Bombay High Court
Vanashakti vs Union Of India on 24 September, 2024
Author: Amit Borkar
Bench: Amit Borkar
2024:BHC-OS:14641-DB
7.23-PIL.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
PUBLIC INTEREST LITIGATION NO.7 OF 2023
Digitally
Vanashakti & Anr. ....Petitioners
signed by
BASAVRAJ
BASAVRAJ GURAPPA
GURAPPA PATIL V/S
PATIL Date:
2024.09.25
12:05:10
+0530
Union Of India & Ors. ....Respondents
WITH
INTERIM APPLICATION NO. 1320 OF 2021
IN
PUBLIC INTEREST LITIGATION 7 OF 2023
National Real Estate
Development Council (NAREDCO) ....Applicant
In the matter between:
Vanashakti & Anr. ....Petitioners
V/S
Union of India & Ors. ....Respondents
WITH
INTERIM APPLICATION (L) NO. 35241 OF 2023
IN
PUBLIC INTEREST LITIGATION 7 OF 2023
Government of Nagaland
Through Chief Engineer ....Applicant
In the matter between:
Vanashakti & Anr. ....Petitioners
V/S
Union of India & Ors. ....Respondents
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WITH
INTERIM APPLICATION (L) NO. 4411 OF 2023
IN
PUBLIC INTEREST LITIGATION 7 OF 2023
Patel and Associates
Through Its Partner Manji Karashi Patel ....Applicant
V/S
In the matter between:
Vanashakti & Anr. ....Petitioners
V/S
Union of India & Ors. ....Respondents
WITH
INTERIM APPLICATION (L) NO. 35236 OF 2023
IN
PUBLIC INTEREST LITIGATION 7 OF 2023
Government of Nagaland
Through The Chief Engineer ....Applicant
In the matter between:
Vanashakti & Anr. ....Petitioners
V/S
Union of India & Ors. ....Respondents
WITH
INTERIM APPLICATION (L) NO. 4408 OF 2023
IN
PUBLIC INTEREST LITIGATION 7 OF 2023
Patel and Associates ....Applicant
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In the matter between:
Vanashakti & Anr. ....Petitioners
V/S
Union of India & Ors. ....Respondents
Shri Akash Rebello a/w Shri Zaman Ali a/w Ms. Karishma Rao
and Shri Yogesh Pandey for the Petitioners.
Shri Saurabh Butala a/w Ms. Nikita Mandaniyan i/b Shri Harshad
Bhadbhade for the Applicant (NAREDCO).
Shri Saket Mone a/w Ms. Anchita Nair and Shri Abhishek Salian
i/b Vidhi Partners for Interveners in IA/4408/2023 and
IA/4411/2023, IA/35241/2023 and IA/35236/2023.
Shri Y.R.Mishra with Shri Dashrath A Dube and Shri Upendra
Lokegoankar for Respondent No.1/ Union of India.
Smt. Jyoti Chavan, Additional Government Pleader for State of
Maharashtra.
Ms. Jaya Bagwe for Respondent No.3 (MCZMA)
CORAM: DEVENDRA KUMAR UPADHYAYA, CJ. &
AMIT BORKAR, J.
RESERVED ON : JULY 10, 2024
PRONOUNCED ON : SEPTEMBER 24, 2024
JUDGMENT (PER : CHIEF JUSTICE)
1. Heard Shri Akash Rebello, learned Counsel representing the
petitioner - organization, Shri Y. R. Mishra, learned Counsel
representing respondent No.1- Union of India, Shri Saket Mone,
learned Counsel representing the Interveners - State of
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Nagaland and Patel and Associates and Shri Saurabh Butala
representing the intervenor - National Real Estate Development
Council (NAREDCO). We have perused the records available
before us on this PIL petition.
(A) Challenge:
2. This PIL petition invokes our jurisdiction under Article 226
of the Constitution of India, to assail the validity of Office
Memorandum dated 19th February 2021, issued by the
Government of India in the Ministry of Environment, Forest and
Climate Change which prescribes a procedure for dealing with
violations arising on account of not obtaining a prior Costal
Regulation Zone (hereinafter referred to as the CRZ) clearance
for permissible activities. The impugned Notification permits a
project proponent operating in CRZ areas to seek post facto
clearance as required under the CRZ Notification(s).
(B) Relevant statutory prescriptions:
- The Environment (Protection) Act, 1986
Section 3. Power of Central Government to take measures to
protect and improve environment.--
(1) Subject to the provisions of this Act, the Central Government
shall have the power to take all such measures as it deems necessary
or expedient for the purpose of protecting and improving the quality
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of the environment and preventing, controlling and abating
environmental pollution.
(2) In particular, and without prejudice to the generality of the
provisions of sub-section (1), such measures may include measures
with respect to all or any of the following matters, namely:--
(i) co-ordination of actions by the State Governments,
officers and other authorities--
(a) under this Act, or the rules made thereunder; or
(b) under any other law for the time being in force
which is relatable to the objects of this Act;
(ii) planning and execution of a nation-wide programme for
the prevention, control and abatement of environmental
pollution;
(iii) laying down standards for the quality of environment in
its various aspects;
(iv) laying down standards for emission or discharge of
environmental pollutants from various sources whatsoever:
Provided that different standards for emission or
discharge may be laid down under this clause from different
sources having regard to the quality or composition of the
emission or discharge of environmental pollutants from such
sources;
(v) restriction of areas in which any industries, operations or
processes or class of industries, operations or processes shall
not be carried out or shall be carried out subject to certain
safeguards;
(vi) laying down procedures and safeguards for the
prevention of accidents which may cause environmental
pollution and remedial measures for such accidents;
(vii) laying down procedures and safeguards for the handling
of hazardous substances;
(viii) examination of such manufacturing processes, materials
and substances as are likely to cause environmental pollution;
(ix) carrying out and sponsoring investigations and research
relating to problems of environmental pollution;
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(x) inspection of any premises, plant, equipment, machinery,
manufacturing or other processes, materials or substances and
giving, by order, of such directions to such authorities, officers
or persons as it may consider necessary to take steps for the
prevention, control and abatement of environmental pollution;
(xi) establishment or recognition of environmental
laboratories and institutes to carry out the functions entrusted
to such environmental laboratories and institutes under this
Act;
(xii) collection and dissemination of information in respect of
matters relating to environmental pollution;
(xiii) preparation of manuals, codes or guides relating to the
prevention, control and abatement of environmental pollution;
(xiv) such other matters as the Central Government deems
necessary or expedient for the purpose of securing the effective
implementation of the provisions of this Act.
(3) The Central Government may, if it considers it necessary or
expedient so to do for the purposes of this Act, by order, published in
the Official Gazette, constitute an authority or authorities by such
name or names as may be specified in the order for the purpose of
exercising and performing such of the powers and functions (including
the power to issue directions under section 5) of the Central
Government under this Act and for taking measures with respect to
such of the matters referred to in sub-section (2) as may be
mentioned in the order and subject to the supervision and control of
the Central Government and the provisions of such order, such
authority or authorities may exercise the powers or perform the
functions or take the measures so mentioned in the order as if such
authority or authorities had been empowered by this Act to exercise
those powers or perform those functions or take such measures.
Section 5. Power to give directions.--
Notwithstanding anything contained in any other law but subject to
the provisions of this Act, the Central Government may, in the
exercise of its powers and performance of its functions under this Act,
issue directions in writing to any person, officer or any authority and
such person, officer or authority shall be bound to comply with such
directions.
Explanation.--For the avoidance of doubts, it is hereby declared that
the power to issue directions under this section includes the power to
direct--
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(a) the closure, prohibition or regulation of any industry,
operation or process; or
(b) stoppage or regulation of the supply of electricity or
water or any other service.
Section 6. Rules to regulate environmental pollution --
(1) The Central Government may, by notification in the Official
Gazette, make rules in respect of all or any of the matters referred to
in section 3.
(2) In particular, and without prejudice to the generality of the
foregoing power, such rules may provide for all or any of the following
matters, namely:--
(a) the standards of quality of air, water or soil for various
areas and purposes;
(b) the maximum allowable limits of concentration of various
environmental pollutants (including noise) for different areas;
(c) the procedures and safeguards for the handling of
hazardous substances;
(d) the prohibition and restrictions on the handling of
hazardous substances in different areas;
(e) the prohibition and restrictions on the location of
industries and the carrying on of processes and operations in
different areas;
(f) the procedures and safeguards for the prevention of
accidents which may cause environmental pollution and for
providing for remedial measures for such accidents.
Section 25. Power to make rules.--
(1) The Central Government may, by notification in the Official
Gazette, make rules for carrying out the purposes of this Act.
(2) In particular, and without prejudice to the generality of the
foregoing power, such rules may provide for all or any of the following
matters, namely:--
(a) the standards in excess of which environmental
pollutants shall not be discharged or emitted under section 7;
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(b) the procedure in accordance with and the safeguards in
compliance with which hazardous substances shall be handled
or cause to be handled under section 8;
(c) the authorities or agencies to which intimation of the fact
of occurrence or apprehension of occurrence of the discharge of
any environmental pollutant in excess of the prescribed
standards shall be given and to whom all assistance shall be
bound to be rendered under sub-section (1) of section 9;
(d) the manner in which samples of air, water, soil or other
substance for the purpose of analysis shall be taken under sub-
section (1) of section 11;
(e) the form in which notice of intention to have a sample
analysed shall be served under clause (a) of sub-section (3) of
section 11;
(f) the functions of the environmental laboratories, the
procedure for the submission to such laboratories of samples of
air, water, soil and other substances for analysis or test; the
form of laboratory report; the fees payable for such report and
other matters to enable such laboratories to carry out their
functions under sub-section (2) of section 12;
(g) the qualifications of Government Analyst appointed or
recognised for the purpose of analysis of samples of air, water,
soil or other substances under section 13;
(ga) the manner of holding inquiry and imposing penalty
by the adjudicating officer under sub-section (1) and
other factors for determining quantum of penalty under
clause (f) of sub-section (4) of section 15C;
(gb) the other amount under clause (c) of sub-section
(2) of section 16;
(gc) the other purposes under clause (c) of sub-section
(3) of section 16;
(gd) the manner of administration of Fund under sub-
section (4) of section 16;
(ge) form for maintenance of accounts of the Fund and
for preparation of annual statement of accounts under
sub-section (1) of section 16A;
(gf) form for preparing annual report of the Fund under
section 16B;
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(h) the manner in which notice of the offence and of the
intention to make a complaint to the Central Government shall
be given under clause (b) of section 19;
(i) the authority or officer to whom any reports, returns,
statistics accounts and other information shall be furnished
under section 20;
(j) any other matter which is required to be, or may be,
prescribed.
- The Environment (Protection) Rules, 1986
Rule 5. Prohibition and restriction on the location of industries
and the carrying on processes and operations in different
areas-
(1) The Central Government may take into consideration the
following factors while prohibiting or restricting the location of
industries and carrying on of processes and operations in different
areas:-
(i) Standards for quality of environment in its various
aspects laid down for an area.
(ii) The maximum allowable limits of concentration of various
environmental pollutants (including noise) for an area.
(iii) The likely emission or discharge of environmental
pollutants from an industry, process or operation proposed to
be prohibited or restricted.
(iv) The topographic and climatic features of an area.
(v) The biological diversity of the area which, in the opinion
of the Central Government needs to be preserved.
(vi) Environmentally compatible land use.
(vii) Net adverse environmental impact likely to be caused by
an industry, process or operation proposed to be prohibited or
restricted.
(viii) Proximity to a protected area under the Ancient
Monuments and Archaeological Sites and Remains Act, 1958 or
a sanctuary, National Park, game reserve or closed area
notified as such under the Wild Life (Protection) Act, 1972 or
places protected under any treaty, agreement or convention
with any other country or countries or in pursuance of any
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decision made in any international conference, association or
other body.
(ix) Proximity to human settlements.
(x) Any other factor as may be considered by the Central
Government to be relevant to the protection of the environment
in an area.
(2) While prohibiting or restricting the location of industries and
carrying on of processes and operations in an area, the Central
Government shall follow the procedure hereinafter laid down.
(3) (a) Whenever it appears to the Central Government that it is
expedient to impose prohibition or restrictions on the locations of an
industry or the carrying on of processes and operations in an area, it
may by notification in the Official Gazette and in such other manner
as the Central Government may deem necessary from time to time,
give notice of its intention to do so.
(b) Every notification under clause (a) shall give a brief
description of the area, the industries, operations, processes in
that area about which such notification pertains and also specify
the reasons for the imposition of prohibition or restrictions on
the locations of the industries and carrying on of processes or
operations in that area.
(c) Any person interested in filing an objection against the
imposition of prohibition or restrictions on carrying on of
processes or operations as notified under clause (a) may do so
in writing to the Central Government within sixty days from the
date of publication of the notification in the Official Gazette.
(d) The Central Government shall within a period of one
hundred and twenty days from the date of publication of the
notification in the Official Gazette, consider all the objections
received against such notification and may within seven
hundred and twenty five days and in respect of the States of
Assam, Meghalaya, Arunachal Pradesh, Mizoram, Manipur,
Nagaland, Tripura, Sikkim and Jammu and Kashmir in
exceptional circumstance and for sufficient reasons within a
further period of one hundred and eighty days from such day of
publication impose prohibition or restrictions on location of such
industries and the carrying on of any process or operation in an
area.
Provided that on account of COVID-19 pandemic, for the
purpose of this clause, the period of validity of the notification
expiring in the financial year 2020-2021 and 2021-22 shall be
extended up to 30th June 2022 or six months from the end of
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the month when the relevant notification would have expired
without any extension, whichever is later.
(4) Notwithstanding anything contained in sub-rule (3), whenever it
appears to the Central Government that it is in public interest to do
so, it may dispense with the requirement of notice under clause (a) of
sub-rule (3).
Coastal Regulation Zone Notifications:
- Notification dated 6th January 2011
4. Regulation of permissible activities in CRZ area.-
The following activities shall be regulated except those prohibited in
para 3 above,-
(i) (a) clearance shall be given for any activity within the CRZ
only if it requires waterfront and foreshore facilities;
(b) for those projects which are listed under this notification
and also attract EIA notification, 2006 (S.O.1533 (E), dated the
14th September, 2006), for such projects clearance under EIA
notification only shall be required subject to being
recommended by the concerned State or Union territory Coastal
Zone Management Authority (hereinafter referred to as the
CZMA).
(c) Housing schemes in CRZ as specified in paragraph 8 of
this notification;
(d) Construction involving more than 20,000 sq mts built-up
area in CRZ-II shall be considered in accordance with EIA
notification, 2006 and in case of projects less than 20,000 sq
mts built-up area shall be approved by the concerned State or
Union territory Planning authorities in accordance with this
notification after obtaining recommendations from the
concerned CZMA and prior recommendations of the concern
CZMA shall be essential for considering the grant of
environmental clearance under EIA notification, 2006 or grant
of approval by the relevant planning authority.
(e) MoEF may under a specific or general order specify
projects which require prior public hearing of project affected
people.
(f) construction and operation for ports and harbours,
jetties, wharves, quays, slipways, ship construction yards,
breakwaters, groynes, erosion control measures;
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(ii) the following activities shall require clearance from MoEF,
namely:-
(a) those activities not listed in the EIA notification, 2006.
(b) construction activities relating to projects of Department
of Atomic Energy or Defence requirements for which foreshore
facilities are essential such as, slipways, jetties, wharves,
quays; except for classified operational component of defence
projects. Residential buildings, office buildings, hospital
complexes, workshops of strategic and defence projects in
terms of EIA notification, 2006.;
(c) construction, operation of lighthouses;
(d) laying of pipelines, conveying systems, transmission line;
(e) exploration and extraction of oil and natural gas and all
associated activities and facilities thereto;
(f) Foreshore requiring facilities for transport of raw
materials, facilities for intake of cooling water and outfall for
discharge of treated wastewater or cooling water from thermal
power plants. MoEF may specify for category of projects such
as at (f), (g) and (h) of para 4;
(g) Mining of rare minerals as listed by the Department of
Atomic Energy;
(h) Facilities for generating power by non-conventional
energy resources, desalination plants and weather radars;
(i) Demolition and reconstruction of (a) buildings of
archaeological and historical importance, (ii) heritage buildings;
and buildings under public use which means buildings such as
for the purposes of worship, education, medical care and
cultural activities;
4.2 Procedure for clearance of permissible activities.- All projects
attracting this notification shall be considered for CRZ clearance as
per the following procedure, namely:-
(i) The project proponents shall apply with the following
documents seeking prior clearance under CRZ notification to the
concerned State or the Union territory Coastal Zone Management
Authority,-
(a) Form-1 (Annexure-IV of the notification);
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(b) Rapid EIA Report including marine and terrestrial
component except for construction projects listed under 4(c)
and (d)
(c) Comprehensive EIA with cumulative studies for projects
in the stretches classified as low and medium eroding by MoEF
based on scientific studies and in consultation with the State
Governments and Union territory Administration;
(d) Disaster Management Report, Risk Assessment Report
and Management Plan;
(e) CRZ map indicating HTL and LTL demarcated by one of
the authorized agency (as indicated in para 2) in 1:4000 scale;
(f) Project layout superimposed on the above map indicated
at (e) above;
(g) The CRZ map normally covering 7km radius around the
project site.
(h) The CRZ map indicating the CRZ-I, II, III and IV areas
including other notified ecologically sensitive areas;
(i) No Objection Certificate from the concerned State Pollution
Control Boards or Union territory Pollution Control Committees for the
projects involving discharge of effluents, solid wastes, sewage and the
like.;
(ii) The concerned CZMA shall examine the above documents in
accordance with the approved CZMP and in compliance with CRZ
notification and make recommendations within a period of sixty days
from date of receipt of complete application,-
(a) MoEF or State Environmental Impact Assessment
Authority (hereinafter referred to as the SEIAA) as the case
may be for the project attracting EIA notification, 2006;
(b) MoEF for the projects not covered in the EIA notification,
2006 but attracting para 4(ii) of the CRZ notification;
(iii) MoEF or SEIAA shall consider such projects for clearance based
on the recommendations of the concerned CZMA within a period of
sixty days.
(vi) The clearance accorded to the projects under the CRZ
notification shall be valid for the period of five years from the date of
issue of the clearance for commencement of construction and
operation.
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(v) For Post clearance monitoring - (a) it shall be mandatory for
the project proponent to submit half-yearly compliance reports in
respect of the stipulated terms and conditions of the environmental
clearance in hard and soft copies to the regulatory authority(s)
concerned, on 1st June and 31st December of each calendar year and
all such compliance reports submitted by the project proponent shall
be published in public domain and its copies shall be given to any
person on application to the concerned CZMA. (b) the compliance
report shall also be displayed on the website of the concerned
regulatory authority.
(vi) To maintain transparency in the working of the CZMAs it shall
be the responsibility of the CZMA to create a dedicated website and
post the agenda, minutes, decisions taken, clearance letters,
violations, action taken on the violations and court matters including
the Orders of the Hon'ble Court as also the approved CZMPs of the
respective State Government or Union territory.
- Notification dated 6th March 2018
2. after sub-paragraph 4.2, the following sub-para shall be
inserted, namely: -
"4.3 Post facto clearance for permissible activities.-
(i) all activities, which are otherwise permissible under the
provisions of this notification, but have commenced construction
without prior clearance, would be considered for regularisation only in
such cases wherein the project applied for regularization in the
specified time and the projects which are in violation of CRZ norms
would not be regularised;
(ii) the concerned Coastal Zone Management Authority shall give
specific recommendations regarding regularisation of such proposals
and shall certify that there have been no violations of the CRZ
regulations, while making such recommendations;
(iii) such cases where the construction have been commenced
before the date of this notification without the requisite CRZ
clearance, shall be considered only by Ministry of Environment, Forest
and Climate Change, provided that the request for such regularisation
is received in the said Ministry by 30th June, 2018.
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th
- Notification dated 18 January 2019
8. Procedure for CRZ clearance for permissible and
regulated activities:
(i) The project proponents shall apply with the following
documents to the concerned State or the Union territory Coastal Zone
Management Authority for seeking prior clearance under this
notification:-
(a) Project summary details as per Annexure-V to this
notification.
(b) Rapid Environment Impact Assessment (EIA) Report
including marine and terrestrial component, as applicable,
except for building construction projects or housing schemes.
(c) Comprehensive EIA with cumulative studies for projects,
(except for building construction projects or housing schemes
with built-up area less than the threshold limit stipulated for
attracting the provisions of the EIA Notification, 2006 number
S.O 1533(E), dated 14th September, 2006) if located in low and
medium eroding stretches, as per the CZMP to this notification.
(d) Risk Assessment Report and Disaster Management Plan,
except for building construction projects or housing schemes
with built-up area less than the threshold limit stipulated for
attracting the provisions of the EIA Notification, 2006 number
S.O. 1533(E), dated 14th September, 2006).
(e) CRZ map in 1:4000 scale, drawn up by any of the
agencies identified by the Ministry of Environment, Forest and
Climate Change vide its Office Order number J-17011/8/92-
IAIII, dated the 14th March, 2014 using the demarcation of the
HTL or LTL, as carried out by NCSCM.
(f) Project layout superimposed on the CRZ map duly
indicating the project boundaries and the CRZ category of the
project location as per the approved Coastal Zone Management
Plan under this notification.
(g) The CRZ map normally covering 7 kilometre radius
around the project site also indicating the CRZ-I, II, III and IV
areas including other notified ecologically sensitive areas.
(h) "Consent to establish" or No Objection Certificate from
the concerned State Pollution Control Board or Union territory
Pollution Control Committee for the projects involving treated
discharge of industrial effluents and sewage, and in case prior
consent of Pollution Control Board or Pollution Control
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Committee is not obtained, the same shall be ensured by the
proponent before the start of the construction activity of the
project, following the clearance under this notification.
(ii) The concerned Coastal Zone Management Authority shall
examine the documents in clause (i) above, in accordance with the
approved Coastal Zone Management Plan and in compliance with this
notification and make recommendations within a period of sixty days
from date of receipt of complete application as under:-
(a) For the projects or activities also attracting the EIA
Notification, 2006 number S.O. 1533(E), dated 14 th September,
2006, the Coastal Zone Management Authority shall forward its
recommendations to Ministry of Environment, Forest and
Climate Change or SEIAA for category 'A' and category 'B'
projects respectively, to enable a composite clearance under
the EIA Notification, 2006 number S.O. 1533(E), dated 14 th
September, 2006, however, even for such Category 'B' projects
located in CRZ-I or CRZ-IV areas, final recommendation for
CRZ clearance shall be made only by the Ministry of
Environment, Forest and Climate Change to the concerned
SEIAA to enable it to accord a composite Environmental
Clearance and CRZ clearance to the proposal.
(b) Coastal Zone Management Authority shall forward its
recommendations to the Ministry of Environment, Forest and
Climate Change for the projects or activities not covered in the
EIA notification, 2006, but attracting this notification and
located in CRZ-I or CRZ-IV areas.
(c) Projects or activities not covered in the aforesaid EIA
Notification, 2006, but attracting this notification and located in
CRZ-II or CRZ-III areas shall be considered for clearance by the
concerned Coastal Zone Management Authority within sixty
days of the receipt of the complete proposal from the
proponent.
(d) In case of construction projects attracting this notification
but with built-up area less than the threshold limit stipulated for
attracting the provisions of the aforesaid EIA Notification 2006,
Coastal Zone Management Authority shall forward their
recommendations to the concerned State or Union territory
planning authorities, to facilitate granting approval by such
authorities.
(iii) The Ministry of Environment, Forest and Climate Change shall
consider complete project proposals for clearance under this
notification, based on the recommendations of the Coastal Zone
Management Authority, within a period of sixty days.
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(iv) In case the Coastal Zone Management Authorities are not in
operation due to their reconstitution or any other reasons, then it
shall be responsibility of the Department of Environment in the State
Government or Union territory Administration, who are the custodian
of the CZMP of respective States or Union territories, to provide
comments and recommend the proposals in terms of the provisions of
the said notification.
(v) The clearance accorded to the projects under this notification
shall be valid for a period of seven years, provided that the
construction activities are completed and the operations commence
within seven years from the date of issue of such clearance. The
validity may be further extended for a maximum period of three
years, provided an application is made to the concerned authority by
the applicant within the validity period, along with recommendation
for extension of validity of the clearance by the concerned State or
Union territory Coastal Zone Management Authority.
(vi) Post clearance monitoring:
(a) It shall be mandatory for the project proponent to submit
half-yearly compliance reports in respect of the stipulated terms
and conditions of the environmental clearance in hard and soft
copies to the regulatory authority(s) concerned, on the 1 st June
and 31st December of each calendar year and all such
compliance reports submitted by the project proponent shall be
published in public domain and its copies shall be given to any
person on application to the concerned Coastal Zone
Management Authority.
(b) The compliance report shall also be displayed on the
website of the concerned regulatory authority.
(vii) To maintain transparency in the working of the Coastal Zone
Management Authority, it shall be the responsibility of the Coastal
Zone Management Authority to create a dedicated website and post
the agenda, minutes, decisions taken, clearance letters, violations,
action taken on the violations and court matters including the Orders
of the Hon'ble Court as also the approved CZMP of the respective
State Government or Union territory.
(C) Submissions on behalf of the petitioners :
3. Impeaching the impugned Office Memorandum, it has been
argued by Shri Akash Rebello, learned Counsel representing the
petitioner - organization that the Office Memorandum is an
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administrative circular whereby a frame-work for granting post
facto approval has been set up for the projects that have come
up without grant of prior CRZ clearance as required under the
relevant CRZ Notification which cannot over-ride the CRZ
Notifications having been framed in exercise of powers vested
with the Central Government under Section 3(1) and Section
3(2)(v) of the Environment (Protection) Act, 1986 (hereinafter
referred to as the Act of 1986) read with Rule 5(3)(d) of the
Environment (Protection) Rules, 1986 (hereinafter referred to as
the Rules of 1986) which has statutory force and, thus, is
binding. His submission is that the Office Memorandum takes
departure from the relevant CRZ Notification which could not
have been done by the Central Government without amending
the relevant CRZ Notification by taking recourse to the
provisions contained in Section 3(1) and 3(2)(v) of the Act of
1986 read with Rule 5(3)(d) of the Rules of 1986.
4. Further argument made by Shri Rebello is that the relevant
CRZ Regulation clearly requires that prior CRZ clearance is
mandatory, whereas the impugned Office Memorandum permits
seeking post facto CRZ clearance, hence, it is contrary to the
statutory CRZ Notification.
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5. In this regard his further submission is that an
administrative circular, like the impugned Office Memorandum,
cannot provide for something which, otherwise, is not provided
for in the statutory CRZ Notification and accordingly, the
impugned Office Memorandum is ultra vires the provisions of
the CRZ Notification dated 18th January 2019 (hereinafter
referred to as the CRZ Notification, 2019) for the reason that
the CRZ Notification, 2019 does not permit any post facto
clearance; rather it requires prior clearance for all projects within
the CRZ area.
6. It has also been contended on behalf of the petitioner -
organization that CRZ Notification dated 6 th January, 2011
(hereinafter referred to as "CRZ Notification, 2011") also
required clearance prior to commencement of the project and by
Notification dated 6th March 2018 an amendment was introduced
in CRZ Notification 2011 permitting grant of post facto clearance
to regularize the otherwise permissible activities, however, the
provisions permitting post facto clearance vide Notification dated
6th March 2018 was a one-time measure with a cut-of-date. It
has been submitted that by Notification dated 6 th March 2018,
the CRZ Notification, 2011 was amended and clause 4.3 was
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added which provided the procedure for post facto clearance for
permissible activities, however, a perusal of the provisions
contained in Clause 4.3 added vide Notification dated 6 th March
2018 clearly reveals that such post facto clearance was
permissible only in case where the construction had commenced
before the date of the said Notification i.e. 6 th March 2018
without the requisite CRZ clearance with a further caveat that
only those requests in this regard shall be considered for grant
of post facto clearance which were received in the Ministry of
Environment, Forest and Climate Change by 30 th June 2018.
Thus, his submission is that the very language in which clause
4.3 added vide Notification dated 6 th March 2018 in the CRZ
Notification 2011 is couched manifestly reveals that it was
provided for only as a one-time measure.
7. Our attention has also been drawn to the CRZ Notification,
2019 which clearly provides that the said CRZ Notification was
issued in supersession of CRZ Notification, 2011. Accordingly,
his submission is that even the one-time measure which was
available under CRZ Notification, 2011 by way of insertion of
clause 4.3 vide Notification dated 6th March 2018, which provided
the procedure for seeking post facto CRZ clearance, will have no
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application on issuance of CRZ Notification, 2019 w.e.f. 18 th
January 2019 for the simple reason that CRZ Notification, 2019
was issued by the Ministry concerned of the Central Government
in supersession of earlier CRZ Notification viz. CRZ Notification,
2011.
8. Next submission of Shri Rebello, learned Counsel
representing the petitioner-organization is that CRZ Notification,
2011 and CRZ Notification, 2019 were issued by following the
procedure prescribed under Rule 5(3) of the Rules, 1986 which
requires that before issuing any such final Notification, the
Central Government needs to give notice of its intention to
impose prohibition or restriction on the location of an industry
and the carrying on processes and operations in an area which
shall contain brief description of the area or industries,
operations, processes and shall also specify the reason of
intended imposition of prohibition/restriction. He has also stated
that Rule 5 (3)(c) of the Rules, 1986 further provides that any
person interested in filing an objection against the imposition of
such intended prohibition/restriction on carrying on processes or
operations, may do so in writing to the Central Government
which has to be considered by the Central Government and
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accordingly, it is only thereafter that a final Notification
regarding prohibition/restriction etc. can be issued. Shri Rebello
has stated that, however, contrary to the provision contained in
Rule 5(3) of the Rules 1986, no such procedure as prescribed
was followed while issuing the impugned Office Memorandum
and thus, the Office Memorandum is not referable to any
provision either in the Act of 1986 or in the Rules of 1986. Basis
this, it has been contended that the impugned Office
Memorandum cannot be permitted to provide for any measure or
processes or procedure for grant of post facto CRZ clearance in
absence of any such provision in the relevant statutory
Notification viz. CRZ Notification, 2019.
9. Shri Rebello has further stated that the impugned Office
Memorandum is arbitrary as it is purportedly issued in
furtherance of CRZ Notification, 2011 which stood superseded by
CRZ Notification, 2019 on 18th January 2019 itself and hence,
reference of CRZ Notification, 2011 in the impugned Office
Memorandum manifests complete lack of application of mind.
10. Additionally, it has also been contended on behalf of the
petitioner - organization that the impugned Office Memorandum
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is contrary to the settled law laid down by the Hon'ble Supreme
Court including in its decision in the case of Alembic
Pharmaceuticals Ltd. Vs. Rohit Prajapati & Ors. 1. He has
argued that for justifying issuance of the impugned Office
Memorandum reference of Alembic Pharmaceuticals Ltd.
(supra) has been given in the Office Memorandum however,
reliance on the said judgment by the Central Government is
highly misplaced inasmuch that if we closely read the said
judgment it is clear that certain directions given in the said
judgments are referable to Article 142 of the Constitution of
India which are, thus, to be confined to the facts of the said
case and said directions cannot be applied in general. It is his
further submission that reference of the judgment of the
Jharkhand High Court in the case of Hindustan Copper Vs.
Union of India2 is also misplaced and is irrelevant for the
reason that the said judgment dealt with CRZ clearance regime
prior to the issuance of CRZ Notification, 2019.
(D) Submissions on behalf Union of India:
11. The PIL petition has been opposed by the Union of India by
filing an affidavit in reply. Shri Y. R. Mishra, learned Counsel
2020 SCC OnLine SC 347
2014 SCC OnLine Jhar 2157
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appearing for the Union of India has argued that the concept of
post facto clearance for permissible activities was introduced
vide CRZ Notification dated 6th March 2018 whereby CRZ
Notification, 2011 was amended and a provision for post facto
clearance was inserted therein. He has also stated that the
amendment brought in CRZ Notification, 2011 permitted post
facto CRZ clearance only in case request of such post facto
clearance was received in the Ministry concerned by 30 th June
2018 and since after expiry of the aforesaid cut-of-date the
Ministry of Environment, Forest and Climate Change received
serval requests from various State Governments for considering
the post facto CRZ clearance in respect of the permissible
activities that had commenced without prior CRZ clearance on
account of inadequate knowledge/information of the regulatory
regime and other factors and accordingly, the Government of
India issued the impugned Office Memorandum prescribing a
procedure for dealing with such violations arising on account of
not obtaining prior CRZ clearance for permissible activities. It is
his further submission that the impugned Office Memorandum
has been issued to make such projects and activities compliant
with environmental laws at the earliest point of time which was
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essential, rather than leaving them unregulated and unchecked
which would have caused more damage to the environment.
12. Shri Mishra has further argued that the impugned Office
Memorandum has been issued considering the order dated 12 th
November 2014 passed by the Jharkhand High Court in the case
of Hindustan Copper Ltd. (supra) where it was held, inter
alia; that action for violation would be an independent and
separate procedure and therefore, consideration of proposal for
environmental clearance could not await initiation of action
against the project proponent. According to Shri Mishra,
Jharkhand High Court further held in the said case that the
proposal for environmental clearance must be examined on its
merits, independent of proposed action for alleged violation of
the environmental laws.
13. On behalf of Union of India, it has also been argued that
the impugned Office Memorandum has been issued keeping in
view certain observations made and directions given by the
Hon'ble Supreme Court in Alembic Pharmaceuticals Ltd.
(supra), wherein it has been observed that the closure of
industries is not warranted. By the said judgment, payment of
compensation as a facet of preserving the environment in
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accordance with precautionary principle has been recognized.
Shri Mishra stated further that in Alembic Pharmaceuticals
Ltd. (supra) Hon'ble Supreme Court had directed that the
proposal for environment clearance must be examined on its
merits independent of any proposed action for alleged violation
of any environmental laws. He has relied upon certain
judgments viz. (i) Lafarge Umiam Mining Pvt. Ltd. Vs. Union
of India3, (ii) Electrotherm Vs. Patel Vipulkumar
Ramjibhai4, (iii) Gajubha Jadeja Jesar Vs. Union of India &
Ors.5, (iv) D. Swamy Vs. Karnataka State Pollution Control
Board and Ors.6, (v) Pahwa Plastics Pvt. Ltd. & Anr. Vs.
Dastak NGO & Ors.7, (vi) K.T.V. Health Food Pvt. Ltd. Vs.
Union of India8 and (vii) Electrosteel Steels Ltd. Vs. Union
of India9 and has stated that in the said judgments grant of
post facto environmental clearance has been recognized by the
Supreme Court which is in a strict compliance of the rules and
regulations and therefore, post facto clearance is permissible
under law.
(2011) 7 SCC 38
(2016) 9 SCC 300
2022 SCC OnLine SC 993
2022 SCC OnLine SC 1278
2022 SCC OnLine SC 362
(2023) 5 SCC 440
(2023) 6 SCC 615
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14. On the aforesaid counts, it has been urged by Shri Mishra
that the impugned Office Memorandum does not suffer from any
illegality and hence, no interference in the said Office
Memorandum is called for in the instant PIL petition.
(E) Submissions on behalf of Interveners:
15. On behalf of the Intervener viz. Government of Nagaland,
Shri Saket Mone, the learned Counsel has argued that the
Government of Nagaland has constructed Nagaland State Guest
House cum Emporium at Plot No.2B, Sector-30A, at Vashi, Navi
Mumbai and that post completion of the construction of the said
project at the time of applying for Occupation Certificate (OC),
the Navi Mumbai Municipal Corporation has imposed a condition
to obtain CRZ clearance and thereafter the Government of
Nagaland has, on various occasions, applied for grant of post
facto CRZ clearance but the same has not been processed by the
Maharashtra Coastal Zone Management Authority (MCZMA) on
account of the interim order passed by this Court on 7 th May
2021. It has been stated that the land where construction of
State Guest House cum Emporium has been made lies in a non-
CRZ area and therefore, construction activity is permitted in the
said land and hence, there is no requirement of obtaining CRZ
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clearance. He has also argued that as per the CRZ Notification,
2011 construction of the project is a permissible activity. It is
his further submission that the MCZMA, in its meeting dated 11-
12th April 2022 observed that application for post facto CRZ
clearance cannot be processed in the light of the ad-interim
order passed by this Court in this PIL petition and since the
project lies in non-CRZ area, the interim order, so far as
intervenor is concerned, may be vacated. It has, thus, been
prayed, in the alternative, that the interim order passed by this
Court on 7th May 2021 may be clarified and it be provided that it
shall not come in the way of decision on the applicant's
application for grant of post facto CRZ clearance as per
applicable law. Another prayer made by Shri Saket Mone is that
the MCZMA be directed to process the application for grant of
post facto CRZ clearance as per law.
16. On behalf of another intervenor viz. Patel and Associates,
Shri Saket Mone has stated that the applicant is a project
proponent of a project known as Trishul Goldfield for
construction of a residential cum commercial building on land
bearing Plot No.34 in Sector No.11 at CBD Belapur and that the
Navi Mumbai Municipal Corporation, at the time of applying for
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Occupation Certification (OC), has imposed a condition that the
applicant needs to obtain CRZ clearance. He has further stated
that in furtherance of said condition, the applicant, at various
occasions applied for grant of post facto clearance however, the
MCZMA has not processed the same on account of the interim
orders passed by this Court. The prayers in this application of
Patel and Associates are similar to the prayers made by Shri
Mone, appearing on behalf of State of Nagaland.
17. Intervention in this PIL petition has also been sought by
National Real Estate Development Council, which describes itself
as an autonomous self-regulatory body formed under the aegis
of Ministry of Housing and Urban Affairs, Government of India.
On its behalf, it has been stated in the interim application that
the impugned notification dated 19th February 2021 has been
issued by the Government of India in exercise of its powers
available to it under section 3(2)(v) of the Act of 1986 read with
Rule 5(3) of the Rules of 1986. It is further stated on its behalf
that the Government of India has permitted regularization of
activities which are strictly in compliance with CRZ Notification,
2011 and under the impugned Office Memorandum, it is only on
specific recommendation and certification of the Coastal Zone
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Management Authority that there is no illegality or contravention
of any CRZ norms, that such projects shall be considered for
regularization on fulfillment of conditions set out in the
impugned Office Memorandum. It is, thus, the submission on
behalf of this applicant that the impugned Office Memorandum
does not violate any provisions, either of the Act of 1986 or the
Rules made thereunder and therefore, the same cannot be
termed to be illegal.
(F) Issues:
18. On the basis of submissions made by the learned Counsel
for the respective parties and the pleadings available on record,
the issues which emerge for our consideration and decision are;
(a) as to whether the impugned Office Memorandum dated
19th February 2021 issued by respondent No.1 is in
contravention of the provisions of the CRZ Notification,
2019?
(b) as to whether the impugned Office Memorandum
supplements or supplants the CRZ Notification, 2019 ?
(c) as to whether reliance on the judgment of the Hon'ble
Supreme Court in Alembic Pharmaceuticals Ltd.
(supra) and that of the order dated 12 th November
2014 passed by the Jharkhand High Court in the case of
Hindustan Copper Ltd. (supra) is misplaced or such
reference can be taken aid of by the Union of India to
justify the impugned Office Memorandum?
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(G) Discussion:
19. The impugned Office Memorandum is an administrative
circular, which has been issued by the Government of India
without reference to any provisions, either of the Act of 1986 or
the Rules of 1986. As a matter of fact, the CRZ Notifications,
2011, the one issued on 6th March 2018 amending the CRZ
Notification, 2011 and the CRZ Notification, 2019 were all issued
by the Central Government by following the procedure
prescribed under Rule 5(3) of the Rules of 1986 and only after
prior publication inviting objections from general public and
thereafter finalizing it. However, while issuing the impugned
Office Memorandum dated 19th February 2021, no such
procedure has been followed; neither is there any averment in
the affidavit filed by the Government of India to the said effect.
Accordingly, the impugned Office Memorandum is not referable
to either the Act of 1986 or the Rules of 1986 and hence, we
conclude that the same is merely an executive instruction having
no statutory force.
20. Thus, there is no doubt while we observe that the
impugned Office Memorandum dated 19th February 2021 is not
statutory in nature as are the other CRZ Notifications such as
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th
CRZ Notification, 2011, the notification dated 6 March 2018 and
CRZ Notification, 2019.
21. Having concluded as above, we now need to examine, for
appropriate decision on the issue (a) as culled out above, as to
whether the impugned Office Memorandum is in contravention
with CRZ Notification, 2019.
22. We have already noted above that at the time of issuance
of the impugned Office Memorandum dated 19 th February 2021,
it is the CRZ Notification, 2019 which was in vogue for the
reason that the CRZ Notification, 2019 clearly states that it has
been issued in supersession of the earlier CRZ Notification,
namely, CRZ Notification, 2011. It is also undisputable that CRZ
Notification, 2019 does not contain any provision for any kind of
post facto CRZ clearance. To the contrary, paragraph (8) of CRZ
Notification, 2019 clearly provides that "the project
proponents shall apply with certain documents to the
concerned State or Union Territory Coastal Zone
Management Authority for seeking prior clearance under
this notification". Accordingly, the CRZ Notification, 2019 does
not prescribe any provision permitting post facto clearance,
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whereas by the impugned Office Memorandum, a procedure has
been prescribed permitting project proponents to obtain post
facto CRZ clearance in respect of the projects which were started
without seeking prior CRZ clearance. One of the reasons
indicated in the Office Memorandum dated 19 th February 2021
for making a provision for obtaining post facto clearance is that
the Government of India received several requests from the
State Governments for considering the CRZ clearance of the
projects in respect of permissible activities which have
commenced work without prior CRZ clearance due to inadequate
knowledge of the regulatory regime and other factors. The
Government of India, in the Office Memorandum, thus, observes
that to bring such projects and activities in compliance with the
environmental laws at the earliest point of time it is essential,
rather than leaving them unregulated and unchecked, which will
be more damaging to the environment. The Government of
India, while issuing the impugned Office Memorandum, has also
noted the order dated 28th November 2014 of the Hob'ble High
Court of Jharkhand in the matter of Hindustan Copper
(supra). It has also noted the judgment of Hon'ble Supreme
Court in the case of Alembic Pharmaceuticals Ltd. (supra),
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however, in absence of any provision for post facto CRZ
clearance under the CRZ Notification, 2019, in our considered
opinion, the provision prescribing procedure for obtaining post
facto clearance is not permissible on the basis of the
observations made by Hon'ble High Court of Jharkhand in
Hindustan Copper (supra) and those made by Hon'ble
Supreme Court in Alembic Pharmaceuticals Ltd. (supra).
23. So far as reliance placed by the Government of India while
issuing the impugned Office Memorandum on Alembic
Pharmaceuticals Ltd. (supra) is concerned, we may note that
in paragraph 27 of the said judgment, the Hon'ble Supreme
Court has clearly observed that the concept of ex-post facto
environment clearance is in derogation of the fundamental
principles of environmental jurisprudence and is an anathema to
the EIA notification dated 27 th January 1994. The Hon'ble
Supreme Court in the said judgment has further observed that in
absence of EC, there would be no condition that would safeguard
the environment and further that if the EC was to be ultimately
refused, irreparable harm would have been caused to the
environment. The Hon'ble Supreme Court also stated in the said
judgment that in either view of the matter, environment law
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cannot countenance the notion of an ex post facto clearance and
that it would be contrary to both the precautionary principle as
well as the need for sustainable development. Para 27 of the
Alembic Pharmaceuticals Ltd. (supra) is extracted
hereinbelow: -
"27. The concept of an ex post facto EC is in derogation of the
fundamental principles of environmental jurisprudence and is an
anathema to the EIA notification dated 27 January 1994. It is,
as the judgment is Common Cause holds, detrimental to the
environment and could lead to irreparable degradation. The
reason why a retrospective EC or an ex post facto clearance is
alien to environmental jurisprudence is that before the issuance
of an EC, the statutory notification warrants a careful
application of mind, besides a study into the likely
consequences of a proposed activity on the environment. An EC
can be issued only after various stages of the decision-making
process have been completed. Requirements such as conducting
a public hearing, screening, scoping and appraisal are
components of the decision-making process which ensure that
the likely impacts of the industrial activity or the expansion of
an existing industrial activity are considered in the decision-
making calculus. Allowing for an ex post facto clearance would
essentially condone the operation of industrial activities without
the grant of an EC. In the absence of an EC, there would be no
conditions that would safeguard the environment. Moreover, if
the EC was to be ultimately refused, irreparable harm would
have been caused to the environment. In either view of the
matter, environment law cannot countenance the notion of an
ex post facto clearance. This would be contrary to both the
precautionary principle as well as the need for sustainable
development."
24. It is only in para 49 of Alembic Pharmaceuticals Ltd.
(supra) that we find that certain observations have been made
and directions have been issued to the project proponents for
deposit of the amount of compensation with the Pollution Control
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Board of the State concerned, where revocation of environment
clearance and closure of industries was provided, however, it is
to be noticed that the Hon'ble Supreme Court in para 49 itself
goes on to observes that, "these directions are issued under
Article 142 of the Constitution". Para 49 of Alembic
Pharmaceuticals Ltd. (supra) is quoted hereinbelow:
"49. In this backdrop, this Court must take a balanced
approach which holds the industries to account for having
operated without environmental clearances in the past without
ordering a closure of operations. The directions of the NGT for
the revocation of the ECs and for closure of the units do not
accord with the principle of proportionality. At the same time,
the Court cannot be oblivious to the environmental degradation
caused by all three industries units that operated without valid
ECs. The three industries have evaded the legally binding
regime of obtaining ECs. They cannot escape the liability
incurred on account of such noncompliance. Penalties must be
imposed for the disobedience with a binding legal regime. The
breach by the industries cannot be left unattended by legal
consequences. The amount should be used for the purpose of
restitution and restoration of the environment. Instead and in
place of the directions issued by the NGT, we are of the view
that it would be in the interests of justice to direct the three
industries to deposit compensation quantified at ^10 crores
each. The amount shall be deposited with GPCB and it shall be
duly utilized for restoration and remedial measures to improve
the quality of the environment in the industrial area in which
the industries operate. Though we have come to the conclusion,
for the reasons indicated, that the direction for the revocation of
the ECs and the closure of the industries was not warranted, we
have issued the order for payment of compensation as a facet
of preserving the environment in accordance with the
precautionary principle. These directions are issued under
Article 142 of the Constitution. Alembic Pharmaceuticals
Limited, United Phosphorous Limited and Unique Chemicals
Limited shall deposit the amount of compensation with GPCB
within a period of four months from the date of receipt of the
certified copy of this judgment. This deposit shall be in addition
to the amount directed by the NGT. Subject to the deposit of
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the aforesaid amount and for the reasons indicated, we allow
the appeals and set aside the impugned judgment of the NGT
dated 8 January 2016 in so far as it directed the revocation of
the ECs and closure of the industries as well as the order in
review dated 17 May 2016."
25. In view of the aforesaid, it is abundantly clear that the
observations made and directions issued by the Hon'ble
Supreme Court in Alembic Pharmaceuticals Ltd. (supra) are
to be read in terms of Article 142 of the Constitution of India and
therefore, such observations and directions of Hon'ble Supreme
Court are to be confined to the facts of the said case which
cannot have general application. Accordingly, we are of the
considered opinion that reference to the observations made and
directions issued by Hon'ble Supreme Court in Alembic
Pharmaceuticals Ltd. (supra) in the impugned Office
Memorandum is highly misplaced and the same cannot be relied
upon for justifying issuance of the impugned Office Memorandum
in contravention of the provisions contained in CRC Notification,
2019, which, as concluded above, is statutory in nature having
been issued by the Government of India under section 3(2)(v) of
the Act of 1986 read with Rule 5(3)(d) of the Rules of 1986.
Similarly, reference made in the impugned Office Memorandum
to the order dated 28th November 2014 of Hon'ble High Court of
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Jharkhand in the case of Hindustan Copper Limited (supra)
also does not justify the said Office Memorandum. The order in
Hindustan Copper Limited (supra) pertained to a matter not
in relation to CRZ areas. It was a case relating to mining lease
which was issued prior to Environment Impact Assessment (EIA)
Notification and the question in the said case was as to whether
the EIA Notification would be applicable to renewal of mining
lease and it is in this context that the Hon'ble Jharkhand High
Court observed that application seeking environmental clearance
must be examined on merits independent of the proposed action
of the alleged violation of CRZ laws. Accordingly, the reference
of this order of Hon'ble Jharkhand High Court in the impugned
Office Memorandum does not in any manner help the respondent
no. 1 for justifying the same as it is clearly in derogation and
violation of the CRZ Notification, 2019.
26. It is also to be noticed that the impugned Office
Memorandum mentions that the Government of India had
received several requests under CRZ Notification, 2011 for
considering CRZ clearances in respect of permissible activities
which had commenced work without prior CRZ clearance due to
inadequate knowledge of the regulatory regime and other
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factors. Reference to CRZ Notification, 2011 in the impugned
order and that of the requests made by project proponents for
post facto CRZ clearance are also misplaced for the reason that
CRZ Notification, 2019 was issued in supersession of CRZ
Notification, 2011 and accordingly, clause 4.3 in CRZ
Notification, 2011, which permitted post facto clearance, which
was inserted by notification dated 6th March 2018, cannot be said
to be in operation on the date of issuance of the impugned Office
Memorandum. The regulatory CRZ regime which was in
operation is the one notified by CRZ Notification, 2019 which
does not contain any provision for grant of post facto CRZ
clearance.
27. It is well settled law that whenever a law is repealed, it
must be construed as if it never existed. Such proposition can be
found propounded by Hon'ble Supreme Court in the case of
State of Uttar Pradesh and Ors. vs. Hirendra Pal Singh and
Ors.10. Para 22 of the said report is relevant to be quoted here,
which runs as under: -
"22. It is a settled legal proposition that whenever an Act is
repealed, it must be considered as if it had never existed. The
object of repeal is to obliterate the Act from the statutory
books, except for certain purposes as provided under section 6
(2011) 5 SCC 305
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of the General Clauses Act, 1897. Repeal sis not a matter of
mere form but is of substance. Therefore, on repeal, the earlier
provisions stand obliterated/abrogated/wiped out wholly i.e. pro
tanto repeal."
28. Thus, as a result of supersession of CRZ Notification, 2011
by promulgating and notifying CRZ Notification, 2019, it may be
noted that at the time of issuance of the Office Memorandum
dated 19th February 2021, the CRZ Notification, 2011 did not
exist and accordingly, any reference to CRZ Notification, 2011 in
the impugned Office Memorandum does not justify the issuance
of it.
29. In the light of the aforesaid discussion, we are of the
unambiguous view that the impugned Office Memorandum dated
19th February 2021 issued by the Government of India is in
contravention and derogation of the provisions of CRZ
Notification, 2019.
30. Coming to the next issue, namely, issue (b), we may first
examine the law as declared by Hon'ble Supreme Court in
relation to operation of executive circular/orders/decision in the
wake of a statutory notification or any other statutory provision.
31. Jurisprudence in our country recognizes hierarchy of laws
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according to which on the topmost pedestal of such hierarchy
stand the provisions of the Constitution of India, where after
stand the provisions of any legislation made by the Parliament or
the State legislatures. Thereafter comes statutory
provisions/rules/ instruments made by the competent authority
in exercise of its powers vested in it under some legislation and
it is only thereafter that in the said hierarchy, the executive
instructions/orders/ decisions of the Government stand.
32. We may refer to a judgment of Hon'ble Supreme Court in
the case of Union of India and Ors. vs. Somasundaram
Viswanath and Ors.11 where the subject matter related to a
service dispute in respect of promotion and seniority of certain
Government servants. In the said context, it has been held by
Hon'ble Supreme Court that "if there is a conflict between
the executive instructions and the rules made under the
proviso to Article 309 of the Constitution of India, the
rules made under proviso to Article 309 of the
Constitution of India prevail, and if there is a conflict
between the rules made under the proviso to Article 309
of the Constitution of India and the law made by the
(1989) 1 SCC 175
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appropriate legislature the law made by the appropriate
legislature prevails".
33. In the case of Rajasthan State Industrial Development
and Investment Corporation vs. Subhash Sindhi
Cooperative Housing Society, Jaipur and Ors. 12 the Hon'ble
Supreme Court has again emphasized that executive instructions
cannot override the law and therefore, any notice/circular/
guidelines, etc., which are contrary to statutory provisions,
cannot be enforced. Para 27 of the said report is extracted
below: -
"27. Executive instructions which have no statutory force,
cannot override the law. Therefore, any notice, circular,
guidelines, etc. which run contrary to statutory laws cannot be
enforced."
34. The Hon'ble Supreme Court in yet another judgment in the
case of Union of India and Anr. Vs. Ashok Kumar
Aggarwal13 has reiterated the aforesaid proposition of law that
an authority cannot issue orders/office memorandums/executive
instructions in contravention of the statutory rules. The Hon'ble
Supreme Court has further observed, in no uncertain terms, that
such executive instructions can be issued only to supplement the
(2013) 5 SCC 427
(2013) 16 SCC 147
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statutory rules but not to supplant and that the executive
instructions should be subservient to the statutory provisions.
Para 59 in the judgment of Ashok Kumar Aggarwal (supra) is
quoted hereinbelow: -
"59. The law laid down above has consistently been followed
and it is a settled proposition of law that an authority cannot
issue orders/office memorandum/ executive instructions in
contravention of the statutory rules. However, instructions can
be issued only to supplement the statutory rules but not to
supplant it. Such instructions should be subservient to the
statutory provisions."
35. Reiterating the principle an administrative instruction can
only supplement the statutory rules in the manner that it does
not lead to any inconsistency, Hon'ble Supreme Court in the case
of SK Naushad Rahman and Ors. vs. Union of India and
Ors.14 has held that executive instructions may fill up the gaps
in the rules, but supplementing the exercise of the rule-making
power with the aid of administrative or executive instructions is
distinct from taking the aid of administrative instructions
contrary to the express provision or the necessary intendment of
the rules. Paragraph 33 of this judgment is extracted
hereinbelow: -
"33. There is a fundamental fallacy in the submission which has
been urged on behalf of the appellants. Administrative
instructions, it is well-settled, can supplement Rules which are
framed under the proviso to Article 309 of the Constitution in a
(2022) 12 SCC 1
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manner which does not lead to any inconsistencies. Executive
instructions may fill up the gaps in the rules. But supplementing
the exercise of the rule-making power with the aid of
administrative or executive instructions is distinct from taking
the aid of administrative instructions contrary to the express
provision or the necessary intendment of the Rules which have
been framed under Article 309. The 2016 RR have been framed
under the proviso to Article 309. Rule 5 of the 2016 RR contains
a specific prescription that each CCA shall have its own separate
cadre. The absence of a provision for filling up a post in the
Commissionerate by absorption of persons belonging to the
cadre of another Commissionerate clearly indicates that the
cadre is treated as a posting unit and there is no occasion to
absorb a person from outside the cadre who holds a similar or
comparable post".
36. Thus, in view of the aforesaid proposition of law
propounded by Hon'ble Supreme Court, it is more than clear that
any executive instruction can only supplement the rules and if
such executive instruction tends to supplant the rules, the same
cannot be permitted to be sustained in the eyes of law.
37. In the instant case, the CRZ Notification, 2019 has been
issued by the Central Government in exercise of its powers
vested in it under section 3(2)(v) of the Act of 1986 read with
Rule 5(3)(d) of the Rules of 1986 and hence, they are statutory
in nature. It is also to be seen that the impugned Office
Memorandum has been issued without following the procedure
as prescribed under Rule 5(3) of the Rules of 1986 and hence,
the impugned Office Memorandum is not referable to the said
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rules. Accordingly, the impugned Office Memorandum cannot be
said to be statutory in nature; rather it only falls in the category
of an instrument which has been issued by the Central
Government in exercise of its general administrative/executive
powers.
38. We may also note that CRZ Notification, 2019 does not
contain any provision which permits post facto clearance,
whereas the impugned Office Memorandum prescribes a
procedure for obtaining post facto CRZ clearance. Accordingly,
the Office Memorandum provides something which is not
provided for in the statutory notification and hence, it cannot be
said that the impugned Office Memorandum in any manner is
supplemental to the CRZ Notification, 2019; rather it supplants
the same, which, in view of the afore-discussed proposition of
law propounded by Hon'ble Supreme Court in various
judgments, is legally impermissible.
39. Considering the issue (c) framed above, we may note that
in our discussion in preceding paragraphs we have already held
that reference of the judgment of Hon'ble Supreme Court in
Alembic Pharmaceuticals Ltd. (supra) and the order dated
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th
28 November 2014 of Hon'ble Jharkhand High Court in the
matter of Hindustan Copper Ltd. (supra) is misplaced and
hence, it is not open for the respondent no. 1 to take aid of the
said judgments to justify the impugned Office Memorandum.
40. It may also be emphasized that the provisions contained in
Rule 5 of the Rules of 1986 are mandatory in nature as held by
the Full Bench of our Court in Ajay Marathe vs. Union of
India & Ors.15. In this judgment, it has been held that
provisions of Rule 5(3)(a)(b) and (c) or the Rules of 1986 are
mandatory, inasmuch as, whenever it is intended to impose
prohibition or restrictions as contemplated by Rule 5, the Central
Government is under a mandate to notify its intention to do so in
Official Gazette and in such manner as it may deem fit. The Full
Bench has further held that it is only when the Central
Government is satisfied that it is in public interest to do so, it
may dispense with the requirement of prior publication of notice
under Rule 5(3)(a) of the Rules of 1986, however, no such
argument has been raised on behalf of the Union of India-
respondent no. 1 that the impugned Office Memorandum was
issued dispensing with the requirement of prior publication of its
2018(4) Mh. L.J. 770
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intention as required by Rule 5(3)(a) of the Rules of 1986. Even
otherwise, what we find is that the impugned Office
Memorandum does not refer to any statutory provision, either of
the Act of 1986 or the Rules of 1986. Accordingly, the Impugned
Office Memorandum cannot be justified for this reason as well.
41. A Division Bench of this Court in its judgment dated 27 th
August 2001 in the case of Mr. Kashhinath Jairam Shetye
and Ors. vs. Union of India and Anr. 16 has observed that
requirement of issuance of public notice under Rule 5(3)(a) of
the Rules of 1986 is a statutory embodiment of the rule of audi
alteram partem and in absence of any public interest involved in
the dispensation of such public notice, the Central Government
could not have, in casual manner, dispensed with such
requirement and deprived the public of an opportunity to object
to the activities proposed in the eco-sensitive zone. Though the
argument based on dispensing with such requirement in public
interest has not been made by the learned Counsel representing
the respondent no. 1, however, we may observe that in case any
provision, as contained in the impugned Office Memorandum,
was intended by the Central Government to be made, CRZ
PIL Writ Petition No. 43 of 2019
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Notification, 2019 was required to be amended by following the
statutory requirements contained in Rule 5 of the Rules of 1986.
Since before issuance of the impugned Office Memorandum such
statutory prescriptions have not been followed, that itself makes
the impugned Office Memorandum vulnerable and susceptible
due to which it cannot withstand judicial scrutiny.
42. Reliance placed by learned Counsel on behalf of respondent
no. 1 on various judgments is of no avail to justify the impugned
Office Memorandum. In this regard, we may note that heavy
reliance has been placed by learned Counsel for respondent no.
1 on the judgment in the case of Pahwa Plastics Pvt. Ltd.
(supra), however, it was a case where the Hon'ble Supreme
Court held that ex post facto approval can be granted in certain
rare circumstances, but, as is apparent from a perusal of the
judgment, what we find is that it was a case where the relevant
notification was issued by following the procedure under Rule
5(3) of the Rules of 1986, whereas in the instant case, the
impugned Office Memorandum is not referable to any of the
statutory prescriptions as discussed above.
43. Learned counsel for respondent no. 1 has also relied upon
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the judgment in the case of D. Swamy (supra), Lafarge
Umiam Mining Pvt. Ltd. (supra), Electrotherm (supra) and
Electrosteel Steels Ltd. (supra) where the question was as to
whether ex post facto environmental clearance maybe granted.
44. In the case of D. Swamy (supra), the Notification dated
14th March 2017 provided for grant of ex post facto
environmental clearance for the project proponent who had
commenced, continued or completed project without obtaining
environmental clearance, which was issued by the Central
Government in exercise of its power under section 3(1) and
section 3(2)(v) of the Act of 1986 read with Rule 5(3)(d) of the
Rules of 1986. Thus, the notification, which provided grant of ex
post facto environmental clearance in D. Swamy (supra), was
statutory in nature, whereas in the instant case, the impugned
Office Memorandum is not referable to any of the provisions of
the Act of 1986 or the Rules framed thereunder. Thus, in our
opinion, the judgment in D. Swamy (supra) and other
judgments will have no application to the facts of the present
case.
45. So far as Electrosteel Steels Ltd. (supra) is concerned,
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it was a case where environmental clearance was granted to the
project proponent for a particular site on the basis of which
consent to establish under the Air (Prevention and Control of
Pollution) Act, 1981 and Water (Prevention and control of
Pollution) Act, 1974 was accorded on the basis of environmental
clearance issued by the Central Government, however, the
consent to operate was rejected on the ground that the project
proponent had shifted the site of its plant and had encroached
upon some forest land in contravention of the Forest
(Conservation) Act, 1980. It is in these circumstances, specially
that the project proponent had shifted the site for establishing
its plant which was at some distance away from the site for
which environmental clearance was granted and the project
proponent was seeking issuance of revised environmental
clearance, that the Hon'ble Supreme Court directed the Union of
India to take decision on the application of the project proponent
for revised environmental clearance. In this judgment, Hon'ble
Supreme Court has noticed Alembic Pharmaceuticals Ltd.
(supra) wherein the Hon'ble Supreme Court has deprecated ex
post facto clearances. The Hon'ble Supreme Court further
noticed in Electrosteel Steels Ltd. (supra) that in Alembic
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Pharmaceuticals Ltd. (supra) the notification dated 14th
March 2017 was not an issue and that the Court was examining
the propriety and legality of the 2002 circular which was
inconsistent with the EIA Notification dated 27 th January 1994
which was a statutory one. The Hon'ble Supreme Court in
Electrosteel Steels Ltd. (supra) has, thus, referred to the
notification dated 14th March 2017 which is a statutory
notification unlike the Office Memorandum dated 19 th February
2021 which is under challenge in this PIL petition which is merely
an executive circular/decision. Accordingly, the judgment in
Electrosteel Steels Ltd. (supra) does not help the respondent
no. 1 in any manner for justifying the impugned Office
Memorandum.
46. As far as the judgment in the case of K.T.V. Health Food
Pvt. Ltd. (supra) is concerned, it was a case where post facto
clearance was held to be permissible based on para 4.3 of CRZ
Notification, 2011 which was inserted vide notification dated 6 th
March 2018. The notification dated 6th March 2018, as already
observed, was statutorily issued by the Government of India
exercising its powers conferred under section 3(2)(v) of the Act
of 1986 read with Rule 5(3)(d) of the Rules of 1986. Hence, the
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judgment in K.T.V. Health Food Pvt. Ltd. (supra) does not
help the respondent no. 1.
47. On these counts, the other judgments referred to by
learned Counsel representing the Union of India also do not
persuade us to uphold the validity of the impugned Office
Memorandum dated 19th February 2021.
(H) Conclusion:
48. In the light of the discussion made and reasons given
above, this Court is of a considered opinion that after issuance of
CRZ Notification, 2019, in absence of any amendment in this
notification or issuance of any other statutory notification
permitting post facto CRZ clearance, by issuing the impugned
Office Memorandum dated 19th February 2021, which is clearly
non-statutory in nature, post facto CRZ clearance is legally not
permissible. We also conclude that the impugned Office
Memorandum dated 19th February 2021 being merely in the
nature of an executive circular/order issued by the Union of India
runs contrary to and in derogation of the statutory provisions
embodied in CRZ Notification, 2019 and hence, is liable to be
struck down.
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Order:
(a) PIL petition is, thus, allowed and the impugned Office
Memorandum dated 19th February 2021 issued by the
Government of India in the Ministry of Forest and
Climate Change as contained in Exhibit 'A' appended to
the PIL petition is hereby quashed.
(b) The applications seeking CRZ clearance made by
interveners, namely, the State of Nagaland and M/s.
Patel and Associates shall be considered by the
competent authority on their own merits and appropriate
decision thereon shall be taken in accordance with law,
with expedition.
(c) All other interim application(s), if any, stand disposed of.
(d) Costs made easy.
(AMIT BORKAR, J.) (CHIEF JUSTICE)
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