Case: Gulf Goans Hotels Co. Ltd.  Vs. Union Of India

made by the President or the Governor, as the case may be [Articles 77(2) and 166(2)]. In other words, unless an order is expressed in the name of the President or the Governor and is authenticated in the manner prescribed by the rules, the same cannot be treated as an order on behalf of the Government.” [Para 23]“A noting recorded in the file is merely a noting simpliciter and nothing more. It merely represents expression of opinion by the particular individual. By no stretch of imagination, such noting can be treated as a decision of the Government. Even if the competent authority records its opinion in the file on the merits of the matter under consideration, the same cannot be termed as a decision of the Government unless it is sanctified and acted upon by issuing an order in accordance with Articles 77(1) and (2) or Articles 166(1) and (2). The noting in the file or even a decision gets culminated into an order affecting right of the parties only when it is expressed in the name of the President or the Governor, as the case may be, [pic]and authenticated in the manner provided in Article 77(2) or Article 166(2). A noting or even a decision recorded in the file can always be reviewed/reversed/overruled or overturned and the court cannot take cognizance of the earlier noting or decision for exercise of the power of judicial review.” [Para 24] 18. It is also essential that what is claimed to be a law must be notified or made public in order to bind the citizen. In Harla vs. State of Rajasthan [[AIR 1951 SC 467 ]] while dealing with the vires of the Jaipur Opium Act, which was enacted by a resolution passed by the Council of Ministers, though never published in the Gazette, this Court had observed :- “Natural justice requires that before a law can become operative it must be promulgated or published. It must be broadcast in some recognisable way so that all men may know what it is, or, at the very least, there must be some special role or regulation or customary channel by or through which such knowledge can be acquired with the exercise of due and reasonable diligence. The thought that a decision reached in the secret recesses of a chamber to which the public have no access and to which even their accredited representatives have no access and of which they can normally know nothing, can nevertheless affect their lives, liberty and property by the mere passing of a Resolution without anything more is abhorrent to civilised man.” [Para 10] 19. The Court in Harla vs. State of Rajasthan (supra) noticed the decision in Johnson vs. Sargant & Sons [[(1918) 1 KB 101]] and particularly the following:- “The principle underlying this question has been judicially considered in England. For example, on a somewhat lower plane, it was held in Johnson v. Sargant, (1918) 1 K.B. 101: 87 L.J. K.B. 122 that an order of the Food Controller under the Beans, Peas and Pulse (Requisition) Order 1917, does not become operative until it is made known to the public, and the differences between an Order of that kind and an Act of the British Parliament is stressed. The difference is obvious. Acts of the British Parliament are publicly enacted. The debates are open to the public and the acts are passed by the accredited representatives of the people who in theory can be trusted to see that their constituents know what has been done. They also receive wide publicity in papers and, now, over the wireless. Not so Royal Proclamations and Orders of a Food Controller and so forth. There must therefore be promulgation and publication in their cases. The mode of publication can vary; what is a good method in one country may not necessarily be the best in another. But reasonable publication of some sort there must be.” (Para 11) 20. It will not be necessary to notice the long line of decisions reiterating the aforesaid view. So far as the mode of publication is concerned, it has been consistently held by this Court that such mode must be as prescribed by the statute. In the event the statute does not contain any prescription and even under the subordinate legislation there is silence in the matter, the legislation will take effect only when it is published through the customarily recognized official channel, namely, the official gazette (B.K. Srivastava vs. State of Karnataka) [(1987) 1 SCC 658] . Admittedly, the ‘guidelines’ were not gazetted.21. If the guidelines relied upon by Union of India in the present case fail to satisfy the essential and vital parameters/requirements of law as the trend of the above discussion would go to show, the same cannot be enforced to the prejudice of the appellants as has been done in the present case. For the same reason, the issue raised with regard to the authority of the Union to enforce the guidelines on the coming into force of the provisions of the Environment Protection Act so as to bring into effect the impugned consequences, adverse to the appellants, will not require any consideration.22. An argument had been offered by Shri Parikh, learned counsel appearing for the respondent, Goa Foundation, that while dealing with issues concerning ecology and environment, a strict view of environmental degradation, which Shri Parikh would contend has occurred in the present case, should be adopted having regard to the rights of a large number of citizens to enjoy a pristine and pollution free environment by virtue of Article 21 of the Constitution. We cannot appreciate the above view. Violation of Article 21 on account of alleged environmental violation cannot be subjectively and individually determined when parameters of permissible/impermissible conduct are required to be legislatively or statutorily determined under Sections 3 and 6 of the Environment Protection Act, 1986 which has been so done by bringing into force the Coastal Regulation Zone (CRZ) Notification w.e.f. 19th February, 1991.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]In the present case, the exercise of executive power is traceable to Entry 13 and 14 of List I of the Seventh Schedule to the Constitution. The power to give effect to the guidelines and to penalize violators thereof may not have been available at the time when the guidelines became effective. However, with the enactment of the Environment Protection Act, 1986 (hereinafter referred to as ‘thewith effect from 19th November, 1986, sections 3 and 5 empowered the Central Government to pass necessary orders and issue directions which are penal in nature. It is in the exercise of the said power under the Act read with the guidelines referred to above that the orders impugned by the appellants have been passed. Though the Coastal Regulation Zone (CRZ) Notification under the Act was issued on 19th February, 1991 and admittedly is prospective in nature, till such time that the said notification came into force it is the guidelines which held the field being administrative instructions having the effect of law under Article 73 of the Constitution.It may, therefore, be understood that a Govt. policy may acquire theif it conforms to a certain form possessed by other laws in force and encapsulates a mandate and discloses a specific purpose. It is from the aforesaid prescription that the guidelines relied upon by the Union of India in this case, will have to be examined to determine whether the same satisfies the minimum elements of law. The said guidelines are –1. Directives to the State Governments in letter dated 27th November, 1981 of the then Prime Minister;2. Notification dated 22nd July, 1982 of the Governor setting up the Ecological Development Council for Goa, inter alia, for scrutiny of beach construction within 500 meters of HTL;3. Environmental Guidelines for Development of Beaches of July 1983;4. Order dated 11th June, 1986 of Under Secretary, Ministry of Tourism, also addressed to Chief Secretary, Govt. of Goa, constituting anCommittee for considering tourist projects within 500 meters.14. The genesis of thedecision to restrict construction activity within 500 meters of the HTL can be traced to the Stockholm Conference. It isparticipation in the conference that led to the introduction of Articles 48A and 51A(g) in the Constitution and the enactment of several legislations like the Air Act 1981,Forest Conservation Act, 1980, Environment Protection Act, 1986 etc. all of which seek to protect, preserve and safeguard the environment. It may be possible to view the aforesaid guidelines as, aimed at implementation of Articles 21 and 48A of the Constitution and, therefore, outlining a visible purpose. The search for a clear, unambiguous and unequivocal command to regulate the conduct of the citizens in the said guidelines must also be equally fruitful. However, we are unable to find in the said guidelines any expressed or clearly defined dicta. In fact, having read and considered the guidelines, we are left with a reasonable doubt as to whether what has been spelt out therein are not mere suggestions or opinions expressed in the process of a continuing exploration to identify the correct parameters that would effectuate the purpose i.e. safeguarding and protecting the environment (sea beaches) from human exploitation and degradation. The above is particularly significant in view of the fact that the Stockholm Declaration in its core resolutions, merely enunciate very broad propositions and commitments including those concerning the sea beaches as distinguished from specific parameters that could have application, without variation or exception, to all the signatories to the declaration. The Stockholm Conference having nowhere expressed any internationally approved parameters of acceptable distance from the HTL, incorporation of any such feature of international values in the Municipal Laws of the country cannot arise even on the principle enunciated in Gramophone Company of India (supra). The position is best highlighted by noticing in a little detail the objectives sought to be achieved in the Stockholm Conference and the core principles adopted therein so far as they are relevant to the issues inthe present case, the said burden has not been discharged in any manner whatsoever. The decision in Air India Cabin Crew Association vs. Yeshaswinee Merchant [(2003) 6 SCC 277 – para 72], taking a somewhat different view can, perhaps, be explained by the fact that in the said case the impugned directions contained in the Government letter (not expressed in the name of the President) was in exercise of the statutory power under Section 34 of the Air Corporations Act, 1953. In the present case, the impugned guidelines have not been issued under any existing statute.16. Clause (2) of Article 77 also provides for the authentication of orders and instruments in a manner as may be prescribed by the Rules. In this regard, vide S.O. 2297 dated 3rd November, 1958 published in the Gazette of India, the President has issued the Authentication (Orders and Other Instruments) Rules, 1958. The said Rules have been superseded subsequently in 2002. Admittedly, the provisions of the said Rules of 1958 had not been followed in the present case insofar as the promulgation of the guidelines is concerned.17. In the absence of due authentication and promulgation of the guidelines, the contents thereof cannot be treated as an order of the Government and would really represent an expression of opinion. In law, the said guidelines and its binding effect would be no more than what was expressed by this Court in State of Uttaranchal vs. S.K. Vaish [(2011) 8 SCC 670] in the following paragraph of the reportis settled law that all executive actions of the Government of India and the Government of a State are required to be taken in the name of the President or the Governor of the State concerned, as the case may be [Articles 77(1) and 166(1)]. Orders and other instruments made and executed in the name of the President or the Governor of a State, as the case may be, are required to be authenticated in the manner specified in the rules made by the President or the Governor, as the case may be [Articles 77(2) and 166(2)]. In other words, unless an order is expressed in the name of the President or the Governor and is authenticated in the manner prescribed by the rules, the same cannot be treated as an order on behalf of thenoting recorded in the file is merely a noting simpliciter and nothing more. It merely represents expression of opinion by the particular individual. By no stretch of imagination, such noting can be treated as a decision of the Government. Even if the competent authority records its opinion in the file on the merits of the matter under consideration, the same cannot be termed as a decision of the Government unless it is sanctified and acted upon by issuing an order in accordance with Articles 77(1) and (2) or Articles 166(1) and (2). The noting in the file or even a decision gets culminated into an order affecting right of the parties only when it is expressed in the name of the President or the Governor, as the case may be, [pic]and authenticated in the manner provided in Article 77(2) or Article 166(2). A noting or even a decision recorded in the file can always be reviewed/reversed/overruled or overturned and the court cannot take cognizance of the earlier noting or decision for exercise of the power of judicial8. It is also essential that what is claimed to be a law must be notified or made public in order to bind the citizen. In Harla vs. State of Rajasthan [[AIR 1951 SC 467 ]] while dealing with the vires of the Jaipur Opium Act, which was enacted by a resolution passed by the Council of Ministers, though never published in the Gazette, this Court had observedjustice requires that before a law can become operative it must be promulgated or published. It must be broadcast in some recognisable way so that all men may know what it is, or, at the very least, there must be some special role or regulation or customary channel by or through which such knowledge can be acquired with the exercise of due and reasonable diligence. The thought that a decision reached in the secret recesses of a chamber to which the public have no access and to which even their accredited representatives have no access and of which they can normally know nothing, can nevertheless affect their lives, liberty and property by the mere passing of a Resolution without anything more is abhorrent to civilised9. The Court in Harla vs. State of Rajasthan (supra) noticed the decision in Johnson vs. Sargant & Sons [[(1918) 1 KB 101]] and particularly theprinciple underlying this question has been judicially considered in England. For example, on a somewhat lower plane, it was held in Johnson v. Sargant, (1918) 1 K.B. 101: 87 L.J. K.B. 122 that an order of the Food Controller under the Beans, Peas and Pulse (Requisition) Order 1917, does not become operative until it is made known to the public, and the differences between an Order of that kind and an Act of the British Parliament is stressed. The difference is obvious. Acts of the British Parliament are publicly enacted. The debates are open to the public and the acts are passed by the accredited representatives of the people who in theory can be trusted to see that their constituents know what has been done. They also receive wide publicity in papers and, now, over the wireless. Not so Royal Proclamations and Orders of a Food Controller and so forth. There must therefore be promulgation and publication in their cases. The mode of publication can vary; what is a good method in one country may not necessarily be the best in another. But reasonable publication of some sort there must0. It will not be necessary to notice the long line of decisions reiterating the aforesaid view. So far as the mode of publication is concerned, it has been consistently held by this Court that such mode must be as prescribed by the statute. In the event the statute does not contain any prescription and even under the subordinate legislation there is silence in the matter, the legislation will take effect only when it is published through the customarily recognized official channel, namely, the official gazette (B.K. Srivastava vs. State of Karnataka) [(1987) 1 SCC 658] . Admittedly, thewere not gazetted.21. If the guidelines relied upon by Union of India in the present case fail to satisfy the essential and vital parameters/requirements of law as the trend of the above discussion would go to show, the same cannot be enforced to the prejudice of the appellants as has been done in the present case. For the same reason, the issue raised with regard to the authority of the Union to enforce the guidelines on the coming into force of the provisions of the Environment Protection Act so as to bring into effect the impugned consequences, adverse to the appellants, will not require anycannot appreciate the above view. Violation of Article 21 on account of alleged environmental violation cannot be subjectively and individually determined when parameters of permissible/impermissible conduct are required to be legislatively or statutorily determined under Sections 3 and 6 of the Environment Protection Act, 1986 which has been so done by bringing into force the Coastal Regulation Zone (CRZ) Notification w.e.f. 19th February, 1991.