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The Supreme Court on Monday issued notice on the petition challenging the Bombay High Court order which dismissed the Public Interest Litigation challenging the constitutional vires of the Coastal Regulation Zone (CRZ) Notification 2019.

A bench of Justice L Nageswara Rao and Justice BR Gavai issued notice in the Special Leave Petition against an order of the Bombay High Court which stated that the National Green Tribunal (NGT) had jurisdiction to examine the Petitioner’s Constitutional challenge and that the Petitioner, therefore, ought to approach the NGT.

The petition has been filed by Vanshakti through Advocate A. Karthik stating that the basis of the High Court order that "the National Green Tribunal (“NGT”) had jurisdiction is that the CRZ were not delegated legislation, but “administrative orders” in pursuance of “administrative delegation” under the Environment Protection Act, 1986 (“EPA”)"

WHereas, the plea has alleged that "This reasoning would also apply to other such Notifications such as the Environment Impact Assessment (“EIA”) Notification dated 14.09.2006. This is directly contrary to the judgment of a Division bench of the Hon’ble Supreme Court in Alembic Pharmaceuticals v. Rohit Prajapati & Ors. (2020 SCC OnLine SC 347) which held that the NGT does not have jurisdiction to hear a challenge to a notification under section 3 of the NGT Act."

The plea has alleged that "The High Court has however, while doing so, concurrently foreclosed the Petitioners challenge before the NGT. This is because (i) the NGT Act (Section 14) prescribes a period of limitation of 6 months; and (ii) the High Court has held that the Petition is belated. The effect of this decision is to bar constitutional challenges to environmental regulations after 6 months and 60 days."

It is stated that upon Coastal Zone Management Plan (CZMP) having been published on 29.09.2021, CRZ 2019 has come into effect which will drastically increase the developmental pressure on the sensitive coastline of Mumbai as CRZ 2019 allows for an increase in Floor Space Index (FSI) for construction of buildings from the earlier ceiling limit of 1.66 to as much as 6.75 (in some cases) now.

The plea has raised the following questions of law: 

1. Whether the NGT has jurisdiction/authority/power to decide whether Regulations made under Section 3 of the Environment Protection Act (“EPA”) e.g. the CRZ Notification are unconstitutional and/or ultra-vires?
2. Whether the NGT has jurisdiction to decide a constitutional challenge to a Notification under Section 3 of the EPA were challenged on the basis that they violate Articles 14 and 21 of the Constitution of India?
3. Whether per contra, only High Courts can decide the issues/questions set out in (A) and (B) above?
4. Whether Regulations made under Section 3 of the EPA (e.g. the CRZ Notification, EIA Notification etc.) are “delegated legislation” or merely “administrative orders”?
5. Whether the Bombay High Court, after having declined to exercise jurisdiction on the stated basis that the NGT had jurisdiction to decide the challenge raised in the P.I.L could (and/or should) have granted liberty to the Petitioners to approach the NGT only with respect to the challenge to the CZMP Plans and not the CRZ Notification?
6. Whether the impugned judgment is contrary to the judgment in Alembic Pharmaceuticals v. Rohit Prajapati & Ors. (2020 SCC OnLine SC 347)?
7. Whether the Bombay High Court, after having held that the NGT could decide the challenge raised in the PIL and therefore declining to exercise jurisdiction, ought not to have then decided or concluded that the challenge to the CRZ Notification was barred by delay and laches: the effect of this conclusion would be to make the challenge before the NGT meaningless and/or its results foregone?
8. Whether in light of Clause 6 (i) of the CRZ 2019 (which stipulates that until the provisions of the CZMP are updated the provisions of CRZ 2019 will not apply and CRZ 2011 will continue to be followed), the Public Interest Litigation could be considered as barred by delay and laches when the provisions of the CRZ 2019 had come into operation only on 29th September 2021 with the preparation of the CZMPs for Mumbai?

Case Title: Vanashakti & Anr. Vs. Union of India & Ors.