8. After considering all the objections, the Central Government issued a notification dated 19/2/1991 (hereinafter referred to as ‘the main Notification’) in exercise of the powers conferred on it by clause (d) of sub-rule (3) of Rule 5 of the Environmental Protection Rules, 1986. By this notification, it declared the coastal stretches of seas, bays, estuaries, creeks, rivers and backwaters which were influenced by tidal action (in the landward side) up to 500 metres from the High Tide Line (hereinafter referred to as HTL’) and the land between Low Tide Line (hereinafter referred to as ‘LTL’) and HTL as Regulation Zones. With regard to this area, it imposed, with effect from the date of the said notification, various restrictions on the setting up and expansion of industries, operation or processes etc. ion the said Regulation Zones. It was clarified that for the purposes of the main Notification, HTL was defined as the line up to which the highest high tide reaches at springtime.
9. The salient features of the main Notification are that a number of activities were declared as prohibited in the Regulation Zones, which are as follow:
“(i) setting up of new industries and expansion of existing industries, except those directly related to waterfront or directly needing foreshore facilities;
(ii) manufacture or handling or storage or disposal of hazardous substances as specified in the notifications of the Government of India the Ministry of Environment and Forest No SO 594(E) dated 28/7/1989, SO 966(E) dated 27/11/1989 and GSR 1037 (E) dated 5/12/1989; (iii) setting up and expansion of units mechanisms for disposal of wastes and effluents, except facilities required for discharging treated effluents into the watercourse with approval under the Water (Prevention and Control of Pollution) Act, 1974 except for storm water drains;
(iv) setting up and expansion of units mechanisms for disposal of wastes and effluents, except facilities required for discharging treated effluents into the watercourse 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 authorities concerned for phasing out the 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 with in a restorable time not exceeding three years from the date of this notification;
(vii) dumping of ash or any wastes thermal power stations;
(viii) land reclamation, bundling or disturbing the natural course of sea water with similar obstructions, except those required for control of coastal erosion and maintenance or clearing of waterways, channels and ports and for prevention of sandbars and also except for tidal regulators, storm water drains ad structures for prevention of salinity ingress and for sweet water recharge;
(ix) mining of sands, rocks and other substrata materials, except those rare minerals not available outside the CRZ areas;
(x) harvesting or drawal of groundwater and construction of mechanisms therefore, within 200 m of HTL; in the 200 m to 500 m zone it shall be permitted only when done manually through ordinary wells for drinking, horticulture, agriculture and fisheries;
(xi) construction activities in ecologically sensitive areas as specified in Annexure I of this notification;
(xii) any construction activity between the Low Tide Line and High Tide Line except facilities for carrying treated effluents and waste water discharges into the sea, facilities for carrying sea water for cooling purposes, oil, gas and similar pipelines and facilities essential for activities permitted under this notification; and
(xiii) dressing or altering of sand-dunes, hill, natural features including landscape changes, 50 per cent of the plot size and the total height of construction shall not exceed 9 metres.”
Secondly, the main Notification provided for regulation of permissible activities. Furthermore, the coastal States and union Territory Administrations were required to prepare, within one year from the date of the main Notification, Coastal Zone management Plans (hereinafter referred to a as ‘the Management Plans’) identifying and clarifying the Regulation Zones areas within their respective territories in accordance with the guidelines contained in the main Notification and those plans were required to be approved, with or without modification, by the Central Government, Ministry of Environment and Forests. The main Notification also stipulated that within the framework of the approved Management Plans, all developments and activities within the Regulation Zones, except the prohibited activities and those which required environment clearance from ministry of Environment and Forests, Government of India, were to be regulated by the State Government, Union Territory Administration 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 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 two Annexures, namely Annexure I and Annexure II to the main Notification. While Annexure I contains the Coastal Area Classification and Development Regulations which are for general application, Annexure II is the specific provision which contains the guidelines for development of beach resort/hotels in the designated areas of CRZ III for temporary occupation of tourists/visitors with prior of the Ministry of Environment and Forests.
13. Annexure I consists of clause 6(1) which relates to the classification of Coastal Regulation Zones. The norms for regulation activities in the said zones are provided by clause 6(2) for regulating development activities. The coastal stretches within 500 metres of HTL of the landward side are classified under clause 6(1) into four categories, which are as under:
(a) Category I (CRZ I) includes the areas that are ecologically sensitive and important, such as ‘national parks/marine parks, sanctuaries etc.’ areas rich in genetic diversity, areas likely to be inundated due to rise in sea level consequent upon global warming and such other areas as have been declared by the Central Government or the authorities concerned at the State/Union Territory level from time to item. In addition thereto, CRZ I also contains the area between the LTL and the HTL.
(b) Category II (CRZ II ) contains the areas that have already been developed up to or close to the shore line. This is the area which is with in the municipal limits or in other legally designated urban areas which is already substantially built up and which has been provided with drainage and approach roads and other infrastructure facilities, such as water supply and sewerage mains.
(c) Category III (CRZ III) is the area which was originally undisturbed and includes those areas which do no belong either to Category I or Category II. CRZ III includes coastal zone in the rural areas (developed and undeveloped ) and also areas within the municipal limits or in other legally designated urban areas which are not substantially built up.
(d) Category IV (CRZ IV) contains the coastal stretches in the Andaman and Nicobar, Lakshadweep and small islands except those designated as CRZ I, CRZ II or CRZ III.
14. Clause 6(2) of Annexure I provide for norms of regulation of activities in CRZ I, II, III and IV. With regard to CRZ I, the norms for construction within 500 metres of the HTL. Furthermore, practically, no construction actively 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 up to 200 metres from the HTL is to be earmarked as “No Development Zone”. The only exception is that there can be repairs of existing authorized structures but, the permissible activity in this zone is for its use for 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 III with prior approval of the Ministry of Environment and Forests for construction of hotels/beach resorts for temporary occupation of tourists/visitors subject to the conditions as stipulated in the guidelines in Annexure II.
16. In CRZ IV also, detailed norms for regulation of activities are provided in the said clause 6(92) of Annexure I
17. As already noticed, Annexure II contains the guidelines for development of beach resorts/hotels in the designated area of CRZ III for temporary occupation of tourists/visitors. The vacant area beyond 200 metres in the landward side, even if it is within 500 metres of the HTL can be used, after obtaining permission, for construction of beach resorts for tourists/visitors. There was no provision for allowing any fresh construction within 200 metres of the HTL or within the LTL and HTL. Clause 7(1) of the main Notification which comes under Annexure II contains various conditions which have to be fulfilled before approval can be granted by the Ministry of Environment and Forests for the construction of beach resorts/hotels in the designated area of CRZ III.
18. In the background of the aforesaid facts, we will now deal with the main contentions raised, namely, the non-implementation of the main Notification and the validity of the notification dated 18/8/1994 (hereinafter referred to as ‘the 1994 Notification’).
Re: Non-Implementation of the main Notification
19. It is the case of the petitioner that with a view to protect the ecological balance in the coastal areas, the aforesaid notification was issued by the Central Government which contained various provisions for regulating development in the coastal areas. It was contended that there had been a blatant violation of this notification and industries were illegally being set up, thereby causing serious damage to the environment and ecology of the area. It was also submitted that the Ministry of Environment and Forests except for issuing the main Notification, had taken no steps to follow up its own directions contained in the main Notification. The main prayer in the writ petition was that this Court should issue appropriate writ, order or direction to the respondent so as to enforce the main Notification.
20. In the writ petition, specific allegations were also contained to the effect that the Ministry of Environment and Forests, Government of India had issued another notification dated 20/6/1991 under clause (5) of sub-section (2) of Section 3 of the Act declaring Dahanu Taluka, District Thane, Maharashtra as an ecologically fragile area.
21. The main Notification was issued so as to ensure that the development activities are consistent with the environmental guidelines for beaches and coastal areas 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 areas and other environmentally sensitive areas in the said Dahanu Taluka. Industries which were using chemical above the limits/quantities prescribed by the Act or by the 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 has permitted development activities which have resulted in new polluting industries being established in the coastal area, thereby seriously endangering the ecology. The industries which are operating in Dahanu are stated to be balloon-manufacturing units, buffing and chormium-lating units and chemical units. There has been a failure to make the master plan or the regional plan for the said Dahanu Taluka and indiscriminate licences have been issued and consent given to new industries by the State Government and the predominately agricultural area is slowly being converted into an industrial area in complete disregard of environmental laws, guidelines and notifications. There are other instances stated to be in the writ petition with relation to the Dahanu Taluka but, for the view we are taking, it is not necessary to deal with the same in any great length.
22. Notices were issued by this Court on 3/10/1994 to the respondents including the coastal States, namely, Maharashtra, Kerala, Karnataka, Orissa, West Bengal, Tamil Nadu, Andhra Pradesh and the union Territory of Pondicherry. On 12/12/1994, while granting time to the respondents to file their counter-affidavits, this Court directed that “the respondent States shall not permit the setting up of any industry or construction of any type on the area at least up to 500 metres from the sea water at the maximum high tide”. Notice was also directed to issue to the State of Goa, the Union Territory of Daman ad Diu and the islands of Andaman & Nicobar and Lakshadweep, which were added as respondents. The aforesaid interim order dated 12/12/1994 was slightly modified by this Court by is order dated 9/3/1995 in the following terms: (SSC pp. 77-78, para 1)
“We modify our order dated 12/12/1994 and direct that all the restrictions, prohibitions regarding construction and setting up of industries or for any other purpose contained in the notification dated 19/2/1991 issued by the Ministry of Environment and Forests, Government of India under clause (d) of sub-rule (3) of Rule 5 of the Environment (Protection) Rules, 1986 shall be meticulously followed by all the States concerned. The activities which have been declared as prohibited within the Coastal Regulation Zone shall not be undertaken by any of the respondent-States. The regulations of permissible activities shall also be meticulously followed. The restrictions imposed by the Coastal Areas Classification and Development Regulations contained in Annexure I to the above said notification shall also be strictly followed by the respondent-States”.
23. According to clause 3(1) 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 administration, 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 3/5/1995 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 field in court by the Union of India which shows non-compliance of clause 3(1) by practically everyone concerned. While some of the States and union territory Administrations submitted their plans, though belatedly, except in the case of Podicherry, none of the other plans were approved by the Central Government. It appears that some modifications were suggested and those States and Union Territories had to resubmit their plans. Directions will have to be issued to these States and union Territories to resubmit their plans and the Central Government will also be required to approve the resubmitted plans within a specified time. The State of Orissa has only partly complied with this Court’s order dated 3/4/1995 inasmuch as the plans submitted by it were only for a small part of a coast. The State of West Bengal only submitted a preliminary concept while the States of Andhra Pradesh, Gujarat, Karnataka and Kerala did not care to submit any plans at all. Therefore, these six States namely, Orissa, West Bengal, Andhra Pradesh, Gujarat, Karnataka and Kerala have to be answerable for non-compliance with the directions issued by this Court on 3/4/1995.
25. Affidavits which have been filed by the respondents clearly show that all the provisions of the main Notification have not been complied with. Explanations for the delay in preparation of the Management Plans and their approval have been offered, but they are far from satisfactory. 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 laws, relating to protection of environment, usually provides for what activity can or cannot be done by people. If the people were to voluntarily respect such a laws, 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 disappears.
26.Enactment of a law, but tolerating its infringement, is worse than not enacting a 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 the 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 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 there under 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 prohibit 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 effect of which will have to be borne by the future generations.
27. 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 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 received 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 Notifications, but no effective steps appear to have been taken and this is what led to the filing of the present writ petition.
28. There is no challenge to the validity of the main Notification Counsel for all the parties are agreed that the main Notification is valid and has to be enforced. Instances have been given by the petitioner as well as some of the interveners where in different States, infringement of the main Notification is taking place but no action has been taken by the authorities concerned. 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 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 in mind that one has to consider as to what directions should be issued to ensure, in the best possible manner, that the provisions of the main Notification which has been issued for preserving the coastal areas are not infringed.