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IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 31.10.2008
CORAM
THE HONOURABLE MR.A.K.GANGULY, CHIEF JUSTICE
AND
THE HONOURABLE MR.JUSTICE F.M.IBRAHIM KALIFULLA
W.P.No.21791 of 2008
and
M.P.Nos.1 & 2 of 2008
M.Nizamudeen ... Petitioner
-vs-
1. M/s. Chemplast Sanmar Limited,
Having its registered office at
No.9, Cathedral Road, Chennai,
Rep. by its General Manager (Legal),
Mr.T.Ravichandran.
2. State of Tamilnadu,
Rep. by its Secretary,
Public Works Department,
Fort St. George, Chennai 600 009.
3. The Executive Engineer,
Public Works Department,
Vellar Basin Division WRO,
Vridhachalam 606 001.
4. Tamil Nadu Pollution Control Board,
Rep. by its Member-Secretary,
Guindy, Chennai 600 032.
5. Union of India,
Rep. by its Secretary,
Ministry of Environment and Forests,
Paryavaran Bhavan, New Delhi. ... Respondents
Petition under Article 226 of The Constitution of India, praying for the issue of a Writ of Certiorarified Mandamus, calling for the records of proceedings of the third respondent in letter No.D3/JDO.2/F.46/2008 dated 27.02.2008, quash the same and consequently direct the first respondent to forbear from laying of pipeline for drawing VCM raw material from the Jetty to their plant in Semmankuppam village, Cuddalore District.
For Petitioner :: Mr.R.Thiagarajan
Senior Counsel for
Mr.V.Vijay Shankar
For Respondent 1 :: Mr.Vijay Narayan
Senior Counsel for
Mr.P.Vasudevan
For Respondents 2 & 3 :: Mr.Raja Kalifulla
Government Pleader
For Respondent 4 :: Mr.R.Ramanlal
Standing Counsel for TNPCB
For Respondent 5 :: Mr.P.Chandrasekaran
SCGSC.
- - - -
O R D E R
F.M.IBRAHIM KALIFULLA, J.
This is a public interest litigation and the petitioner seeks to challenge the proceedings of the third respondent in letter No.D3/JDO.2/F.46/2008, Dated 27.02.2008. While seeking to set aside the said proceedings, the petitioner also seeks to forbear the first respondent from laying any pipeline for drawing the raw material Vinyl Chloride Monomer (VCM) from the Jetty located at Tiyagavalli village to their plant in Semmankuppam village, Cuddalore district.
2. The petitioner claims himself to be the Executive Secretary of a body called Cuddalore District Consumer Protection Organization stated to have been registered under the provisions of the Tamil Nadu Societies Registration Act, 1975.
3. The brief facts which are required to be stated are that the first respondent is a company which has planned to set up a project for manufacturing Poly Vinyl Chloride (PVC) in Semmankuppam Village in Cuddalore District. One of the essential raw material for the manufacture of PVC is stated to be Vinyl Chloride Monomer (VCM) which according to the first responded is not available indigenously. The first respondent is stated to have therefore planned to import the said raw material for its use at Cuddalore plant. According to the first respondent by virtue of its nature, the raw material VCM should be stored at minus 30 degree Celsius in a liquid state, that therefore the first respondent proposed to set up a Marine Terminal Facility (MTF) along the sea coast near Cuddalore by constructing an island jetty, that after offloading the same from the ship, through an under sea pipeline, pump the same to a landfall point and that thereafter to transfer the same from the landfall point to the PVC plant through an underground pipeline at a depth of 3.5 mtrs, housed in a concrete chamber. The plant is stated to be located 2.5 km away from the said point. As per its working schedule the pipeline is to cross the Uppanar creek and the project envisaged the laying of pipeline at a depth of 3.5 metres below the river bed.
4. The first respondent is stated to have submitted its application for environment clearance to the Ministry of Environment and Forests (for short MoEF) to carryout the pipeline project as well as the MTF. The said application was stated to have been filed on 14.11.2005. The first respondent is stated to have got the necessary clearance from the District Coastal Zone Management Authority as well as the State Coastal Zone Management Authority. It is also stated that as directed by the MoEF, the first respondent also submitted a map showing the Low Tide Line (LTL), High Tide Line (HTL), the Coastal Regulation Zone Area (CRZ) abutting the sea as well as the Uppanar Creek. The said map was stated to have been prepared by National Institute of Oceanography and approved by the scientists of the National Institute of Oceanography. The said Institute is stated to be one of the approved authorized agencies of the MoEF. Based on the first respondent's application, MoEF granted its approval and permission for pipeline project as well as the MTF in their proceedings dated 19.12.2005.
5. Based on the said clearance granted by the MoEF, the Tamil Nadu Pollution Control Board (for short TNPCB) also granted its consent on 14.09.2006, under the Air & Water Acts for the PVC Plant, as well as MTF and the pipeline project of the first respondent. As the laying of the pipeline had to be made underneath the river which belonged to the State Government, the first respondent is stated to have filed an application dated 06.02.2008, to the third respondent which also granted its approval vide letter dated 27.02.2008. The said order of the third respondent dated 27.02.2008, is under challenge in this writ petition.
6. Mr.R.Thiagarajan, learned senior counsel appearing for the petitioner while assailing the impugned order of the third respondent dated 27.02.2008, submitted that whatever clearance granted by the MoEF or other Authorities were all relating to the setting up of the MTF viz., establishment of an Island Jetty of the coast near Cuddalore and the same cannot be taken to mean that the first respondent was permitted to lay the pipeline underneath the Uppanar Creek which falls within the CRZ area. The learned senior counsel in his submissions took pains to point out that going by the Coastal Regulation Zone Notification dated 19.02.1991, as amended upto 25.01.2005, handling of hazardous substance such as the present one viz., VCM was prohibited within the CRZ area except transfer of the said substance from the ship to a point in the ports area, terminals and refineries and vice versa in the port area. According to the learned senior counsel, the ultimate clearance stated to have been granted by the MoEF dated 19.12.2005, cannot be taken to have covered the laying of the pipeline underneath the Uppanar river which also falls within the CRZ area. The learned senior counsel also contended that the impugned order does not refer to any valid clearance granted in favour of the first respondent for laying the pipeline underneath the river falling within Survey Nos. 132, 133 and 134 within which Survey numbers the CRZ along side the Uppanar Creek falls. The learned senior counsel therefore contended that what is prohibited under the Notification dated 19.02.1991, issued under the provisions of the Environment Protection Act, 1986 could not have been granted under the impugned order dated 27.02.2008.
7. The sum and substance of the contention of the learned senior counsel for the petitioner was that neither the first respondent's application nor the consideration made by various authorities including the MoEF while granting clearance in their order dated 19.12.2005, laying of pipeline in the CRZ area beyond 500 meters of the High Tide Line of the Cuddalore coast was contemplated and therefore the clearance stated to have been granted by the MoEF cannot be taken to have permitted the first respondent to lay the pipeline within CRZ area along side the Uppanar Creek falling under Survey Nos.132, 133 and 134. The learned senior counsel therefore contended that by taking advantage of the impugned order dated 27.02.2008, such a prohibited act under the Statutory Notification dated 19.02.1991, cannot be permitted to be made by the first respondent and therefore the impugned order is liable to be set aside.
8. As against the above submissions, Mr.Vijay Narayan, learned senior counsel appearing for the first respondent took us through the applications of the first respondent dated 11.06.2005 and 29.07.2005 and the enclosures submitted along with it including the topography of the proposed area and contended that the said detailed applications of the petitioner was considered by a High Level Committee called Expert Committee for Environment Impact Assessment, which consisted of as many as 11 members with a Chairman as its head and that all of whom had held pivotal positions in different State and Central Government organizations of vital importance. The learned senior counsel contended that such a High Level Committee examined the proposal submitted by the first respondent and based on whose recommendation the MoEF came forward to grant the clearance in its proceedings dated 19.12.2005. The learned Senior Counsel further contended that when such an expert body applied its mind by following the procedure prescribed at the time of constitution of the said Committee as well as the relevant Notification issued under the Environment Protection Act, 1986 dated 19.02.1991, as well as the Environment Impact Assessment Notification dated 27.01.1994, the petitioner cannot be permitted to indirectly challenge the said proceedings by seeking to quash the impugned order dated 27.02.2008.
9. According to the learned Senior Counsel when once the recommendation was made by an Expert Committee and the clearance is granted by the MoEF, such a proceedings can only be challenged by way of an Appeal as provided under Section 11 of the National Environment Appellate Authority Act, 1997 and that too within the stipulated time limit. The learned senior counsel would therefore contend that if the petitioner's challenge is countenanced by setting aside the impugned order dated 21.02.2008, of the third respondent, the same would virtually amount to nullifying a valid order granted by MoEF under the provision of the Environment Protection Act, 1986 which has become final and conclusive. The learned senior counsel also pointed out that the contention of the petitioner that the first respondent's application for laying the pipeline was only within 500 meters from the HTL of the Cuddalore coast was wholly misconceived. The learned senior counsel also pointed out that the first respondent's applications dated 11.06.2005 & 29.07.2005 and the enclosures would amply demonstrate that its applications were for the entire stretch of 2,500 meters from the HTL up to the terminating point of its PVC plant at Semmankuppam village which was duly considered by the concerned authorities while granting the clearance dated 19.12.2005.
10. As far as the contentions based on the Notification dated 19.02.1991, to the effect that it prohibits the handling of hazardous substance within the CRZ area, the learned senior counsel pointed out that such a contention cannot be accepted in as much as the prohibition imposed was restricted to 100 meters distance on both sides of the river from the point of estuary and not in its entirety along side the river which would be governed by paragraph 3 of the said Notification which provides for regulation of permissible activities. The learned senior counsel pointed out that in paragraph 3(2) of the said Notification laying of pipeline could be permitted by imposing necessary restrictions and that by proceedings dated 19.12.2005, the MoEF while granting clearance imposed necessary restrictions which would safeguard the interest of the public at large. The learned senior counsel therefore contended that the challenge made by the petitioner to the impugned order of the third respondent dated 27.02.2008, cannot be accepted.
11. Mr.P.Chandrasekar, learned Senior Central Government Standing Counsel appearing for the 5th respondent by referring to the counter affidavit filed by MoEF pointed out that the first respondent submitted the map demarcating HTL / LTL prepared by a recognized agency of the MoEF and that the Notification dated 19.02.1991 as amended up to 25.01.2005 empowered the MoEF to grant necessary clearance for laying the pipeline in so far as it relates to the Uppanar creek and that it did not fall within the prohibited area and therefore when the said clearance granted by the MoEF dated 19.12.2005 remains in force, the challenge made to the impugned order of the third respondent dated 27.02.2008, cannot be granted. The learned SCGSC placed before us the communication of the 5th respondent dated 29.12.1999, by which the National Institute of Oceanography was included as one of the authorized agencies of the Central Government for demarcating HTL / LTL alongside the CRZ, and contended that the first respondent's application consisted of a map prepared by the said agency and that when the Expert Committee having acted upon the said map while considering the various particulars furnished by the first respondent in their application, it is too late in the day for the petitioner to question the same by seeking to challenge the impugned order of the third respondent dated 27.02.2008.
12. Mr.Ramanlal, learned standing counsel for the Tamil Nadu Pollution Control Board (TNPCB) in his submissions stated that the clearance certificate granted by the 5th respondent in its order dated 19.12.2005, contained Annexure-1 which imposed certain special conditions which included condition Nos.11,13 and 14 and that those conditions have to be strictly adhered to by the first respondent while laying the pipeline and continue to follow the same after its set up and that the same would sufficiently safeguard the interests of the public at large.
13. The learned standing counsel contended that in the letter dated 19.05.2005, of the Secretary to Government of the Environment and Forest Department of the State of Tamil Nadu addressed to the 5th respondent while expressing no objection for granting clearance pointed out the changes which were directed to be made by the first respondent in the original proposal and that such conditions imposed by the TNPCB while expressing its no objection was considered by the Expert Committee pursuant to whose recommendation the ultimate clearance came to be granted by MoES dated 19.12.2005. The learned standing counsel therefore contended that every strenuous effort was taken by various authorities before the clearance was granted by the proceedings dated 19.12.2005 and therefore the present attempt of the petitioner in seeking to challenge the impugned order of the third respondent dated 27.02.2008, is only a vain attempt to challenge the clearance itself granted by the MoEF in its proceedings dated 19.12.2005 which cannot be allowed.
14. Having bestowed our serious consideration to the various submissions of the respective parties, we are not persuaded to accede to the contentions made on behalf of the petitioner. At the outset, it will have to be stated that the petitioner having failed to challenge the proceedings dated 19.12.2005, of the Ministry of Environment and Forest in having granted the clearance to the first respondent for laying the pipeline to an extent of 2,500 meters from the High Tide Level of the Cuddalore coast between Tiyagavalli village and Semmankuppam village, the petitioner cannot be permitted to make a collateral challenge to the said proceedings by seeking to challenge the impugned order of the third respondent dated 27.02.2008. As rightly contended by the learned counsel for the respondents 1,4 and 5, the impugned order of the third respondent dated 27.02.2008, is nothing but a mere permission to carry out the work of laying of pipelines underneath the river bed of Uppanar river in the light of the clearance granted by the 5th respondent in its proceedings dated 19.12.2005. The third respondent was not the Appellant Authority to consider the laying of the pipelines either in the HTL or LTL or within the CRZ area. The competent Authority is the Ministry of Environment and Forest under the provisions of the Environment Protection Act, 1986 and the Notification issued therein dated 19.02.1991 as amended upto 25.01.2005.
15. As pointed out by the learned Senior Counsel for the first respondent, in the case on hand, the said Authority viz., the 5th respondent granted the clearance as early as on 19.12.2005, to the first respondent permitting the first respondent to lay the pipeline to an extent of 2,500 meters between its island jetty and its PVC plant located in between Tiyagavalli village and Semmankuppam village. Under Section 11 of the National Environment Appellate Authority Act, 1997, if any person is aggrieved by the order granting environment clearance, such appeal should be filed within 30 days from the date of such order before the Appellate Authority which is constituted under Section 3 of the said Act. Sub-Section (1) of Section 11 provides for entertaining an Appeal after 30 days but within 90 days thereafter, if such appeal was not filed due to sufficient cause. Having regard to such specific provision providing for extension of time beyond the initial period of 30 days and the petitioner having admittedly not challenged the proceedings dated 19.12.2005, within the statutory time limit, it will have to be held that the petitioner cannot be permitted to canvass very many contentions which were virtually directed against the clearance order dated 19.12.2005. In other words in the guise of challenging the impugned permission granted by the 3rd respondent dated 27.02.2008, the petitioner was only attempting to attack the correctness of the clearance granted by the 5th respondent in its order dated 19.12.2005. If such a contention of the petitioner is countenanced, the same would amount to permitting the petitioner to challenge the order of the 5th respondent dated 19.12.2005, in this writ petition de hors the fact that such challenge could have been validly made only before the appropriate statutory Appellate Authority specifically constituted under the provisions of the National Environment Appellate Authority Act, 1997 and that too within the time limit prescribed under the said period. It will have to be noted that the constitution of such an Authority under Section 3 read along with Section 5 of the said Act, would consist of a Judge of the Supreme Court of India or Chief Justice of the High Court as Chairperson, the appointment of a person as Vice-Chairperson who held the post of Secretary to the Government of India or any other post under the Central or State Government carrying a scale of pay which is not less than that of a Secretary to the Government of India, apart from such persons having expertise or experience in administrative, legal, managerial or technical aspects of problems relating to environment. That apart the members to be appointed to the Appellate Board should be of persons who have professional knowledge or practical experience in the areas pertaining to conservation, environmental management, law or planning and development. All of whom are appointed by the President of India. When such an Appellate Board consisting of personalities of high caliber, alone can deal with any appeal preferred as against any order passed by the 5th respondent, the petitioner having failed to challenge the clearance order dated 19.12.2005, before the appropriate Appellate Forum, cannot be permitted to indirectly challenge the same in this writ petition by interfering with the impugned order of the third respondent dated 27.02.2008. Therefore, on this sole ground the present challenge made by the petitioner to the impugned order of the third respondent dated 27.02.2008, is liable to be set aside.
16. We also do not find any merit in the other contentions of the petitioner based on the Notification dated 19.02.1991, as amended upto 25.01.2005. In fact on a reading of the said Notification, we are convinced that the application of the first respondent falls under paragraph 3 of the Notification dated 19.02.1991, which provides for regulations of permissible activities. In paragraph 3(2)(ii), it is provided that operational constructions for ports and harbours and light houses and constructions for activities such as Jetties, wharves, quays and slipways, pipelines, conveying systems including transmission lines can be regulated by the MoEF. Of the various activities which can be regulated by the MoEf laying of pipelines is one such activity.
17. The opening words in paragraph 3 of the Notification states that all other activities except those prohibited under paragraph 2 of the Notification will be regulated as specified in the sub-paragraphs. When the proceedings of the MoEF dated 19.12.2005, is examined we find that based on the recommendations of the High Level Committee, the MoEF after a detailed consideration passed its order to the effect that environment clearance was accorded to the project of the first respondent with specific conditions and general conditions. Specific conditions have been set out in paragraph captioned A while the general conditions have been mentioned in paragraph captioned B. Ultimately it was held in the said order that those conditions would be enforced apart from the provisions contained in the Water (Prevention and Control of Pollution) Act, 1974, the Air (Prevention and Control of Pollution) Act, 1981, the Environment (Protection) Act, 1986, the Hazardous Chemicals (Manufacture, Storage and Import) Rules, 1989, the Coastal Regulation Zone Notification, 1991 along with its subsequent amendments and the Public Liability Insurance Act, 1991 as well as the Rules made thereunder from time to time. The first respondent was also directed to ensure that the proposals comply with the provisions of the approved Coastal Zone Management Plan of Tamil Nadu and the Supreme Court's order dated 18.04.1996 in Writ Petition No.664 of 1992 to the extent the same are applicable to the proposal.
18. A perusal of the conditions both specific and general discloses that every cautious step should be taken by the first respondent to ensure that in the course of transfer of the raw material viz., VCM through the pipeline no untoward incident should take place. In fact the observance of the specific conditions and the general conditions would involve the authorities of Pollution Control Board, Public Works Department, Electricity Board, Controller of Explosives, Chief Inspector of Factories, the authorities of the CRZ as well as the MoEF to have a close watch on the first respondent both at the time of the laying of the pipelines as well as its subsequent operation after its completion. In the earlier part of the order a detailed reference has been made to the claim of the first respondent made in its project involving the setting up of PVC manufacturing plant at SIPCOT Phase-II, near Semmankuppam village, Cuddalore district, the location of the island jetty and the Marine Terminal Facility (MTF) for receiving and transferring VCM from the ships to the PVC plant.
19. The 5th respondent also took note of the extension of the Cuddalore port limits to include the project area as per G.O.Ms.No.73, dated 25.04.2000. Moreover, the 5th respondent was conscious of the fact that the MTF proposed by the first respondent would be located in the offshore of Chittrapetti village with the landfall point at Chittrapetti which is 2,500 meters from the PVC plant and that the total length of the pipelines onshore would be 3,500 meters. It was also fully conscious of the fact that offshore and onshore pipelines would be laid in a covered RCC trench and would be protected. Though Mr.R.Thiagarajan, learned senior counsel appearing for the petitioner attempted to contend that the lying of pipeline will fall under Part-II of the Notification dated 19.02.1991, having considered the said Part and the items specified in Part-III, the MoEF was vested with the Authority to grant permission by regulating such activities which include the laying of pipeline. We are not persuaded to agree with the contention of the learned senior counsel.
20. Mr.R.Thiagarajan learned senior counsel strenuously contended that the first respondent never approached for clearance beyond 500 meters of HTL and therefore its present attempt to lay the pipeline underneath the Uppanar river was not duly covered by the proceedings dated 19.12.2005. Such a contention of the learned senior counsel cannot be accepted for more than one reason.
21. In this context when we refer to the applications of the first respondent seeking environmental clearance dated 11.06.2005 and 29.07.2005, we find that along with the said applications six plus three documents respectively were enclosed viz.,
1.Environmental Impact Assessment Report for the Plant
2. Addendum to EIA report
3. Risk Assessment report for the Plant
4. Environmental Impact Assessment report for the Marine Terminal facility
5. Risk Assessment report for the Marine Terminal facility
6. Effluent Dispersal Study.
Reports submitted along with application dated 29.07.2005:
1. Revalidation of Ambient Air Quality Data
2. Details on Effluent Treatment
3. Risk Assessment due to Tsunami While setting out various documents relating to the project, the map in the form of topography of the proposed area was also enclosed. In the enclosures a table of contents is found which disclose the existence of water bodies viz., Uppannar and Perumal eri. It also discloses the laying of pipelines in onshore and offshore in Chapters 3.6 and 7.3. In the detailed description of Chapter 3.6, the proposed pipe line system from the jetty to the PVC plant has been set out in detail which included the total length of the pipe line to the extent of 3,500 meters. Again in paragraph 3.6.2.2 and 3.6.2.3 a detailed description about the nature of the construction and erection of the onshore and offshore pipe line has been set out with the cross section of the chamber within which the pipeline would be located and the pipeline themselves. Along with the said descriptive part of Chapter 3, three maps disclosing the total area where the pipe line would be laid has been shown in a descriptive manner.
22. In fact the applications of the first respondent dated 11.06.2005 and 29.07.2005 along with the enclosures runs to 407 pages and a perusal of the details furnished therein disclose the need for the first respondent to import VCM due to the non availability of the raw material indigenously, the various study made on environmental and social impact assessment taking into account the planning of the first respondent to transport the imported raw material through the pipeline to an extent of 2 = kilometers from the jetty to the PVC plant. The first respondent has also specifically referred to the various Notifications issued under the provisions of the Environmental Protection Act, 1986, the Air Act, the Water Act, the clearance to be accorded by various State and Central Authorities, the consideration of alternatives etc., That apart while describing the layout of the project in detail, the nature of the raw material viz., the concerned chemical, its character and the expected consequential effect that is likely to be caused in the event of any mishap taking place by way of risk assessment as well as inbuilt safeguards in the nature of project plan have also been set out.
23. It also contains the list of organizations who were consulted during the study made while preferring the application for environmental clearance. As many as 9 Departments and the High Level officials of the said Departments were stated to have been consulted by the first respondent. The various Notifications concerning the environmental clearance viz., the one dated 27.01.1994 and 19.02.1991 were also placed along with the application. That apart the report submitted by the Center of Advanced Study in Marine Biology, of Annamalai University with various specific descriptions as regards the Cuddalore Coastal Region including the Uppanar estuary was also enclosed. A perusal of the said reports discloses the pain staking efforts made by the University Authorities in setting out the aquatic effect in the said coastal region inclusive of the ambient area quantitative data generated by different industries that were existing as well as the proposed industries. It also gives detail particulars about the water quantitative data generated by one another industry viz., EID Parry Limited both in the pre-monsoon and post-monsoon period. The petitioner also enclosed the Risk Analysis Report prepared by L & T-Ramboll Consulting Engineers Limited, Chennai which consists of enclosures with detailed description of the proposed project and its consequential effects. The said report again contains the details about the extent of the pipeline to be laid with detailed description about the nature of construction to be made for the purpose of laying the pipe line. That report again made a detailed reference to the hazardous identification and the potential of the raw material and other particulars as regards the project. The safety system proposed while implementing the project have also been set out in detail. After consideration of the said proposal made by the first respondent, the 5th respondent by its letter dated 28.11.2005, accorded its environment clearance for the setting up of the PVC plant at Cuddalore under the provisions of EIA Notification dated 21.07.1994 subject to compliance of specific conditions in para 3(A) and general conditions in para 3(B). Similarly it issued the environment clearance in proceedings dated 19.12.2005, for construction of revetment for the setting up of a Marine Terminal at Chitrapettai Village, which includes laying of pipeline to an extent of 2,500 meters from the PVC plant. Here again the 5th respondent imposed specific conditions in paragraph A and general conditions in paragraph B for compliance.
24. In the communication dated 29.12.1999, the 5th respondent has permitted the coastal State Governments and the Union Territory Administrations to take up demarcation of High Tide Line (HTL) and Low Tide Line (LTL) along their Coastal Regulation Zone by using the general guidelines with the assistance of any one of the seven authorised agencies. The National Institute of Oceanography is one such approved agencies. The sketch submitted by the first respondent along with his application was prepared, checked and approved by the scientists of the said agency.
25. Thus consideration of the above materials discloses that a detailed exercise was carried out by the first respondent in preparing and placing the project report before the 5th respondent for its clearance under the provisions of the Environment Protection Act, 1986 and that the officials of the 5th respondent which included High Level Body called Expert Committee for Environment Impact Assessment and Infrastructure Development and Miscellaneous Project held a meticulous analysis before granting the clearance to the project in the proceedings dated 28.11.2005, for the PVC plant and 19.12.2005, for the erection and laying of pipeline project. The 5th respondent also placed before us the minutes of the 35th meeting of the Re-Constituted Expert Committee for Infrastructure Development and Miscellaneous Projects held on 29.11.2005, which discloses the consideration of the first respondent's project in paragraph 3.8. A reading of the said minutes discloses that the High Level Committee was conscious of the fact that the length of the onshore pipeline to an extent of 2500 mts. which will get terminated at the storage tank which is to be located inside the plant premises which is 2.5 km away from the sea. The Committee made note of the fact that the installation of the offshore and Coastal Regulation Zone area would be to an extent of 2500 mts of which 500 mts would be onshore. In page 15 of the said Minutes the Committee has noted the demarcation made by the National Institute of Oceanography, one of the authorised agencies and the No Objection Certificate granted by the 4th respondent which was approved by the State Coastal Zone Management Authority and Environment Department. The Committee recommended for the clearance of the project subject to the following conditions:-
"(i) All conditions stipulated by the Tamil Nadu State Environment Department should be strictly implemented.
(ii) The details pertaining to the sludge disposal obtained from the desalination plant may be provided.
(iii) Details pertaining to the model studies carried out for discharge of the brine from the desalination plant including the time taken for mixing may be provided.
(iv) The chemical characteristics of the sediments taken in the marine and Coastal Regulation Zone area may be provided.
(v) The project authority may increase the depth of laying of underground and sub-marine pipelines taking into account the relevant International codes and practices.
(vi) Point wise clarifications / action plan on the issues raised in the public hearing (for the main project)."
26. Therefore, we are convinced that every strenuous effort has been taken by the respondents 2 to 5 while considering the first respondent's application for environment clearance and after taking note of the nature of the project to be implemented in the Coastal Regulation Zone area and after being satisfied about the manner in which the project is to be implemented, thought it fit to grant its clearance by imposing very many restrictions in the interest of the public at large. Such a step taken by the 5th respondent while granting the clearance in the proceedings dated 19.12.2005, cannot be interfered with just for mere asking of the petitioner by setting aside the impugned order of the third respondent dated 27.02.2008, which is nothing but a simple permission granted by the PWD of the State Government for laying the pipeline underneath the Uppanar river which is part of the project of the first respondent which has got the necessary statutory sanction under the provisions of the Environment Protection Act, 1986.
27. While considering such challenge made in a Public Interest Litigation, we wish to be guided by the principles set out by the Hon'ble Supreme Court in various decisions reported in 1996 (5) SCC 647 (Vellore Citizens' Welfare Forum Vs. Union of India and others, AIR 2001 SC 3215 (Hinch Lal Tiwari Vs. Kamala Devi), 2006 3 SCC 549 (Intellectuals Forum, Tirupathi Vs. State of A.P. and Others), (1991) 2 SCC 539 (Dahanu Taluka Environment Protection Group Vs. Bombay Suburban Electricity Supply Co. Ltd.), 2006 (6) SCC 543 (Susetha Vs. State of Tamil Nadu and others), 2006 (3) SCC 434 (Bombay Dyeing & Mfg. Co. Ltd. (3) Vs. Bombay Environmental Action Group) and 2008 (2) SCC 222 (T.N.Godavarman Thirumulpad (104) Vs. Union of India and Ors.).
28. Of the above decisions, in the decision reported in 2006 (6) SCC 543 (Susetha Vs. State of Tamil Nadu and others), the Hon'ble Supreme Court has explained the doctrine of 'Sustained Development' as under in paragraphs 20, 21 and 22 "20. This Court have not, in the aforesaid decisions, laid down a law that alienation of the property held as a public trust is necessarily prohibited. What was emphasized was a higher degree of judicial scrutiny. The doctrine of sustainable development although is not an empty slogan, it is required to be implemented taking a pragmatic view and not on ipse dixit of the court.
21. In Bombay Dyeing & Mfg. Co. Ltd., (3) Vs. Bombay Environmental Action Group and Others [(2006) 3 SCC 434], referring to a large number of decisions, it was stated that whereas need to protect the environment is a priority, it is also necessary to promote development stating:
"...The harmonization of the two needs has led to the concept of sustainable development, so much as that it has become the most significant and focal point of environmental legislation and judicial decisions relating to the same. Sustainable development, simply put, is a process in which development can be sustained over generations. Brundtland Report defines sustainable development' as development that meets the needs of the present generations without compromising the ability of the future generations to meet their own needs. Making the concept of sustainable development operational for public policies raises important challenges that involve complex synergies and trade offs."
22. Treating the principle of sustainable development as a fundamental concept of Indian Law, it was opined :
"The development of the doctrine of sustainable development indeed is a welcome feature but while emphasizing the need of ecological impact, a delicate balance between it and the necessity for development must be struck. Whereas it is not possible to ignore intergenerational interest, it is also not possible to ignore the dire need which the society urgently requires."
29. Recently this Bench dealt with a Public Interest Litigation relating to a water body in Villupuram District, where, we had occasion to consider the environment protection to be ensured in such cases. After detailed reference to the above referred to decisions of the Hon'ble Supreme Court we have culled out the principles while dealing with the issue relating to environment protection which is set out in paragraph 36 of our judgment reported in 2008-4-L.W.220 (K.Balamurugan and 7 others Vs. The State of Tamil Nadu). Applying the principles set out in the decisions of the Hon'ble Supreme Court and followed by this Court in the above decision to the facts of the case on hand in particular principle (v), we are of the considered opinion that having regard to the detailed exercise carried out by the 5th respondent while issuing environmental clearance vide letter dated 19.12.2005, it would not be in public interest to interfere with the said proceedings by entertaining the challenge made by the petitioner to the impugned order dated 27.02.2008. We are convinced that in the case on hand the doctrine of 'Sustained Development' is overwhelmingly present in favour of the first respondent and therefore none of the contentions raised on behalf of the petitioner seeking to challenge the impugned order of the third respondent merits acceptance.
30. In any event, in our considered view the petitioner who failed to workout his remedies as against the proceedings of the 5th respondent dated 19.12.2005, in granting environment clearance before the appropriate statutory Appellate Authority within the specified time limit cannot be permitted to collaterally challenge the said proceedings by seeking to challenge the impugned order of the third respondent dated 27.02.2008. Looked at from any angle, we do not find any merit in the writ petition and the writ petition fails and the same is dismissed. Consequently the connected miscellaneous petitions are closed. No costs.
Index : Yes (A.K.G.,C.J.) (F.M.I.K.,J.)
Internet : Yes 31.10.2008
kk
To
1. The Secretary to Government,
Public Works Department,
Fort St. George, Chennai 600 009.
3. The Executive Engineer,
Public Works Department,
Vellar Basin Division WRO,
Vridhachalam 606 001.
4. The Member Secretary,
Tamil Nadu Pollution Control Board,
Guindy, Chennai 600 032.
5. The Secretary to Government,
Ministry of Environment and Forests,
Paryavaran Bhavan, New Delhi.
THE HON'BLE THE CHIEF JUSTICE
AND
F.M.IBRAHIM KALIFULLA, J.
kk
Pre-delivery Order in
W.P.No.21791 of 2008
and
M.P.Nos.1 & 2 of 2008
31.10.2008