Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2024 Supreme(Bom) 732

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
DEVENDRA KUMAR UPADHYAYA, C.J., AMIT BORKAR, J.
Vanashakti & Anr. - Petitioners
Versus
Union of India & Ors. - Respondents
Public Interest Litigation No. 7 of 2023 With Interim Application No. 1320 of 2021 In Public Interest Litigation No. 7 of 2023 With Interim Application (L) No. 35241 of 2023 In Public Interest Litigation No. 7 of 2023 With Interim Application (L) No. 4411 of 2023 In Public Interest Litigation No. 7 of 2023 With Interim Application (L) No. 35236 of 2023 In Public Interest Litigation No. 7 of 2023 With Interim Application (L) No. 4408 of 2023 In Public Interest Litigation No. 7 of 2023
Decided On : 24-09-2024

Advocates Appeared:
For the Petitioners: Shri Akash Rebello a/w Shri Zaman Ali a/w Ms. Karishma Rao and Shri Yogesh Pandey, Shri Saurabh Butala a/w Ms. Nikita Mandaniyan i/b Shri Harshad Bhadbhade.
For the Interveners : Shri Saket Mone a/w Ms. Anchita Nair and Shri Abhishek Salian i/b Vidhi Partners.
For the Respondents: Shri Y.R. Mishra with Shri Dashrath A. Dube and Shri Upendra Lokegoankar, Smt. Jyoti Chavan, Additional Government Pleader, Ms. Jaya Bagwe.

Post facto environmental clearance is impermissible as it contradicts statutory requirements established by the Coastal Regulation Zone Notification, 2019, which mandates prior clearance.

Headnote:(A) Environment (Protection) Act, 1986 - Section 3(1), Section 3(2)(v) and Rules 5(3) - Coastal Regulation Zone Notifications - Office Memorandum permitting post facto clearance for projects commenced without prior CRZ clearance challenged as contrary to statutory notifications. - CRZ Notification, 2019 supersedes previous notifications and does not provide for post facto clearance. Petitioners argue the Office Memorandum is ultra vires of established laws and therefore invalid. Court found the Office Memorandum issued without following proper statutory procedures and thus lacking binding legal force. The impugned Office Memorandum dated 19th February 2021 quashed for contravening CRZ Notification, 2019. (Paras 18-48)

(B) Legislative hierarchy - Executive instructions cannot override statutory provisions, and any executive instruction that contradicts statutory law is not enforceable. (Paras 30-34)

Facts of the case:
The petitioners challenged an Office Memorandum allowing post facto clearance for projects in CRZ areas, which allegedly contradicts established law mandating prior clearance. Petitioners contended that contradictions result in potential environmental harm and legislative overreach.

Findings of Court:
The Office Memorandum contravenes statutory requirements, is administrative in nature, and cannot allow post facto clearances which are not provided for under current regulations.

Issues: (a) Is the Office Memorandum in contravention of the CRZ Notification, 2019? (b) Does it supplement or contradict CRZ Notification? (c) Is reliance on judicial precedents to justify the Office Memorandum misplaced?

Ratio Decidendi: The court affirmed that post facto clearance is impermissible under the current statutory framework established by CRZ Notification, 2019, a decision reinforced by lacking adherence to statutory procedures during the issuance of the Office Memorandum.

Result: PIL allowed, quashing the impugned Office Memorandum.

Table of Content
1. introduction of the petition and jurisdiction. (Para 1 , 2)
2. challenge to the office memorandum. (Para 4 , 5 , 6 , 7 , 8 , 9 , 10)
3. counter arguments from the union of india. (Para 11 , 12 , 13 , 15 , 16 , 17)
4. identification of issues for determination. (Para 18 , 19 , 20)
5. analysis of the office memorandum. (Para 21 , 22 , 23)
6. legal precedents and their applicability. (Para 24 , 25 , 26)
7. conclusion on the legality of the impugned office memorandum. (Para 27 , 28 , 29)
8. hierarchy of laws and authority of executive instructions. (Para 30 , 31 , 32 , 33 , 34)
9. implication of the invalidity of the office memorandum. (Para 35 , 36 , 37 , 38 , 39)
10. final ruling on executive actions conflicting with statutory provisions. (Para 40 , 41 , 42 , 43)
11. order and directions of the court. (Para 44 , 46 , 48)

JUDGMENT :

Devendra Kumar Upadhyaya, C.J.

1. Heard Shri Akash Rebello, learned Counsel representing the petitioner – organization, Shri Y.R. Mishra, learned Counsel representing respondent No.1-Union of India, Shri Saket Mone, learned Counsel representing the Interveners – State of Nagaland and Patel and Associates and Shri Saurabh Butala representing the intervenor - National Real Estate Development Council (NAREDCO). We have perused the records available before us on this PIL petition.

(A) Challenge:

2. This PIL petition invokes our jurisdiction under Article 226 of the Constitution of India, to assail the validity of Office Memorandum dated 19th February 2021, issued by the Government of India in the Ministry of Environment, Forest and Climate Change which prescribes a procedure for dealing with violations arising on account of not obtaining a prior Costal Regulation Zone (hereinafter referred to as the CRZ) clearance for permissible activities. The impugned Notification permits a project proponent operating in CRZ areas to seek post facto clearance as required under the CRZ Notification(s).

(B) Relevant statutory prescriptions:

Section 3 . Power of Central Government to take measures to protect and improve environment.—

(1) Subject to the provisions of this Act, the Central Government shall have the power to take all such measures as it deems necessary or expedient for the purpose of protecting and improving the quality of the environment and preventing, controlling and abating environmental pollution.

(2) In particular, and without prejudice to the generality of the provisions of sub-section (1), such measures may include measures with respect to all or any of the following matters, namely:—

(i) co-ordination of actions by the State Governments, officers and other authorities—

(a) under this Act, or the rules made thereunder; or

(b) under any other law for the time being in force which is relatable to the objects of this Act;

(ii) planning and execution of a nation-wide programme for the prevention, control and abatement of environmental pollution;

(iii) laying down standards for the quality of environment in its various aspects;

(iv) laying down standards for emission or discharge of environmental pollutants from various sources whatsoever:

Provided that different standards for emission or discharge may be laid down under this clause from different sources having regard to the quality or composition of the emission or discharge of environmental pollutants from such sources;

(v) restriction of areas in which any industries, operations or processes or class of industries, operations or processes shall not be carried out or shall be carried out subject to certain safeguards;

(vi) laying down procedures and safeguards for the prevention of accidents which may cause environmental pollution and remedial measures for such accidents;

(vii) laying down procedures and safeguards for the handling of hazardous substances;

(viii) examination of such manufacturing processes, materials and substances as are likely to cause environmental pollution;

(ix) carrying out and sponsoring investigation