TaxTMI 
TaxTMI 
1996 (4) TMI 534
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....al stretches as Coastal Regulation Zones (hereinafter referred to as 'the Regulation Zones which regulates the activities in the said zones has not been implemented or enforced. This has led to continued degradation of ecology in the said coastal areas. There is also a challenge to the validity of the Notification dated 18.8.1994 whereby the first Notification dated 19.2.1991 has been amended, resulting in further relaxations of the provisions of 1991 Notification and such relation, it is alleged, will help in defeating the intent of the main Notification itself. 3. The petitioner is a registered voluntary organisation working for the case of environment protection in India. India has a coast line running into 6000 K.Ms. which has abundance of natural endowments, geographic attractions and natural beauty. According to the petitioner, these coastal areas are highly complex and have dynamic eco-systems, sensitive to development pressures. The stresses and pressure of high population growth, non-restrained development, lack of adequate infrastructure facilities for the resident population are stated to be some of the factors responsible for the decline in environmental quality ....
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....l guidelines for development of beaches and coastal areas. In July, 1983 environmental guidelines for beaches were promulgated which, inter alia, stated: The traditional use of sea water as a dump site from our land-derived wastes have increased the pollution loads of sea and reduced its development potentials including the economic support it provides to people living nearby. Degradation and misutilization of beaches are affecting the aesthetic and environmental loss. These could be avoided through prudent coastal development and management based on assessment of ecological values and potential damages from coastal developments. These guidelines further stated that "adverse direct impact" of development activities was possible within 500 metres from the high water mark or beyond two kilometres form it. The example which was given was that the sand dunes and vegetation clearing, high density construction etc. along the coast could alter the ecological system of the area. 6. The environment guidelines for the development of beaches, inter alia, required the State Governments to prepare a status report on the obtaining situation of the coastal areas, as a ....
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.... iii) setting up and expansion of fish processing units including warehousing (excluding hatchery and natural fish drying permitted areas); iv) setting up and expansion of units mechanisms for disposal of wastes and effluents, except facilities required for discharging treated effluents into the water course with approval under the Water (Prevention and Control of Pollution) Act, 1974 except for storm water drains; v) discharge of untreated wastes and effluents from industries, cities or towns and other human settlements. Schemes shall be implemented by the concerned authorities for phasing out he existing practices, if any, within a reasonable time period not exceeding three years from the date of this Notification; vi) dumping of city or town wastes for the purposes of land filling or otherwise; the existing practice, if any, shall be phased out within a reasonable time not exceeding three years from the date of this Notification; vii) dumping of ash or any wastes from thermal power stations; viii) land reclamation, bunding or disturbing the natural course of sea water with similar obstr....
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....nistration or the local Authority, as the case may be, in accordance with the guidelines contained in Annexures I and II of the main Notification. 10. Anticipating that it will take time till the Management Plans are prepared and approved, the main Notification provided that till the approval of the Management Plans, "all development and activities within CRZ shall not violate the provisions of this Notification". The State Governments and Union Territory Administrations were required to ensure adherence to the provisions of the main Notification and it was provided that any violation thereof, shall be subject to the provisions of the Environment Protection Act, 1986 (hereinafter referred to as the Act'). 11. It was also provided in Clause 4 of the main Notification that the Ministry of Environment and Forests and the State Government or Union Territory, and such other authorities at the State or Union Territory, and such other authorities at the State or Union Territory levels, as may be designated for the purpose, shall be responsible for the monitoring and enforcement of the main Notification within their respective jurisdictions. 12. As already noticed, there are t....
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....III and IV. With regard to CRZ I, the norms for regulation of activities do not permit new construction within 500 metres of the HTL. Further more, practically, no construction activity is allowed between the LTL and HTL. The norms for regulation of activities in CRZ II relate to construction or reconstruction of the buildings within the said zone. 15. With regard to CRZ III, the norms for regulation of activities, inter alia, provide that the area upto 200 metres from the HTL is to be earmarked as 'No Development Zone. The only exception is that there can be repairs of existing authorised structures but, title permissible activity in this zone is for its use as agriculture, horticulture, gardens, pastures etc. The norms further provide for development of vacant plots between 200 and 500 metres of HTL in designated areas of CRZ ill with prior approval of Ministry of Environment and Forests for construction of hotels/beach resorts for temporary occupation of tourists/vestries subject to the conditions as stipulated in the guidelines at Annexure II. 16. In CRZIV also, detailed norms for regulation of activities are provided in the said Clause 6(2) of Annexure I. 17. As a....
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....reas and to impose restrictions on the setting up of industries which have detrimental effect on the coastal environment. This Notification also required the Government of Maharashtra to prepare a master plan or regional plan for the Dahanu Taluka based on the existing land use of Dahanu within a period of one year from the Notification and to get the said plan approved by the Ministry of Environment and Forests. The master plan and the regional plan was to demarcate all the existing green areas, orchards, tribal area and other environmentally sensitive areas in the said Dahanu Taluka. Industries which were using chemicals above the limits/quantities prescribed by the Act or by Rules were to be considered hazardous industries. The hazardous waste was required to be disposed of in the identified areas after taking precautionary measures. This Notification also required the Government of Maharashtra to constitute a monitoring committee to ensure the compliance or conditions mentioned in the Notification in which local representatives may be included. According to the petitioner, the Maharashtra Government has not implemented the directions contained in the said Notification and ha....
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....estrictions imposed by the Coastal Areas Classification and Development Regulations contained in Annexure I to the abovesaid Notification shall also be strictly followed by the respondent-States. 23. According to Clause 3(i) of the main Notification, the coastal States and Union Territory Administrations were required to prepare the Management Plans within one year from the date of the main Notification. This was essential for the implementation of the said Notification. The lack of commitment on the part of these States and Administrations, towards the protection and regulation of the coastal stretches, is evident from their inaction in complying with the aforesaid statutory directive requiring the preparation of Management Plans within the specified period. In view of the fact that there had been a non-compliance with this provision, this Court on 3.4.1995 directed all the coastal States and Union Territory Administrations to frame their plans within a further period of six weeks thereof. 24. A status report was filed in court by the Union of India which shows non-compliance of Clause 3(i) by practically everyone concerned. While some of the States and Union Territory Admin....
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.... law, over a period of time, is made possible by adoption of such means which are best known to the violators of law. Continued tolerance of such violations of law not only renders legal provisions nugatory but such tolerance by the Enforcement Authorities encourages lawlessness and adoption of means which cannot, or ought not to, be tolerated in any civilized society. Law should not only be meant for law abiding but is meant to be obeyed by all for whom it has been enacted. A law is usually enacted because the Legislature feels that it is necessary. It is with a view to protect and preserve the environment and save it for the future generations and to ensure good quality of life that the Parliament enacted the Anti-Pollution Laws, namely, the Water Act, Air Act and the Environment (Protection) Act, 1986. These Acts and Rules framed and Notification issued thereunder contain provisions which prohibit and/or regulate certain activities with a view to protect and preserve the environment. When a law is enacted containing some provisions which prohibits certain types of activities, then, it is of utmost importance that such legal provisions are effectively enforced. If a law is enacte....
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.... of this Notification which has led to the filing of the present petition. The effort of this Court while dealing with public interest litigation relating to environmental issues, is to see that the executive authorities take steps for implementation and enforcement of law. As such the Court has to pass orders and give directions for the protection of the fundamental rights of the people. Passing of appropriate orders requiring the implementation of the law cannot be regarded as the Court having usurped the functions of the Legislature or the Executive. The orders are passed and directions are issued by the Court in discharge of its judicial function namely; to see that if there is a complaint by a petitioner regarding the infringement of any Constitutional or other legal right, as a result of any wrong action or inaction on the part of the State, then such wrong should not be permitted to continue. It is by keeping the aforesaid principles in mind that one has to consider as to what directions should be issued to ensure, in the best possible manner, that the provision of the main Notification which has been issued for preserving the coastal areas are not infringed. VALIDITY OF NOT....
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....adation that developmental activity is sought to be regulated. 32. The main Notification was issued under Sections 3(1) and 3(2)(v) of the Environment Protection Act, presumably after a lot of study had been undertaken by the Government. that such at study had taken place is evident from the bare perusal of Notification itself which shows how coastal areas have been classified into different zones and the activities which are prohibited or permitted to be carried out in certain areas with a view to preserve and maintain the ecological balance. 33. According to the Union of India, while implementing the main Notification, certain practical difficulties were faced by the concerned authorities. There was a need for having sustainable development of tourism in coastal areas and that amendments were effected i after giving due consideration to all relevant issues pertaining to environment protection and balancing of the same with the requirement of development. It has been specifically averred that a Committee headed by Mr. B.B. Vohra was set-up by the Government in response to the need for examining the issues relating to development of tourism and hotel industry in coastal areas....
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....rest and not by the State Government concerned. In the 1994 Notification, there is a clear departure from the recommendations of the Vohra Committee. The Notification now provides that for reasons to be recorded, the Central Government may permit any construction within the said 200 metres NDZ subject to such conditions and restrictions as it may deem fit. In the written submissions filed by the Union of India in this Court on 29.9.1995, this amendment has been sought to be justified and explained by it in the following words: As regards the developmental activities upto the High Tide Line, the Central Government may for reasons recorded in writing permit construction in any particular case taking into account the geographical features and other relevant aspects. This is necessary as providing of 200 metres of no development zone all along was not possible in the coastal line in an uniform way on account of wide variations in geographical features, existing human settlements and developmental activities requiring fore shore facilities etc. The rela....
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....t, it was contended by the Union of India that in case of creeks, rivers or back waters, it is not possible to have a uniform basis for demarcating NDZ. The zone shall be regulated based upon each individual case. It is no doubt true that there cap be no uniform basis for demarcating NDZ and it will depend upon the requirements by each concerned State Authority in their own Management Plans but no reason has been given why in relation to tidal rivers, there has been a reduction of the ban on construction from 100 metres to 50 metres. Even the Vohra Committee which had been set-up to look into the demands of Hotel and Tourism Industry had not made such a proposal and, therefore, it appears to us that such a reduction does not appear to have been made for any valid reason and is arbitrary. This is more so when it has been alleged that in some areas like Goa, there are mangrove forests that need protection and which stretch to more than 100 metres from the river bank and this contention had not been denied- In the absence of any justification for this reduction being given the only conclusion which can be arrived at is that the relaxation to 50 metres has been done for some extraneous....
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....ch falls in NDZ. This, it was submitted, is based upon fair and equitable conditions and as such this would have no effect on the ecological balance in the coastal area. In view of the aforesaid reasons given by the Union of India and also keeping in view the fact that a similar recommendations had also been made by the Vohra Committee, we agree with the principle that some compensation is to be allowed to the private owner whose land falls in the NDZ, but at the same time haphazard and congested construction - a pollutant in itself-cannot be permitted in any area of the city. We, therefore, modify the amendment and direct that a private owner of land in NDZ shall be entitled to take into account half of such land for the purpose of permissible - FSI in respect of the construction undertaken by him outside the NDZ. (v) With regard to the amendment which allows construction of the basements, it was contended that the deep foundations and structure could interfere in the coastal areas where there is an intermixture of salt and sweet aquifers. According to the Union of India, this amendment has been made on the recommendation of the Vohra Committee. It was, however, stated that the ba....
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....ce for personal gains at the expense of environment and with disregard to the mandatory provisions of law, some public spirited persons have been initiating public interest litigations. The legal position relating to the exercise of jurisdiction by the Courts for preventing environmental degradation and thereby, seeking to protect the fundamental rights of the citizens, is now well settled by various decisions of this Court. The primary effort of the Court, while dealing with the environmental related issues, is to see that the enforcement agencies, whether it be the State or any other authority, take effective steps for the enforcement of the laws. The Courts, in a way, act as the guardian of the people's fundamental rights but in regard to many technical matters, the Courts may not be fully equipped. Perforce, it has to rely on outside agencies for reports and recommendations whereupon orders have been passed from time to time. Even though, it is not the function of the Court to see the day to day enforcement of the law, that being the function of the Executive, but because of the non-functioning of the enforcement agencies, the Courts as of necessity have had to pass orders ....
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....ded by the Notification of 1994, the same should be raised before and dealt with by the respective High Courts. In the present case, there were allegations of infringement having been taking place by allowing the setting-up of industries in Dahanu Taluka in Maharashtra in violation of the provisions of main Notification and which industries are stated to be causing pollution. Similarly, there were allegations of non-compliance with the provisions of law by a unit manufacturing Alcohol in Pondicherry; with regard to Goa also allegations have been made. As we have already observed, it will be more appropriate if the allegations so made are dealt with by the respective High Courts, for they would be in a better position to know about and appreciate the local conditions which are prevailing and the extent of environmental damage which is being caused. We, accordingly, direct that the contentions raised in the Petition regarding infringement of the main Notification and of the Notification dated 20.6.1991 relating to Dahanu Taluka should be dealt with by the Bombay High Court. The High Court may issue such directions as it may deem fit and proper in order to ensure that the said Notific....
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....overnments and the Ministry of Environment and Forests should take place and thereafter the plans should be finalised by the Ministry of Environment, if necessary, by carrying out such modifications as may be required. The decision by the Ministry of Environment and Forests in this regard shall be final and binding. A report with regard to the submission and the finalisation of the plans should be filed in this Court and the case will be listed for noting compliance in September, 1996. 5) Pending finalisation of the plans, the interim orders passed by this Court on 12.12.1994 and 9.3.1995 shall continue to operate. 6) Four States, namely Andhra Pradesh, Gujarat, Karnataka and Kerala have not yet submitted their Management Plans to the Central Government. There is thus a clear non-compliance with the direction issued by this Court on 12.12.1994 and 9.3.1995. We issue notices to the Chief Secretaries of these States to explain and show cause why further appropriate action be not taken for this non-compliance. The notices are to be returnable after six weeks. ============= Document 1 Main CRZ Notification dated 19.2.1991 issues fo....