1996 Supreme(SC) 819

1996(3) Supreme 741
SUPREME COURT OF INDIA
Kuldip Singh, S. Saghir Ahmed and B.N. Kirpal, JJ.
Indian Council for Enviro-Legal Action -Appellant
versus
Union of India & Ors. -Respondents
Writ Petition (C) No. 664 of 1993
Decided on 18-4-1996

IMPORTANT POINTS
1. If a law is enacted but not being voluntarily obeyed, then, it has to be enforced. Otherwise, infringement of law, which is actively or passively condoned for personal gain, will be encouraged which will in turn lead to a lawless society.
2. The legal position relating to issues relating to enforcement of the laws relating to the environmental degradation being well established, it will be more appropriate that action with regard to such infringement even if they relate to the violation of fundamental rights, should be first raised before the High Court having territorial jurisdiction over the area in question.
3. Newly added proviso in Annexure 11 in para 7 in sub-para (1) of the Notification of 1994 issued for regulating activities in coastal zones, which gives the Central Govt. arbitrary, uncanalized and unguided power, within 200 metres non-development zones is ultra wires.

Headnote:(i) Public Interest Litigation-Enforcement of law-Environment protection in India-Coastal areas-Allegations of decline, in environmental quality -Environment guide lines for development of beaches-Non-implementation of notification dated 19-2-1991 issued under Rule 5(3)(d) of Environment Protection Act-Jurisdiction and powers of court while dealing with Public interest litigation relating to environmental issues.

       Held : The Courts are ill-equipped and it is not their function to see day to day enforcement of law. This is an executive function which it is bound to discharge. A public interest litigation like the present, would not have been necessary if the authorities, as well as the people concerned, had voluntarily obeyed and/or complied with the main Notification or if the authorities who were entrusted with the responsibility, had enforced the main Notification. It is only the failure of enforcement 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 environment 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. (Para 22)

       (ii) Environment Protection Act-Sections 3(1) & 3(2)(v)-Rule 5(3)(d) -Notification dated 19-2-1991 issued under-Non-implementation-Public interest litigation-Inaction in complying with statutory directive requiring preparation of Management Plans within specified period-Directions made.

       Held : If the mere enactment of the laws relating to the protection of environment was to ensure a clean and pollution free environment then India would perhaps, be the least polluted country in the world. But, this is not so. There are stated to be over 200 Central and State Statutes which have at least some concern with environment protection, either directly or indirectly. The plethora of Such enactments has, unfortunately, not resulted in preventing environmental degradation which, on the contrary has increased over the years. Enactment of a law, relating to protection of environments usually provides for what activity can or cannot be done by. people. If the people were to voluntarily respect such a law, and abide by it, then it would result in law being able to achieve the object for which it was enacted. Where, however, there is a conflict between the provision of law and personal interest, then it often happens that self discipline and respect for law disappear. (Para 19)

       Enactment of a law, but tolerating its infringement, is worse than not enacting law at all. The continued infringement of 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 enacted but is not being voluntarily obeyed, then, it has to be enforced. Otherwise, infringement of law, which is actively or passively condoned for personal gain will be encouraged which will in turn lead to a lawless society. Violation of anti-pollution laws not only adversely affects the existing quality of life but the non-enforcement of the legal provisions often results in ecological imbalance and degradation of environment, the adverse affect of which will have to be borne by the future generations. (Para 20)

       The present case also shows that having issued the main Notification, no follow-up action was taken either by the coastal States and Union Territories or by the Central Government. The provisions of the main Notification appear to have been ignored and, possibly, violated with impunity. The coastal States and Union Territory Administrations were required to prepare Management Plans within a period of one year from the date of the Notification but this was not done. The Central Government was to approve the plans which were to be prepared but it did not appear to have reminded any of the coastal States or the Union Territory Administrations that the plans had not been relieved by it. Clause 4 of the main Notification required the Central Government and the State Governments as well as Union Territory Administrations to monitor and enforce the provisions of the main Notification, but no effective steps appear to have been taken and this is what led to the filing of the present writ petition. (Para 21)

       (iii) Environment Protection-Notification dated 18-8-1994-Validity-No development zone-Relaxation for all areas upto HTL if Central Government so desires-Arbitrary and unguided power-No development zone relaxed to 50 metres-Amendment contrary to object of Act-Allowing installation of goal posts or lamp posts-Legal-NDZ now to be included for FSI calculations-Direction made that a private owner of land in NDZ shall be entitled to take into account half of such land for purpose of permissible FSI in respect of construction undertaken by him outside NDZ-Amendment allowing construction of basements- Legal-Permitting green and barbed wire fencing-Direction made that fencing should not be raised to prevent access of public.

       Held : While examining the validity of the 1994 Notification, it has to be borne in mind that normally, such Notification are issued after a detailed study and examination of all relevant issues. In matters relating to environment, it may not always be possible to lay down rigid or uniform standards for the entire country. While issuing the notifications like the present, the Government has to balance various interests including economic, ecological, social and cultural. While economic development should not be allowed to take place at the cost of ecology or by causing wide-spread environment destruction and violation: at the same time, the necessity to preserve ecology and environment should not hamper economic and other developments. Both development and environment must go hand in hand, in other words, there should not be development at the cost of environment and vice-versa but there should be development while taking due care and ensuring the protection of environment. This is sought to be achieved by issuing notification like the present, relating to developmental activities being carried out in such a way so that unnecessary environmental degradation does not take place. In other words, in order to prevent ecological imbalance and degradation that developmental activity is sought to be regulated. (Para 24)

       According to the main Notification, distance of 200 metres from the HTL was no-development zone (hereinafter referred to as NDZ ). 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. By the amended Notification, power had been given to the Central Government to make such relaxation with regard to any part of the 6,000 K.Ms long coastline of India. The Central Government has, thus, retained the absolute power of relaxation of the entire 6,000 K.Ms long coastline and this, in effect, may lead to the causing of serious ecological damage as the said provision gives unbriddled power and does not contain any guidelines as to how or when the power is to be exercised. The said provision is capable of abuse. The Central Government also did not confine the relaxation to the extent as specified by the Vohra Committee. No satisfactory reason has been given by the Union of India as to why it departed from the opinion of the Expert Committee and that too in such a manner that the concession which has now been given is far in excess of what was demanded by the Hotel and Tourism Industry. We, accordingly. Hold that the newly added proviso in Annexure II in paragraph 7 in sub-paragraph (1) (item I) which gives the Central Government arbitrary, uncanalized and unguided power, the exercise of which may result in serious ecological degradation and may make the NDZ ineffective is ultra virus and is hereby quashed. No suitable reason has been given which can persuade us to hold that the enactment of such a proviso was necessary, in the larger public interest, and the exercise of power under the said proviso will not result in large scale ecological degradation and violation of Article 21 of the citizens living in those areas. [Para 27(i)]

       Further held : The NDZ for rivers, creeks and backwaters which was 100 metres from HLT has, by the amended Notification, been relaxed to 50 metres. (Para 27(ii)]

       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 reason. It was submitted, at the time of arguments by the Additional Solicitor General that construction has already taken place, along such rivers, creeks etc. at a distance of 50 metres and more, but no such explanation has been given in the reply affidavit. Even if this be so such reduction will permit new construction to take place and this reduction cannot be regarded as a protection only to the existing structures. In the absence of a categorical statement being made in an affidavit that such reduction will not be harmful or result in serious ecological imbalance, we are unable to conclude that the said amendment has been made in the larger public interest and is valid. This amendment is, therefore, contrary to the object of the Environment Act and has not been made for any valid reason as is, therefore, held to be illegal. [Para 27(ii)]

       Consequently held : The main Notification had provided that there would be no -levelling of sand dunes or sand extraction. The Vohra Committee, however, allowed extraction of sand. This recommendation has not been accepted but the amended Notification allowed the installation of goal posts or lamp posts. We do not see any illegality having been committed by allowing the goal posts, net posts and lamp posts to be erected. In fact the erection of these would facilitate or lead to more enjoyment of the beaches. Therefore, the challenge to this amendment fails. (Para 27(iii)]

       Then held : By the amended Notification, the NDZ is now to be included for FSI calculations. Keeping in view the fact that a similar recommendation 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. [Para 27(iv)]

       There will not be any adverse effect to the ecological balance in the area if basements are allowed to be constructed subject to the satisfaction of the concerned authorities that the same will not hamper free flow of ground water. [Para 27(v)j

       Finally held: The main Notification, had not permitted fencing within 200 metres zone from HTL. By the amended Notification, green and barbed wire fencing within the said zone has been permitted. Justifying this amendment, the Union of India had stated that the Vohra Committee had permitted green fencing. By the amended Notification barbed fencing, in addition to green fencing, has also been allowed. The reason for this is that green and barbed fencing has been allowed so that private owners are in a position to stop encroachment of their properties. Further more, in the interest of security also, a private owner would like to have some kind of boundary so that his property is safe. The implication, therefore, clearly is that it is not as if public beaches will be encroached or fenced. The fencing is being allowed only of the privately owned property in order to protect the same. We, however, direct that fencing should not be raised in such a manner so as to prevent access of the public to public beaches. In other words, the right of way enjoyed by the general public to those areas which they are free to enjoy, should in no way be closed, hampered or cutrailed. The amendment as made, does not, in our opinion, call for any interference. (Para27(vi)]

       (iv) Environment Protection-Enforcement of legal provisions-Jurisdiction of Courts for preventing environmental degradation -Necessary directions made.

       Held : With rapid industrialisation taking place, there is an increasing threat to the maintenance of the ecological balance. The general public is becoming aware of the need to protect environment. Even though, laws have been passed for the protection of environment, the enforcement of the same has been tardy, to say the least. With the governmental authorities not showing any concern with the enforcement of the said Acts, and with development taking place 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 directing the enforcement agencies to implement the law. (Para 28)

       As far as this Court is concerned, being conscious of its constitutional obligation to protect the fundamental rights of the people, it has issued directions in various types of cases relating to the protection of environment and preventing pollution. For effective orders to be passed, so as to-ensure-that there can-be-protection of environment along with development, it becomes necessary for the Court, dealing with such issues to know about-the local conditions. Such conditions in different parts of the Country are supposed to be better known to the High Courts. The High Courts would be in a better position to acertain facts and to ensure and examine the implementation of the anti-pollution laws where the allegations relate to the spreading of pollution or non-compliance of other legal provisions leading to the infringement of the anti-pollution laws. For a more effective control and monitoring of such laws, the High Courts have to shoulder greater responsibilities in tackling such issues which arise or pertain to the geographical areas within their respective States. Even in cases which have ramifications all over India, where general directions are issued by this Court, more effective implementation of the same can, in a number of cases, be effected, if the concerned High Courts assume the responsibility of seeing to the enforcement of the laws and examine the complaints, mostly made by the local inhabitants, about the infringement of the laws and spreading of pollution or degradation of ecology. (Para 29)

       In our opinion, instead of agitating these questions before this Court, now that the general principles have been laid down and are well-established, it will be more appropriate that action with regard to such infringement even if they relate to the violation of fundamental rights, should first be raised before the High Court having territorial jurisdiction over the area in question. (Para 30)

       Further held : Considering the fact that the Pollution Control Boards are not only overworked but simultaneously have a limited role to play in so far as it relates to controlling of pollution for the purpose of ensuring effective implementation of the Notifications of 1991 and 1994, as also of the Management Plans, the Central Government should consider setting up under Section 3 of the Act, State Coastal Management Authorities in each State or zone and also a National Coastal Management Authority.(Para 35(3)]

       With increasing threat to the environmental degradation taking place in different parts of the country, it may not be possible for any single authority to effectively control the same. Environmental degradation is best protected by the people themselves. In this connection, some of the non-governmental organisations (NGOs) and other environmentalists are doing singular service. Time has perhaps come when the Government can usefully draw upon the resources of such NGOs to help and assist in the implementation of the laws relating to protection of environment. Under Section 3 of the Act, the Central Government has the power to constitute one or more authorities for the purposes of exercising and performing such powers and functions, including the power to issue directions under Section 5 of the Act of the Central Government as may be delegated to them. (Para 34)

       There is 6,000 K.Ms. long coastline of India. It is the responsibility of the coastal States and Union Territories in which these stretches exist to see that both the Notifications are complied with and enforced. Management Plans have to be prepared by the States and approved by the Central Government. If the said plans have been approved, the development can take place only in accordance therewith. Till the preparation and approval of said plans by virtue of the provisions of main Notification, no development in the coastal areas within the NDZ can take place. Therefore, it is in the interest of all concerned that the Management Plans are submitted and approved at the earliest. (Para 31)