Ar. Lakshmanan, C.J.
1. Heard all the parties.
2. The Programme Manager of the petitioner - Society has preferred the writ petition to declare the action of the Government of India in issuing the impugned letter No.J 170-11/40 dated 13-3-1997 and all consequential orders and actions as illegal, arbitrary and violative of the Environment Protection Act, 1986 (for short 'the Act') and the Rules made thereunder, and to set aside the same.
3. It is useful to notice the averments made in paragraphs 4 and 5 of the writ petition, which are summarised hereunder.
Various creek, canal, esturies, backwaters and rivers in the coast are lifeline of the fisherfolk providing not just a means of transport, but supporting micro organisms, marine biological sources and birds that are dependent on each other and live in harmony. Being rich and productive habitats, they attract variety of organisms. Mangroves forests are found in inter-tidal regions including the estuaries, which serve as shoreline stabilisers preventing coastal erosion. They are very important for fishermen as this swampy aquatic ecosystem provides good nursery ground for some of the fishery resources like shrimps, shell fishes and milk fishes and they also provide a habitat for clams, oysters, prawns and fishes. They act as a good place for important species of birds. Due to industrial activity these ecofragile zones were endangered. No steps were initiated to protect coastal area though the Act was brought into force in 1986. The Central Government has been giving various notifications under the power given by the Act. The need for regulation of the activities in the vicinity of the seawaters, rivers and creeks in the coastal areas was felt in 1991, and the coastal regulation zones (CRZs) were declared under Sections 3(1) and 3(2)(v) of the Act which listed out the various activities prohibited in the CRZ. The coastal stretches of seas, creeks, rivers and backwaters which are influenced by tidal action upto 500 meters from the High Tide Line (HTL) and the land between Low Tide Line (LTL) and HTL are declared as CRZ. Distances from HTL to which the proposed regulations will apply for rivers, creeks and backwaters may be modified on case by case basis on reasons to be recorded. It was also made clear that the distances shall not be less than 100 meters or the width of the creek, river backwaters whichever is less. The notification regarding CRZ and the prohibited activities were not implemented by the concerned authorities. Various industries in South-coastal District -Nellore and beach resorts in North-coastal District - Visakhapatnam of Andhra Pradesh have been polluting the coastal waters, backwaters and rivers. There was large scale resentment as the aqua culture shrimp units started occupying common lands enjoyed by the fishermen for the ages and the fishermen community was denied access to the seawaters from their villages, drinking waters etc.
4. It is submitted CRZ Notification 1991 under which the Coastal Zone Management Plans (CRZPs) are prepared states that any modification has to be done on case by case basis on reasons to be recorded. According to the petitioner, the impugned letter/order is not a case by case modification and thus it has been issued in arbitrary exercise of power of the Government. Our attention was drawn to the Notification No. 114(E) dated 19-2-1991 issued under Sections 3(1) and 3(2)(v) of the Act and Rule 5(3)(d) of the Environment Protection Rules, 1986 (for short 'the Rules') and all other powers vesting in this behalf, declaring coastal stretches as CRZ and regulating activities in the CRZ by the Ministry of Environment and Forests. By this notification the Central Government declared coastal stretches of seas, bays estuaries, creeks, rivers and backwaters which are influenced by tidal action (in the landward side) upto 500 meters from the HTL and the lad between the LTL and the HTL, a CRZ and imposes with effect from the date of the notification the following restriction on setting up and expansion of industries, ration or processes etc., in the said CRZ. For the purpose of the notification, HTL defined as the line upto which the highest high tide reaches at spring tides. A note was also issued to the said notification which reads as follows:
Note :--The distance from the High Tide Line (HTL) to which the proposed regulations will apply in the case of rivers, creeks and backwards, may be modified on a case by case basis for reasons to be recorded while preparing the Coastal Zone Management Plans (referred to below): however, the distance shall not be less than 100 metres or the width of the creek, river backwater whichever is less.
5. Another notification was issued on 18-8-1994 by the Ministry of Environment and Forests whereby the notification of the Government of India in the Ministry of Environment and Forests dated 19-2-1991 was modified. The Note in the notification dated 18-8-1994 reads as follows:
Note: The distance from the High Tide Line shall apply to both sides of rivers, creeks and backwaters and may be modified on a case by case basis for reasons to be recorded while preparing the Coastal Zone Management Plan. However, the distance shall not be less than 50 mts. or the width of the creek, river or backwater whichever is less.
6. This notification was challenged before the Supreme Court. The Hon'ble Supreme Court in the judgment reported in Indian Council For Enviro-Legal Action v. Union of India, : (1996)5SCC281 , held as follows:
We, accordingly hold that the newly added proviso in Annexure II in paragraph 7 in sub-paragraph (1) (item i) which gives the Central Government arbitrary, uncanalized and unguided power, the exercise of which may result in serious ecological degradation and may make the NDZ ineffective is ultra vires and is hereby quashed. No suitable reason has been given which can persuade us to hold that the enactment of such a proviso was necessary, in the larger public interest, and the exercise of power under the said proviso will not result in large scale ecological degradation and violation of Article 21 of the citizens living in those areas:
(ii) The NDZ for rivers, creeks and backwaters which was 100 meters from HTL has by the amended notification, been relaxed to 50 meters. And already seen the main Notification does not apply to all the rivers. It applies only to tidal rivers which are part of the coastal environment. It was contended that the reduction from 100 metres to 50 metres was arbitrary and was not made on any basis. It was also contended that the Vohra Committee had made no proposal for relaxation along the rivers but it merely asked for a clarification of the limits to which the control would apply since in some areas, tidal ingress could go upto 50 kms. from the coastline.
7. The Supreme Court held that the newly added proviso in Annexure II in paragraph 7 in sub-paragraph (1) (item I) which gives the Central Government arbitrary, uncanalized and unguided power, the exercise of which may result in serious ecological degradation. The Supreme Court, therefore, quashed the said proviso as ultra vires.
8. The Principal Secretary, Environment, Forests, Science and Technology Department, Government of Andhra Pradesh, addressed a letter to the Special Secretary, Ministry of Environment and Forests requesting to decrease CRZ distance along rivers, creeks, backwaters for carrying permissible developmental activities as approved in case of certain other States. The Government of India after examining the said request decided that in place of condition at No. (ix) of the Special Conditions/ Modifications/Classifications specified in the letter dated 27-9-1996 issued an order introducing slab system. The relevant portion of the letter reads as follows:
A slab system for demarcating CRZ along the banks of rivers, creeks and backwaters shall be as follows.
(a) 150 meters in case the width of river, creek, backwater is more than 350 meters.
(b) 100 meters in case the width of river, creek, backwater is between 100 meters and 350 meters.
(c) 100 meters or the width of river, creek, backwater whichever is less in case the width of the river, creek, backwater is less than 100 meters.
9. This substitution is now challenged in this writ petition by way of public interest litigation.
10. It is seen from the counter affidavit of second respondent that the matter was discussed at length in Andhra Pradesh State Legislative Assembly during its session held on 6-3-1997. A resolution was passed by the House, keeping in view the public opinion and wider economic interest and prosperity of the State. In pursuance of the resolution the Government of Andhra Pradesh have requested the Government of India for adopting the slab system that was already agreed in case of other States so that the legitimate activities of economic development that are environmentally sound are not affected due to inclusion of more areas along creeks, rivers and other water bodies.
11. The Government of India - the first respondent have also filed separate counter-affidavit through its Deputy Director in the Ministry of Environment and Forests. According to the Central Government, this modification is within the provisions of CRZ notification wherein it was stipulated that the CRZ along with river, creek or backwater influenced by tidal action should not be less that 100 meters or width of the river/ creek/backwater, whichever is less and that as per the modification issued by the Ministry's letter dated 13-3-1997 the slab system for demarcating CRZ along the banks of rivers, creeks and backwaters was as follows:
(d) 150 meters in case the width of river, creek, backwater is more than 350 meters.
(e) 100 meters in case the width of river, creek, backwater is between 100 meters and 350 meters.
(f) 100 meters or the width of river/creek/ backwater whichever is less in case the width of river/ creek/ backwater is less than 100 meters.
12. We have considered the rival submissions made by the respective parties. As rightly pointed out by the Government of India Rule 5(3)(d) of the Rules quoted by the petitioner in paragraphs 11 to 13 in its affidavit is not relevant since the said modification was to the Coastal Zone Management Plan (CZMP) of Andhra Pradesh which was approved by the Ministry within the provisions of CRZ notification by an executive order and there was no amendment to the CRZ notification 1991. Therefore, the provision for inviting objections for carrying out modifications to the CZMP does not arise in CRZ notification. We are of the opinion that the State Government's request, in the letter dated 24-2-1997, which was received by the Central Ministry on 5-3-1997, was rightly considered and examined by the Central Government and modification was approved by earlier executive order dated 27-9-1996 for which the provisions of Environment (Protection) Rules, 1986 do not apply. Further, the slab system, in our view, is not violative of provisions of CRZ notification and in any way inimical to fragile coastal ecology of the State and the slab system is not at all contravening any of the judgments rendered by the Supreme Court as alleged by the petitioner in this case. A reading of the impugned letter does not in any way indicate that the said modification has been issued as a general rule. It only enables the State Government to examine each and every case on merits and pass reasoned and speaking order.
13. With the above observations, the writ petition is disposed of. The interim orders passed by this Court during the pendency of the writ petition shall stand vacated. All impleaded parties are at liberty to approach the Government for appropriate orders in view of the observations made in this order.