AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2014 (9) TMI 1216
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....spondent-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 High Court is that such constructions are in derogation of the environmental guidelines in force warranting demolition of the same as a step to safegu....
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....ia 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 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 Cen....
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....gence of the concept of sustainable development in full bloom. In Vellore Citizens' Welfare Forum v. Union of India and Ors. (1996) 5 SCC 647 Para 10, 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 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 th....
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....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 Co. of India Ltd. v. Birendra Bahadur Pandey and Ors. 1984 (2) SCC 534 to contend that it was not necessary to enact a specific law to give effect to Stockholm 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 no....
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....islature." Shri Parikh has also relied on a judgment of old vintage in Rai Sahib Ram Jawaya Kapur and Ors. v. The State of Punjab AIR 1955 SC 549 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 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 illegall....
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....nes 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; 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, prese....
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....o 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 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 unwarran....
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....present case insofar as the promulgation of the guidelines is concerned. 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 v. S.K. Vaish (2011) 8 SCC 670 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 behal....
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....dicially 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 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 ....