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The Bombay High Court’s decision came in response to a Public Interest Litigation petition challenging the validity of the memorandum. It set aside the memorandum issued in February 2021 by the Ministry of Environment, Forests and Climate Change. The Court held: “Jurisprudence in our country recognizes hierarchy of laws according to which on the topmost pedestal of such hierarchy stand the provisions of the Constitution of India, whereafter stand the provisions of any legislation made by the Parliament or the State legislatures. Thereafter comes statutory provisions/rules instruments made by the competent authority in exercise of its powers vested in it under some legislation and it is only thereafter that in the said hierarchy, the executive instructions/orders/decisions of the Government stand.”

The Coastal Regulation Zone (CRZ) notification, 2019, regulates activities in coastal areas to protect the environment and preserve natural resources. It mandates prior clearance for permissible activities. However, the memorandum introduced a procedure for post-facto clearance, sparking concerns about environmental degradation and illegal activities.

The division bench of the High Court, comprising Chief Justice Devendra Kumar Upadhyaya and Justice Amit Borkar, noted that the Government of India’s memorandum issued on February 19, 2021, regarding CRZ clearances, lacks statutory force because it wasn’t issued under any provision of the Environment (Protection) Act, 1986, or the Environment (Protection) Rules, 1986. Unlike previous CRZ notifications in 2011, 2018 and 2019, which followed the prescribed procedure of inviting public objections and were issued under Rule 5(3) of the Rules of 1986, this memorandum

didn’t undergo the same process, the Court observed.

The memorandum allows project proponents to seek post-facto clearance for CRZ projects that began without prior clearance. However, this move is contentious because the CRZ notification of 2019, which was in effect at the time, doesn’t provide for post-facto clearance. Instead, it mandates prior clearance from the relevant state or union territory coastal zone management authority.

The government justified the decision by citing requests from state governments to consider CRZ clearance for projects that started without prior clearance due to lack of knowledge about regulatory requirements. It argued that bringing these projects under environmental laws is crucial to prevent further environmental damage.

The High Court further noted that the government had referred to the Jharkhand High Court’s order in Hindustan Copper and the Supreme Court’s judgment in Alembic Pharmaceuticals Ltd. The Supreme Court had explicitly stated that post-facto environmental clearances are not permissible under environmental legislation, as they contradict sustainable development and precautionary principles. The government’s justification for the memorandum, citing the Supreme Court’s judgment in Alembic Pharmaceuticals Ltd., was considered misplaced by the High Court. Moreover, the referred order from the Jharkhand High Court in Hindustan Copper pertains to mining leases, not CRZ areas, and thus doesn’t support the memorandum, the High Court noted.

The memorandum’s reference to the CRZ notification of 2011 was considered misplaced because it was superseded by the CRZ notification of 2019. The 2011 notification allowed post-facto clearance, but this provision is no longer in effect. It is a well settled law that whenever a law is repealed, it must be construed as if it never existed.

The High Court also referred to the Supreme Court case of State of Uttar Pradesh and Ors vs Hirendra Pal Singh and Ors. It said: “It is a settled legal proposition that whenever an Act is repealed, it must be considered as if it had never existed. The object of repeal is to obliterate the Act from the statutory books, except for certain purposes as provided under Section 6 of the General Clauses Act, 1897. Repeal is not a matter of mere form, but is of substance. Therefore, on repeal, the earlier provisions stand obliterated/abrogated/ wiped out wholly i.e. pro tanto repeal.”

Thus, as a result of supersession of CRZ notification, 2011, by promulgating and notifying CRZ notification, 2019, the High Court noted that at the time of issuance of the memorandum, dated February 19, 2021, the CRZ notification, 2011 did not exist, and accordingly, any reference to CRZ notification, 2011, in the memorandum does not justify the issuance of it. The High Court, therefore, was of the view that the memorandum is in contravention and derogation of the provisions of CRZ notification, 2019.

The High Court also referred to the judgment of the Supreme Court in Union of India and Ors. vs Somasundaram Viswanath and Ors where the subject matter was related to a service dispute in respect of promotion and seniority of certain government servants. The Supreme Court said:“If there is a conflict between the executive instructions and the rules made under the proviso to Article 309 of the Constitution of India, the rules made under proviso to Article 309 of the Constitution of India will prevail, and if there is a conflict between the rules made under the proviso to Article 309 of the Constitution of India and the law made by the appropriate legislature, the law made by the appropriate legislature prevails”.

In the case of Rajasthan State Industrial Development and Investment Corporation vs Subhash Sindhi Cooperative Housing Society, Jaipur and Ors, the Supreme Court had emphasized that executive instructions cannot override the law and therefore, any notice/circular/guidelines, etc., which are contrary to statutory provisions, cannot be enforced.

The apex court in yet another judgment in Union of India and Anr vs Ashok Kumar Aggarwal reiterated the aforesaid proposition of law that an authority cannot issue orders/memorandums/executive instructions in contravention of the statutory rules. The top court further observed in no uncertain terms that such executive instructions can be issued only to supplement the statutory rules, but not to supplant and that the executive instructions should be subservient to the statutory provisions.

Reiterating the principle that an administrative instruction can only supplement the statutory rules in the manner that it does not lead to any inconsistency, the Supreme Court in SK Naushad Rahman and Ors vs Union of India and Ors held that executive instructions may fill up the gaps in the rules, but supplementing the exercise of the rule-making power with the aid of administrative or executive instructions is distinct from taking the aid of administrative instructions contrary to the express provision or the necessary intendment of the rules.

Thus, in view of the aforesaid proposition of law propounded by the Supreme Court, the High Court clarified that any executive instruction can only supplement the rules and if such executive instruction tends to supplant the rules, the same cannot be permitted to be sustained in the eyes of law.

The High Court further emphasized that the provisions contained in Rule 5 of the Rules of 1986 are mandatory in nature as held by the full bench of the High Court in Ajay Marathe vs Union of India & Ors. In this judgment, it was held that provisions of Rule 5(3)(a)(b) and (c) or the Rules of 1986 are mandatory, inasmuch as, whenever it is intended to impose prohibition or restrictions as contemplated by Rule 5, the central government is under a mandate to notify its intention to do so in the official gazette and in such manner as it may deem fit.

The full bench further held that it is only when the central government is satisfied that it is in public interest to do so, it may dispense with the requirement of prior publication of notice under Rule 5(3)(a) of the Rules of 1986. However, the High Court noted that no such argument was raised on behalf of the Union of India that the memorandum was issued dispensing with the requirement of prior publication of its intention as required by Rule 5(3)(a) of the Rules of 1986. Even otherwise, the Court found that the memorandum does not refer to any statutory provision, either of the Act of 1986 or the Rules of 1986. Accordingly, the memorandum cannot be justified for this reason as well, it said.

A division bench of the Bombay High Court in its judgment, dated August 27, 2001, in Mr Kashinath Jairam Shetye and Ors vs Union of India and Anr had observed that requirement of issuance of public notice under Rule 5(3)(a) of the Rules of 1986 is a statutory embodiment of the rule of audi alteram partem, and in the absence of any public interest involved in the dispensation of such public notice, the central government could not have, in casual manner, dispensed with such requirement and deprived the public of an opportunity to object to the activities proposed in the eco-sensitive zone.

The Union of India relied upon the judgment in the case of D Swamy (supra), Lafarge Umiam Mining Pvt Ltd (supra), Electrotherm (supra) and Electrosteel Steels Ltd (supra) where the question was whether ex-post facto environmental clearance maybe granted, but the High Court could not be persuaded to uphold the validity of the memorandum.

—By Shivam Sharma and India Legal Bureau

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