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Goan Real Estate & Construction Ltd. & Anr Versus Union of India through Secretary, Ministry of Environment & Ors.

Country/Territory
India
Type of court
National - higher court
Date
Mar 31, 2010
Source
UNEP, InforMEA
Court name
Supreme Court of India
Judge
Balakrishnan, K.
Panchal, J.
Language
English
Subject
Environment gen., Sea
Keyword
Land-use planning Coastal zone management
Abstract
The Central Government, through Ministry of Environment and Forests (`MOEF', for short), issued Coastal Regulation Zone Notification dated February 19, 1991 in exercise of powers under Rule 5(d) of the Environment (Protection) Rules, 1986. As per the said notification, the area upto 100 meters from the High Tide Line was earmarked as `No Development Zone' and no construction was permitted within this zone except for repairs etc. However, the Central Government issued another notification on August 16, 1994 amending notification dated February 19, 1991 and relaxing the `No Development Zone' to 50 meters from 100 meters. In view of the said relaxation, the petitioners who had earlier obtained construction permissions in respect of a project beyond 100 meters, submitted an additional proposal to the Panchayat of Village Curca, Bambolim & Taloulim, Taluka Tiswadi, Goa for construction of 18 blocks between 50 meters and 100 meters. The Village Panchayat referred the matter to the Town and Country Planning Authority, as required under the Rules for technical evaluation. The Town and Country Planning Authority approved the abovementioned additional construction to be made between 50 meters and 100 meters vide order dated July 31, 1995. Based on this approval, vide its order dated July 31, 1995, the Village Panchayat sanctioned the plans and granted permission to construct. It is the case of the petitioners that they had commenced construction in accordance with newly approved plans which were revalidated from time to time and are valid till this date. By judgment dated April 18, 1996 which is reported as Indian Council for Enviro-Legal Action vs. Union of India the apex Court proceeded to examine validity of notification dated August 16, 1994. After noticing that six amendments were made in the main notification, this Court found that reduction of the ban on construction from 100 meters to 50 meters was illegal and power given to the Central Government for relaxation of developmental activities in the entire 6,000 kilometers long coast line was unbridled and capable of being abused. Thus, the abovementioned two amendments were held to be bad in law by this Court and declared to be illegal. The case of the petitioners is that this Court in its judgment dated April 18, 1996 had not specifically directed demolition of the existing structures nor the directions of the Court had affected the on-going constructions which were coming up as per plans sanctioned during the period when the said amending notification dated August 16, 1994 was valid and in force. The question which falls for consideration is whether the constructions made or on-going pursuant to the plans sanctioned on the basis of Notification dated August 16, 1994 would be affected or not. This Court in its judgment dated April 18, 1996 had not specifically directed demolition of existing structures. It is also pertinent to note that this Court had not stated as to what will be the fate of ongoing constructions which were coming up or on-going as per sanctions during the period when the said amending Notification dated August 16, 1994 was valid and in force. According to the Court even under 1991 Notification which is the main Notification, it was stipulated that all development and activities within CRZ will be valid and will not violate the provisions of the 1991 Notification till the Management Plans are approved. Thus, the intention of legislature while issuing Notification of 1991 was to protect the past actions/transactions which came into existence before the approval of 1991 Notification. On perusal of the judgment in entirety, it is clear that the judgment is in form of directions to the Central Government and other authorities formed within the purview of Environment Act, 1986 and those directions are to be followed in future. By decision of National Coastal Zone Management Authority dated October 30, 2007, it is brought on record that all the authorities unanimously opined that judgment of this Court dated April 18, 1996 will operate prospectively and further clarified that any developmental activity which has been initiated between August 16, 1994 and April 18, 1996 after obtaining all requisite clearances from the concerned agencies including the Town and Country Planning should be construed as on-going projects and are not hit by the judgment of this Court dated April 18, 1996. For the foregoing reasons, the petition partly succeeds. It is declared that the judgment dated April 18, 1996 in Indian Council for Enviro-Legal Action vs. Union of India, declaring part of the amending Notification dated August 16, 1994 to be illegal, will not affect the completed or the on-going constructions being undertaken pursuant to the said Notification The rule is made absolute to the extent indicated hereinabove.
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