GULF GOANS HOTELS CO. LTD. Vs UNION OF INDIA .
Bench: RANJAN GOGOI,M.Y. EQBAL
Case number: C.A. No.-003434-003435 / 2001
Diary number: 14142 / 2000
Advocates: A. RAGHUNATH Vs
SANJAY PARIKH
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REPORTABLE
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.3434-3435 OF 2001
GULF GOANS HOTELS CO. LTD. & ANR. . ..APPELLANTS
VERSUS
UNION OF INDIA & ORS. ...RESPONDENTS
WITH CIVIL APPEAL NO.3438 OF 2001
WITH CIVIL APPEAL NOS.3436-3437 OF 2001
WITH CIVIL APEAL NO.3439 OF 2001
J U D G M E N T
RANJAN GOGOI, J.
1. The appellants are the owners of Hotels, Beach Resorts
and Beach Bungalows in Goa who have been facing the
prospect of demolition of their properties for the last several
decades. The respondent-Goa Foundation is a non-
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Governmental body who claims to be dedicated to the cause
of environmental and ecological well being of the State of
Goa. The respondent-Goa Foundation had filed parallel writ
petitions before the High Court for demolition of the
allegedly illegal constructions raised by the appellants. Both
sets of writ petitions i.e. those filed by the appellants against
the orders of demolition by the State Authorities and the writ
petitions filed by the Goa Foundation seeking demolition of
constructions raised by each of the appellants were heard
together by the Bombay High Court. The High Court, by
separate impugned orders dated 13th July, 2000, had upheld
the orders passed by the authorities requiring the appellants
to demolish the existing structures. It is against the
aforesaid orders passed by the High Court that the present
group of appeals have been filed upon grant of leave by this
Court under Article 136 of the Constitution of India.
2. The constructions raised by the appellants are not per
se illegal in the conventional sense. They are not without
permission and sanction of the competent authority. What
has been alleged by the State and has been approved by the
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High Court is that such constructions are in derogation of the
environmental guidelines in force warranting demolition of
the same as a step to safeguard the environment of the
beaches in Goa. Specifically, it is the case of the State that
the constructions in question are between 90 to 200 meters
from the High Tide Line (HTL) despite the fact that under the
guidelines in force, which partake the character of law,
constructions within 500 meters of the HTL are prohibited
except in rare situations where construction activity between
200 to 500 meters from the HTL are permitted subject to
observance of strict conditions. Admittedly, all constructions,
though completed on different dates and in different phases,
were so completed before the Coastal Regulation Zone (CRZ)
were enacted (w.e.f.19th February, 1991) in exercise of the
powers under the Environment Protection Act, 1986.
3. The above basis on which the impugned action of the
State is founded has been sought to be answered by the
appellants by contending that at the relevant point of time
when building permissions and sanctions were granted in
respect of the constructions undertaken, the prohibition was
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with regard to construction within 90 meters from the HTL.
Admittedly, none of the constructions are within the said
divide. The guidelines, detailed reference to which are made
in the succeeding paragraphs of the present order, are not
‘law’ so as to constitute activities contrary thereto as acts of
infringement of the law and hence illegal. Such guidelines do
not confer the power of enforcement and lack the authority
to bring about any penal consequences.
4. Having very broadly noticed the contours of the
adjudication that the present case would require, we may
now proceed to consider the stand of the rival parties with
some elaboration. The Stockholm declaration of 1972 to
which India was the party is the foundation of the State’s
claim that the guidelines in question, being in
implementation of India’s international commitments,
engraft a legal framework by executive action under Article
73 of the Constitution. The said guidelines are in conformity
with the Nation’s commitment to international values in the
matter of preservation of the pristine purity of sea beaches
and to prevent its ecological degradation. Such commitment
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to an established feature of International Law stands
engrafted in the Municipal Laws of the country by
incorporation. The guidelines commencing with the
instructions conveyed by the Prime Minister of India in a
letter dated 27th November, 1981 addressed to the Chief
Minister of Goa; the environmental guidelines for
development of beaches published in July, 1983 by the
Government of India and the 1986 guidelines issued by Inter
Ministerial Committee by the Ministry of Tourism,
Government of India by order dated 11th June, 1986 have
been stressed upon as containing the responses of the Union
of India to the Stockholm Declaration. It is contended that
enactment of laws by the legislature is not exhaustive of the
manner in which India’s International commitments can be
furthered. Executive action, in the absence of statutory
enactments, is an alternative mode authorised under Article
73 of the Constitution. In the present case, the exercise of
executive power is traceable to Entry 13 and 14 of List I of
the Seventh Schedule to the Constitution. The power to give
effect to the guidelines and to penalize violators thereof may
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not have been available at the time when the guidelines
became effective. However, with the enactment of the
Environment Protection Act, 1986 (hereinafter referred to as
‘the Act’) with effect from 19th November, 1986, sections 3
and 5 empowered the Central Government to pass
necessary orders and issue directions which are penal in
nature. It is in the exercise of the said power under the Act
read with the guidelines referred to above that the orders
impugned by the appellants have been passed. Though the
Coastal Regulation Zone (CRZ) Notification under the Act
was issued on 19th February, 1991 and admittedly is
prospective in nature, till such time that the said notification
came into force it is the guidelines which held the field being
administrative instructions having the effect of law under
Article 73 of the Constitution.
5. The stand of the State in support of the impugned
action has been noticed at the outset for a better
appreciation of the arguments advanced by the appellants.
Shri K. Parasaran, Shri C.U.Singh and Shri Raju
Ramachandran, learned senior counsels who had appeared
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on behalf of the appellants in the different appeals under
consideration have submitted that the purport and effect of
the CRZ Notification published on 19th February, 1991 in
exercise of the powers conferred by the Act and the Rules
read together has been considered by this Court in Goan
Real Estate and Construction Limited & Anr. vs. Union
of India through Secretary, Ministry of Environment &
Ors.1 to hold that: “Thus, the intention of legislature while
issuing the Notification of 1991 was to protect the past
actions/transactions which came into existence before the
approval of the 1991 Notification.” It is further submitted
that in Goan Real Estate & Construction Ltd. (supra)
construction which had commenced after the amendments
made in the year 1994 to the notification dated 19th
February, 1991 till the same were declared illegal on
18th April, 1996, were protected by this Court by holding that
though the amending notification was declared illegal by this
Court – “all orders passed under the said notification and
actions taken pursuant to the said notification would not be
affected in any manner whatsoever.” (Para 38). According to 1 2010 (5) SCC 388; in para 31
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the learned counsels, the above is the approach that this
Court had indicated to be appropriate for adoption while
considering the Regulations and its impact on environmental
issues in so far as coastal areas and sea beaches are
concerned.
6. In so far as the guidelines of 1983 and 1986 are
concerned, it is contended that the Stockholm Declaration
saw the emergence of the concept of sustainable
development in full bloom. In Vellore Citizens’ Welfare
Forum vs. Union of India & Ors.2, this court understood
Sustainable Development to mean “development that meets
the needs of the present without compromising the ability of
the future generations to meet their own needs”. In Vellore
Citizen’s Welfare Forum (supra), it is further held that
“Sustainable Development” as a balancing concept between
ecology and development has been accepted as a part of
customary international law though its salient features are
yet to be finalised by the international law jurists. The
Stockholm Declaration, naturally, does not and in fact could
2 (1996) 5 SCC 647 Para 10
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not have visualized specific and precise parameters of
sustainable development including prohibitory and
permissible parameters of industrial and business activities
on the sea beaches that could be universally applied across
the board. The very text and the language of the guidelines,
according to learned counsels, make it clear that there is no
mandate of law in any of the said guidelines which are really
in the nature of evolving parameters embodying suggestions
for identification of the correct parameters for enactment of
laws in the future. It is accordingly argued that the
guidelines do not amount to an exercise of law making by
the executive under Article 73 of the Constitution. In any
case, the guidelines were never published or authenticated
as required under Article 77 of the Constitution. Pointing out
the provisions of the Air (Prevention and Control of Pollution)
Act, 1981, it is argued that the aforesaid Act was enacted to
implement the decisions taken in the Stockholm Conference
of 1972. Parliament though fully aware of the resolutions
and decisions taken in the Stockholm Conference as well as
the commitments made by the India as a signatory thereto
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did not consider it necessary to enact a comprehensive law
to protect and safeguard ecology and environment until
enactment of the Environment Protection Act with effect
from 18th November, 1986. Even thereafter, the parameters
for enforcement of the provisions of the Act insofar as the
sea coast and beaches are concerned had to await the
enactment of the CRZ Notification of 19th February, 1991.
Shri Parasaran has particularly relied on a decision of this
Court in the State of Karnataka & Anr. vs. Shri
Ranganatha Reddy & Anr.3 to contend that even if the
court is to hold otherwise what would be called for is a
“balancing act” which would lean in favour of the protection
of the property having regard to the long period of time that
has elapsed since the impugned action was initiated against
the appellants.
7. In reply, Shri Chitale, learned senior counsel appearing
for the Union of India has placed before the Court the several
documents which the Union would like the Court to construe
as the ‘law in force’ to regulate commercial/business
3 (1977 (4) SCC 471)
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activities on the sea beaches in order to maintain
environmental health and ecological balance. It is contended
that the aforesaid guidelines, though had existed all along,
could not be specifically enforced in the absence of statutory
powers to penalize the violations thereof. Such power,
learned counsel contends, came to be conferred with the
enactment of the Environment Protection Act with effect
from 19th November, 1986. The guidelines which all along
had laid down the parameters for application of the
provisions of the Act were replaced by the CRZ Regulations
with effect from 19 th February, 1991. Learned
counsel has contended that the guidelines issued are
traceable to the power of the Union executive under Entry
13 and 14 of List I of the Seventh Schedule read with Article
73 of the Constitution. Learned counsel has also drawn the
attention of the Court to its earlier decision in the case of
Gramophone Company of India Ltd. vs. Birendra
Bahadur Pandey & Ors.4 to contend that it was not
necessary to enact a specific law to give effect to Stockholm
4 1984 (2) SCC 534
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Declaration inasmuch as the understanding and agreement
reached in the International Convention to which India was a
party stood embodied in the Municipal Laws of the country
by application of the doctrine of incorporation.
Particular emphasis was laid on the views expressed by
this Court in Para 5 of the decision in Gramophone
Company of India (supra) which may be extracted below:-
“5. There can be no question that nations must march with the international community and the municipal law must respect rules of international law even as nations respect international opinion. The comity of nations requires that rules of international law may be accommodated in the municipal law even without express legislative sanction provided they do not run into conflict with Acts of Parliament. But when they do run into such conflict, the sovereignty and the integrity of the Republic and the supremacy of the constituted legislatures in making the laws may not be subjected to external rules except to the extent legitimately accepted by the constituted legislatures themselves. The doctrine of incorporation also recognises the position that the rules of international law are incorporated into national law and considered to be part of the national law, unless they are in conflict with an Act of Parliament. Comity of nations or no, municipal law must prevail in case of conflict. National courts cannot say yes if Parliament has said no to a principle of
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international law. National courts will endorse international law but not if it conflicts with national law. National courts being organs of the national State and not organs of international law must perforce apply national law if international law conflicts with it. But the courts are under an obligation within legitimate limits, to so interpret the municipal statute as to avoid confrontation with the comity of nations or the well established principles of international law. But if conflict is inevitable, the latter must yield.”
8. Shri Sanjay Parikh, learned counsel appearing for the
respondent NGO, Goa Foundation, has submitted that the
Prime Minister’s letter dated 27th November, 1981; the 1983
guidelines as well as guidelines of 1986 have to be
construed to be law within the meaning of Article 73 of the
Constitution. Placing reliance on the decision of this Court in
Vishaka & Ors. vs. State of Rajasthan & Ors.,5, Shri
Parikh has submitted that in framing the guidelines to
ensure prevention of sexual harassment at work place this
Court has placed reliance on the fact that the Government of
India has ratified some of the resolutions adopted in the
convention on the elimination of all forms of discrimination
against women and had made known its commitments to the 5 1997 (6) SCC 241 para 13
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cause of women’s human rights in the Fourth World
Conference of Women held in Beijing. Similarly, relying on
the observations of this Court in Para 52 in Vineet Narain
& Ors. vs. Union of India & Anr.6, it is contended that “it
is the duty of the executive to fill the vacuum by executive
orders because its field is coterminous with that of the
legislature.” Shri Parikh has also relied on a judgment of old
vintage in Rai Sahib Ram Jawaya Kapur & Ors. vs. The
State of Punjab7 to contend that the executive power of
the union is wide and expansive and – “comprises both the
determination of the policy as well as carrying it into
execution. This evidently includes the initiation of legislation,
the maintenance of order, the promotion of social and
economic welfare, the direction of foreign policy, in fact the
carrying on or supervision of the general administration of
the State.” (sub-para of Para 13).
9. Shri Parikh has further contended that commitments of
the country made at an international forum which are in tune
with the constitutional philosophy i.e. to preserve and 6 1998 (1) SCC 226 7 AIR 1955 SC 549
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maintain ecology and environment, must be understood to
have been incorporated in the Municipal Laws of the country
and executive decisions to the above effect will fill in the
void till effective statutory exercise is made which in the
instant case came in the form of CRZ Notification dated 19th
February, 1991.
10. Shri Parikh has also submitted that passage of time
resulting in astronomical rise of property value; use of the
otherwise illegally constructed property during the pendency
of the present proceeding and such other events cannot be
the basis of any claim in equity for protection of the product
of an apparently illegal act. Reliance in this case has been
placed on a decision of this Court in Fomento Resorts &
Hotels Limited & Anr. vs. Minguel Martins & Ors.8 .
11. The cases of the respective parties having been
noticed the necessary discourse may now commence. In
Bennett Coleman & Co. vs. Union of India9, a ‘Newsprint
Policy’, notified by the Central Govt. for imposing conditions
8 2009 (3) SCC 571 9 [(1972) 2 SCC 788 – 5J]
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on import of newsprint came to be challenged on the ground
of violation of fundamental rights. Beg, J., in a concurring
judgment, observed:
“What is termed “policy” can become justiciable when it exhibits itself in the shape of even purported “law”. According to Article 13(3)(a) of the Constitution, “law” includes “any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law”. So long as policy remains in the realm of even rules framed for the guidance of executive and administrative authorities it may bind those authorities as declarations of what they are expected to do under it. But, it cannot bind citizens unless the impugned policy is shown to have acquired the force of “law”.
(para 93 – emphasis added)
12. The question ‘what is “law”? has perplexed many a
jurisprude; yet, the search for the elusive definition
continues. It may be unwise to posit an answer to the
question; rather, one may proceed by examining the points
of consensus in jurisprudential theories. What appears to be
common to all these theories is the notion that law must
possess a certain form; contain a clear mandate/explicit
command which may be prescriptive, permissive or penal
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and the law must also seek to achieve a clearly identifiable
purpose. While the form itself or absence thereof will not be
determinative and its impact has to be considered as a
lending or supporting force, the disclosure of a clear
mandate and purpose is indispensable.
13. It may, therefore, be understood that a Govt. policy
may acquire the “force of ‘law’” if it conforms to a certain
form possessed by other laws in force and encapsulates a
mandate and discloses a specific purpose. It is from the
aforesaid prescription that the guidelines relied upon by the
Union of India in this case, will have to be examined to
determine whether the same satisfies the minimum
elements of law. The said guidelines are -
1. Directives to the State Governments in letter dated
27th November, 1981 of the then Prime Minister; 2. Notification dated 22nd July, 1982 of the Governor
setting up the Ecological Development Council for Goa,
inter alia, for scrutiny of beach construction within 500
meters of HTL; 3. Environmental Guidelines for Development of
Beaches of July 1983;
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4. Order dated 11th June, 1986 of Under Secretary,
Ministry of Tourism, also addressed to Chief Secretary,
Govt. of Goa, constituting an inter-Ministerial Committee
for considering tourist projects within 500 meters.
14. The genesis of the Executive’s decision to restrict
construction activity within 500 meters of the HTL can be
traced to the Stockholm Conference. It is India’s participation
in the conference that led to the introduction of Articles 48A
and 51A(g) in the Constitution and the enactment of several
legislations like the Air Act 1981,Forest Conservation Act,
1980, Environment Protection Act, 1986 etc. all of which
seek to protect, preserve and safeguard the environment. It
may be possible to view the aforesaid guidelines as
“affirmative action”, aimed at implementation of Articles 21
and 48A of the Constitution and, therefore, outlining a visible
purpose. The search for a clear, unambiguous and
unequivocal command to regulate the conduct of the citizens
in the said guidelines must also be equally fruitful. However,
we are unable to find in the said guidelines any expressed or
clearly defined dicta. In fact, having read and considered the
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guidelines, we are left with a reasonable doubt as to whether
what has been spelt out therein are not mere suggestions or
opinions expressed in the process of a continuing exploration
to identify the correct parameters that would effectuate the
purpose i.e. safeguarding and protecting the environment
(sea beaches) from human exploitation and degradation. The
above is particularly significant in view of the fact that the
Stockholm Declaration in its core resolutions, merely
enunciate very broad propositions and commitments
including those concerning the sea beaches as distinguished
from specific parameters that could have application,
without variation or exception, to all the signatories to the
declaration. The Stockholm Conference having nowhere
expressed any internationally approved parameters of
acceptable distance from the HTL, incorporation of any such
feature of international values in the Municipal Laws of the
country cannot arise even on the principle enunciated in
Gramophone Company of India (supra). The position is
best highlighted by noticing in a little detail the objectives
sought to be achieved in the Stockholm Conference and the
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core principles adopted therein so far as they are relevant to
the issues in hand.
“The United Nations Conference on the Human Environment, met at Stockholm from 5 to 16 June, 1972, to consider the need for a common outlook and common principles to inspire and guide the peoples of the world in the preservation and enhancement of the human environment - The Conference called upon Governments and peoples to exert common efforts for the preservation and improvement of the human environment, for the benefit of all the people and for their posterity.”
Extract of the relevant Principles – “Principle 7- States shall take all possible steps to prevent pollution of the seas by substances that are liable to create hazards to human health, to harm living resources and marine life, to damage amenities or to interfere with other legitimate uses of the sea.
Principle 11 - The environmental policies of all States should enhance and not adversely affect the present or future development potential of developing countries, nor should they hamper the attainment of better living conditions for all, and appropriate steps
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should be taken by States and international organizations with a view to reaching agreement on meeting the possible national and international economic consequences resulting from the application of environmental measures.
Principle 14- Rational planning constitutes an essential tool for reconciling any conflict between the needs of development and the need to protect and improve the environment.
Principle 23- Without prejudice to such criteria as may be agreed upon by the international community, or to standards which will have to be determined nationally, it will be essential in all cases to consider the systems of values prevailing in each country, and the extent of the applicability of standards which are valid for the most advanced countries but which may be inappropriate and of unwarranted social cost for the developing countries.
Principle 24- International matters concerning the protection and improvement of the environment should be handled in a cooperative spirit by all countries, big and small, on an equal footing.
Cooperation through multilateral or bilateral arrangements or other appropriate means is
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essential to effectively control, prevent, reduce and eliminate adverse environmental effects resulting from activities conducted in all spheres, in such a way that due account is taken of the sovereignty and interests of all States.”
15. Article 77 of the Constitution provides the form in
which the Executive must make and authenticate its orders
and decisions. Clause (1) of Article 77 provides that all
executive action of the Government must be expressed to
be taken in the name of the President. The celebrated author
H.M.Seervai in Constitutional Law of India, 4th Edition,
Volume 2, 1999 describes the consequences of Government
orders or instructions not being in accordance with Clauses
(1) or (2) of Article 77 by opining that the same would
deprive of the orders of the immunity conferred by the
aforesaid clauses and they may be open to challenge on the
ground that they have not been made by or under the
authority of the President in which case the burden would be
on the Government to show that they were, in fact, so made.
In the present case, the said burden has not been
discharged in any manner whatsoever. The decision in Air
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India Cabin Crew Association vs. Yeshaswinee
Merchant10, taking a somewhat different view can, perhaps,
be explained by the fact that in the said case the impugned
directions contained in the Government letter (not expressed
in the name of the President) was in exercise of the statutory
power under Section 34 of the Air Corporations Act, 1953. In
the present case, the impugned guidelines have not been
issued under any existing statute.
16. Clause (2) of Article 77 also provides for the
authentication of orders and instruments in a manner as
may be prescribed by the Rules. In this regard, vide S.O.
2297 dated 3rd November, 1958 published in the Gazette of
India, the President has issued the Authentication (Orders
and Other Instruments) Rules, 1958. The said Rules have
been superseded subsequently in 2002. Admittedly, the
provisions of the said Rules of 1958 had not been followed in
the present case insofar as the promulgation of the
guidelines is concerned.
10 (2003) 6 SCC 277 – para 72
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17. In the absence of due authentication and promulgation
of the guidelines, the contents thereof cannot be treated as
an order of the Government and would really represent an
expression of opinion. In law, the said guidelines and its
binding effect would be no more than what was expressed
by this Court in State of Uttaranchal vs. S.K. Vaish11 in
the following paragraph of the report :
“It is settled law that all executive actions of the Government of India and the Government of a State are required to be taken in the name of the President or the Governor of the State concerned, as the case may be [Articles 77(1) and 166(1)]. Orders and other instruments made and executed in the name of the President or the Governor of a State, as the case may be, are required to be authenticated in the manner specified in the rules made by the President or the Governor, as the case may be [Articles 77(2) and 166(2)]. In other words, unless an order is expressed in the name of the President or the Governor and is authenticated in the manner prescribed by the rules, the same cannot be treated as an order on behalf of the Government.” [Para 23]
“A noting recorded in the file is merely a noting simpliciter and nothing more. It merely represents expression of opinion by the particular individual. By no stretch of imagination, such noting can be treated as a
11 (2011) 8 SCC 670
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decision of the Government. Even if the competent authority records its opinion in the file on the merits of the matter under consideration, the same cannot be termed as a decision of the Government unless it is sanctified and acted upon by issuing an order in accordance with Articles 77(1) and (2) or Articles 166(1) and (2). The noting in the file or even a decision gets culminated into an order affecting right of the parties only when it is expressed in the name of the President or the Governor, as the case may be, and authenticated in the manner provided in Article 77(2) or Article 166(2). A noting or even a decision recorded in the file can always be reviewed/reversed/overruled or overturned and the court cannot take cognizance of the earlier noting or decision for exercise of the power of judicial review.”
[Para 24]
18. It is also essential that what is claimed to be a law
must be notified or made public in order to bind the citizen.
In Harla vs. State of Rajasthan12 while dealing with the
vires of the Jaipur Opium Act, which was enacted by a
resolution passed by the Council of Ministers, though never
published in the Gazette, this Court had observed :-
“Natural justice requires that before a law can become operative it must be promulgated or published. It must be broadcast in some recognisable way so that all men may know what it is, or, at the very
12 [AIR 1951 SC 467]
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least, there must be some special role or regulation or customary channel by or through which such knowledge can be acquired with the exercise of due and reasonable diligence. The thought that a decision reached in the secret recesses of a chamber to which the public have no access and to which even their accredited representatives have no access and of which they can normally know nothing, can nevertheless affect their lives, liberty and property by the mere passing of a Resolution without anything more is abhorrent to civilised man.” [Para 10]
19. The Court in Harla vs. State of Rajasthan (supra)
noticed the decision in Johnson vs. Sargant & Sons13 and
particularly the following:-
“The principle underlying this question has been judicially considered in England. For example, on a somewhat lower plane, it was held in Johnson v. Sargant, (1918) 1 K.B. 101: 87 L.J. K.B. 122 that an order of the Food Controller under the Beans, Peas and Pulse (Requisition) Order 1917, does not become operative until it is made known to the public, and the differences between an Order of that kind and an Act of the British Parliament is stressed. The difference is obvious. Acts of the British Parliament are publicly enacted. The debates are open to the public and the acts are passed by the accredited representatives of the people who in theory can be trusted to see that their constituents know what has been done. They also receive
13 [(1918) 1 KB 101]
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wide publicity in papers and, now, over the wireless. Not so Royal Proclamations and Orders of a Food Controller and so forth. There must therefore be promulgation and publication in their cases. The mode of publication can vary; what is a good method in one country may not necessarily be the best in another. But reasonable publication of some sort there must be.” (Para 11)
20. It will not be necessary to notice the long line of
decisions reiterating the aforesaid view. So far as the mode
of publication is concerned, it has been consistently held by
this Court that such mode must be as prescribed by the
statute. In the event the statute does not contain any
prescription and even under the subordinate legislation
there is silence in the matter, the legislation will take effect
only when it is published through the customarily recognized
official channel, namely, the official gazette (B.K.
Srivastava vs. State of Karnataka)14. Admittedly, the
‘guidelines’ were not gazetted.
21. If the guidelines relied upon by Union of India in the
present case fail to satisfy the essential and vital
parameters/requirements of law as the trend of the above 14 (1987) 1 SCC 658
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discussion would go to show, the same cannot be enforced
to the prejudice of the appellants as has been done in the
present case. For the same reason, the issue raised with
regard to the authority of the Union to enforce the guidelines
on the coming into force of the provisions of the
Environment Protection Act so as to bring into effect the
impugned consequences, adverse to the appellants, will not
require any consideration.
22. An argument had been offered by Shri Parikh,
learned counsel appearing for the respondent, Goa
Foundation, that while dealing with issues concerning
ecology and environment, a strict view of environmental
degradation, which Shri Parikh would contend has occurred
in the present case, should be adopted having regard to the
rights of a large number of citizens to enjoy a pristine and
pollution free environment by virtue of Article 21 of the
Constitution. We cannot appreciate the above view. Violation
of Article 21 on account of alleged environmental violation
cannot be subjectively and individually determined when
parameters of permissible/impermissible conduct are
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required to be legislatively or statutorily determined under
Sections 3 and 6 of the Environment Protection Act, 1986
which has been so done by bringing into force the Coastal
Regulation Zone (CRZ) Notification w.e.f. 19th February,
1991.
23. In view of the foregoing discussion, the orders
impugned in the writ petitions filed by the appellants cannot
be sustained. Consequently, the said orders as well as each
of the orders dated 13th July, 2000 passed by the High Court
of Bombay will have to be set aside which we hereby do
while allowing the appeals.
……………………………J. [RANJAN GOGOI]
…………………..………..J. [M.Y.EQBAL]
New Delhi; September 22, 2014.
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