Supreme Court of India
GULF GOANS HOTELS CO. LTD. & ANR.versusUNION OF INDIA & ORS.
- Citation
- 2014 INSC 656
- Decided
- 22 September 2014
- Disposal
- Appeal(s) allowed
- Bench
- RANJAN GOGOI
Holding
The guidelines were not law because they were not duly promulgated or authenticated, and therefore the demolition orders based on them are invalid.
Summary
The appellants, owners of hotels and beach resorts in Goa, challenged demolition orders based on a series of government "guidelines" that prohibited construction within 500 metres of the high tide line. The Supreme Court examined whether these guidelines, issued between 1981 and 1986, qualified as law enforceable under Article 73 of the Constitution and the Environment Protection Act, 1986. It held that the guidelines were not gazetted, not authenticated as required by Article 77, and therefore could not be treated as a law or an order of the Government. Consequently, the demolition orders founded on those guidelines were invalid. The Court set aside the High Court’s orders and allowed the appeals.
Issues considered
- The guidelines issued in 1981‑1986 constitute law enforceable under Article 73 of the Constitution
- Whether the guidelines were properly promulgated and authenticated as required by Article 77
- Whether the Union could enforce the guidelines under the Environment Protection Act, 1986 and the CRZ Notification
- Validity of the demolition orders issued on the basis of the guidelines
Legislation cited
Subjects
Environmental lawCoastal Regulation ZoneHigh Tide LineGuidelines vs LawArticle 77Article 73Demolition ordersConstitutional provisionsSustainable development
Judgment
[2014] 10 S.C.R. 536
A GULF GOANS HOTELS CO. LTD. & ANR.
V.
UNION OF INDIA & ORS.
(Civil Appeal Nos. 3434-3435 of 2001)
SEPTEMBER 22, 2014
8
[RANJAN GOGOi AND M.Y.EQBAL, JJ.)
Environment Protection Act, 1986: ss. 3 and 6 -
Construction within 500 meters of High Tide Line (HTL) -
C Appellants are owners of Hotels, Beach resorts and Beach
bungalows in Goa - Relying on certain guidelines, authorities
ordered for demolition of allegedly illegal constructions raised
by the appellants - Case of authorities that as per guidelines
in force constructions within 500 meters of High Tide Line
D (HTL) are prohibited -High Court held that such constructions
were in derogation of the environment guidelines in force
warranting demolition to safeguard the environment of
beaches in Goa - Held: The construction was not illegal or
without permission of the competent authority- Admittedly the
E guidelines relied on by authorities were not gazetted - 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 - Guidelines - Constitution of India, 1950 - Articles
F 48A, 51A(g), 77.
Allowing the appeals, the Court
HELD: 1. It is common to all the theories of
jurisprudence that the notion that law must possess a
G certain form; contain a clear mandate/explicit command
which may be prescriptive, permissive or penal and the
law must also seek to achieve a clearly identifiable
purpose. While the form itself or absence thereof will not
be determinative and its impact has to be considered as
H 536
GULF GOANS HOTELS CO. LTD. v. UNION OF INDIA 537
a lending or supporting force, the disclosure of a clear A
mandate and purpose is indispensable. A Govt. policy
may acquire the "force of 'law"' if it conforms to a certain
form possessed by other laws in force and encapsulates
a mandate and discloses a specific purpose. It is from the
said prescription that the guidelines relied upon by the B
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 - Directives to
the State Governments in letter dated 27th November,
1981 of the then Prime Minister; Notification dated 22nd c
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;
Environmental Guidelines for Development of Beaches of
July 1983; Order dated 11th June, 1986 of Under 0
Secretary, Ministry of Tourism, also addressed to Chief
Secretary, Govt. of Goa, constituting an inter-Ministerial
Committee for considering tourist projects within 500
meters. [paras 12, 13] [550-B-H]
2. The genesis of the Executive's decision to restrict E
construction activity within 500 meters of the HTL can be
traced to the Stockholm Conference. India's participation
in the conference 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 F
Conservation Act, 1980, Environment Protection Act,
1986 etc. all of which seek to protect, preserve and
safeguard the environment. These guidelines as
"affirmative action",, aimed at implementation of Articles
21 and 48A of the Constitution and, therefore, outlining G
a visible purpose. Having read and considered the
guidelines, there is a reasonable doubt as to whether
what has been spelt out therein are not mere suggestions
or opinions expressed in the process of a continuing
exploration to identify the correct parameters that would H
5J8 SUPREME COURT REPORTS [2014] 10 S.C.R.
A effectuate the purpose i.e. safeguarding and protecting
the environment (sea beaches) from human exploitation
and degradation. The above is particularly significant in
view of the fact that the Stockholm Declaration in its core
resolutions, merely enunciate very broad. propositions
B and commitments including those concerning the sea
beaches as distinguished from specific parameters that
could have application, without variation or exception, to
all the signatories to the declaration. The Stockholm
Conference having nowhere expressed any
c internationally approved parameters of acceptable
distance from the HTL, incorporation of any such feature
of international values in the Municipal Laws of the
country cannot arise. [para 14] [550-H; 551-A-G]
3. Article 77 of the Constitution provides the form in
D which the Executive must make and authenticate its
orders and decisions. Clause (1) of Article 77 provides
that all executive action of the Government must be
expressed to be taken in the name of the President.
Clause (2) of Article 77 also provides for the
E authentication of orders and instruments in a manner as
may be prescribed by the Rules. In this regard, vide S.O.
2297 dated 3rd November, 1958 published in the Gazette
of India, the President has issued the Authentication
(Orders and Other Instruments) Rules, 1958. The; said
F Rules have been superseded subsequently in ~002.
Admittedly, the provisions of the said Rules of 1958 had
not been followed in the present case insofar as the
promulgation of the guidelines is concerned. In the
absence of due authentication and promulgation of the
G guidelines, the contents thereof cannot be treated as an
order of the Government and would really represent an
expression of opinion. It is also essential that what is
claimed to be a law must be notified or made public in
order to bind the citizen. [paras 15 to 18) [553-D-E; 554-
H B-E; 555-E]
GULF GOANS HOTELS CO. LTD. v. UNION OF INDIA 539
Har/a v. State of Rajasthan AIR 1951 SC 467: 1952 A
SCR 110 - relied on.
4. The mode of publication must be as prescribed by
the statute. In the event the statute does not contain any
prescription and even under the subordinate legislation
8
there is silence in the matter, the legislation will take effect
only when it is published through the customarily
recognized official channel, namely, the official gazette.
Admittedly, the 'guidelines' were not gazetted. If the
guidelines relied upon by Union of India in the present C
case fail to satisfy the essential and vital parameters/
requirements of law, the same cannot be enforced to the
prejudice of the appellants as has been done in the
present case. For the same reason, the issue raised with
regard to the authority of the Union to enforce the
guidelines on the coming into force of the provisions of D
the Environment Protection Act so as to bring into effect
the impugned consequences, adverse to the appellants,
will not require any consideration. [paras 20, 21) [556-H;
557-A-E]
E
B.K. Srivastava v. State of Karnataka (1987) 1 SCC 658:
1987 (1) SCR 1054 - relied on.
Goan Real Estate and Construction Limited & Anr. v.
Union of India through Secretary, Ministry of Environment & F
Ors. 2010 (5) SCC 388: 2010 (3) SCR 1160; Ve/lore Citizens'
Welfare Forum v. Union of India & Ors. (1996) 5 SCC 647:
1996 (5) Suppl. SCR 241; State of Karnataka & Anr. v. Shri
Ranganatha Reddy & Anr. (1977 (4) SCC 471: 1978 (1) SCR
641; Gramophone Company of India Ltd. v. Birendra
Bahadur Pandey & Ors. 1984 (2) SCC 534: 1984 (2) SCR G
664; Vishaka & Ors. v. State of Rajasthan & Ors. 1997 (6)
SCC 241: 1997 (3) Suppl. SCR 404; Vineet Narain & Ors.
vs. Union of India & Anr. 1998 (1) SCC 226: 1997 (6) Suppl.
SCR 595; Rai Sahib Ram Jawaya Kapur & Ors. v. The State
of Punjab AIR 1955 SC 549: 1955 SCR 225; Fomento H
540 SUPREME COURT REPORTS [2014] 10 S.C.R.
A Resorts & Hotels Limited & Anr. v. Minguel Martins & Ors.
2009 (3) SCC 571: 2009 (3) SCR 1; Bennett Coleman & Co.
v. Union of India [(1972) 2 SCC 788:1973 (2) SCR 757; Air
India Cabin Crew Association v. Yeshaswinee Merchant
(2003) 6 sec 277 : . 2003 (1) Suppl. SCR 455; State of
B Uttaranchal v. S.K. Vaish (2,011) 8 SCC 670: 2011 (13)
SCR 754 -referred to.
Johnson v. Sargant & Sons (1918) 1 KB 101-referred
to.
c Case Law Reference:
2010 (3) SCR 1160 referred to Para 5
1996 (5) Suppl. SCR 241 referred to Para 6
1978 (1) SCR 641 referred to Para 6
D
1984 (2) SCR 664 referred to Para 7
1997 (3) Suppl. SCR 404 referred to Para 8
1997 (6) Suppl. SCR 595 referred to Para 8
E 1955 SCR 225 referred to Para 8
2009 (3) SCR 1 referred to Para 10
1973 (2) SCR 757 referred to Para 11
F 2003 (1) Suppl. SCR 455 referred to Para 15
2011 (13) SCR 754 referred to Para 17
1952 SCR 110 relied on Para 18
(1918) 1 KB 101 referred to Para 19
G
1987 (1) SCR 1054 relied on Para 20
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.
3434-3435 of 2001.
H From the judgment and order dated 13.07.2000 in Writ
GULF GOANS HOTELS CO. LTD. v. UNION OF INDIA 541
Petition No. 212/91 and 309/89 of the High Court of Bombay A
at Goa.
WITH
C.A. Nos. 3436-3437, 3438 and 3439 of 2001
B
K. Parasaran, Krishanan Venugopal, Raju Ramachandran,
Chander Uday Singh, Yogesh Nadkarni, Nuno Noronha, A.
Raghunath, Navin Chawla, Arpit Maheshwari, Dhruv Tamta,
Binu Tamta, Sumita Ray for the Appellants.
c
Atul y. Chitale, Priyanka S. Mathur, S.N. Terdal, Navjot
Neelam, B.V. Balaram Das, Siddharth Bhatnagar, Pawan Kr.
Bansal, S. Mohan, Rahul Arya, T. Mahipal, Sanjay Parikh,
Manita Saxena, N. Vidya, A.O. Sikri, A. Subhashini, P.N. Puri
for the Respondents.
D
The Judgment of the Court was delivered by
RANJAN GOGOi, J.1. The appellants are the owners of
Hotels, Beach Resorts and Beach Bungalows in Goa who have
been facing the prospect of demolition of their properties for E
the last several decades. The respondent-Goa Foundation is
a non- Governmental body who claims to be dedicated to the
cause of environmental and ecological wen being of the State
of Goa. The respondent-Goa Foundation had filed parallel writ
petitions before the High Court for demolition of the allegedly
F
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
rais~d ~y each of the appellants were heard together by the
Bombay.'71\gh. Court. The High Court, by separate impugned G
orcjer~ dated 13th ,July, 2000, had upheld the orders passed
byJ~~ c;t!)thorities~mfl1;1i~iog 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
. _··!,' H
542 SUPREME COURT REPORTS [2014] 10 S.C.R.
A 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
8
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 safeguard the environment of the beaches
in Goa. Specifically, it is the case of the State that the
C constructions in question are between 90 to 200 meters from
the High Tide Line (HTL) despite the fact that under the
guidelines in force, which partake the character of law,
constructions within 500 meters of the HTL are prohibited
except in rare situations where construction activity between
D 200 to 500 meters from the HTL are permitted subject to
observance of strict conditions. Admittedly, all constructions,
though completed on different dates and in different phases,
were so completed before the Coastal Regulation Zone (CRZ)
were enacted (w.e.f.19th February, 1991) in exercise of the
E powers under the Environment Protection Act, 1986.
3. The above basis on which the impugned action of the
State is founded has been sought to be answered by the
appellants by contending that at the relevant point of time when
F building permissions and sanctions were granted in respect of
the constructions undertaken, the prohibition was with regard
to construction within 90 meters from the HTL. Admittedly, none
of the constructions are within the said divide. The guidelines,
detailed reference to which are made in the succeeding
paragraphs of the present order, are not 'law' so as to
G constitute activities contrary thereto as acts of infringement of
the law and hence illegal. Such guidelines do not confer the
power of enforcement and lack the authority to bring about any
penal consequences.
H 4. Having very broadly noticed the contours of the
GULF GOANS HOTELS CO. LTD. v. UNION OF INDIA 543
[RANJAN GOGOi, J.]
adjudication that the present case would require, we may now A
proceed to consider the stand of the rival parties with some
elaboration. The Stockholm declaration of 1972 to which India
was the party is the foundation of the State's claim that the
guidelines in question, being in implementation of India's
international commitments, engraft a legal framework by . B
executive action under Article 73 of the Constitution. The said
guidelines are in conformity with the Nation's commitment to
international values in the matter of preservation of the pristine
purity of sea beaches and to prevent its ecological degradation.
Such commitment to an established feature of International Law c
stands engrafted in the Municipal Laws of the country by
incorporation. The guidelines commencing with the instructions
conveyed by the Prime Minister of India in a letter dated 27th
November, 1981 addressed to the Chief Minister of Goa; the
environmental guidelines for development of beaches published D
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 E
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 F
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 G
as 'the Act') with effect from 19th November, 1986, sections 3
and 5 empowered the Central Government to pass necessary
orders and issue directions which are penal in nature. It is in
the exercise of the said power under the Act read with the
guidelines referred to above that the orders impugned by the H
544 SUPREME COURT REPORTS [2014] 10 S.C.R.
A appellants have been passed. Though the Coastal Regulation
Zone (CRZ) Notification under the Act was issued on 19th
February, 1991 and admittedly is prospective in nature, till such
time that the said notification came into force it is the guidelines
which held the field being administrative instructions having the
B effect of law under Article 73 of the Constitution.
5. The stand of the State in support of the impugned action
has been noticed at the outset for a better appreciation of the
arguments advanced by the appellants. Shri K. Parasaran, Shri
C.U.Singh and Shri Raju Ramachandran, learned senior
C counsels who had appeared on behalf of the appellants in the
different appeals under consideration have submitted that the
purport and effect of the CRZ Notification published on 19th
February, 1991 in exercise of the powers conferred by the Act
and the Rules read together has been considered by this Court
D in Goan Real Estate and Construction Limited & Anr. vs.
Union of India through Secretary, Ministry of Environment &
Ors. 1 to hold that: "Thus, the intention of legislature while issuing
the Notification of 1991 was to protect the past actions/
transactions which came into existence before the approval of
E the 1991 Notification." It is further submitted that in Goan Real
Estate & Construction Ltd. (supra) construction which had
commenced after the amendments made in the year 1994 to
the notification dated 19th February, 1991 till the same were
declared illegal on 18th April, 1996, were protected by this
F Court by holding that though the amending notification was
declared illegal by this Court - "all orders passed under the
said notification and actions taken pursuant to the said
notification would not be affected in any manner whatsoever."
(Para 38). According to the learned counsels, the above is the
G approach that this Court had indicated to be appropriate for
adoption while considering the Regulations and its impact on
environmental issues in so far as coastal areas and sea
beaches are concerned.
H 1. 2010 (5) sec 388; in para 31.
GULF GOANS HOTELS CO. LTD. v. UNION OF INDIA 545
[RANJAN GOGOi, J.]
6. In so far as the guidelines of 1983 and 1986 are A
concerned, it is contended that the Stockholm Declaration saw
the emergence of the concept of sustainable development in
full bloom. In Ve/lore Citizens' Welfare Forum vs. Union of
India & Ors. 2, this court understood Sustainable Development
to mean "development that meets the needs of the present B
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 c
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
D
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 the correct parameters for enactment of laws E
in the future. It is accordingly argued that the guidelines do not
amount to an exercise of law making by the executive under
Article 73 of the Constitution. In any case, the guidelines were
never published or authenticated as required under Article 77
of the Constitution. Pointing out the provi9ions of the Air F
(Prevention and Control of Pollution) Act, 1981, it is argued that
the aforesaid Act was enacted to implement the decisions
taken in the Stockholm Conference of 1972. Parliament though
fully aware of the resolutions and decisions taken in the
Stockholm Conference as well as the efommitments made by G
the India as a signatory thereto did not consider it necessary
to enact a comprehensive law to protect and safeguard ecology
and environment until enactment ofihe Environment Protection
2. (1996) 5 SCC 647 Para 10. H
546 SUPREME COURT REPORTS [2014] 10 S.C.R.
A Act with effect from 18th November, 1986. Even thereafter, the
parameters for enforcement of the provisions of the Act insofar
as the sea coast and beaches are concerned had to await the
enactment of the CRZ Notification of 19th February, 1991. Shri
Parasaran has particularly relied on a decision of this Court in
B the State of Kamataka & Anr. vs. Shri Ranganatha Reddy &
Anr. 3 to contend that even if the court is to hold otherwise what
would be called for is a "balancing act" which would lean in
favour of the protection of the property having regard to the long
period of time that has elapsed since the impugned action was
c initiated against the appellants.
7. In reply, Shri Chitale, learned senior counsel appearing
for the Union of India has placed before the Court the several
documents which the Union would like the Court to construe as
the 'law in force' to regulate commercial/business activities on
D the sea beaches in order to maintain environmental health and
ecological balance. It is contended that the aforesaid
guidelines, though had existed all along, could not be
specifically enforced in the absence of statutory powers to
penalize the violations thereof. Such power, learned counsel
E contends, came to be conferred with the enactment of the
Environment Protection Act with effect from 19th November,
1986. The guidelines which all along had laid down the
parameters for application of the provisions of the Act were
replaced by the CRZ Regulations with effect from 19th February,
F 1991. Learned counsel has 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
G Gramophone Company of India Ltd: vs. Birendra Bahadur
Pandey & Ors4. to contend that it was not necessary to enact
a specific law to give effect to Stockholm Declaration inasmuch
3. (1977 (4) sec 471).
H 4. 1984 (2) sec 534.
GULF GOANS HOTELS CO. LTD. v. UNION OF INDIA 547
[RANJAN GOGOi, J.]
as the understanding and agreement reached in the A
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
B
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 C
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 not run into conflict with Acts of
Parliament. But when they do run into such conflict. the D
sovereignty and the integrity of the Republic and the
supremacy of the constituted legislatures in making the
laws may not be subjected to external rules except to the
extent legitimately accepted by the constituted legislatures
themselves. The doctrine of incorporation also recognises E
the position that the rules of international law are
incorporated into national law and considered to be part
of the national law, unless they are in conflict with an Act
of Parliament. Comity of nations or no, municipal law must
prevail in case of conflict. National courts cannot say yes
F
if Parliament has said no to a principle of international law.
National courts will endorse international law but not if it
conflicts with national law. National courts being organs of
the national State and not organs of international law must
perforce apply national law if international law conflicts with G
it. But the courts are under an obligation within legitimate
limits, to so interpret the municipal statute as to avoid
confrontation with the comity of nations or the well
established principles of international law. But if conflict is
inevitable, the latter must yield."
H
548 SUPREME COURT REPORTS [2014] 10 S.C.R.
-
A 8. Shri Sanjay Parikh, learned counsel appearing for the
respondent NGO, Goa Foundation, has submitted that the
Prime Minister's letter dated 27th November, 1981; the 1983
guidelines as well as guidelines of 1986 have to be construed
to be law within the meaning of Article 73 of the Constitution.
8 Placing reliance on the decision of this Court in Vishaka & Ors.
vs. State of Rajasthan & Ors., 5 , Shri Parikh has submitted that
in framing the guidelines to ensure prevention of sexual
harassment at work place this Court has placed reliance on the
fact that the Government of India has ratified some of the
C resolutions adopted in the convention on the elimination of all
forms of discrimination against women and had made known
its commitments to the cause of women's human rights in the
Fourth World Conference of Women held in Beijing. Similarly,
relying on the observations of this Court in Para 52 in Vineet
Narain & Ors. vs. Union of India & Anr. 6 , it is contended that
D "it is the duty of the executive to fill the vacuum by executive
orders because its field is coterminous with that of the
legislature." Shri Parikh has also relied on a judgment of old
vintage in Rai Sahib Ram Jawaya Kapur & Ors. vs. The State
of Punjab 7 to contend that the executive power of the union is
E 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
F 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
G ecology and environment, must be understood to have been
incorporated in the Municipal Laws of the country and executive
5. 1997 (6) sec 241 para 13.
6. 1998 (1) sec 226.
H 7. AIR 1955 SC 549.
GULF GOANS HOTELS CO. LTD. v. UNION OF INDIA 549
[RANJAN GOGOi, J.]
decisions to the above effect will fill in the void till effective A
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 8
otherwise illegally constructed property during the pendency of
the present proceeding and such other events cannot be the
basis of any claim in equity for protection of the product of an
apparently illegal act. Reliance in this case has been placed
on a decision of this Court in Fomento Resorts & Hotels C
Limited & Anr. vs. Minguel Martins & Ors. 8 •
11. The cases of the respective parties having been
noticed the necessary discourse may now commence. In
Bennett Coleman & Co. vs. Union of lndia 9 , a 'Newsprint
Policy', notified by the Central Govt. for imposing conditions on D
import of newsprint came to be challenged on the ground of
violation of fundamental rights. Beg, J., in a concurring
judgment, observed:
"What is termed "policy" can become justiciable when it E
exhibits itself in the shape of even purported "law".
According to Article 13(3)(a) of the Constitution, "law"
includes "any Ordinance, order, bye-law, rule, regulation,
notification, custom or usage having in the territory of
India the force of law". So long as policy remains in the
realm of even rules framed for the guidance of executive F
and administrative authorities it may bind those
authorities as declarations of what they are expected to
do under it. But. it cannot bind citizens unless the
impugned policy is shown to have acquired the force of
"law'. G
(para 93 - emphasis added)
s. 2009 (3) sec 571.
9. [(1972) 2 sec 788 - 5JJ. H
550 SUPREME COURT REPORTS [2014] 10 S.C.R.
A 12. The question 'what is "law"? has perplexed many a
jurisprude; yet, the search for the elusive definition continues.
It may be unwise to posit an answer to the question; rather, one
may proceed by examining the points of consensus in
jurisprudential theories. What appears to be common to all
s these theories is the notion that law must possess a certain
form; contain a clear mandate/explicit command which may be
prescriptive, permissive or penal and the law must also seek
to achieve a clearly identifiable purpose. While the form itself
or absence thereof will not be determinative and its impact has
c to be considered as a lending or supporting force, the
disclosure of a clear mandate and purpose is indispensable.
13. It may, therefore, be understood that a Govt. policy may
acquire the "force of 'law"' if it conforms to a certain form
possessed by other laws in force and encapsulates a mandate
D and discloses a specific purpose. It is from the aforesaid
prescription that the guidelines 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 -
E
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
F alia, for scrutiny of beach construction within 500 meters of HTL;
3. Environmental Guidelines for Development of Beaches
of July 1983;
G 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
H
GULF GOANS HOTELS CO. LTD. v. UNION OF INDIA 551
[RANJAN GOGOi, J.]
construction activity within 500 meters of the HTL can be traced A
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 8
to protect, preserve and safeguard the environment. It may be
possible to view the aforesaid guidelines as "affirmative action",
aimed at implementation of Articles 21 and 48A of the
Constitution and, therefore, outlining a visible purpose. The
search for a clear, unambiguous and unequivocal command to C
regulate the conduct of the citizens in the said guidelines must
also be equally fruitful. However, we are unable to find in the
said guidelines any expressed or clearly defined dicta. In fact,
having read and considered the guidelines, we are left with a
reasonable doubt as to whether what has been spelt out therein
are not mere suggestions or opinions expressed in the process D
of a continuing exploration to identify the correct parameters
that would effectuate the purpose i.e. safeguarding and
protecting the environment (sea beaches) from human
exploitation and degradation. The above is particularly
significant in view of the fact that the Stockholm Declaration in E
its core resolutions, merely enunciate very broad propositions
and commitments including those concerning the sea beaches
as distinguished from specific parameters that could have
application, without variation or exception, to all the signatories
to the declaration. The Stockholm Conference having nowhere F
expressed any internationally approved parameters of
acceptable distance from the HTL, incorporation of any such
feature of international values in the Municipal Laws of the
country cannot arise even on the principle enunciated in
Gramophone Company of India (supra). The position is best G
highlighted by noticing in a little detail the objectives sought to
be achieved in the Stockholm Conference and the core
principles adopted therein so far as they are relevant to the
issues in hand.
H
552 SUPREME COURT REPORTS [2014] 10 S.C.R.
A "The United Nations Conference on the Human
Environment, met at Stockholm from 5 to 16 June, 1972,
to consider the need for a common outlook and common
principles to inspire and guide the peoples of the world
in the preservation and enhancement of the human
B environment -
The Conference called upon Governments and peoples
to exert common efforts for the preservation and
improvement of the human environment, for the benefit
of all the people and for their posterity."
c
Extract of the relevant Principles -
"Principle 7- States shall take all possible steps to prevent
pollution of the seas by substances that are liable to
create hazards to human health, to harm living resources
D
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
E 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
F 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
G
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
H will be essential in all cases to consider the svstems of
GULF GOANS HOTELS CO. LTD. v. UNION OF INDIA 553
[RANJAN GOGOi, J.]
values prevailing in each country, and the extent of the A
applicability of standards which are valid for the most
advanced countries but which may be inappropriate and
of unwarranted social cost for the developing countries.
Principle 24- International matters concerning the 8
protection and improvement of the environment should
be handled in a cooperative spirit by all countries, big
and small, on an equal footing.
Cooperation through multilateral or bilateral
arrangements or other appropriate means is essential to C
effectively control, prevent, reduce and eliminate adverse
environmental effects resulting from activities conducted
in all spheres, in such a way that due account is taken of
the sovereignty and interests of all States."
D
15. Article 77 of the Constitution provides the form in which
the Executive must make and authenticate its orders and
decisions. Clause (1) of Article 77 provides that all executive
action of the Government must be expressed to be taken in the
name of the President. The celebrated author H.M.Seervai in E
Constitutional Law of India, 4th Edition, Volume 2, 1999
describes the consequences of Government orders or
instructions not being in accordance with Clauses (1) or (2) of
Article 77 by opining that the same would deprive of the orders
of the immunity conferred by the aforesaid clauses and they
F
may be open to challenge on the ground that they have not been
made by or under the authority of the President in which case
the burden would be on the Government to show that they were,
in fact, so made. In the present case, the said burden has not
been discharged in any manner whatsoever. The decision in
Air India Cabin Crew Association vs. Yeshaswinee Merchant10 , G
taking a somewhat different view can, perhaps, be explained
by the fact that in the said case the impugned directions
contained in thEl Government letter (not expressed in the name
10. (2003) 6 sec 277 - para 72. H
554 SUPREME COURT REPORTS [2014] 10 S.C.R.
A of the President) was in exercise of the statutory power under
Section 34 of the Air Corporations Act, 1953. In the present
case, the impugned guidelines have not been issued under any
existing statute.
16. Clause (2) of Article 77 also provides for the
8
authentication of orders and instruments in a manner as may
be prescribed by the Rules. In this regard, vide S.O. 2297 dated
3rd November, 1958 published in the Gazette of India, the
President has issued the Authentication (Orders and Other
Instruments) Rules, 1958. The said Rules have been
C superseded subsequently in 2002. Admittedly, the provisions
of the said Rules of 1958 had not been followed in the present
case insofar as the promulgation of the guidelines is
concerned.
D 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
E in State of Uttaranchal vs. S.K. Vaish 11 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
F 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
G 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
H 11. (2011) a sec 670.
GULF GOANS HOTELS CO. LTD. v. UNION OF INDIA 555
[RANJAN GOGOi, J.]
by the rules, the same cannot be treated as an order on A
behalf of the Government." {Para 23]
•A noting recorded in the file is merely a noting simpliciter
and nothing more. It merely represents expression of
opinion by the particular individual. By no stretch of
8
imagination, such noting can be treated as a decision of
the Government. Even if the competent authority records
its opinion in the file on the merits of the matter under
consideration, the same cannot be termed as a decision
of the Government unless it is sanctified and acted upon
by issuing an order in accordance with Articles 77(1) and C
(2) or Articles 166(1) and (2). The noting in the file or
even a decision gets culminated into an order affecting
right of the parties only when it is expressed in the name
of the President or the Governor, as the case may be,
and authenticated in the manner provided in Article 77(2) D
or Article 166(2). A noting or even a decision recorded
in the file can always be reviewed/reversed/overruled or
overturned and the court cannot take cognizance of the
earlier noting or decision for exercise of the power of
judicial review." [Para 24] E
18. It is also essential thi'!t what is claimed to be a law must
be notified or made public in order to bind the citizen. In Har/a
vs. State of Rajasthan 12 while dealing with the vires of the
Jaipur Opium Act, which was enacted by a resolution passed F
by the Council of Ministers, though never published in the
Gazette, this Court had observed :-
"Natural justice requires that before a law can become
operative it must be promulgated or published. It must
be broadcast in some recognisable way so that all men G
may know what it is, or, at the very least, there must be
some special role or regulation or customary channel by
or through which such knowledge can be acquired with
12. [AIR 1951 SC 467). H
556 SUPREME COURT REPORTS [2014] 10 S.C.R.
A the exercise of due and reasonable diligence. The
thought that a decision reached in the secret recesses
of a chamber to which the public have no access and to
which even their accredited representatives have no
access and of which they can normally know nothing, can
B nevertheless affect their lives, liberty and property by the
mere passing of a Resolution without anything more is
abhorrent to civilised man." [Para 1OJ
19. The Court in Har/a vs. State of Rajasthan (supra)
noticed the decision in Johnson vs. Sargent & Sons13 and
C particularly the following:-
"The principle underlying this question has been judicially
considered in England. For example, on a somewhat lower
plane, it was held in Johnson v. Sargant, (1918) 1 K.B. 101:
D 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
E 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
F 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
G
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
H 13. [(1918) 1 KB 101).
GULF GOANS HOTELS CO. LTD. v. UNION OF INDIA 557
[RANJAN GOGOi, J.]
of publication is concerned, it has been consistently held by this A
Court that such mode must be as prescribed by the statute. In
the event the statute does not contain any prescription and even
under the subordinate legislation there is silence in the matter,
the legislation will take effect only when it is published through
the customarily recognized official channel, namely, the official B
gazette (B.K. Srivastava vs. State of Kamataka)1 4 • Admittedly,
the 'guidelines' were not gazetted.
21. If the guidelines relied upon by Union of India in the
present case fail to satisfy the essential and vital parameters/ C
requirements of law as the trend of the above discussion would
go to show, the same cannot be enforced to the prejudice of
the appellants as has been done in the present case. For the
same reason, the issue raised with regard to the authority of
the Union to enforce the guidelines on the coming into force of
the provisions of the Environment Protection Act so as to bring D
into effect the impugned consequences, adverse to the
appellants, will not require any consideration.
22. An argument had been offered by Shri Parikh, learned
counsel appearing for the respondent, Goa Foundation, that E
while dealing with issues concerning ecology and environment,
a strict view of environmental degradation, which Shri Parikh
would contend has occurred in the present case, should be
adopted having regard to the rights of a large number of citizens
to enjoy a pristine and pollution free environment by virtue of F
Article 21 of the 9onstitution. We cannot appreciate the above
view. Violation of Article 21 on account of alleged environmental
violation cannot be subjectively and individually determined
when parameters of permissible/impermissible conduct are
required to be legislatively or statutorily determined under G
Sections 3 and 6 of the Environment Protection Act, 1986 which
has been so done by bringing into force the Coastal Regulation
Zone (CRZ) Notification w.e.f. 19th February, 1991.
14. (1987) 1 sec 658. H
558 SUPREME COURT REPORTS [2014] 10 S.C.R.
A 23. In view of the foregoing discussion, the orders
impugned in the writ petitions filed by the appellants cannot be
sustained. Consequently, the said orders as well as each of the
orders dated 13th July, 2000 passed by the High Court of
Bombay will have to be set aside which we hereby do while
B allowing the appeals.
Devika Gujral Appeals allowed.
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