IN THE HIGH COURT OF KERALA, AT ERNAKULAM

Present:

The Hon'ble Mr. Justice P.K.Balasubramanyan
&
The Hon'ble Mr. Justice M. Ramachandran



O.P.No...3 2 4 3...of 1997


Adv. Paul Thomas Mampilly & ors. Vs. Union of India & ors

Petitioners: By M/s. P.K.Kurian and Antony Dominic, Menon & Pai, Advocates.

Respondents: 1. Senior Central Government Standing Counsel Sri. P.S.Sreedharan Pillai

                      2. Government Pleader Sri.C.K.Abdul Rahim

                      3. P.B.Sahasranaman

This Original Petition having been finally heard on 21-8-2001, the court on 12-10-2001 delivered the following:

J U D G M E N T
 

BALASUBRAMANYAN, J.


1. Petitioners 1 to 4 are residents of small islands around Cochin and petitioner No.5 is a resident of Ernakulam. the petitioners have filed this original petition seeking the issue of a writ of certiorari calling for the records relating to Coastal Zone Management Plan prepared by the State of Kerala as approved by the Central Government as per communication dated 27-9-1996, and quash the same at least in so far as it relates to the area around backwaters and rivers affected by tidal action, for declaration that the inclusion of Coastal stretches of backwaters and rivers which are influenced by tidal action up to 500 metres from the High Tide Line and land between High Tide Line and Low Tide Line as Coastal Regulation Zone as per the notification issued under Section 3(1) and 3(2)(v) of the Environment (Protection) Act, 1986 and Rule 5(3)(d) of Environment (Protection) Rules, 1986 is illegal and invalid and for other consequential relief's. Two other petitioners have filed C.M.P.No.2429 of 1999 invoking Rule 152 of the Rules of the High Court of Kerala praying that they may also be heard in support of the original petition.

2. According to the petitioners, prior to the issuance of the notification dated 19-2-1991, marked Ext.P1, an earlier notification dated 15-12-1990 was issued in exercise of powers under Section 3(1) of the Environment (Protection) Act (hereinafter called the Act) and there under the proposal was to declare that the Coastal stretches of seas, bays, estuaries and creeks which are influenced by tidal action (in the landward side) upto 500 metres from High Tide Line and land between Low Tide Line and High Tide Line as Coastal Regulation zone and to impose the restriction mentioned there under on the setting up of industries, operations or processes etc. in the Coastal Regulation Zone. But when it came to the notification dated 19-2-1991, rivers and backwaters were also included for the purpose of imposing the restrictions and this was impermissible and invalid. It is the case of the petitioners that the earlier notification Ext.P2 was the draft notification and it did not include rivers and backwaters. But the final notification includes rivers and backwaters and this was impermissible in terms of the Act and the Rules and hence the inclusion of rivers and backwaters in the subsequent notification must be found to be invalid and struck down. This is sought to be met by the respondents including the Union of India by submitting that the Supreme court has found the notification ext.P1 dated 19-2-1991 valid already and that the petitioners are not entitled to challenge that notification any more in the High Court. It is also their contention that the earlier notification Ext.P2 would take in also rivers and backwaters and what is contained in the subsequent notification is only the clarification of that position and there has been no addition as contended. It is also submitted that the Coastal Zone Regulation Map had already been finalised after due notice and after following the procedure prescribed therefor and it is not open to the petitioners to challenge the notification dated 19-2-1991. It is also contended that even if the prior notification which the petitioners called draft notification did not specifically mention rivers and backwaters, there was no bar in including them in the final notification in public interest. The Act, the Rules and Regulations are brought into force in public interest and there was nothing illegal in the notification or in the Coastal Zone Regulation Map sought to be challenged. It is also pointed out that the original petition is only a belated attempt to question the notification issued as early as attempt to question the notification issued as early as on 19-2-1991. It is thus contended that there is no merit in the original petition.

3. Section 3 of the Act confers power on the Central Government to take measures to protect and improve environment. The Central Government is empowered to take all such measures as it deems necessary of expedient for the purpose of protecting and improving the quality of the environment and preventing, controlling and abating environmental pollution. Section 6 of the Act confers power on the Central Government to make rules to regulate environmental pollution in respect of all or any of the matters referred to in Section 3 of the Act. Section 25 of the Act also confers power on the Central Government to make rules for carrying out the purposes of the Act. The concerned notification is issued in terms of Section 3(1) and 3(2)(v) of the Act. Section 3(2)(v) of the Act enables the making of rules with respect to restrictionable areas in which any industries, operation or process or class of industries, operations or processes shall not be carried out or shall be carried out subject to certain safeguards. Learned counsel for the petitioner relied on Rule 5 of the Environment (Protection) Rules with particular reference to sub-rule (2) thereof, that while prohibiting or restricting the location of industries and carrying on of processes and operations in an area the Central Government had to follow the procedure laid down in sub-rule (3) of Rule 5 of the Rules. According to counsel for the petitioner, since the initial notification or the draft notification did not take in rivers and backwaters and did not give an opportunity to objectors like the petitioners to put forward their objections and there was no occasion for the Central Government to consider those objections on the scheme of Rule 5(3) of the Rules, the subsequent inclusion of rivers and backwaters in Ext.P1 notification was not in terms of the procedure laid down by Rule 5 of the Rules and consequently the addition of rivers and backwaters in Ext.P1 was bad, illegal and unauthorised. Counsel argued that if the statute prescribes that a matter shall be done in a particular manner, it has to be done only in that manner or not at all and this principle would apply to the case on hand.

4. Before proceeding further we may notice that sub-rule (4) of Rule 5 was inserted with effect from 16-3-1994. the said Rule reads:-

"Notwithstanding anything contained in sub-rule (3) whenever it appears to the Central Government that it is public interest to do so, it may dispense with the requirement of notices under clause (a) of sub-rule (3)".

There is no challenge to this sub-rule introduced with affect from 16-3-1994. In the face of this sub-rule, even assuming that there is any merit in the contention raised on behalf of the petitioners, it appears to us, that Ext.P1 notification or the operation thereof relating to rivers and backwaters cannot be struck down or declared invalid merely for the reason that the procedure laid down in Rule 3 was not fully complied with in the sense that they were not specifically mentioned in the earlier notification Ext.P.2.

5. That appart, it appears to us that the expression Coastal stretches of seas, bays, estuaries and creeks which are influenced by tidal action is capable of taking in rivers and backwaters which appear to be added in Ext.P1 notification mainly by way of clarification. According to the Shorter Oxford Dictionary, estuary is a tidal opening, an arm of the sea, the tidal mouth of a great river where the tide meets the current. According to Black's Law Dictionary estuary is that part of the mouth or lower course of a river flowing into the sea, which is subject to tide, especially an enlargement of a river channel towards its month in which the movement of the tide is very prominent. The Encyclopedia Americana gives the meaning of estuary as a coastal body of water that is a transition zone between river and ocean, with sea water and fresh water being mixed by the tides. estuaries in low-lying areas, such as Chesapeake Bay in the United States, are drowned river valleys. According to Encyclopaedia Britannica estuary is the mouth of a river where sea and fresh water meet and where tidal effects are conspicuous. Thus the expression estuary really takes in rivers. The expression creek used in Ext.P2 notification is also capable of taking within it small rivers. Backwater, going by the dictionary is nothing other than a stretch of still water parallel with a stream and fed from it at the lower end (Odford Encyclopedia Dictionary) or water turned or held back as by a dam, ebb tide, backwash (New Webster's dictionary) and it is a creek or arm of the sea parallel to the coast, separated by a narrow strip of land from the sea and communicating with it by barred outlets or a backward current of water or a piece of water without current, parallel to a river and fed from it at the lower end by a backflow. (Shorter Oxford Dictionary). It is significant to note that both in Exts.P1 and P2 what are included are estuaries, creeks, rivers and backwaters, which are influenced by tidal action in the landward side. The expression coastal stretches of seas, bays estuaries and creeks which are influenced by tidal action found in Ext.P2, in our view, is sufficient to take in rivers and backwaters also and the addition of the specific expressions rivers and backwaters influenced by tidal action added in Ext.P1 notification, is only by way of clarification or to put matters beyond doubt. Really, it cannot be said that there is an addition of something in Ext.P1 that was not at all there in Ext.P2 notification. Considering the purpose for which the Act has been brought into effect, the Rules and the Regulations are made, it is clear that the approach must be to construe the notification as broadly as possible to achieve the object sought to be achieved by the Act, the Rules and the Regulations. Moreover, as we have noted, in view of Rule 5(4) of the rules, even assuming that the argument of the petitioners regarding the inclusion of rivers and backwaters in ext.P1 has any merit, the restrictions placed in regard to rivers and backwaters having tidal action is clearly in public interest and it is open to the Central Government to dispense with the requirement of notice under Rule 5(3)(a) of the Rules.

6. At this stage we may also notice that though Ext.P1 notification was issued as early as on 19-2-1991, the challenge to the same is made only in the year 1997. In this context we have to notice that in Indian Council for Enviro-Legal Action v. Union of India, 1996 (5) SCC 281 in which the State of Kerala was found fault with for not submitting the Coastal Management Plan to the Central Government for approval, the Supreme Court has stated:

"There is no challenge to the validity of the main notification. Counsel for all the parties have agreed that the main notification is valid and has to be enforced."

No doubt, learned senior counsel appearing for the petitioner points out with reference to the decisions of the Supreme Court that a decision is not an authority for a proposition that was not specifically decided and the observations in paragraph 28 of the judgment quoted above, cannot be considered to be the final word on the validity of the notification. But we may notice that in the original petition the petitioners themselves have not challenged the notification as a whole and at the time of argument also there was no contention that the notification Ext.P1 was invalid in its entirety or that it was beyond the competence of the Legislature or the rule making authority or the authority that issued the notification. The challenge was confined to the inclusion of rivers and backwaters having tidal action in Ext.P1 notification based on, they being not specifically mentioned in, what the petitioners called the draft notification, Ext.P2 issued earlier in terms of Rules 5(2) and (3) of the Rules calling for objections and giving opportunities to parties and States to raise their objections. Since it is clear that the Act, the Rules and the Regulations have been brought into force in public interest and to protect the environment, it is not possible to uphold an argument that the notification is per se invalid or that it is unconstitutional or unauthorised.

7. As regards the Coastal Zone Regulation Map two points were sought to be raised by learned counsel for the petitioners. It was pointed out that the said Map included the whole of cochin in Category-II including the islets. No draft was published and since the Map is part of Ext.P1 notification, a draft should have been published. It maybe noted that the Coastal Zone Regulation Map was submitted by the State Government for the approval of the Central Government as directed by the Supreme Court in the decision in Indian Council for Enviro-Legal Action v. Union of India, 1996(5) SCC 281 and it was after approval that the Map was finalised.

8. In the counter affidavit filed by the State in paragraph 27 it is stated that backwaters, tidal rivers and lagoons form part of the coastal ecosystem and hence the notification is justifiable. It is also stated in paragraph 30 that inclusion of the tidal influence region of the river is essential for protection of the coastal ecosystem. In paragraph 31 it is stated that the islands in the backwaters are part of the coastal ecosystem. The notification definitely intends to regulate activities in those islands also so that the ecosystem is protected. No material is furnished by the petitioners to show that this position adopted in the counter affidavit filed by the State is in any manner unacceptable. So the fact that the whole of Cochin, according to the petitioners, is included in Category-II or that the Map was not published along with Ext.P.2. notification are not grounds for striking down any part of the Costal Regulation Zone Map prepared in accordance with the relevant provisions of the Act and the Rules and duly published in terms thereof.

9. Learned counsel for respondent No.3 submitted based on the decision in New Delhi Municipal Council v. State of Punjab, 1997 (7) SCC 339 that where the validity of law is challenged in a court of law, the court is bound to presume in favour of its validity and further while considering the validity of the law, the court will not consider itself restricted to the pleadings of the State and would be free to satisfy itself whether under the provisions of the constitution the law can be sustained. That decision quoted the following passage from Ram Krishna Dalmia v. Justice S.r. Tendolkar, 1959 SCR 279:

"that in order to sustain the presumption of constitutionality the court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation; and......"

Therefore, according to counsel for respondent No.3 he is also entitled to show that the Environmental (Protection) Rules apply only to industries and the mandatory requirement of Rule 5(3) relied on by the petitioners is not available in this case. Counsel submitted that the preamble or the opening part of the notification Ext.P2 dated 15-2-1990 itself shows that the said notification was issued by the Central Government after considering the need for protecting the coastal areas and for ensuring that the use and activities in the coastal areas are consistent with the principles and requirements of environmental conservation it was in view of that, the Central Government proposed to declare that the coastal stretches of seas, bays, estuaries and creeks which are influenced by tidal action within the limits specified therein, as Coastal Regulation Zones and impose restrictions on the setting up of industries, operations or processes in those zones. According to counsel, both backwaters and rivers were taken by the description contained in Ext.P2 notification and there was no fresh addition in Ext.P1 as contended by the petitioners. We are inclined to find force in the submission raised on behalf of respondent No.3.

10. Learned counsel for respondent No.3 relying on the decision of the Supreme Court in Union of India v. M/s.Jesus Sales Corporation, AIR 1996 SC 1509 contended that in all situations adherence to natural justice does not mean giving of a personal hearing and the petitioners could have raised an objection to the notification atleast as and when it was made and their belated challenge at this stage should not be countenanced by this court. Counsel pointed out that no such objection was raised either when Ext.P2 was issued or Ext.P1 was issued. There is no case for the petitioners that they objected to Ext.P2 notification in due time. The failure to raise objections at the appropriate time cannot also be ignored.

11. We find force in the submission that the procedure laid down in Rule 5(3) of the Rules need be followed while placing prohibition or restriction on location of industries and the carrying on of processes or operations in different areas. The definition of areas in Rule 2(aa) and Rule 3 also support the position that the procedural requirement laid down in Rule 5 is not attracted to notifying an area as a Coastal Zone and regulating the activities therein. In any event, as we have noticed, in view of Rules 5(4) it cannot be said that the alleged failure to comply with the requirement of Rule 5(3) of the Rules as regards rivers and backwaters can lead to declaring their inclusion in Ext.P1 as invalid, illegal or unconstitutional.

12. Thus, on an anxious consideration of the relevant aspects and the arguments raised on behalf of the petitioners we are not satisfied that there is any justification either in striking down any part of the Coastal Regulation Zone Map or Ext.P1 notification in so far as it takes in rivers and backwaters. The notification Ext.P1 cannot be declared invalid merely for the reason that the requirements of Rule 5(2) and (3) of the Environmental (Protection) Rules were not complied with since rivers and backwaters were not specifically mentioned in the draft notification. In view of our conclusion that the draft notification Ext.P2 did include rivers and backwaters having tidal action, there is no merit in the contention even if it is taken that the mandatory requirements of Rule 5(2) and (3) apply in regard to the Regulations now imposed. Moreover, Rule 594) of the Rules clearly enables the Central Government to dispense with the requirements of Rule 5(2) and (3) in public interest. It is now settled by the decisions of the Supreme Court that the protection of the environment is in public interest and the Act, the Rules and Regulations are brought forward in public interest. Therefore, in any event, rule 5(4) permits the inclusion of rivers and backwaters in Ext.P1 notification without complying with Rule 5(3) of the Rules even assuming that they were not included in Ext.P2 notification issued earlier.

Thus we are satisfied that there is no merit in this original petition. The same is, therefore, dismissed. The respondents are directed to implement the notification Ext.P1 strictly and to take all needed steps in that regard.


Sd/- [P.K.BALASUBRAMANYAN, JUDGE]

sD/- [M. RAMACHANDRAN, JUDGE]