Full Judgment Text
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.11935 OF 2018
M/S. SOUTHERN PETROCHEMICAL
INDUSTRIES CORPN. LTD. ... APPELLANT(S)
VS.
S. JOEL & ORS. ... RESPONDENT(S)
WITH
C.A.Nos.12227 & 12224 of 2018
and C.A.Nos.834 & 1332 of 2019
O R D E R
1. Appeals Admitted.
2. This batch of appeals arises from a decision
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of the National Green Tribunal dated 28 November
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2018.
3. On 15 June 2004, the Government of India in
Signature Not Verified
Digitally signed by
SARITA PUROHIT
Date: 2019.02.09
13:40:35 IST
Reason:
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the Ministry of Environment and Forests issued
1 "The Tribunal"
2 " MoEF"
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guidelines regulating the diversion of forest land
for non-forest purposes under the Forest
(Conservation) Act 1980. These guidelines were
clarified on 3 January 2005. The guidelines
delegate to the state governments the authority to
permit diversion of forest land up to one hectare
for the purpose of government departments for
public utility purposes. The permissible
activities are :
"1. Schools;
2. Dispensary/hospital;
3. Electric and Telecommunication
lines;
4. Drinking water;
5. Water/rainwater harvesting
structures;
6. Minor irrigation canal;
7. Non-conventional sources of energy;
8. Skill up-gradation/vocational
training centre;
9. Power sub-stations;
10. Communication posts; and
11. Police establishments like police
stations/outposts/border outposts/
watch towers, in sensitive areas
(identified by Ministry of Home
Affairs)."
(emphasis supplied)
4. Based on the above guidelines of the
Government of India, on 7 March 2008, the
Government of Tamil Nadu accorded approval for
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diversion of 0.055 hectares of forest land in
Sy.No.600 of Srivaigundam Village in Thoothukudi
Division of the Tamil Nadu Water Supply and
Drainage Board (TWAD Board) for construction of
an intake well (along with a control room and foot
bridge) for "drinking water purposes". This
permission was subject to certain conditions. The
facility has been set up.
5. A proceeding was instituted before the
National Green Tribunal by the first Respondent,
complaining that instead of confining the use of
water for drinking purposes, TWAD Board has
permitted the use of water for industrial
purposes.
6. The Union Ministry of Environment, Forests
and Climate Change (MoEF&CC) submitted before the
Tribunal that if the proposal involved a
diversion of forest land both for drinking water
and industrial purposes, then it would not fall
within the purview of the "General approval"
category under the Forest Conservation Act, 1980.
MoEF&CC submitted that the user agency had acted
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in violation of the Act by utilizing an additional
area measuring 0.025 hectares of forest area for
non-forestry purposes in addition to a change in
the purpose for which the approval was accorded by
the State Government.
7. TWAD Board submitted before the Tribunal that
on 23 July 2018, it has moved the State Government
to approach MoEF&CC for its clearance, so as to
permit the use of the area in question for both
drinking water and industrial purposes.
8. The proposal submitted by TWAD Board has not
yet been received by the Union Government. It is
pending with the Government of Tamil Nadu.
9. The Tribunal issued a direction to the TWAD
Board to prohibit the use of water drawn under the
forest clearance for 0.055 hectares for industrial
purposes, since it was granted only for the
purpose of drinking water. The Tribunal, however,
clarified that it was not prohibiting the use of
water for drinking purposes by housing colonies,
schools, hospitals, etc. and the prohibition was
only confined to the industrial units.
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10. During the pendency of the proceedings before
the Tribunal, an interim order was initially
passed on 31 May 2017, in the following terms :
"In so far as the area concerned,
the water shall be drawn only for supply
of drinking water. Therefore, there
shall be an interim order directing the
respondents to strictly act in
accordance with G.O.Ms.18 Environment
and Forest (FR.10) Department dated
7.3.2008 supplying water only for
drinking purpose until further orders of
this Tribunal."
11. This order was modified on 7 July 2017, to
the following effect :
"Therefore, as an interim
arrangement, we modify our order dated
31.5.2017 to the effect that the
situation which was in existence before
our interim order dated 31.5.2017 shall
be continued, however, subject to the
condition that the 3rd respondent Board
shall closely scrutinise whatever water
is required for industrial purpose and
also subject to the condition that
sufficient quantity of water is
available for drinking purpose for the
people."
The above arrangement held the field until
the proceedings were disposed of by the impugned
order.
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12. Initially, when this Court was moved in a
batch of civil appeals, on 11 January 2019, a
grievance was urged on behalf of Tuticorin Thermal
Power Plant to the effect that as a result of the
order of the Tribunal, serious hardship was faced
in its operational activities and that the
situation was assuming a critical dimension in the
absence of regular supply of water. Accordingly,
while issuing notice this Court directed that the
order of the Tribunal shall remain stayed insofar
as the Tuticorin Thermal Power Plant is concerned,
subject to the condition that drinking water needs
are fully met. This Court clarified that any
supply thereafter of surplus water to the power
plant shall be in accordance with the terms of the
interim order (of the Tribunal) dated 7 July 2017,
extracted above. TWAD Board was directed to file
an affidavit indicating
i) the extent of water which is available
for distribution;
ii) the water which is required to fully
meet the drinking water needs; and
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iii) the surplus, if any, that is
available.
13. On 28 January 2019, finding that the TWAD
Board had not indicated a bifurcation of the
requirements of water for drinking and industrial
use, this Court called for fresh affidavits on the
anticipated requirements for the period between 1
February 2019 and 30 June 2019. An affidavit has
been filed on 31 January 2019 on behalf of the
Board.
14. Learned senior counsel appearing on behalf of
the Board has drawn our attention to relevant
extracts from the affidavit, in support of the
submission that even after meeting drinking water
requirements fully, there is surplus water
available which can be allocated for industrial
use. The affidavit indicates that requirement of
water for drinking, irrigation and other
industrial purposes, in Tirunelveli and
Thoothukudi Districts, is met from the water drawn
from Tamirabarani River. For that purpose, water
is released from three dams, namely, (i) Papanasam
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Dam; (ii) Servalaru Dam; and (iii) Manimuthar Dam.
Paragraph 6 of the affidavit is extracted below :
"6. The Water Account details as annexed
prepared to know the storage position of
dams and anticipated Inflow of water from
the data obtained form the office of the
PWD and Electricity Board as detailed below
:-
i) Expected inflow of water and the
storage of water to be used is 10285.60
MCft (31.01.2019 to 30.06.2019)
ii) Losses due to evaporation and
leakages is estimated as 1028.56 MCft
iii) Balance quantity of water is
9257.04 MCft
iv) Water requirement for drinking use
from 31.01.2019 to 30.06.2019 (150 days
x 167.73 Cusecs x 0.0864) is 2173.78 MCft
[.0864 is conversion factor from
cusecs to MCft]
v) Water required for industrial usage
from 31.01.2019 to 30.06.2019 (150 days x
52.27 cusecs x 0.0864) is 742.22 MCft
vi) Anticipated average release of
water from 31.01.2019 to 31.03.2019, 1000
cusecs per day for irrigation (60
days x 1000 cusecs x 0.0864) is 5184.80
MCft
vii) Expected inflow and available
storage for use of dam on 30.06.2019 is
(9257.04 -(2173.78 + 742.22 + 5184.00)=
1157.04 MCft"
15. Accordingly, it has been submitted that the
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water available in the dams is sufficient to meet
the requirement of water for drinking, irrigation
and industrial purposes upto 31 March 2019 and
for meeting the requirement of water for drinking
needs and industrial purposes upto 30 June 2019 in
both Tirunelveli and Thoothukudi Districts. The
affidavit states that in case there is any
shortfall in the expected inflow, it will be
compensated with the seasonal rains in the lower
part of the dams in Tamirabarani River basin and
irrigation tanks, as per the report of the PWD
authorities. Finally, it has been stated that if
any shortfall arises in the expected inflow of
water, the first priority will be given to
drinking water requirements.
16. Placing reliance on the affidavit which has
been filed by the TWAD Board, Shri Ranjit Kumar
and Shri Huzefa Ahmadi, learned senior counsel
submitted that it would be appropriate if the stay
granted by the Tribunal is modified so as to
permit the release of water for industrial
purposes, subject to the drinking water needs
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being fully met. Learned counsel submitted that a
blanket stay of the nature which has been issued
by the Tribunal will not serve any purpose.
17. On the other hand, Ms. Anitha Shenoy, learned
counsel appearing on behalf of the first
respondent, who is the original petitioner before
the Tribunal, submitted a chart containing the
data of the Government of India in the Ministry of
Earth Sciences (India Meteorological Department),
Regional Meteorological Centre, Chennai. Learned
counsel submitted that for Thoothukudi District
official statistics show that the rainfall as of
31 January, 2019 has been below normal (-100 or as
the case may be -92). Moreover, on the basis of
the data collated from the affidavit of the Board,
it has been submitted that there is a precipitous
decline in the current position of water in the
reservoirs in Tirunelveli District and in
consequence, it would not be appropriate to issue
any direction, modifying the direction of the
Tribunal.
18. We may note that it was urged on behalf of
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the appellants that the permission which was
granted on 7 March 2008 by the State Government
for the diversion of 0.055 hectares of land for
the construction of an intake well for drinking
water purposes, did not contain a prohibition for
utilizing the water for industrial purposes. We
cannot accept the submission. Both before the
Tribunal as well as before this Court, the
consistent position of the State Government as
well as of MoEF&CC has been that Government of
India delegated its authority under the Forest
Conservation Act, 1980 to the states to grant a
diversion of forest land upto one hectare and for
specified projects of a public utility. Among
them is drinking water. Hence, in the face of
this position, the submission cannot be accepted.
19. The position as it now exists is that TWAD
Board has moved the State Government with a
proposal to seek the clearance of MoEF&CC for the
purpose of authorizing the use of the surplus
water also for industrial purposes under the
Forest Conservation Act, 1980. TWAD Board
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submitted before this Court that even after
meeting the drinking water requirements fully, a
surplus of water is available which it may be
permitted to utilize for industrial purposes. On
the other hand, as we have noted earlier, this is
disputed on behalf of the petitioner before the
Tribunal who has submitted that there has been a
paucity of rain fall, as a result of which,
Thoothukudi District has recorded scarcity
conditions.
20. In our view, it would be necessary for this
Court to put in place an administrative mechanism
that would ensure that a decision to release water
for industrial purposes is monitored by the
Collector of the District who shall conduct a due
verification of the data which is available with
the TWAD Board. The Collector should independently
assess the situation so as to ensure that the need
for drinking water and irrigation is not
compromised.
21. We, accordingly, direct that within a period
of one week from today the Collector responsible
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for Thoothukudi division shall convene a meeting
of all the concerned departments, including the
Public Works Department, the Irrigation department
and the TWAD Board. The Collector shall ascertain
whether any surplus water is available after fully
meeting the requirement for drinking water. The
Collector shall conduct a fortnightly review of
the position thereafter to determine as to whether
any further direction or modification is required
to meet the exigencies of the situation. If the
Collector does find that the data which has been
produced is adequate to sustain the conclusion in
regard to the availability of surplus water after
fully satisfying the need for drinking water,
directions may be issued for allocating a suitable
quantity of water for industrial purposes. We
reiterate that this should be without in any
manner compromising the present and anticipated
drinking water needs of the residents of the
district concerned. Until the Collector takes a
decision and for one week from today we restore
the position as it obtained under the interim
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order of the Tribunal dated 7 July 2017 to
facilitate the supply of water for industrial
purposes, including for the Tuticorin Thermal
Power Plant. This is subject to the condition
that drinking water requirements are fully met on
priority. Thereafter, parties shall abide by the
decision of the Collector. Until the Collector
takes a decision, the interim order which we have
passed in the case of Tuticorin Thermal Power
Plant shall also continue in operation.
22. Insofar as the proposal under the Forest
(Conservation) Act 1980 is concerned, we are
apprised that TWAD Board had forwarded it to the
State Government on 11 June 2018. We have been
apprised that there were communications between
the State Government and the Board with a view to
rectifying certain deficiencies in the proposal.
Be that as it may, we direct that within a period
of two weeks from today, a joint meeting be held
of the representatives of the State Government and
of the TWAD Board to resolve the issue. The
proposal shall thereupon be forwarded to MoEF&CC
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within three weeks from today. The competent
authority shall take a decision on the proposal in
accordance with law within a period of two months
thereafter. Any allocation of water for industrial
purposes in the meantime shall abide by such final
decision as may be arrived at by the Union of
India after considering the proposal. We have not
expressed any opinion on the merits of such a
proposal.
23. We dispose of the appeals in the above terms.
Pending applications, if any, shall also stand
disposed of. There shall be no order as to costs.
.............................J.
[Dr. DHANANJAYA Y. CHANDRACHUD]
.............................J.
[HEMANT GUPTA]
New Delhi;
4 February 2019.
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ITEM NO.64 COURT NO.9 SECTION XVII
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No(s).11935/2018
M/S. SOUTHERN PETROCHEMICAL INDUSTRIES CORPN. LTD. Appellant(s)
VERSUS
S. JOEL & ORS. Respondent(s)
(With appln.(s) for exemption from filing c/c of the impugned
judgment and stay)
WITH
C.A.No.834/2019 (XVII)
(With appln.(s) for permission to file appeal, exemption from
filing c/c of the impugned judgment, permission to file addl.
documents/facts/annexures and ex-parte stay)
C.A.No.12224/2018 (XVII)
(With appln. for ex-parte stay)
C.A.No.12227/2018 (XVII)
(With appln.(s) for exemption from filing c/c of the impugned
judgment and stay)
CA No.1332/2019 (XVII)
(With appln.(s) for exemption from filing c/c of the impugned
judgment and ex-parte stay)
Date : 04-02-2019 These matters were called on for hearing today.
CORAM :
HON'BLE DR. JUSTICE D.Y. CHANDRACHUD
HON'BLE MR. JUSTICE HEMANT GUPTA
For Appellant(s) Mr. Ranjit Kumar,Sr.Adv.
Mr. K.K. Mani,AOR
Ms. T. Archana,Adv.
Mr. Huzefa Ahmadi,Sr.Adv.
Mr. Balaji Srinivasan,Adv.(AAG)
Mr. Vinodh Kanna B.,AOR
Ms. S. Valarmathi,Adv.
Ms. Pallavi Sengupta,Adv.
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Mr. Ravindra Shrivastav,Sr.Adv.
Mr. C. Paramasivam,Adv.
Mr. M. Avokiyaraj,Adv.
Mr. M. Yogesh Kanna,AOR
For Respondent(s) Mr. K.V. Vijayakumar,AOR
Mr. R. Naveenraj,Adv.
Ms. Purbitaa Mitra,Adv.
Ms. Anitha Shenoy,Adv.
Mr. Y. Arunagiri,Adv.
Mr. Ramesh,Adv.
for Mr. P. Soma Sundaram,AOR
Mr. Sanjai Kumar Pathak,Adv.
for Mr. G.S. Makker,AOR
Mr. Mahesh Agarwal,Adv.
Ms. Aastha Mehta,Adv.
Mr. Rajesh Kumar,Adv.
for Mr. E.C. Agrawala,AOR
UPON hearing the counsel the Court made the following
O R D E R
Appeals admitted.
The appeals are disposed of with no order as to
costs in terms of the signed reportable order.
(Saroj Kumari Gaur) (Sarita Purohit)
Branch Officer AR-cum-PS
(Signed reportable order is placed on the file)