JUDGMENT

1. These two writ petitions seek to challenge the permissions granted by both the State and the Central Governments to the Bombay Suburban Electric Supply Company Limited (hereafter "the Company") for establishing a 500 mega watt thermal power station (for short "the said project") at village Agval, Taluka Dahanu, District Thane. The petitioners in Writ Petition No. 4550 of 1989 are the Bombay Environmental Action Group and one Saad Ali and the petitioners in Writ Petition No. 993 of 1990 are the residents as a group of Dahanu taluka claiming interest in the subject matter of the said project.

2. We have heard respective Counsel at great length. We have also gone through the petitions and the several detail affidavits filed by either side and have given our anxious consideration to the pros and cons and the various factors and circumstances to which our attention was invited by Counsel on either side.

3. In 1988 the Environmental Department of the Government of Maharashtra granted site clearance from the environmental angle to the said project. The clearance was subject to as many as fifteen stringent conditions, one of which required the company to obtain all requisite clearances from various authorities. In March 1989 the Department of Environment, Forest and Wild Life, Government of India, wrote to the Secretary, Department of Power, Ministry of Energy, that the proposal for setting up the said project in Dahanu was examined from environmental angle and the approval of the Ministry of Environment and Forest to the said project subject to terms and conditions was conveyed. Here again as many as fifteen conditions have been imposed stating that the enforcement of the stipulated conditions will, amongst others, be under the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1986.

4. When these petitions were initially heard in March 1990, Counsel for the Central Government submitted that the petitioners had made several representations to the Central Government on the question of granting clearance from the environmental angle to the proposed project and these representations were under Government's consideration. The Court thereupon adjourned the matter to enable the Central Government to consider the said representations. The Company was, however, permitted to continue the levelling and filling work which was going on. The The Ministry of Environment and Forest, Government of India, reconsidered the matter in the light of the representations. It carefully re-examined the matter. If then prepared an exhaustive office memorandum vide Annexure I to the affidavit of S. Bhowmick, Scientist -- S. E. in the Ministry of Environment and Forest. Perusal thereof shows that there were fifteen principal heads of objections. All these were considered in depth. Opinion of the Thermal Power Appraisal Committee was also duly considered. Various permissions granted by the State Government were also looked into and considered. After this elaborate exercise, the Ministry concluded that the location site of the project was acceptable from environmental consideration. The Central Water and Power Research Station, Khadakvasla, also informed the company that it was possible to optimise the design of the water cooling system and adhere to the requirement of maintenance of the requisite degree of temperature of the water discharged into the creek after undergoing the cooling process. The Maharashtra Pollution Control Board also informed its no objection for establishing the project at the site subject to certain conditions in respect of air pollution control, water pollution control, solid waste disposal and general conditions. The World Bank Environmental Review Committee also made its detail observations on the major environmental issues including air emissions and ambient air quality, ash disposal, other affluent discharges, construction impact etc.

5. Respect Counsel Mr. Setalwad, Mr. Talyarkhan and Mr. Gonsalves for the petitioners raised the following contentions :

(a) The grant of environmental clearance by the Central Government under its office memorandum dated 29th March 1989 was contrary to the opinion of the Appraisal Committee of the Ministry of Environment & Forest.

(b) The setting up of the project would violate guideline No. 2:2:2 of the Ministry of Environment and Forest requiring a distance of 500 metres to be kept between the high-tide line mark and the construction.

(c) The discharge of water, used for cooling of the plant, into the creek would so increase its ambient temperature as to adversely affect the acquatic life in the creek water.

(d) The State Government's assurance of no industrial development in Dahanu Zone was not likely to be abided by.

Respective Counsel Mr. Andhyarujina for the company, Mr. Sawant for the State Government and Mr. Desai for the Central Government repelled each of these contentions on the basis inter alia of several documents and affidavits.

6. On the first contention supra, we find that the Ministry of Environment and Forest has carefully applied its mind to the relevant guidelines and there was nothing in the memorandum dated 29th March 1989 to suggest that the clearance from environmental angle was in violation of these guidelines. Moreover, this is not a case of any blanket or arbitrary permission de hors any terms or conditions. Infact, as many as fifteen stringent conditions have been imposed. Several expert authorities, both of the State and the Central Governments, have also applied their minds to the relevant factors including the factor of preservation of ecological balance. The following authorities have given their approval to the project from the environmental angle :

a) Government of Maharashtra;

b) State Appraisal Committee;

c) Government of India, Ministry of Environment and Forest;

d) Maharashtra Pollution Control Board;

e) Government of India, Ministry of water Resources, Central Water and Power Research Station;

f) Indian Institute of Tropical Meterology;

g) World Bank Environmental Review Aide Memoire

7. The major factors for locating the power station at the present site are its proximity to the load centre, its techno economic viability and its virtual zero impact on environment. For a large metropolis like Bombay, electric energy and power supply is very vital. So much of life day and night depends upon availability of power supply. Dahanu is the closest and safest site from the environmental angle. It also offers many distinct advantages for a project of this kind e.g.

a) The land used has no vegetation, not even a shrub;

b) no tree is to be felled;

c) land is of little use otherwise;

d) project does not require acquisition of agricultural lands which is one of hurdles at many sites.

e) there is no habitation on this site and as such vital and important question of rehabilitation is not involved;

f) as this is a coastalsite, sweet water requirement is minimum, almost 1/10 (2 MM3 instead of 20MM3) required at inland sites and as such poses very little drain on the scarce water resources in Maharashtra;

g) neither the power station nor the transmission line route involves any deforestation;

h) it is nearest environmentally acceptable site to the load centre.

8. Certain areas which are away from the sources of water, wanting of waste land, close to large habitation, for distant from load centre necessitating rehabilitation and deforestation, pollution prone areas, make it techno-economically unviable to undertake large investments for putting up power generation plant. Moreover, long distance transmission lines covering greater areas and distance become difficult to construct due to difficulties in obtaining rights of way particularly forest areas and/or populated area. Furthermore, distant location of the power transmission station from its load centre entails considerable capital cost for laying long distance transmission lines which presently cost about rupees thirty to forty cropes per hundred kilometers. Again, a long distance transmission line also entails loss of power in the course of transmission in direct proportion to its length. Transmission of electric power of this order would involve loss of about fourteen mega watt per hundred kilometers which corresponds to energy loss of about twelve crores per annum.

9. The company had appointed Tata Consulting Engineers to investigate and find suitable sites, carry out techno-economic studies and prepare a feasibility report. About nine sites were investigated; eight of these had to be discarded on techno-economic grounds such as nearness to habitation, use of scarce irrigation water resource for agricultural use, large township nearby, drastically curtailing irrigated lands and lands used for agricultural cultivation, transmission lines traversing through forest area involving deforestation. Out of nine sites, only Bassein site was found to be viable but this also had to be given up as it fell within the BMRDA area. Ultimately Dahanu site was approved both by the Central and State Governments stipulating several stringent terms and conditions. Why Dahanu was approved is also clearly set out in the affidavit of both Pinge and Ziradkar. We also have the very detail chart prepared by the company dealing with and giving point by point reply to the report of the appraisal committee. We also have the exhaustive office memorandum of 26th June 1990. Experts in the field have also taken relevant factors into consideration before approving the present site. We have gone through the entire material placed before us. Considering the same, we are unable to take a contrary view of the matter. In our opinion, the decision consciously reached and taken by the experts as also the State and the Central Government is well justified and does not warrant interference. The first contention thus fails and is rejected.

10. The second contention pertains to distance of 500 meters between the high tide line mark and the structure of the said project. In this context, it is pertinent to note that in the Central Government memorandum dated 29th March, 1989 itself, the imposed condition No. (ix) reads thus :

"No structure should be provided/built within 500 meters zone of high tide line."

Furthermore, in the office memorandum of June 1990, this is considered in para 7(v) as also in para 8, paras 8(a) and (b) thereof. To quote:--

"Para 7(v) : The State Government as well as BSES have confirmed that 500 meter distance from HTL will be maintained during construction."

"Para 8 : The Ministry of Environment and Forests has formulated general guidelines which can give general principles to be considered for location of thermal power plants. The environmental impact assessment of a project needs to be considered within the overall context of development in the area, region and State. This needs to be balanced and environmental considerations are of prime importance. The following clarifications have been given to the various issues raised in the para :--

(a) There are no ecologically sensitive areas within 25 Kms. of the project site. As is already stated, the discharge of cooling water of liquid effluents, within the standards prescribed, is not likely to affect acquatic resources and pollutant contribution of plant of this size will not have any adverse impact on forest eco-system.

(b) This suggestion in the guidelines is for general guidance. However, with the increasing demand for power generation for economic activity all around the country for irrigation, domestic requirements, industry etc.; cases within 5 Kms. of the sea will also have to be considered if such a location is economically justified and environmentally unobjectionable."

11. Apart from the above, we also have the notification dated 27th July 1990 issued by the Ministry of Environment and Forests in the exercise of powers conferred by subsection (1), read with clause (v) of sub-section (2) of Section 3 of the Environment (Protection) Act, 1986 (Act No. 29 of 1986). Under the said notification, there are certain prohibited activities as against permissible activities within the Coastal Regulation zone. Under para 3(2)(iii) thereof, thermal power plant is permissible but subject to the clearance from the Ministry of Environment and Forests, Government of India. The State Government as well as the company have confirmed that 500 meters distance from high tide level will be maintained. The State Government has further informed the Central Government that it has issued instructions to the company that it should strictly follow guideline regarding prohibition for locating structures within 500 meters of high tide line either on the creek side or on the beach side. In order to avoid all controversy, the company agreed to shift the location of the power station so as to keep 500 meters distance from all sides. The plan and the map in this behalf was also shown to us and we have no reason to doubt that the company will not act accordingly. With the increasing economic activity coupled with increasing demand for fresh water for domestic, industry and irrigation purposes, there is considerable strain on fresh water resources. It has, therefore, become necessary to locate thermal power plant in coastal area where sea water can be utilised for cooling purposes. The requirement of maintaining distance of 500 meters from high tide line is, however, ensured. We are satisfied that the two Central Government memoranda viz., one of March 1989 and the other of June 1990 and the conditions imposed ensure compliance with the requisite precautions. This contentions also, therefore, fails and is rejected.

12. The next contention relates to maintaining a particular temperature of the water discharged from the cooling system in the creek. Condition No. (vi) in the office memorandum dated 29th March 1989 of the Central Government is as under :

"The temperature of the water coming out of the condenser should not exceed 5°C at the point of discharge."

Going through and considering the affidavit of Pinge, we are satisfied that elaborate arrangements would be made for cooling the water that is discharged into the creek. The opinion of the expert body viz.; the Khadakvasla Research Station, vide its letter dated 21st May 1990 shows thus :--

"As regards the dispersion of the hot water in the creek, mathematical model studies carried out and given in our interim report show that with the assumption made, and with the temperature of 5 degree C above ambient at the proposed outfall point, the temperatures at all points downstream of the outfall (towards the intake) would drop to less than 3 degree C outside the mixing zone under all tidal conditions and stages."

The respondents rightly placed reliance also on the letter dated 8th November 1988 issued by the Indian Institute of Tropical Metereology. Moreover, we have, in addition, the office memorandum dated 26th June 1990 which on this aspect states --

"The larger availability of power by setting up this plant will result in availability of power for running the irrigation pumps, etc. in the region which in turn will help greater agricultural and horticulture productivity. This will improve the potential for resource generation for the people of the area, instead of adversely affecting as predicted by the petitioners."

In all the circumstances, we find the petitioners' apprehension more imaginary than real. This contention also thus fails.

13. We also find no merit in the contention relating to a possible breach of the assurance on no industrial development in Dahanu Zone. The letter dated 24th September 1988 by the Environment Department of the State Government to the Director of Industries, Government of Maharashtra, ensures in para 3 thereof as under :--

"3. You are, therefore, requested--

i) Not to sponsor any organised industrial estates or even private industrial estate in Dahanu Taluka in order to keep cultural heritage of the area and also maintain horticulture status of the area.

ii) Not to allow to come up small scale industries and middle scale industries of hazardous types which are likely to cause water, air or soil pollution."

Reference may also be made to conditions Nos. (x), (xii) and (xv) in the Central Government's memorandum dated 29th March 1989 which read as under :

"(x) In order to prevent any deleterious effect in future the State Government has agreed that chemical or other polluting industries will not be allowed to come up in Dahanu Taluka. Having regard to the cultural heritage and horticultural status of the area and for protection of the system, the State Government has agreed not to sponsor any organised industrial estate or encourage private industries in Dahanu Taluka. Necessary orders in this regard will be issued by the State Government and communicated to this Department.

(xii) A green belt of adequate density and width must be created all around the proposed plant.

(xv) No further expansion of the plant at the site will be permitted."

We see no good reason to entertain any doubt that these assurances will not be adhered to. It will also not be fair to start with suspicion and doubt about the future. We feel confident that the assurances given and the conditions imposed will be duly adhered to.

14. Mr. Andhyarujina, learned counsel for the company, laid considerable emphasis on Court's power of judicial review in a matter and project of the instant nature. He contended that the Court's jurisdiction under Article 226 of the Constitution was not unlimited. If the Court found that the concerned Government authorities, both at the Centre and State level, have applied their minds to the relevant facts and circumstances and that there are no extraneous considerations weighing with the authorities, then, in the absence of mala fides or ulterior motive, it was not open to the Court to revoke the executive and/or administrative decisions merely and only because another view of the matter may also perhaps be a possible view. He contended that all the objections were duly considered. Indeed, the matter was even reconsidered in the light of subsequent representations. He emphasised that there was no allegation of any ulterior motive or any mala fides. In a matter such as this involving diverse pros and cons, technical and otherwise, the Courts should be extremely slow to interfere unless inevitable.

15. Mr. Andhyarujina invited our attention to the Supreme Court ruling in Rural Litigation and Entitlement Kendra v. State of Uttar Pradesh, and in particular to the following observations at page 363 : 1987 All LJ 95:--

"It is for the Government and the Nation and not for the Court to decide whether the deposits should be exploited at the cost of ecology and environmental considerations or the industrial requirement should be otherwise satisfied. It may be perhaps possible to exercise greater control and vigil over the operation and strike a balance between preservation and utilisation. That would indeed be a matter for an expert body to examine and on the basis of appropriate advice, Government should take a policy decision and firmly implement the same."

Reference was also, made to yet another Supreme Court ruling viz. Shri Sachidanand Pandey v. State of West Bengal, and in particular to the following observations therein :

"The question raised in the present case is whether the Government of West Bengal has shown such lack of awareness of the problem of environment in making an allotment of land for the construction of a Five Star Hotel at the expense of the zoological garden that it warrants interference by this Court. Obviously, if the Government is alive to the various considerations requiring thought and deliberation and has arrived at a conscious decision after taking them into account, it may not be for this Court to interfere in the absence of mala fides."

16. The petitioners, as public spirited organisations and citizens, have, through their respective Counsel, done their duty by invoking this Court's writ jurisdiction and placing before us all such facts and circumstances as considered best by them. We in our turn, have done our duty by carefully examining all the facts and circumstances in the context of the rival contentions advanced before us on either side. In the course of this elaborate exercise and at every stage of the judicial process, we have kept asking ourselves the question -- Have the authorities shown such lack of awareness or have they been so oblivious of the needs of environment as to warrant Court's interference? We do not think so. On the contrary, considerable though deliberation, consultation and application of mind by all concerned authorities and experts has gone into the decision making process. We find on the part of the authorities and experts all the seriousness while considering and deciding upon the varied factors and circumstances including environment in relation to this project. The indepth analysis, the conditions imposed and the precautions taken inspire Court's confidence and, if, at the end of it all, the Court finds that a very conscious decision has been taken in the-light of all possible pros and cons, it would then not interfere. The decision of the authorities cannot be said to be arbitrary or capricious or one not in good faith or actuated by improper motive or extraneous considerations.

17. Environmental issues are relevant and deserve serious consideration. But the needs of the environment require to be balanced with the needs of the community at large and the needs of a developing country. If one finds, as in this case, that all possible environmental safe-guards have been taken, the check and control by way of judicial review should then come to an end. Once an elaborate and extensive exercise by all concerned including the invironmentalists, the State and the Central authorities and expert-bodies is undertaken and effected and its end result judicially considered and reviewed, the matter thereafter should in all fairness stand concluded. Endless arguments, endless reviews and endless litigation in a matter such as this, can carry one to no end and may as well turn counter productive. While public interest litigation is a welcome development, there are nevertheless limits beyond which it may as well cease to be in public interest any further.

18. We hope the controvercy will at least now be set at rest and the erstwhile spirit of confrontation replaced by a spirit of cooperation in the larger interests of the community. Qua a project such as this, if steps are not taken well in time, this metropolis and its over twelve million inhabitants by now, will in the near future find themselves be set with serious energy crisis, perforce compelling this vast population to live without adequate power and energy which, in this age and times, has become basic for a minimum standard of life and living. It is, in our considered view, in nobody's interest to inordinately delay this project of immense benefit. As it is, it has stood delayed inter alia as a result of this litigation. Any further delay would result in speedily rising costs as also loss of valuable time. The cost escalation itself would run into crores every year.

We may not be hoping against hope in expecting the environmentalists as good citizens to appreciate the over-all position and accept this as final curtain on this litigation by way of this judgment.

19. In all the circumstances these petitions fail and the same are dismissed but, in the circumstances, with no order as to costs.

Petitions dismissed.