coast line running into 6000 K.Ms. which has abundance of natural endowments, geographic attractions and natural beauty. According to the petitioner, these coastal areas are highly complex and have dynamic eco-systems, sensitive to development pressures. The stresses and pressure of high population growth, non-restrained development, lack of adequate infrastructure facilities for the resident population are stated to be some of the factors responsible for the decline in environmental quality in these areas. The developmental activities in the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 983 environmental guidelines for beaches were promulgated which, inter alia, stated: The traditional use of sea water as a dump site from our land-derived wastes have increased the pollution loads of sea and reduced its development potentials including the economic support it provides to people living nearby. Degradation and misutilization of beaches are affecting the aesthetic and environmental loss. These could be avoided through prudent coastal development and management based on assessment of ecological values and potential damages from coastal developments. These guidelines further stated that adverse direct impact of development activities was possible within 500 metres from the high water mark or beyond two kilometres form it. The example which was given was that the sand dunes and vegetation clearing, high density construction etc. along the coast could alter the ecological system of the area. 6. The environment guidelines for the development of beaches, inter alia, required the State Governments to prepare a status report on the obtaining situation of the coastal areas, as a pre-requisite to environmental management of the area. Such a status report was requ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ermitted areas); iv) setting up and expansion of units mechanisms for disposal of wastes and effluents, except facilities required for discharging treated effluents into the water course with approval under the Water (Prevention and Control of Pollution) Act, 1974 except for storm water drains; v) discharge of untreated wastes and effluents from industries, cities or towns and other human settlements. Schemes shall be implemented by the concerned authorities for phasing out he existing practices, if any, within a reasonable time period not exceeding three years from the date of this Notification; vi) dumping of city or town wastes for the purposes of land filling or otherwise; the existing practice, if any, shall be phased out within a reasonable time not exceeding three years from the date of this Notification; vii) dumping of ash or any wastes from thermal power stations; viii) land reclamation, bunding or disturbing the natural course of sea water with similar obstructions, except those required for control of coastal erosion and maintenance or clearing of waterways, channels and ports and for prevention of sandbars and also except for tidal regulator ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provided that till the approval of the Management Plans, all development and activities within CRZ shall not violate the provisions of this Notification . The State Governments and Union Territory Administrations were required to ensure adherence to the provisions of the main Notification and it was provided that any violation thereof, shall be subject to the provisions of the Environment Protection Act, 1986 (hereinafter referred to as the Act'). 11. It was also provided in Clause 4 of the main Notification that the Ministry of Environment and Forests and the State Government or Union Territory, and such other authorities at the State or Union Territory, and such other authorities at the State or Union Territory levels, as may be designated for the purpose, shall be responsible for the monitoring and enforcement of the main Notification within their respective jurisdictions. 12. As already noticed, there are two Annexures namely; Annexure I and Annexure II to the main Notification. While Annexure I contains the Coastal Area Classification and Development Regulations which are for general application, Annexure II is the specific provision which contains the guidelines f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ings within the said zone. 15. With regard to CRZ III, the norms for regulation of activities, inter alia, provide that the area upto 200 metres from the HTL is to be earmarked as 'No Development Zone. The only exception is that there can be repairs of existing authorised structures but, title permissible activity in this zone is for its use as agriculture, horticulture, gardens, pastures etc. The norms further provide for development of vacant plots between 200 and 500 metres of HTL in designated areas of CRZ ill with prior approval of Ministry of Environment and Forests for construction of hotels/beach resorts for temporary occupation of tourists/vestries subject to the conditions as stipulated in the guidelines at Annexure II. 16. In CRZIV also, detailed norms for regulation of activities are provided in the said Clause 6(2) of Annexure I. 17. As already noticed, Annexure II contains the guidelines for development of beach resorts/hotels in the designated area of CRZ m for temporary occupation of tourists/visitors. The vacant area beyond 200 metres in the landward side, even if it is within 500 metres of the HTL can be used, after obtaining permission, for construct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Notification and to get the said plan approved by the Ministry of Environment and Forests. The master plan and the regional plan was to demarcate all the existing green areas, orchards, tribal area and other environmentally sensitive areas in the said Dahanu Taluka. Industries which were using chemicals above the limits/quantities prescribed by the Act or by Rules were to be considered hazardous industries. The hazardous waste was required to be disposed of in the identified areas after taking precautionary measures. This Notification also required the Government of Maharashtra to constitute a monitoring committee to ensure the compliance or conditions mentioned in the Notification in which local representatives may be included. According to the petitioner, the Maharashtra Government has not implemented the directions contained in the said Notification and has permitted development activities which have resulted in new polluting industries being established in the coastal area, thereby seriously endangering the ecology. The industries which are operating in Dahanu are stated to be balloon manufacturing units, buffing and chromium plating units and chemical units. There has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anagement Plans within one year from the date of the main Notification. This was essential for the implementation of the said Notification. The lack of commitment on the part of these States and Administrations, towards the protection and regulation of the coastal stretches, is evident from their inaction in complying with the aforesaid statutory directive requiring the preparation of Management Plans within the specified period. In view of the fact that there had been a non-compliance with this provision, this Court on 3.4.1995 directed all the coastal States and Union Territory Administrations to frame their plans within a further period of six weeks thereof. 24. A status report was filed in court by the Union of India which shows non-compliance of Clause 3(i) by practically everyone concerned. While some of the States and Union Territory Administrations submitted their plans, though belatedly, except in the case of Pondicherry, none of the other plans were approved by the Central Government. It appears that some modifications were suggested and those States and Union Territories had to resubmit their plans. Direction will have to be issued to these States and Union Territorie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erated in any civilized society. Law should not only be meant for law abiding but is meant to be obeyed by all for whom it has been enacted. A law is usually enacted because the Legislature feels that it is necessary. It is with a view to protect and preserve the environment and save it for the future generations and to ensure good quality of life that the Parliament enacted the Anti-Pollution Laws, namely, the Water Act, Air Act and the Environment (Protection) Act, 1986. These Acts and Rules framed and Notification issued thereunder contain provisions which prohibit and/or regulate certain activities with a view to protect and preserve the environment. When a law is enacted containing some provisions which prohibits certain types of activities, then, it is of utmost importance that such legal provisions are effectively enforced. If a law is enacted but is not being voluntarily obeyed, then, it has to be enforced. Otherwise, infringement of law, which is actively or passively condoned for personal gain, will be encouraged which will in turn lead to a lawless society. Violation of anti-pollution laws not only adversely affects the existing quality of life but the non-enforcement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... protection of the fundamental rights of the people. Passing of appropriate orders requiring the implementation of the law cannot be regarded as the Court having usurped the functions of the Legislature or the Executive. The orders are passed and directions are issued by the Court in discharge of its judicial function namely; to see that if there is a complaint by a petitioner regarding the infringement of any Constitutional or other legal right, as a result of any wrong action or inaction on the part of the State, then such wrong should not be permitted to continue. It is by keeping the aforesaid principles in mind that one has to consider as to what directions should be issued to ensure, in the best possible manner, that the provision of the main Notification which has been issued for preserving the coastal areas are not infringed. VALIDITY OF NOTIFICATION OF 1994 29. The Notification dated 18.8.1994 made six amendments in the main Notification. These amendments were made after the receipt of the report of a Committee, headed by Mr. B.B. Vohra, which had been set up by the Central Government. The validity of amended Notification was also challenged in LA. 19/1995 which was filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich shows how coastal areas have been classified into different zones and the activities which are prohibited or permitted to be carried out in certain areas with a view to preserve and maintain the ecological balance. 33. According to the Union of India, while implementing the main Notification, certain practical difficulties were faced by the concerned authorities. There was a need for having sustainable development of tourism in coastal areas and that amendments were effected i after giving due consideration to all relevant issues pertaining to environment protection and balancing of the same with the requirement of development. It has been specifically averred that a Committee headed by Mr. B.B. Vohra was set-up by the Government in response to the need for examining the issues relating to development of tourism and hotel industry in coastal areas and to regulate the same keeping in view the requirements of sustainable development and the fragile coastal ecology. According to the Union of India, the Committee also included three enviromentalist Members who had expressed their views and that the Government had accepted the record emendations of the Vohra Committee with sligh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deem fit. In the written submissions filed by the Union of India in this Court on 29.9.1995, this amendment has been sought to be justified and explained by it in the following words: As regards the developmental activities upto the High Tide Line, the Central Government may for reasons recorded in writing permit construction in any particular case taking into account the geographical features and other relevant aspects. This is necessary as providing of 200 metres of no development zone all along was not possible in the coastal line in an uniform way on account of wide variations in geographical features, existing human settlements and developmental activities requiring fore shore facilities etc. The relaxation with regard to NDZ was sought by the Hotel and Tourism Industry and they desired concession only with regard to 20-30 K.Ms. of coastline; By the amended Notification, power had been given to the Central Government to make such relaxation with regard to any part of the 6,000 K.M.s long coastline of India. The Central Government has, thus, retained the absolute power of relaxation of the entire 6.000 K.Ms. long coastline and this, in effec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as been a reduction of the ban on construction from 100 metres to 50 metres. Even the Vohra Committee which had been set-up to look into the demands of Hotel and Tourism Industry had not made such a proposal and, therefore, it appears to us that such a reduction does not appear to have been made for any valid reason and is arbitrary. This is more so when it has been alleged that in some areas like Goa, there are mangrove forests that need protection and which stretch to more than 100 metres from the river bank and this contention had not been denied- In the absence of any justification for this reduction being given the only conclusion which can be arrived at is that the relaxation to 50 metres has been done for some extraneous reason. It was submitted, at the time of arguments by the Additional Solicitor General that construction has already taken place, along such rivers, creeks etc. at a distance of 50 metres and more, but no such explanation has been given in the reply affidavit. Even if this be so such reduction will permit new construction to take place and this reduction cannot be regarded as a protection only to the existing structures. In the absence of a categorical state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... haphazard and congested construction - a pollutant in itself-cannot be permitted in any area of the city. We, therefore, modify the amendment and direct that a private owner of land in NDZ shall be entitled to take into account half of such land for the purpose of permissible - FSI in respect of the construction undertaken by him outside the NDZ. (v) With regard to the amendment which allows construction of the basements, it was contended that the deep foundations and structure could interfere in the coastal areas where there is an intermixture of salt and sweet aquifers. According to the Union of India, this amendment has been made on the recommendation of the Vohra Committee. It was, however, stated that the basements shall be allowed subject to the condition that the other authorities such as State Ground Water Boards will permit such construction and will issue no-objection certificate after confirming that the basement will not hamper free flow of ground water in that area. It is, therefore, obvious that there will not be any adverse effect to the ecological balance in the area if basements are allowed to be constructed subject to the satisfaction of the concerned authorities ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the environmental related issues, is to see that the enforcement agencies, whether it be the State or any other authority, take effective steps for the enforcement of the laws. The Courts, in a way, act as the guardian of the people's fundamental rights but in regard to many technical matters, the Courts may not be fully equipped. Perforce, it has to rely on outside agencies for reports and recommendations whereupon orders have been passed from time to time. Even though, it is not the function of the Court to see the day to day enforcement of the law, that being the function of the Executive, but because of the non-functioning of the enforcement agencies, the Courts as of necessity have had to pass orders directing the enforcement - agencies to implement the law. 36. As far as this Court is concerned, being conscious of its constitutional obligation to protect the fundamental rights of the people, it has issued directions in various types of cases relating to the protection of environment and preventing pollution. For effective orders to be passed, so as to ensure that there can be protection of environment along with development, it becomes necessary for the Court deal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Pondicherry; with regard to Goa also allegations have been made. As we have already observed, it will be more appropriate if the allegations so made are dealt with by the respective High Courts, for they would be in a better position to know about and appreciate the local conditions which are prevailing and the extent of environmental damage which is being caused. We, accordingly, direct that the contentions raised in the Petition regarding infringement of the main Notification and of the Notification dated 20.6.1991 relating to Dahanu Taluka should be dealt with by the Bombay High Court. The High Court may issue such directions as it may deem fit and proper in order to ensure that the said Notifications are effectively implemented and complied with. A copy of the Writ Petition along with a copy of the Judgement should be sent to the High Court by the Registry for appropriate orders. As regard LA. No. 17-18 of 199S is concerned relating to alcohol manufacturing unit at Pondicherry, the said application is transferred to the Madras High Court for disposal in accordance with law. 2) Any allegation with regard to the infringement of any of the Notification dated 19.2.1991, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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