This appeal has been filed before the Honorable Supreme Court under a writ petition filed by the petitioner pursuing to citizens right to approach the highest court of the land under Article 32 of the Constitution of India. Petitioner no.1 is a resident and landowner of the property situated in Goa, the property being the subject matter of this petition was located on Zauri, Goa. The petitioner submitted a property plan for approval to build a hotel and residential complex in that plot of land. On 19th February 1991, the Government of India through the Ministry of Environment and Forest issued a notification regulating coastal zone vide Coastal Regulation Zone on behalf of the authorization under Rule 5(d) of the Environment (Protection) Rule, 1986. Pursuing to this notification no land near to 100 meters of the High Tide zone will or should not be used for any construction of any residential or commercial property except repairs of earlier existing property will be allowed. The Government, with the later notification dated 16th August 1994 amending the earlier notification with provision to relax the area limitation from 100 meters to 50 meter. The petitioner who already applied for the construction project beyond the 100-meter guidelines of the land applied to build more 18 blocks of the property between the provision area of 100 meters to 50 meters, it submitted the application to Curca, Bambolim & Taloulim, Taluka Tiswadi, Goa. The village panchayat further submitting the application to the Town and Country Planning as per the provisions required the village panchayat to comply. Such submission should’ve to submit for the purpose of the technical evaluation. The Town and Country were palming authority further accepting the application made by the petitioner for construction of the 18 blocks between the provisional area of 100 meters and 50 meters by passing the order in this behalf on date 31st July 1995. Based on the order passed by the authority, the village panchayat sanctioned the construction plan of the petitioner. A non-government organization filed a complaint pertaining to the rules amended in the 16th August notification stating that the rule changed from 100 meters to 50 meters will attract more industries for expansion and the objective to protect coastal zone will end up in vain. Such complaint with similar content was filed by the society formed under the India Societies Registration Act, 1960, i.e. Goa Foundation and challenged the notification to vide which the land restriction was amended.
- Does the amendment pursue to the notification on date 16th August 1994 valid?
- Should the submission made by the petitioner with regards to the expansion of the property plan be allowed?
The Honorable Supreme Court after hearing the learned counsels representing both the parties in the matter above and considering the facts and the precedents submitted established by the Honorable Judges to support the prayers and pleadings of the parties in the matter above states its observation herein that the court considers that it is important to record the report of the personal hearing according to the National Coastal Zone Management after such hearing was refereed by the Ministry and such order were given to decide the gravity of the matter. The High Court suggested that the hearing should be made by the National Coastal Zone Management Authority without being influenced by any writ petition filed or any hearing as referred by the Ministry such report should be unbiased and should produce a true and fair view of the matter.
In this matter that the question regarding the validity property plan by the petitioner between the area in dispute is valid or not can be observed by reading the law and earlier precedence set in Enviro Legal case whereby the notification to be taken with the prospective effect and so it will be construed, and interpretation should be constructed in a way that the court will not agree to demolition of the property build in the area. Further, the Honorable Court making its observation regarding the six amendment in the notification date 16th August 1994 is of the opinion that there was an amendment made which are completely arbitrary so are illegal but also considering the law in this behalf it will be impossible to strike out all the amendment, and the court by clear observation stated that two out of six amendment would be completely struck off due to its illegality, but the one amendment made is not completely illegal one of the part of that law is bad, but no judgment should be constructed on the basis of the law which is partly bad with retrospective effect. According to at length argument by the learned Additional Solicitor General regarding the construction of the property near the creeks and river in the 50-meter distant area, but such argument will not be allowed to sustain for the purpose that such amendment will attract more industries for construction and new structures that will be build will not necessarily be for the repairs of the existing structure, and this will result in the compromise of the objective sought for protection of Coastal Zone. The Honorable Court revisiting the provision decides to strike off the amendment regarding the reduction of the restriction in the limit of the land from 100 meters to 50 meters. The court also states that no evidence has yet been provided that has frustrated the objective of the Act, but it is the provision of the Act which better serves the law.
The Honorable Court in deciding the matter states that the on-going construction will not be demolished up to the part of the completed construction but will not be allowed to construct the incomplete part if such is in violation of the provisions. The court making the rule absolute stated that the petition would be disposed and no cost will be applicable to the order.