Full Judgment Text
REPORTABLE
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.
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
th
Notification dated 19 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,
th
Costal Regulation Zone Notification dated 19 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
th
Regulation Zone Notification dated 19 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
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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.”
5
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
th
(iv) minutes of the 34 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
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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 thereunder.
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.
10
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, which ever 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 th
Substituted by S.O.1122(E), dated 29 December, 1998. Gazette of India (Extra). No. 849, dated
29-12-1998.
2 st
Inserted as per S.O.(E). No. 550 (E), dated 21 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
3
December, 1989; [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) ……...
4
(ii) [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 th
Added by S.O. 494(E), dated 9 July, 1997. Gazette of India (Extra) No. 393, Part II, Sec. 3(ii),
th
dated 9 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
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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 :
Trenched, sub terrain pipe line (-1.0 to -1.5 m)
•
Pipeline on low supports at the terrain surface
•
(+0.2 to +0.5m)
• 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
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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
th th th
(dated 28 July, 1989, 27 November, 1989 and 5 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
th
port areas” which was added in paragraph 2(ii) on 9 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
th
permission granted to Chemplast on 19 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
th
granted by the MOEF on 19 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
New Delhi, (Dr.B.S. Chauhan)
March 10, 2010.
33