M. Nizamuddin
Vs. M/S Chemplast Sanmar Ltd.& Ors. [2010] INSC 183 (10 March 2010)
Judgment
IN THE
SUPREME COURT OF INDIA CIVIL APPELLATE/ORIGINAL JURISDICTION CIVIL APPEAL NO.
2284 OF 2010 (Arising out of SLP(C) No. 7101 of 2009) M. Nizamudeen
...Appellant Versus M/s. Chemplast Sanmar Limited and Others ...Respondents
WITH W.P. (Civil) No. 130 OF 2009 WITH
T.P. (Civil) Nos. 365-367 OF 2009 JUDGEMENT R.M. Lodha, J.
1.
Leave granted in SLP (Civil) No. 7101 of 2009.
2.
In this group of five matters before us, civil appeal is directed
against the judgment of Madras High Court passed on October 31, 2008 whereby a
writ petition in the nature of Public Interest Litigation (PIL) filed by the
appellant - M. Nizamudeen - has been dismissed. Out of the other four matters;
one is a writ petition being W.P. (C) No. 130 of 2009 preferred directly before
this Court under Article 32 of the Constitution while the other three matters
are transfer petitions seeking transfer of Writ Petition nos. 37043 of 2006,
8125 of 2007 and 23122 of 2007 filed before the Madras High Court.
3.
M/s. Chemplast Sanmar Limited (for short, `Chemplast') proposed to
set up a project for manufacturing Poly-Vinyl Chloride (PVC) at Semmankuppam
village, SIPCOT Industrial Complex, Phase-II, Cuddalore District (Tamil Nadu).
An
Environmental Impact Assessment Report (EIA) as well as Risk Analysis Report
(RA) for the proposed PVC project was obtained by Chemplast and, then, they
made proposal (vide application dated May 27, 2002) to the concerned
authorities for setting up the said project. The feasibility of the project was
considered by public hearing panel in the meeting held on June 7, 2002. The
proposal of Chemplast was sent by the government of Tamil Nadu with its
recommendations, after 2 accepting the conditional consent issued by Tamil Nadu
Pollution Control Board (for short `TNPCB'), to the Ministry of Environment and
Forests, Government of India (for short, `MOEF'). The MOEF examined the
proposal submitted by the Chemplast in light of the questionnaire, EIA, RA and
other relevant documents and accorded environmental clearance to the project
proposed by Chemplast on November 28, 2005 subject to strict compliance to the
specific and general conditions laid down therein.
4.
One of the raw-materials for manufacturing PVC is Vinyl Chloride
Monomer (VCM). VCM is not available indigenously and Chemplast planned to
import the said raw- material for their plant use from international suppliers.
Chemplast
in their proposal also proposed to install a Marine Terminal Facility (for
short, `MTF') near the seashore at Chitrapettai Village for receiving and
transferring VCM from the ships to the PVC plant through underground pipeline.
5.
The District Coastal Zone Management Committee in its meeting held
on June 7, 2005 considered the proposal of Chemplast for setting up of MTF
including the conveyance 3 mains and resolved to recommend to the Tamil Nadu
State Coastal Zone Management Authority (TNSCZMA) to consider in principle
clearance for the following facilities:
"01.
Laying of pipe lines for the transportation of Vinyl Chloride Monomer (VCM) as
permitted vide Ministry of Environment and Forests, Coastal Regulation Zone
Notification dated 19th February 1991 In paragraph 2 (Prohibited Activities),
in sub paragraph (ii) with proviso "except transfer of hazardous
substances from ships to ports terminals and refineries and vice-versa In the
port areas".
02.
Treated effluent lines and sea water intake and return lines as permitted vide
Ministry of Environment and Forests, Costal Regulation Zone Notification dated
19th February 1991 in paragraph 2 (Prohibited Activities) in sub paragraph
(xii) with proviso "except facilities for carrying treated effluents and
waste water discharges into the sea, facilities for carrying sea water for
cooling purposes, oil, gas and similar pipelines and facilities essential for
activities permitted under this Notification'.
03.
Constructions for jetty activities and control room as permitted vide Ministry
of Environment and Forests, Coastal Regulation Zone Notification dated 19th
February 1991 in paragraph 3 (Regulation of Permissible Activities) in sub
paragraph 2 of (ii) with proviso "operational constructions for ports and
harbours and light houses and constructions for activities such as jetties,
wharves, quays and slipways'."
6.
The aforesaid recommendations were considered by the TNSCZMA and
they resolved in its meeting held on October 17, 2005 to recommend to the state
government to 4 forward the proposal to the MOEF for the issue of CRZ clearance
to Chemplast with the following conditions :
"1.
The unit shall comply safety measures stipulated by the Navigational Safety in
Ports Committee (NSPC), Goa and shall obtain the clearance from NSPC before
Commissioning of the jetty.
2. The
unit shall inform in advance to the Assistant Director of Fisheries Department,
Cuddalore as and when the loading and unloading of VCM is done from the ship.
3. The
unit shall obtain NOC from the Tamil Nadu Pollution Control Board before
commissioning of the jetty and the unit shall comply with the norms prescribed
by the Tamil Nadu Pollution Control Board from time to time.
4. The
unit shall submit the Disaster Management Plan to the District Authorities
before commissioning of the jetty.
5. The
Unit shall transport and dispose the treated effluent and R.O rejects of the
Desalination Plant by conducting Hydrological study through National Institute
of Ocean Technology/National Institute of Oceanography.
6. The
Unit shall install double walled pipeline in a concrete trench for the
transport of VCM from the Jetty to the Plant.
7. The
Unit shall install Emergency shutdown valves in the Jetty and leak detection
system in the onshore pipeline.
8. The
unit shall install adequate fire fighting equipment to encounter any
eventuality due to fire.
9. The
unit's marine activity shall not give any hindrance to the public as well as to
the aquatic life.
10. The
unit shall provide and operate sufficient Navigational lighting Indication
system during the night hours,
11. The
waste water after treatment in the effluent treatment plant should not be discharged
into the sea."
7.
Pursuant thereto, the Director, Department of Environment,
Government of Tamil Nadu considered the resolution dated October 17, 2005 of
the TNSCZMA and forwarded the proposal to the state government by his
communication dated October 28, 2005.
8.
The government of Tamil Nadu by its communication dated November
9, 2005 informed the National Coastal Zone Management Authority its acceptance
of the recommendation made by the TNSCZMA and recommended the proposal of
Chemplast seeking environmental clearance for setting up of MTF. Along with its
communication dated November 9, 2005, the state government sent, inter-alia :
(i)
questionnaire for environmental appraisal for MTF (ii) EIA prepared by LT
Ramboll; (iii) RA prepared by LT Ramboll; and (iv) minutes of the 34th meeting
of the TNSCZMA held on 17.10.2005.
9.
Chemplast submitted further application to the MOEF on November
14, 2005. The MOEF, then, considered the proposal involving the activities
namely, (i) construction of island jetty at 1000 meters from the shoreline;
(ii) laying of 6 sub-sea pipelines from jetty to landfall point; (iii)
construction of port office with communication facilities; and (iv) laying of
onshore piping from landfall point to the CRZ area and thereon to the plant.
The MOEF took into consideration, inter alia, that the MTF will be located
offshore of Chitrapettai village; that the landfall point will be at
Chitrapettai village, which is 2500 meters from the PVC plant; that the total
length of the pipelines onshore will be 3500 meters; that the offshore
pipelines and the onshore pipelines will be laid in a covered RCC trench; that
the island jetty would be consisting of an operating platform, berthing
dolphins, mooring dolphins and interconnecting walkway; that the platform and
dolphins will be RCC structures suitable for open sea marine service; that sub
sea pipelines will be laid with proper insulation and mechanical protection;
that piping design would also take into effect stresses arising out of risers,
temperature variation, buckling, buoyancy and sea bed erosion. In the backdrop
of aforesaid facts and aspects, the MOEF granted environmental clearance on
December 19, 2005 under the provisions of Coastal Regulation Zone Notification,
1991 (for short, `1991 Notification') as amended from time to 7 time for
construction of revetment for setting up of MTF on the specific and general
conditions set out therein including all the conditions stipulated by the
government of Tamil Nadu in the letter dated November 9, 2005 and recommendations
of the TNSCZMA.
10.
The environmental clearance dated December 19, 2005 granted by the
MOEF clarified that the stipulations/conditions set out therein will be
enforced among others under the Water (Prevention and Control of Pollution)
Act, 1974, Air (Prevention and Control of Pollution) Act, 1981, Environment
(Protection) Act, 1986, the Hazardous Chemicals (Manufacture, Storage and
Import) Rules, 1989, the 1991 Notification and its subsequent amendments and
the Public Liability Insurance Act, 1991 and the Rules made there under.
Chemplast
was also directed to ensure that the proposal complies with the provisions of
the approved Coastal Zone Management Plan of Tamil Nadu, 1996 (for short, `1996
Plan').
11.
The TNPCB in light of the environmental clearance dated December
19, 2005 granted by the MOEF accorded its 8 consent on September 14, 2006 for
the PVC plant as well as MTF and pipeline project of the Chemplast.
12.
Chemplast made an application on February 6, 2008 to the Executive
Engineer, PWD, Vellar Basin Division, WRO, Vridhachalam (for short, `Executive
Engineer') seeking permission for carrying seawater and raw-materials through
pipelines laid 3.50 meter below the river bed. The Executive Engineer granted
permission on February 27, 2008 subject to the conditions set out therein. In
less than a month on March 19, 2008, the Executive Engineer, cancelled the
aforesaid permission observing that VCM may cause pollution and health hazard
to the public.
13.
The order cancelling permission was challenged by Chemplast by
filing writ petition before the High Court of Judicature at Madras. The High
Court allowed writ petition on July 18, 2008 and set aside the order of the
Executive Engineer passed on March 19, 2008 revoking the permission granted on
February 27, 2008. It was then that the appellant - M. Nizamudeen - filed PIL
before the Madras High Court praying therein that the order passed by the
Executive Engineer on 9 February 27, 2008 be quashed and Chemplast be directed
to forebear from laying of pipelines for drawing VCM raw-material from jetty to
their plant in Semmankuppam village. In the writ petition, M. Nizamudeen did
not challenge environmental clearances granted by MOEF on November 28, 2005 and
December 19, 2005. The High Court, vide its Judgment dated October 31, 2008,
dismissed the writ petition which is subject matter of challenge in the civil
appeal.
14.
It appears that after Petition for Special Leave to Appeal
challenging the judgment of Madras High Court came to be filed by M. Nizamudeen
before this Court that a writ petition under Article 32 of the Constitution has
been preferred directly before this Court by A. Bhunanenthiran praying therein
that the permission granted by the MOEF on December 19, 2005 be quashed and a
Writ of Mandamus be issued to the MOEF, TNSCZMA and TNPCB to ensure that no
prohibited activity, viz., handling of any hazardous chemical through pipelines
or otherwise takes place in CRZ areas on both sides of Uppanar river.
15.
Be it noted here that three more writ petitions (Writ Petition
nos. 37043/2006, 8125/2007 and 23122/2007) came to be filed before Madras High
Court challenging environmental clearances granted by the MOEF to the
Chemplast. The appellant - M. Nizamudeen - has sought transfer of these
petitions to this Court. I.A. No. 7 has been made therein for deletion of
respondent nos. 21 and 22. As the issues are common, these writ petitions are
transferred to this Court and respondent nos. 21 and 22 are deleted from array
of parties.
16.
We heard learned senior counsel and counsel for the parties at
considerable length.
17.
Mr. Ranjit Kumar, learned senior counsel for the appellant - M.
Nizamudeen - submitted: that 100 meters from the High Tide Line (HTL) on both
sides of Uppanar river are CRZ-III areas where handling of hazardous substance
is prohibited; that VCM is hazardous substance notified under the Notification
of MOEF issued on November 27, 1989 and handling of a substance includes
transfer, as per Section 2(d) of Environment (Protection) Act, 1986; that
Chemplast did not 11 seek any permission in respect of the pipelines in the CRZ
on both sides of Uppanar river, rather existence of Uppanar river itself was
suppressed in the proposals made; that 1996 Plan was neither annexed nor
referred to in the proposals made before the competent authorities, nor was
even brought to the notice of the High Court and it is being referred to and
relied upon for the first time by Chemplast before this Court;
that
Chemplast while submitting proposals to the competent authorities itself
annexed a demarcation map prepared by the National Institute of Oceanography
(NIO) to show the High Tide Line/Low Tide Line [HTL/LTL] and the relevant CRZ
area; that the said demarcation map prepared by NIO, for the purpose of
environmental clearance, must prevail over 1996 Plan and in any case 1996 Plan
has become redundant by the amendments in 1991 Notification.
18.
Mr. Ranjit Kumar, learned senior counsel also submitted that a
close look at the environmental clearance dated December 19, 2005 granted by
the MOEF would show that it neither covers nor includes the activities of
laying of pipelines across and underneath Uppanar river and drawing of 12 VCM
through pipelines. He lastly submitted that Executive Engineer had no authority
to permit laying of pipelines in the CRZ of Uppanar river.
19.
Dr. Rajeev Dhavan, learned senior counsel for writ petitioner - A.
Bhunanenthiran - adopted the submissions of Mr. Ranjit Kumar and further
submitted that identification and demarcation of CRZ of any particular State
involve two distinct processes and, although, 1996 Plan does not show the land
portion of the banks of Uppanar river under CRZ area but the very concept of
CRZ areas surrounding rivers changed in 2002.
He would
submit that 1998 amendment in 1991 Notification lays down that demarcation of
CRZ has to be done by the authorized agencies and, therefore, the initial
determination of CRZ has to be reassessed in light of the demarcation of the
HTL / LTL and CRZ area carried out by authorized demarcating agencies.
20.
Dr. Rajeev Dhavan, learned senior counsel would submit that the
application made on May 27, 2002 was abandoned by Chemplast because the
statutory designated authority, in its inspection held in the month of June
2005, 13 declared the relevant area to be CRZ and the District Coastal Zone
Management Committee and TNSCZMA had examined the earlier application for the
port area alone. He submitted that realising that the CRZ extended to the
Uppanar river, Chemplast made devious hidden changes in its application made on
November 14, 2005. Learned senior counsel submitted that the permission granted
by MOEF on December 19, 2005 is limited to MTF and no more. He reiterated that
the phrase "and thereon to the plant" in the permission dated December
19, 2005 does not cover permission for the pipeline all the way to the Uppanar
river.
21.
Learned senior counsel urged that 1996 Plan is obsolete and must
make way for the plan prepared by NIO and the demarcation of CRZ by the NIO
being final, the said plan must prevail over 1996 Plan.
22.
According to Dr. Rajeev Dhavan, CRZ-III status has to be
attributed to both banks of the Uppanar river through which the pipeline
carrying the hazardous substance VCM is to be taken to the plant. Referring to
the 1991 Notification as amended in 2002, Dr. Rajeev Dhavan submitted that VCM
can 14 be brought on to the port area but not carried any further by pipeline
in or across CRZ area including the CRZ-III area in relation to rivers, creeks
and backwaters where the salinity concentration is 5 ppt for a distance of 100
meters from the HTL or the width of the river whichever is less. He referred to
public trust doctrine and precautionary and public interest principles and
submitted that in relation to the CRZ, the public interest to protect the
environment is paramount and the benefit of doubt and precaution should be
given to the environment.
Learned
senior counsel submitted that interest of Chemplast and the industry must yield
to the public interest in the environment. He would submit that although there
has been no challenge to the permission granted on November 28, 2005 to the PVC
plant utilizing the VCM but, since the tanks of Chemplast probably fall in the
CRZ area, this Court must order the plant to be CRZ compliant by shifting the
storage tanks. As regards carriage of VCM, Dr. Rajeev Dhavan suggested that VCM
can be carried in tankers at minus 13 degree centigrade which cannot be done by
pipeline by going upstream and crossing a bridge and this being an alternative
solution, the 15 Court may accept the same which would be consistent with the
public interest principles.
23.
On the other hand, Mr. K.K. Venugopal, learned senior counsel for
the Chemplast submitted that PIL filed before the High Court and also directly
before this Court are not bona fide as the petitioners in these matters have
been set up by a corporate rival, viz., Cuddalore Powergen Corporation Limited
(CPCL) who wanted the land in question at a much cheaper price. CPCL instigated
and got these persons who had objected to the scheme in 2002. Learned senior
counsel submitted that after obtaining necessary approvals and permissions, the
plant at the cost of about Rs. 600 crores has been set up and after having
obtained the consent to operate, the plant has started its commercial
production. He also submitted that 1996 Plan still holds the field and as per
that plan, particularly, sheet no. 10 prepared for the Cuddalore District, the
tidal influence in the Uppanar river ends above Thiyagavalli village and below
Kudigadu village of Cuddalore Old Town area and, therefore, the area on both
sides of Uppanar river through which the pipeline traverses is not CRZ area at
all. Mr. K.K. Venugopal 16 contended that the plan prepared by the NIO is not
approved plan and the said plan cannot override 1996 Plan approved by the
central government under 1991 Notification. Learned senior counsel also
submitted that laying of pipelines for transfer of VCM is not a prohibited
activity as contended by the petitioners as the interpretation given by them to
paragraph 2(ii) of 1991 Notification is too restrictive and narrow.
24.
Learned counsel for Union of India urged that the point at which
the pipelines pass under the Uppanar river and its banks is not a part of CRZ
as per 1996 Plan prepared by the state government and approved by the central
government and, therefore, no permission or environmental clearance is required
for that portion of the pipeline that passes under the Uppanar river nor such
permission was granted. He submitted that environmental clearance was only
required for the MTF and that portion of the pipeline that falls within the CRZ
abutting the sea, i.e. within 500 meters from HTL and vide permission dated
December 19, 2005, environmental clearance was granted for this portion of the
pipeline only. He would also submit that the interpretation given to paragraph
2(ii) of 1991 Notification by the 17 petitioners is not correct interpretation
and that exception in paragraph 2(ii) needs to be construed in a purposive
manner.
25.
In view of the contentions advanced by the senior counsel and
counsel for the parties, the first question which we have to look to is,
whether Uppanar river and its banks at the point where pipelines pass, fall in
the CRZ III area. If the answer to this is in the affirmative, obviously, the
pipelines crossing underneath Uppanar river would require environmental
clearance. The other main question we have to consider in connection with these
matters is, whether paragraph 2(ii) of 1991 Notification restricts transfer of
VCM (hazardous substance) beyond port area to the PVC plant through pipelines.
Other considerations would depend on answer to these two core issues.
26.
In considering the first question, we need to look to 1991
Notification which came to be issued by the MOEF declaring the coastal
stretches as Coastal Regulation Zone (CRZ) and regulating activities in such
area. 1991 Notification 18 has been amended from time to time. To the extent it
is relevant, it reads :
"Now,
therefore, in exercise of the powers conferred by Clause (d) of sub-rule (3) of
Rule 5 of the Environment (Protection) Rules, 1986, and all other powers
vesting in its behalf, the Central Government hereby declares the coastal
stretches of seas, bays, estuaries, creeks, rivers and backwaters which are
influenced by tidal action (in the landward side) upto 500 metres from the High
Tide Line (HTL) and the land between the Low Tide Line (LTL) and the HTL as
Coastal Regulation Zone; and imposes with effect from the date of this
Notification, the following restrictions on the setting up and expansion of
industries, operations or processes etc. in the said Coastal Regulation Zone
(CRZ).
1 [(i)
For the purposes of this notification, the High Tide Line means the line on the
land up to which the highest water line reaches during the spring tide. The
High Tide Line shall be demarcated uniformly in all parts of the country by the
demarcating authority or authorities so authorised by the Central Government,
in accordance with the general guidelines issued in this regard] 2 [(ii) The
distance from the High Tide Line shall apply to both sides in the case of
rivers, creeks and backwaters and may be modified on a case to case basis for
reasons to be recorded in writing while preparing the Coastal Zone Management
Plans provided that this distance shall not be less than 100 meters or the
width of the creek, river or backwaters, whichever is less. The distance up to
which development along rivers, creeks and backwaters is to be regulated shall
be governed by the distance up to which the tidal effects are experienced which
shall be determined based on salinity concentration of 5 parts per thousand
(ppt).
For the
purpose of this notification, the salinity measurements shall be made during
the driest period of the year and the distance upto which tidal effects are
experienced shall be clearly identified and demarcated accordingly in the
Coastal Zone Management Plans.;] 1 Substituted by S.O.1122(E), dated 29th
December, 1998. Gazette of India (Extra). No. 849, dated 29-12-1998.
2
Inserted as per S.O.(E). No. 550 (E), dated 21st May, 2002 19 2. Prohibited
Activities :
The
following activities are declared as prohibited within the Coastal Regulation
Zone, namely :
(i)
.............
(ii)
manufacture or handling or storage or disposal of hazardous substances as
specified in the Notifications of the Government of India in the Ministry of
Environment & Forests No. S.O. 594(E) dated 28th July, 1989, S.O. 966(E)
dated 27th November, 1989 and GSR 1037(E) dated 5th December, 1989; 3[except
transfer of hazardous substances from ships to ports, terminals and refineries
and vice versa, in the port areas:] ...........................
3.
Regulation of Permissible Activities :
All other
activities, except those prohibited in para 2 above, will be regulated as under
:
1.
.........
2. The
following activities will require environmental clearance from the Ministry of
Environment and Forests, Government of India, namely:
(i)
.........
(ii) 4[Operational
constructions for ports, harbours and light houses and construction activities
of jetties, wharves, Slipways, pipelines and conveying systems including
transmission lines provided that environmental clearance in case of
constructions or modernization or expansion of jetties and wharves in the Union
Territory of Lakshadweep for providing embarkation and disembarkation
facilities shall be on the basis of a report of scientific study conducted by
the Central Government or any agency authorized or 3 Added by S.O. 494(E),
dated 9th July, 1997. Gazette of India (Extra) No. 393, Part II, Sec. 3(ii),
dated 9th July, 1997.
4
Substituted by Notification No. S.O. No. 636 (E), dated 30-05-2003.
20
recognized by it suggesting environmental safeguard measures required to be
taken for minimizing damage to corals and associated biodiversity.] (3) (i) The
coastal States and Union Territory Administrations shall prepare, within a
period of one year from the date of this Notification, Coastal Zone Management
Plans identifying and classifying the CRZ areas within their respective
territories in accordance with the guidelines given in Annexures-I and II of
the Notification and obtain approval (with or without modifications) of the
Central Government in the Ministry of Environment & Forests;
(ii)
Within the framework of such approved plans, all development and activities
within the CRZ other than those covered in para 2 and para 3 (2) above shall be
regulated by the State Government, Union Territory Administration or the local
authority as the case may be in accordance with the guidelines given in
Annexures-I and II of the Notification; and (iii) In the interim period till
the Coastal Zone Management Plans mentioned in para 3(3)(i) above are prepared
and approved, all developments and activities within the CRZ shall not violate
the provisions of this Notification. State Governments and Union Territory
Administrations shall ensure adherence to these regulations and violations, if
any, shall be subject to the provisions of the Environment (Protection) Act,
1986."
27.
Indian Council for Enviro-Legal Action filed a writ petition
before this Court challenging some of the amendments made in 1991 Notification;
they also raised the grievance that the MOEF except for issuing the 1991
Notification had taken no steps to follow up its own directions contained in
that 21 Notification. This Court while disposing of writ petition filed by
Indian Council for Enviro-Legal Action [(1996) 5 SCC 281], inter alia, issued
the following directions:
"(1)
.........................
(2)..........................
(3)
Considering the fact that the Pollution Control Boards are not only overworked
but simultaneously have a limited role to play insofar as it relates to
controlling of pollution for the purpose of ensuring effective implementation
of the notifications of 1991 and 1994, as also of the Management Plans, the
Central Government should consider setting up under Section 3 of the Act, State
Coastal Management Authorities in each State or zone and also a National
Coastal Management Authority.
(4) The
States which have not filed the Management Plans with the Central Government
are directed to file the complete plans by 30-6-1996. The Central Government
shall finalise and approve the said plans, with or without modifications within
three months thereafter. It is possible that the plans as submitted by the
respective State Governments and Union Territories may not be acceptable to the
Ministry of Environment and Forests. Returning the said plans for modifications
and then resubmission of the same may become an unnecessary, time-consuming
and, perhaps, a futile exercise. In order to ensure that these plans are
finalised at the very earliest, we direct that the plans as submitted will be
examined by the Central Government who will inform the State Government or the
Union Territory concerned with regard to any shortcomings or modifications
which the Ministry of Environment and Forests may suggest.
If
necessary, a discussion amongst the representatives of the State Governments
and the Ministry of Environment and Forests should take place and thereafter
the plans should be finalised by the Ministry of Environment, if necessary, by
carrying out such modifications as may be required. The decision by the Ministry
of Environment and Forests in this regard shall be final and binding.
22 A
report with regard to the submission and the finalisation of the plans should
be filed in this Court and the case will be listed for noting compliance in
September 1996.
........................................................"
28.
Paragraph 3(3)(i) of 1991 Notification requires the Coastal States
and UT Administrations to prepare Coastal Zone Management Plans for
identification and classification of the CRZ areas within their respective
territories in accordance with the guidelines given in Annexures I and II of
the Notification. It further mandates Coastal States and UT Administrations to
obtain approval of such plans from the Central Government. As a matter of fact,
the said provision provided a period of one year for preparation of such plans
from the date of the Notification, but the Coastal States and UT
Administrations remained dormant for many years in this regard. However,
consequent upon directions of this Court, the State of Tamil Nadu submitted its
Coastal Zone Management Plan to the MOEF on August 23, 1996 which was approved
on September 27, 1996 (1996 Plan) containing 31 sheets corresponding to maps
for different stretches of the coastline of the State of Tamil Nadu with
certain conditions/modifications/ 23 classifications. Sheet no.10 pertains to
the coastal stretch of Cuddalore District. The MOEF, based on sheet no. 10
(1996 Plan) have stated in their affidavit that the land portion of the banks
of Uppanar river adjacent to the plant in Thiyagavalli village where the
pipeline crosses Uppanar river does not come under the CRZ area. This position
is reiterated by the TNSCZMA in their affidavit filed before this Court:
"..................as
per the approved Coastal Zone Management Plan, the banks of Uppanar River
adjacent to the Plant in Thiyagavalli Village where the pipeline crosses River
Uppanar does not come under CRZ area..................
......."
29.
We were also shown a copy of sheet no.10 from which it did not
transpire that Uppanar river and its banks where the pipelines pass have tidal
influence and come under the CRZ area. That 1996 Plan does not reflect the area
on both sides of the Uppanar river through which the pipelines pass as CRZ area
is not in dispute. The contention of the senior counsel for the
petitioner/appellant is that 1996 Plan has become redundant and obsolete in
view of change in the CRZ regime 24 due to amendments in 1991 Notification,
first on December 29, 1998 and then on May 21, 2002.
30.
By 1998 amendment, it has been provided in 1991 Notification that
HTL shall be demarcated uniformly in all parts of the country by the
demarcating authority or authorities so authorized by the central government in
accordance with the general guidelines issued in this regard. By further
amendment on May 21, 2002, sub-paragraph (ii) was inserted in the first para of
1991 Notification providing therein that the distance from the HTL shall apply
to both sides in the case of rivers, creeks and backwaters. The said amendment
provides that the distance up to which development along rivers, creeks and
backwaters is to be regulated shall be governed by the distance up to which the
tidal effects are experienced which shall be determined based on salinity
concentration of 5 ppt. It further provides that salinity measurements shall be
made during the driest period of the year and distance up to which tidal
effects are experienced shall be clearly identified and demarcated in the
Coastal Zone Management Plans. It is perfectly true that at the time of
preparation and approval of 1996 Plan, the 25 amendments of December 29, 1998
and May 21, 2002 in 1991 Notification had not seen the light of the day and the
declaration made in first para that the 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 land between the
LTL and the HTL are CRZ was kept in view but in the absence of any modification
carried out thereafter, 1996 Plan remains operative. The authorities authorized
to demarcate HTL, we are afraid, cannot override the plan prepared and approved
under paragraph 3(3)(i) as the said paragraph leaves no manner of doubt that
Coastal Zone Management Plan prepared by the Coastal State (or for that matter
State Coastal Zone Management Authority) and duly approved by the MOEF is the
relevant plan for identification and classification of CRZ areas. The plan
prepared by NIO, thus, cannot be said to have superseded 1996 Plan for the
Cuddalore coastal stretch.
31.
Moreso, while giving approval on September 27, 1996 to 1996 Plan,
the MOEF appended, inter alia, a condition that government of Tamil Nadu would
not make any change in 26 the approved categorization of CRZ area without its
prior approval. Seen thus, 1996 Plan for the purposes of demarcation and
classification of CRZ area in the state of Tamil Nadu has to be treated as
final and conclusive and has been rightly treated as such by the MOEF. We hold,
as it must be, that the Uppanar river and its banks at the relevant place where
the pipelines laid by the Chemplast pass do not fall under CRZ III area as per
1996 Plan and no environmental clearance is needed for such pipelines. The
stand of the MOEF is, which seems to us to be correct, that they have granted
permission to the onshore pipelines insofar as these pass through the CRZ
abutting the sea, i.e. 500 meters from the HTL and no clearance has been
granted as it was not required for laying of pipelines under the Uppanar river.
32.
Here, we may also deal with the objection of the petitioners that
Chemplast has suppressed the material facts regarding the existence of Uppanar
river in its proposals. In the first place, there seems to be no substance in
the said objection. From the materials available on record that include the
Environment Impact Assessment Report (EIA) and Risk 27 Analysis Report (RA), it
cannot be said that existence of Uppanar river has been suppressed by the
Chemplast in its proposals although in these reports Uppanar river has been
described as Uppanar canal. In EIA prepared by L & T Ramboll, in Section
3.6.2.2., it is stated:
"The
onshore pipeline to the extent possible is routed in a direct line from the
landfall point to the Plant in order to minimise the length. The route crosses
the Uppanar canal where the pipeline will be trenched sufficiently deep into
the canal bed to avoid impact from grounding vessels, dropped objects or
dragged anchors. The pipeline section crossing the Uppanar will be of a type
similar to the marine pipeline section. As regards the onshore section, the
selection of pipeline type and installation is discussed in the following
paragraphs :
The main
options for the land pipeline will be :
7
Trenched, sub terrain pipe line (-1.0 to -1.5 m) 7 Pipeline on low supports at
the terrain surface (+0.2 to +0.5m) 7 Overhead pipeline on masts/columns above
bus/truck passage heights (+4.5 to 5m) (Approximate levels given from existing
natural ground level)"
Similarly,
in Section 5 of RA, reference is made to pipeline crossing Uppanar canal. The
position is clarified by Chemplast in their subsequent application made on
November 14, 2005. In the second place, and more importantly, this objection
pales into insignificance in view of our finding that the 28 land portion of
the banks of Uppanar river where the pipelines laid by Chemplast pass Uppanar
river does not fall under CRZ III area.
33.
Now, we advert to the other main issue concerning paragraph 2(ii)
of 1991 Notification. This paragraph prohibits manufacture or handling or
storage or disposal of hazardous substances, as specified in the Notifications
issued by MOEF (dated 28th July, 1989, 27th November, 1989 and 5th December,
1989), except transfer of hazardous substances from ships to ports, terminals
and refineries and vice-versa, in the port areas.
That VCM
is hazardous substance notified vide notification dated November 27, 1989 is
not in dispute. There is also no dispute, rather it is an admitted position,
that handling of a substance includes transfer as per Section 2(d) of the
Environment (Protection) Act, 1986. It was contended by the senior counsel for
the appellant/petitioner that transfer of VCM in CRZ area is completely
prohibited and VCM cannot be carried through the CRZ except in the port area.
Their argument is that VCM can be brought onshore by pipeline to the port area
but not in the CRZ area. The arguments of 29 learned senior counsel have put in
issue the scope of expression, "except transfer of hazardous substances
from ships to ports, terminals and refineries and vice versa in the port
areas" which was added in paragraph 2(ii) on 9th July, 1997. We are called
upon to ascertain the true meaning and intention of the Executive in bringing
this exception. In the original 1991 Notification there was no exception
clause. It appears to have been added for the purpose of enabling transfer of
hazardous substances from ships to ports, ships to terminals and ships to
refineries and vice versa. Is such transfer of hazardous substances confined to
terminals and refineries located in the port areas? The answer in the
affirmative may make the said provision unworkable and would also result in
absurdity inasmuch as the hazardous substance would be brought in to the port,
refinery or terminal in the port area from the ship and would remain there and
could not be taken beyond the port area because of the prohibition. This surely
could not have been the intention of the Executive in adding the exception
clause. It is well settled that if exception has been added to remedy the
mischief or defect, it should be 30 so construed that remedies the mischief and
not in a manner which frustrates the very purpose. Purposive construction has
often been employed to avoid a lacuna and to suppress the mischief and advance
the remedy. It is again a settled rule that if the language used is capable of
bearing more than one construction and if construction is employed that results
in absurdity or anomaly, such construction has to be rejected and preference
should be given to such a construction that brings it into harmony with its
purpose and avoids absurdity or anomaly as it may always be presumed that while
employing a particular language in the provision absurdity or anomaly was never
intended. Notwithstanding imperfection of expression and that exception clause
is not happily worded, we are of the view that by applying purposive
construction, the expression, `in the port areas' should be read as, `in or
through the port areas'. The exception in paragraph 2 (ii) then would achieve
its objective and read, `except transfer of hazardous substances from ships to
ports, ships to terminals and ships to refineries and vice versa, in or through
the port areas'. This construction will be harmonious with paragraph 3(2)(ii)
which permits the activity of 31 laying pipelines in the CRZ area. As a matter
of fact, the MOEF in their affidavit before this Court have clearly stated that
the permission granted to Chemplast on 19th December, 2005 is in exercise of
the powers conferred under paragraph 3(2)(ii) of 1991 Notification. We do not
find any infirmity in the permission granted by the MOEF on 19th December,
2005. Having held that, there is no illegality in the permission granted by the
Executive Engineer on February 27, 2008 either.
34.
In view of our foregoing discussion in respect of the two core
issues, we do not deem it necessary to deal with the objection raised by Mr.
K.K. Venugopal, learned senior counsel for the Chemplast about the
maintainability of PILs and that the petitioners have been instigated and set
up by a corporate rival - Cuddalore Powergen Corporation Limited.
35.
By way of footnote, we may observe that the project has been
established by investing huge amount of about Rs. 600 crores and has already
been commissioned after obtaining necessary approvals and, therefore, it shall
not be in the interest of justice nor in the public interest now to interfere
with the project. The alternative solution suggested by 32 Dr. Rajeev Dhavan
for carrying VCM across Uppanar river to the plant is noted to be rejected.
36.
In the result, Civil Appeal and Writ Petition (Civil) No. 130 of
2009 are dismissed. Writ Petition Nos. 37043 of 2006, 8125 of 2007 and 23122 of
2007 filed before Madras High Court and transferred to this Court are
dismissed.
Transfer
Petitions and I.A. No. 7 stand disposed of. I.A. No. 4 filed by the appellant -
M. Nizamudeen - for initiating proceedings for perjury against the MOEF is
dismissed. The parties shall bear their own cost.
........................CJI
........................J (R. M. Lodha)
........................J (Dr.B.S. Chauhan)
New Delhi,
March 10, 2010.
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