1994-96 structures within 50 mts not illegal
HERALD CORRESPONDENT
NEW DELHI, APRI 12
Notwithstanding the Supreme Court striking down an Environment Ministry notification reducing ban on seaside constructions from 100 metres to 50 metres from the high tide line (HTL), a division bench headed by Chief Justice K G Balakrishnan has now allowed not only completed but on-going constructions undertaken with due permissions under the nullified notification.
Though not many builders and individuals may benefit from the relaxation secured by a Goa builder, the judgement has an all-India implication on all coastal states as it accepts interpretation of the National Coastal Zone Management Authority (NCZMA) that such a relaxation is “applicable to all such cases in the coastal areas of the country.”
There may be a rush of many citing all sorts of permissions that they may have obtained from the local authorities like panchayats to build within 50 metres of HTL. They will get right to complete constructions even if they could not build anything but obtained the required permissions for construction before the Supreme Court struck down the 50-metre notification on April 18, 1996.
In one of the three judgements on petitions of the Goan Real Estate and Construction Limited delivered on March 31, copies of which were available only on Monday, the bench of Justice Balakrishnan and Justice J M Panchal held that its April 18, 1996 judgement on a petition of Indian Council for Enviro-Legal Action declaring part of the notification dated August 16, 1994 as illegal will not affect constructions started or permitted during the intervening period of 20 months.
The second petition of the company against People’s Movement for Civic Action was dismissed as infructuous while the company’s third petition to transfer the movement’s pending writ petition before the Goa bench of the Bombay High Court to the Supreme Court to be decided with the pending special leave petition (SLP) was rejected.
The case of the petitioner company, which had submitted plans back in 1993 for construction of a hotel and a residential complex on the land it owned close to river Zuari in Goa, was that the Supreme Court’s judgement of 1996 neither specifically ordered demolition of existing structures nor issued directions on the ongoing constructions coming up as per plans sanctioned during the period when the said amending notification of April 16, 1994 was valid and in force.
The company sought clarification, pointing out that the Centre and the NCZMA had repeatedly upheld through three letters in January, February and May 2007 its claim that the 1996 judgement does not prejudice or affect either the completed or on-going construction.
The controversy arose because the Ministry of Environment and Forests issued a notification in 1994 amending its original Coastal Regulation Zone Notification dated February 18, 1991 reducing the “no development zone” on which no construction is permitted from 100 metres from HTL to 50 metres.
The Goan real estate company had originally obtained construction permissions for a project only beyond 100 metres, but it moved an additional proposal to the Panchayat of Curca, Bambolim and Talaulim in Tiswadi Goa to allow it to build 18 blocks between 50 and 100 metres. The village panchayat referred the matter to the Town and Country Planning Authority, which cleared the additional proposal on July 31, 1995 and the same day the panchayat sanctioned the company’s plans and granted permission to construct.
The company lawyers argued before the apex court that the company had commenced construction in accordance with the new approved plans that were revalidated from time to time and claimed that they were valid till this date. Submitting that the 1994 notification allowing constructions up to 50 metres was declared illegal in 1996 but its operation was not stayed by the court or by the government, the company pleaded that the citizens were entitled to act as per the said notification and there was no illegality in such acts.
The company made out a strong case that notwithstanding the fact that part of the amending notification was declared illegal by the Supreme Court, all orders passed under the said notification and actions taken pursuant to the said notification would not be affected in any manner whatsoever.
The Supreme Court rejected the Centre’s stand that the particular company would get benefit of interpretation while others would not get any benefit. It referred to a decision of NCZMA that the clarification given by the Environment Ministry in this regard is applicable to all such cases in the coastal areas of the country.
“Therefore, the plea that only petitioners have been favoured by the authority and, therefore, the petition should be dismissed cannot be accepted,” the judgement held.
