National Green Tribunal
Meenava Thathai K.R. Selvaraj Kumar ... vs The Secretary To Government Union Of ... on 30 September, 2020
Author: K. Ramakrishnan
Bench: K. Ramakrishnan
Item No.1:
BEFORE THE NATIONAL GREEN TRIBUNAL
SOUTHERN ZONE, CHENNAI
Appeal No. 62 of 2017 (SZ)
(Through Video Conference)
IN THE MATTER OF:
MEENAVA THANTHAI K.R. SELVARAJ KUMAR
MEENAVAR NALA SANGAM,
Represented by its President,
M.R. Thiyagarajan, S/o. Late C. Rajalingam,
Office at No.15/8, A.J. Colony,
Royapuram, Chennai-600 013.
... Appellant(s)
Versus
1. The Secretary to Government,
Union of India,
Ministry of Environment and Forests & Climate Change,
Paryavaran Bhavan,
6th Floor CGO Complex, Lodhi Road,
New Delhi- 110 003.
2. The Director, (IA- III Section)
Ministry of Environment and Forest,
Paryavaran Bhavan,
CGO Complex, Lodhi Road,
New Delhi- 110 003.
3. The Member Secretary,
Tamil Nadu Pollution Control Board,
No.76, Anna Salai,
Guindy, Chennai-600 032.
4. The Member Secretary,
Tamil Nadu Coastal Zone Management Authority,
Panagal Building, Saidapet,
Chennai-600 015.
[1]
5. The Chairman,
Chennai Metropolitan Development Authority (CMDA),
Thalamuthu Natarajan Building,
Egmore, Chennai-600 008.
6. M/s. KTV Oil Mills Private Limited,
Representing by its Managing Director,
Having its Principal Office at
No.18/19, New Ennore Express High Road,
Thiruvottriyur, Chennai-600 019.
...Respondent(s)
For Appellant(s): Sri. Ritwick Dutta along with Sri. G. Stanley Hebzon Singh & Sri. Mageswaran.
For Respondent(s): Sri. G.M. Syed Nurullah Sheriff for R1& R2.
Sri. C. Kasirajan & M/s. Meena for R3.
Sri. S. Kamalesh Kannan for R4.
Sri. R. Saravana Kumar for R6.
Judgment Reserved on: 30th July, 2020.
Judgment pronounced on: 30th September, 2020. CORAM:
HON'BLE MR. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER HON'BLE MR. SAIBAL DASGUPTA, EXPERT MEMBER Whether the Judgement is allowed to be published on the Internet - Yes/No Whether the Judgement is to be published in the All India NGT Reporter - Yes/No [2] REVISED JUDGMENT Delivered by Justice K. Ramakrishnan, Judicial Member.
1. The above appeal has been filed against the grant of Coastal Regulation Zone Clearance to the sixth respondent by the first respondent for their project as per proceeding F.No.11-
4/2017-IA-III, dated 12.07.2017.
2. It is alleged in the appeal memorandum that the appellant association is working for the protection of interest of fisher men community against the environmental issues affecting the coastal zone.
3. Sixth respondent, M/s.KTV Oil Mills Private Limited had constructed seven tanks for storing edible oil at No.18/19, New Ennore Express, High Road, Thiruvottiyur, Chennai.
4. Sixth respondent had laid pipeline from Chennai Port to its storage terminal without obtaining CRZ Clearance from the first respondent/Ministry of Environment, Forest & Climate Change (MoEF&CC). Under such circumstances, the appellant filed Original Application No.239 of 2016 and Original Application No.238 of 2016 challenging the activities of the sixth respondent and its sister concern respectively. [3]
5. An Advocate Commissioner was appointed in those cases and he had submitted the report mentioning the physical structure found in the area which is extracted as follows:-
"The total land area of the said premises is stated to be about 80,000 Sq.Ft. The front half portion i.e. the eastern portion is lying vacant wherein several unlaid pipes, iron roads, tin sheets, 4 numbers of sediment extract devices are stored in the open yard. Both the portions are separated by an inner wall with an entrance on the northern side. On the western portion, there are six oil storage tanks which have been erected already and one storage tank that is under the process of erection. The capacities of the tanks are as follows: (1) 2800.00 MT (2) 5700.000 MT (3) 5700.000 (4) under construction (5) 4600.000 MT (6) 4600.000 MT (7) 3600.000 MT. This apart, another basement has also been constructed wherein one more tank can be erected."
6. Thereafter, sixth respondent appeared and filed certain documents showing that they obtained necessary „No Objection Certificate‟ (NOC) from the National Highway Authority, India. This Tribunal after hearing both sides, disposed of the matter directing the authorities to pass appropriate order based on the recommendations made by the Expert Appraisal Committee (EAC) in the manner known to law and till CRZ Clearance was obtained, the sixth respondent herein was directed to not carry out any activities. [4]
7. It is thereafter, that the 1st respondent had issued the impugned CRZ Clearance dated 12.07.2017 for laying pipeline for the transfer of the edible oil from the Chennai Port to the transit storage terminal and for establishment of storage transit terminal at No.18/19, New Ennore Express High Road, Thiruvottiyur, Chennai to the sixth respondent which is under challenge in this appeal
8. According to the appellant, permission was granted to lay pipeline for a total length having 10 Inches from the Port Trust main gate and along New Ennore Express High Road.
9. According to the National Highway Authority, they must provide pipeline of 12 Inches. So according to the appellant, this condition of laying pipeline of 10 Inches imposed by the first respondent was without proper application of mind.
10. Further, the permission granted by the National Highway Authority of India had expired as early as on 10.01.2017 and without considering the same, the present clearance was granted.
11. Further, they also contended that the storage facility is not permissible under Para 8 (II) (iv) of CRZ Notification, 2011 as it falls under the CRZ-II. But, according to the appellant infact it falls in CRZ - I A which is an ecological sensitive area and as such it was issued against the provisions of the CRZ [5] Notification, 2011. It is also contended that it was not done in the notified Port and as such the same is likely to affect the coastal area and it is not a permissible activity other than in notified port as per the Notification.
12. They also contended that the work of laying of pipeline was started by the sixth respondent without getting prior clearance and as such the clearance granted was not in accordance with law as ex-posto clearance was unknown to law.
13. So, the appellant filed an appeal seeking the following reliefs:-
"It is therefore prayed that the Hon‟ble Tribunal may be pleased to set aside the order of the CRZ Clearance F.No.11-4/2017-IA-III dated 12.07.2017 issued by the 1st respondent in favour of 6th respondent and pass such other order or orders as this Hon‟ble may deem fit and proper in the circumstances of the case and thus render justice"
14. First respondent/ Ministry of Environment, Forest & Climate Change (MoEF&CC) submitted that the appeal is not maintainable and the activity for which the clearance was granted is permitted activity under the CRZ-II Zone. Para 3 of the CRZ Notification, 2011 deals with the prohibited activities within the CRZ area. Para 4 of the notification deals with the [6] activities within the regulated area which are permitted but prior clearance is required for laying of pipelines, conveyer system, transmission line and these activities will fall under that category.
15. In CRZ-II, as per Para 8 (II) (iv) of the CRZ Notification, 2011, storage of non-hazardous cargo such as edible oil, fertilizers and food grains in notified ports is permissible. As per the records made available related to the project, the total length of 10 Inches pipeline laid is for 5.2 Km and area of storage is 7,430 Sq.M. and the project area falls in CRZ-II area as per the provisions of the CRZ Notification, 2011.
16. As per order in Original Application No. 239 of 2016 filed by this appellant against the same unit, this Tribunal by order dated 14.02.2017 directed the National Coastal Zone Management Authority (NCZMA) to consider the application filed by the sixth respondent and dispose of the same in accordance with law.
17. This was considered by the Expert Appraisal Committee (CRZ) of this ministry in its 167th Meeting held on 23.02.2017 and on the basis of the recommendations given by the Tamil Nadu Coastal Zone Management Authority (TNCZMA) to consider the same as a fresh proposal, the Expert Appraisal Committee considered the same and recommended the project [7] with certain conditions and it was on that basis, the ministry had granted the CRZ Clearance subject to certain specific and general conditions. There was no illegality committed by the first respondent in granting the CRZ Clearance. So, they prayed for the dismissal of the appeal.
18. Sixth respondent filed counter more or less adopting the contentions of the first respondent. According to them, it is a permitted activity under the CRZ Notification, 2011 and none of grounds alleged are sufficient to set aside the CRZ Clearance granted. Chennai Port is a notified port and as such the contention that it is not a notified port is not tenable. It is further contended by the sixth respondent that they had laid 10 Inches diameter pipeline as provided under the CRZ Clearance, though, National Highway Authority of India gave an approval to lay 12 Inches diameter pipeline.
According to them, it is for the Expert Appraisal Committee to consider the nature of pipeline to be laid taking into account the safety aspect of transmitting the edible oil from the port to the storage terminal. There is no illegality committed by the first respondent in granting the clearance. It is further contended by the sixth respondent that they had purchased the property in auction conducted by the State Bank of India from its previous owner and it is a commercial zone and such [8] activities are permissible in that area. So, they prayed for dismissal of the appeal.
19. Earlier, by Judgment dated 19.02.2020, this Tribunal had dismissed the appeal, after hearing the counsel for both side and considering the respective contentions. Thereafter, the appellant filed Review Application as R.A. No.06 of 2020(SZ) and this Tribunal had allowed the review application and reviewed the Judgment and heard the matter again as this Tribunal felt that it was necessary to examine the scope of Clearance in the Coastal Zone for such activities in view of the provisions contained in the CRZ Notification, 2011 as per order dated 29.05.2020. That is how this happens to be re- opened and posted for re-hearing and taken for Judgment again.
20. Heard Sri. Ritwick Dutta along with Sri. Stanley Hebzon Singh and Sri. Mageswaran, learned counsel appearing for the appellant. Sri. G.M. Syed Nurullah Sheriff, learned counsel for the respondents 1 & 2, Sri. C. Kasirajan & M/s. Meena for 3rd respondent, Sri. Kamalesh Kannan for 4th respondent and Sri. R. Saravana Kumar for 6th respondent.
21. The learned counsel appearing for the appellant argued that the authority was not justified in treating the project as a fresh proposal as recommended by the Tamil Nadu Coastal [9] Zone Management Authority and they have failed to note the fact that the sixth respondent had already started the work of laying the pipeline and establishing the storage terminal without getting prior Coastal Zone Clearance. The learned counsel also argued that further, there is no provision in the CRZ Notification, 2011 for granting ex-post facto clearance and this practice was deprecated by the Hon‟ble Apex Court as well as the Principal Bench of National Green Tribunal, New Delhi in several cases. According to the learned counsel, it is not a permissible activity under the CRZ-II and as per Clause (8), though, it is a permissible activity in CRZ-II Zone but it was specifically mentioned in the Rule that it can be established only "in Notified Port". So, it is site specific restriction and this cannot be diluted by the authority. This aspect has not been considered by the authority at all. So according to the learned counsel for the appellant, the clearance granted is illegal and the same is liable to be set aside as the legislature has got a specific intention while providing certain permissible activities with site specific condition then, that has to be strictly construed and any deviation from the same will have a greater impact on coastal environment. The learned counsel relied on the decisions reported in Indian Council for Enviro Legal Action Vs. [10] Union of India 1996 (5) SCC 281, Vaamika Island (Green Lagoon Resort) Vs. Union of India 2013 (8) SCC 716, Piedade Filomena Gonslaves Vs. State of Goa 2004 (3) SCC 445, S. Jagannathan Vs. Union of India & Ors. 1997(2) SCC 499, Common Cause Vs. Union of India 2017 (9) SCC 499, Alembic Pharmaceuticals Limited Vs. Rohit Prajapati (Civil Appeal No.1526/2016) reported in 2020 SCC Online SC 347, Roger Mathew Vs. South India Bank Limited & Ors. (Civil Appeal No.8588/2019) in support of their case.
22. On the other hand, the learned counsel appearing for the Ministry of Environment, Forest & Climate Change (MoEF&CC) submitted that there was no illegality committed by the ministry in granting the clearance. Further, the ministry had complied with all the formalities and only after getting the necessary recommendations from the Tamil Nadu Coastal Zone Management Authority (TNCZMA) and also considering the recommendations of the Expert Appraisal Committee (EAC) the clearance was granted. Further, it is a permissible activity under CRZ-II Zone as storage of edible oil which is not a hazardous substance is permissible in that zone. Further, it is permitted by the Chennai Port which is a "Notified Port" under the Indian Ports Act and permission was [11] granted by them for the 6th respondent to establish the same. Further, grounds raised in the appeal memorandum are not sufficient to set aside the clearance which was validly granted.
23. The learned counsel appearing for the sixth respondent submitted that the project includes laying of pipeline for transfer of edible oil from Chennai Port to the transit storage terminal and establishment of transit storage terminal at No.18/19 of New Ennore Express High Road, Thiruvottiyur, Chennai. Further, Para 3 of the Coastal Regulation Zone Notification, 2011 prohibits certain activities but there was an exemption for laying down pipeline for carrying hazardous substances including petroleum gas, petroleum oil and ammonia and other articles from the port. Para 8 of the Notification deals with the permitted activities and transport of non-hazardous substances like edible oil and storage of the same is permissible in CRZ-II Zone. Further, the word "in notified port" cannot be said to be area/site specific but it can only be treated as a permissible activity from the notified ports as such activity may not be possible in ports which are not notified under the Indian Ports Act. That is the only difference by which certain restrictions have been made in establishing the oil storage terminal in CRZ Zone in notified ports. If, the word used is "within the notified port" then, the [12] activity should not be extended beyond that area but the legislature was cautious enough in using the word "in the notified port". Further, under Section 35 of the Port Trust Act, the Board of trust has the power to carryout certain activities within and without the port areas which includes providing storage facility of goods. This also shows that the port trust can permit such activities by private individuals which they ought to have provided as part of their obligation in managing the ports. Further, the activity in question which is undertaken by the appellant will not have any impact on the coastal ecology or affect the interest of the fishermen community living in coastal area.
24. Further, applying the principle of "Sustainable Development" and also the purposive interpretation of the notification while interpreting the clauses, it cannot be said to be an illegal act as contended by the counsel for the appellant. Further, the words used in the Notification are not in the form of a mandatory provision and as such it cannot be said to be a violation of the notification. He had relied on the decision report in Marry George Vs. Special Tahsildar & Ors. 2010 (13) SCC 198, Sharifuddin Vs. Abdulganilon AIR 1980 SC 303, M/s. Rubber House Vs. M/s. Excellsior [13] Needle Industries Private Limited AIR 1989 SC 1160 in support of his case.
25. He had further submitted that none of the decisions relied on by the counsel for the appellant are applicable to the facts of the case as those are cases where there was no permission obtained and constructions were completed and occupied without getting the clearance which the Hon‟ble Apex Court had held as illegal and directed demolition of the same. The dictum laid down in the decision reported in S.Jagannathan Vs. Union of India 1997 (2) SCC 87 is not applicable to the facts of this case as it relates to the activity which is not permissible in the Coastal Regulation Zone as it will have greater impact on marine ecology and it will affect the livelihood of the traditional fishermen community as such.
26. Further, the decision reported in Dr. K. Mohan Vs. Chennai Port Trust & Ors. 2009 SCC Online Madras 907 is also not applicable to the facts of this case as the question which arose in that case was whether the Town and Country Planning Act is applicable in respect of the activity relating to port trust within their property. Further, in the same decision, the Hon‟ble High Court has come to the conclusion that since edible oil is an essential commodity required for the day to day activities of people, some arrangements will have to [14] be provided by the port for storing the same and that has to be done in a place near to the port or within the port and further, the activity was done in a place which was classified as a commercial zone in the Master Plan prepared under the Town and Country Planning Act and it cannot be said to be a prohibited activity in that area. That also in a way is helpful to the sixth respondent as it is a permissible activity under CRZ-II Zone and as such it cannot be said to be a non- permissible activity as contended by the counsel for the appellant.
27. The learned counsel appearing for the sixth respondent further argued that in none of the decisions relied by the counsel for the appellant, the Hon‟ble Apex Court has set aside the post facto Environmental Clearance granted but only held that it will be applicable only from the date on which it is issued and anything done prior to that will be unauthorized and in order to compensate the same, environmental compensation was imposed and the project was permitted to continue. So under such circumstances, the learned counsel submitted that there is no merit in the appeal and the same is liable to dismissed.
[15]
28. The Points that arises for consideration are:-
(i) Whether the Coastal Regulation Zone Clearance granted to the sixth respondent is liable to be set aside for any of the reason stated in the appeal memorandum and the grounds raised by the counsel for the appellant at the time of hearing?
(ii)Whether there was any violation of CRZ
Notification, 2011 in issuing the Coastal
Regulation Zone Clearance to the sixth
respondent?
(iii) If it has to be sustained, under what
conditions it can be allowed to continue?
Points (i) to (iii):-
29. The fact that the appellant had filed the Original
Application No.239 of 2016 before this Tribunal when the sixth respondent had started their work without getting necessary CRZ Clearance and this Tribunal had appointed an Advocate Commissioner to inspect the unit in question and the Commissioner had noted some construction done by the sixth respondent in CRZ-II Zone without getting prior [16] clearance as required under CRZ Notification, 2011 is not disputed.
30. It is also not in dispute that this Tribunal by order dated 22.03.2017, restrained the sixth respondent from proceeding with the work without getting Coastal Regulation Zone Clearance from the authorities as required under the CRZ Notification, 2011 and the authorities were directed to consider and pass appropriate orders in accordance with law in the application for clearance said to be have been submitted by the sixth respondent. The Tribunal also imposed an amount of Rs.25,00,000/- (Rupees Twenty Five Lakhs only) as environmental compensation applying the principle of ―Polluter Pays‖ and the same was remitted by the sixth respondent on 06.02.2017 with the Tamil Nadu Pollution Control Board (TNPCB).
31. It is also an admitted fact that the sixth respondent had obtained the impugned CRZ Clearance thereafter for the purpose of laying pipeline and also for establishment of oil storage terminal for the purpose of transit and storage of edible oil that is being imported from the port to the storage terminal on a temporary basis till shifting the same to their unit in another place. It is also not in dispute that the area in [17] question is in CRZ-II Zone and it is the commercial/industrial plot as per the Country and Town Planning Scheme.
32. It is also not in dispute that the area where the unit was established is not a property owned by the Chennai Port but it belongs to the industrial estate which has been allotted to the sixth respondent for their industrial purpose.
33. The main contentions raised by the appellant against the grant of CRZ Clearance to the sixth respondent for this project are of twofold:- 1) that it is ex-post facto clearance which is not permissible under CRZ Notification, 2011 and
2)as per Para 8 of the Notification, this type of project can be established only "in notified port" apart from raising some other technical issues which are not of much importance though it has to be considered by this Tribunal while deciding the issue.
34. As regards ex-post facto clearance is concerned, the Hon‟ble Apex Court in Alembic Pharmaceuticals Limited Vs. Rohit Prajapati (Civil Appeal No.1526/2016) reported in 2020 SCC Online SC 347 has held that the ex-post facto clearance is not contemplated under the EIA Notification, 2006 in which case the ex-post facto environmental clearance granted was under challenge which was set aside by the [18] National Green Tribunal, Western Bench and that was under
challenge in that case.
35. The Hon‟ble Apex Court found that the ex-post facto clearance is not contemplated under the notification but set aside the order of the National Green Tribunal, by setting aside the clearance and directing closure of the unit. However, considering the fact that the clearance was granted later after appraisal and also further clearances were granted for expansion it was found that it need not be set aside and the violation committed by the unit for starting the work without prior Environmental Clearance can be compensated by imposing adequate environmental compensation applying the ―Polluter Pays‖ principle and imposed environmental compensation and allowed the industry to continue.
36. Further, in the decision reported in Lafarge Umiam Mining Private Limited Vs. Union of India 2011 (7) SCC 338, Goa Foundation Vs. Union of India & Ors. 2005 (11) SCC 559 and M/s. Electrotherm (India) Limited Vs. V. Patel Vipulkumar Ramjibhai & Ors. 2016 (9) SCC 300, the Hon‟ble Apex Court held that there is no concept of giving ex- post facto clearance either under the EIA Notification, 2006 or under the Environment (Protection) Act, 1986 and the past act of violation cannot be ratified by providing an ex-post facto [19] clearance and it will not have any retrospective operation but it will have only a prospective operation from the date on which it was issued and till then the act committed by the Project Proponent will be deemed to be an unauthorized or illegal act which will result in payment of environmental compensation applying the ―Polluter Pays‖ principle.
37. So keeping this principle in mind, it will have to be considered as to whether the ex-post facto clearance granted to the sixth respondent has to be set aside or not or it has to be retained by imposing environmental compensation, if otherwise, the activity is permissible under law and there is no violation of any of the provisions of the CRZ Notification, 2011 in granting the clearance.
38. The main question that arose in this case is whether the establishment of edible oil storage terminal is permissible in CRZ-II Zone outside the notified port area.
39. Para 3 of the Coastal Regulation Zone Notification, 2011 deals with the prohibited activities within the CRZ which reads as follows:-
―3. Prohibited activities within CRZ - The following are declared as prohibited activities within the CRZ,-
(i) Setting up of new industries and expansion of existing industries except,-[20]
(a) those directly related to waterfront or directly needing foreshore facilities;
Explanation: The expression ―foreshore facilities‖ means those activities permissible under this notification and they require waterfront for their operations such as ports and harbours, jetties, quays, wharves, erosion control measures, breakwaters, pipelines, lighthouses, navigational safety facilities, coastal police stations and the like.;
(b) projects of Department of Atomic Energy;
(c)facilities for generating power by non-
conventional energy sources and setting up of desalination plants in the areas not classified as CRZ-I(i) based on an impact assessment study including social impacts.;
(d) development of green field Airport already permitted only at Navi Mumbai;
(e) reconstruction, repair works of dwelling units of local communities including fishers in accordance with local town and country planning regulations.
(ii) manufacture or handling oil storage or disposal of hazardous substance as specified in the notification of Ministry of Environment and Forests, No. S.O.594 (E), dated the 28th July 1989, S.O.No.966(E), dated the 27th November, 1989 and GSR 1037 (E), dated the 5th December, 1989 except,-
(a) transfer of hazardous substances from ships to ports, terminals and refineries and vice versa;
(b) facilities for receipt and storage of petroleum products and liquefied natural gas as specified in Annexure-II appended to this notification and facilities for regasification of Liquefied Natural Gas (hereinafter referred to as the LNG) in the [21] areas not classified as CRZ- I(i) subject to implementation of safety regulations including guidelines issued by the Oil Industry Safety Directorate in the Ministry of Petroleum and Natural Gas and guidelines issued by MoEF and subject to further terms and conditions for implementation of ameliorative and restorative measures in relation to environment as may be stipulated by in MoEF.
Provided that facilities for receipt and storage of fertilizers and raw materials required for manufacture of fertilizers like ammonia, phosphoric acid, sulphur, sulphuric acid, nitric acid and the like, shall be permitted within the said zone in the areas not classified as CRZ-I(A).
(iii) Setting up and expansion of fish processing units including warehousing except hatchery and natural fish drying in permitted areas:
(iv) Land reclamation, bunding or disturbing the natural course of seawater except those,-
(a) required for setting up, construction or modernisation or expansion of foreshore facilities like ports, harbours, jetties, wharves, quays, slipways, bridges, sealink, road on stilts, and such as meant for defence and security purpose and for other facilities that are essential for activities permissible under the notification;
(b) measures for control of erosion, based on scientific including Environmental Impact Assessment (hereinafter referred to as the EIA) studies
(c) maintenance or clearing of waterways, channels and ports, based on EIA studies;
(d) measures to prevent sand bars, installation of tidal regulators, laying of storm water drains or for structures for prevention of salinity ingress and [22] freshwater recharge based on carried out by any agency to be specified by MoEF.
(v) Setting up and expansion of units or mechanism for disposal of wastes and effluents except facilities required for,-
(a) discharging treated effluents into the water course with approval under the Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974);
(b) storm water drains and ancillary structures for pumping;
(c) treatment of waste and effluents arising from hotels, beach resorts and human settlements located in CRZ areas other than CRZ-I and disposal of treated wastes and effluents;
(vi) Discharge of untreated waste and effluents from industries, cities or towns and other human settlements.
The concerned authorities shall implement schemes for phasing out existing discharge of this nature, if any, within a time period not exceeding two years from the date of issue of this notification.
(vii) Dumping of city or town wastes including construction debris, industrial solid wastes, fly ash for the purpose of land filling and the like and the concerned authority shall implement schemes for phasing out any existing practice, if any, shall be phased out within a period of one year from date of commencement of this notification.
Note:-The MoEF will issue a separate instruction to the State Governments and Union territory Administration in respect of preparation of Action Plans and their implementation as also monitoring including the time schedule thereof, in respect of paras (v), (vi) and
(vii). (viii) Port and harbour projects in high eroding stretches of the coast, except those projects classified as strategic and defence related in terms of EIA notification, 2006 identified by MoEF based on scientific studies and [23] in consultation with the State Government or the Union territory Administration.
(ix) Reclamation for commercial purposes such as shopping and housing complexes, hotels and entertainment activities.
(x) Mining of sand, rocks and other sub-strata materials except,-
(a) those rare minerals not available outside the CRZ area,
(b) exploration and exploitation of Oil and Natural Gas.
(xi) Drawl of groundwater and construction related thereto, within 200mts of HTL; except the following:-
(a) in the areas which are inhabited by the local communities and only for their use.
(b) In the area between 200mts-500mts zone the drawl of ground water shall be permitted only when done manually through ordinary wells for drinking, horticulture, agriculture and fisheries and where no other source of water is available.
Note:-Restrictions for such drawl may be imposed by the Authority designated by the State Government and Union territory Administration in the areas affected by sea water intrusion.
(xi) Construction activities in CRZ-I except those specified in para 8 of this notification.
(xiii) Dressing or altering the sand dunes, hills, natural features including landscape changes for beautification, recreation and other such purpose.
(xiv) Facilities required for patrolling and vigilance activities of marine/coastal police stations.‖
40. It is clear from the Para 3 (ii) of the Notification that though manufacture or handling oil storage or disposal of hazardous substance as specified in the Notification of Ministry of [24] Environment, Forest & Climate Change (MoEF&CC) is prohibited but the exception says that the transfer of hazardous substance from ship to port, terminals and refineries and vice versa is permissible. Similarly, facilities for receipt and storage of petroleum products and liquefied natural gas as specified in Annexure - II appended to this notification and facilities for re-gasification of Liquefied Natural Gas (herein after refer to as the LNG) in the area not classified as CRZ-I (i) subject to implementation of safety regulation including guidelines issued by the Oil Industry Safety Directorate in the Ministry of Petroleum and Natural Gas and guidelines issued by the MoEF&CC and subject to further terms and condition for implementation of ameliorative and restorative measures in relation as may be stipulated by the MoEF&CC. Provided that facilities for receipt and storage of fertilizers and raw materials required for manufacture of fertilizers like ammonia, phosphoric acid, sulphur, sulphuric acid, nitric acid and the like, shall be permitted within the said zone in the areas not classified as CRZ-I (A).
41. So, it is clear from this that in respect of petroleum products, storage is not permissible but facilities for receipt and storage of petroleum products and liquefied natural gas [25] as specified in Annexure-II appended to this notification and facilities for re-gasification of Liquefied Natural Gas (hereinafter referred to as LNG) is permissible in the areas not classified as CRZ- I and the facilities for receipt and storage of fertilizers and raw materials required for manufacture of fertilizers like ammonia, phosphoric acid, sulphur, sulphuric acid, nitric acid and the like, shall be permitted within the said zone in the areas not classified as CRZ-I(A).
42. Para 4 of the Notification deals with the regulation of permissible activities in CRZ Zone and Para 7 deals with the classification of CRZ Zones.
43. Para 8 of the Notification deals with norms for regulation of activities permissible under this notification which reads as follows:-
"8. Norms for regulation of activities permissible under this notification,- (i) The development or construction activities in different categories of CRZ shall be regulated by the concerned CZMA in accordance with the following norms, namely:-
Note:- The word existing use hereinafter in relation to existence of various features or existence of regularisation or norms shall mean existence of these features or regularisation or norms as on 19.2.1991 wherein CRZ notification, was notified. I. CRZ-I,-
(i) no new construction shall be permitted in CRZ-I except,-
(a) projects relating to Department of Atomic Energy;[26]
(b) pipelines, conveying systems including transmission lines;
(c) facilities that are essential for activities permissible under CRZ-I;
(d) installation of weather radar for monitoring of cyclones movement and prediction by Indian Meteorological Department;
(e) construction of trans harbour sea link and without affecting the tidal flow of water, between LTL and HTL.
(f) development of green field airport already approved at only Navi Mumbai;
(ii) Areas between LTL and HTL which are not ecologically sensitive, necessary safety measures will be incorporated while permitting the following, namely:-
(a) exploration and extraction of natural gas;
(b) construction of dispensaries, schools, public rainshelter, community toilets, bridges, roads, jetties, water supply, drainage, sewerage which are required for traditional inhabitants living within the biosphere reserves after obtaining approval from concerned CZMA.
(c) necessary safety measure shall be incorporated while permitting such developmental activities in the area falling in the hazard zone;
(d) salt harvesting by solar evaporation of seawater;
(e) desalination plants;
(f) storage of non-hazardous cargo such as edible oil, fertilizers and food grain within notified ports;
(g) construction of trans harbour sea links, roads on stilts or pillars without affecting the tidal flow of water. II. CRZ-II,-
(i) buildings shall be permitted only on the landward side of the existing road, or on the landward side of existing authorized structures;
(ii) buildings permitted on the landward side of the existing and proposed roads or existing authorized [27] structures shall be subject to the existing local town and country planning regulations including the ‗existing' norms of Floor Space Index or Floor Area Ratio: Provided that no permission for construction of buildings shall be given on landward side of any new roads which are constructed on the seaward side of an existing road:
(iii) reconstruction of authorized building to be permitted subject with the existing Floor Space Index or Floor Area Ratio Norms and without change in present use;
(iv) facilities for receipt and storage of petroleum products and liquefied natural gas as specified in Annexure-II appended to this notification and facilities for regasification of Liquefied Natural Gas subject to the conditions as mentioned in sub-paragraph (ii) of paragraph 3;
(v) desalination plants and associated facilities;
(vi) storage of non-hazardous cargo, such as edible oil, fertilizers and food grain in notified ports;
(vii) facilities for generating power by non-
conventional power sources and associated facilities;‖
44. It is seen from the Para 8 - (I)(i)(b),(ii)(f), (II)(iv) & (vi) of the notification which deals with storage of non-hazardous cargo such as edible oil, fertilizers and food grains within and in the notified ports respectively. So, as regards storage of non- hazardous cargo such as edible oil, fertilizers and food grains are permissible even in CRZ-I Zone but with a qualification "within notified ports". But when it comes to CRZ-II, there is some difference which says storage of non-hazardous cargo [28] such as edible oil, fertilizers and food grains "in notified ports".
45. So, this Tribunal has to consider as to how these two clauses can be harmoniously construed for the purpose of making both of them more congenial and conducive.
46. No two different meanings can be given for these same words which have been used in different context unless it was intended by the legislature that the same has to be interpreted or understood with a different meaning.
47. It is settled law of interpretation of statues that when a particular word has been used in different provisions whether it carries the same meaning or not has to be understood considering the nature and intention of the legislature in enacting that statute.
48. If the intention of the legislature was that it has to be interpreted in a different way considering the context in which those words were used, Court cannot import its own meaning different from the intention of the legislature so as to give the purpose for which the Court want to use the same against the intention and purport of the legislature.
49. If there is no ambiguity or confusion in understanding the words, then Courts will have to interpret that word in a same [29] manner in which it was intended by the legislature and no different meaning can be imported by the Courts.
50. The principle of Hyden‟s Rule of interpretation (remove the mischief and advance the purpose) can be used by the Courts while interpreting the particular provision of enactment only if the Court feels that unless it was differently interpreted, the purpose and intention of the legislature in enacting the provision itself will be defeated or end in absurdity. In such cases, the Court can import a different meaning so as to make the provision workable in the manner in which it was intended by the legislature.
51. The above principles are reiterated in the following decisions, Workmen of Jimithi Tea Estate Vs. Management of Jimithi Tea Estate AIR 1958 SC 353, R.L.Arora Vs. State of Uttar Pradesh & Ors. AIR 1964 SC 1230, Thampanoor Ravi Vs. Charupara Ravi & Ors. 1999 (8) SCC 74, Utkal Contractors and Joinery Private Limited & Ors. Vs. State of Orissa & Other connected case 1987 (3) SCC 279, Thakker Shipping Pvt. Ltd. Vs. Commissioner of Customs (General) 2012 (12) SCC 189, State Bank of Travancore Vs. Mohammed Mohammed Khan 1981 (4) SCC 82, Competition Commission of India Vs. Steel Authority of India Limited and others 2010 (10) [30] SCC 744, Union of India Vs. Elphinstone Spinning & Weaving Company Limited and Ors. 2001 (4) SCC 139, Ameer Trading Corporation Ltd. Vs. Shapoorji Data Processing Ltd. 2004 (1) SCC 702, Badshah Vs. Urmila Badshah Godse & Anr. 2014 (1) SCC 188, Padma Sundara Rao (Dead) & Ors. Vs. State of Tamil Nadu & Ors. 2002 (3) SCC 533, Bharath Aluminium Company Vs. Kaiser Aluminium Technical Services INC and connected cases 2012 (9) SCC 552.
52. With these principles in mind, this Tribunal has to consider the question of interpretation of the word "in notified port" and "within notified port" mentioned in Para 8 and 3 of the Coastal Regulation Zone Notification, 2011 respectively.
53. It is also settled law that as far as possible interpretation of statutes will have to be done in strict sense with its literal meaning, without resorting to the external or internal aids but considering the object of the legislation from the statute itself. If the Court felt that without substituting something or some words are to be interpreted in a different way, the implementation of the statute itself will become absurd and end in absurdity, then alone the Courts can supply the causes omises and make the statute workable. [31]
54. As far as environmental laws are concerned, it was intended for the purpose of protecting environment and it must be interpreted strictly in its literal sense. Any liberal interpretation given for any of the provision of the statute relating to environment protection will have adverse impact on the environment.
55. It is true that while balancing development and environment, the principle of „Sustainable Development‟ has to be considered but at the same time when these two things are weighed and if it is found that providing liberal interpretation to promote development will result in disaster to the environment or affect the very purpose of the enactment for which it has been enacted then, such interpretation should be avoided.
56. In compact Oxford English Dictionary, the meaning of the word „in‟ is defined as follows:-
―in Preposition 1) so as to enclosed, surrounded, or inside. 2) expressing a period of time during which an event takes place. 3) expressing the length of time before an event is expected to happen. 4) expressing a state, condition, or quality. 5) expressing inclusion or involvement. 6) indicating the means of expression used:
put in writing. 7) indicating a person's occupation or profession. 8) expressing a value as a proportion of whole. Adverb 1) expressing movement that results in being inside or surrounded. 2) expressing the state of being enclosed or surrounded. 3) present at one's home [32] or office. 4) expressing arrival at a destination. 5) [of the tide] rising or at its highest level. Adjective informal fashionable. - Phrases be in for be going to experience something, especially something unpleasant. in on knowing a secret. in that for the reason that. in with informal enjoying friendly relations with. the ins and outs informal all the details. - Origin Old English‖
57. The word 'within‟ has been defined in the same Dictionary as follows:-
―within Preposition 1) inside. 2) inside the range or bounds of: we were within sight of the finish. 3) occurring inside a particular period of time. 4) not further off than (used with distances). Adverb: 1) inside; indoors.
2) internally or inwardly.‖
58. Meaning of these words when compared, it will be clear that what was intended by these words is something will have to be done within the area, if it relates to the area and in the area if relates to the area and not beyond that area.
59. It is true that Section 35 of the Major Port Trust Act, 1963 deals with the power of the Board to execute certain works and provide appliances which reads as follows:-
―35. Power of Board to execute works and provide appliances.--
(1) A Board may execute such works within or without the limits of the port and provide such appliances as it may deem necessary or expedient.
(2) Such works and appliances may include--[33]
(a) wharves, quays, docks, stages, jetties, piers and other works within the port or port approaches or on the foreshore of the port or port approaches, with all such convenient arches, drains, landing places, stairs, fences, roads, railways, bridges, tunnels and approaches and buildings required for the residence of the employees of the Board as the Board may consider necessary;
(b) buses, railways, locomotives, rolling stock, sheds, hotels, warehouses and other accommodation for passengers and goods and other appliances for carrying passengers and for conveying, receiving and storing goods landed, or to be shipped or otherwise;
(c) moorings and cranes, scales and all other necessary means and appliances for loading and unloading vessels;
(d) reclaiming, excavating, enclosing and raising any part of the foreshore of the port or port approaches which may be necessary for the execution of the works authorised by this Act, or otherwise for the purposes of this Act;
(e) such breakwaters and other works as may be expedient for the protection of the port;
(f) dredgers and other machines for cleaning, deepening and improving any portion of the port or port approaches or of the foreshore of the port or port approaches;
(g) lighthouses, lightships, beacons, buoys, pilot boats and other appliances necessary for the safe navigation of the port and of the port approaches;
(h) vessels, tugs or other boats for use within the limits of the port or beyond those limits, whether in territorial waters or otherwise, for the purpose of towing or rendering assistance to any vessel, whether entering or leaving the port or bound elsewhere, and for the purpose of saving or protecting life or property and for [34] the purpose of landing, shipping or transhipping passengers or goods under section 42;
(i) sinking of tube-wells, and equipment, maintenance and use of boats, barges and other appliances for the purpose of the supply of water at the port;
(j) engines and other appliances necessary for the extingushing of fires;
(k) construction of models and plans for carrying out hydraulic studies;
(l) dry docks, slipways, boat basins and workshops to carry out repairs or overhauling of vessels, tugs, boats, machinery or other appliances.‖
60. It gives power to the Board to execute such work within or without the limits of the port and the nature of activities will include providing storage facility for goods as well. Those are all relating to the general things and not relating to the specified goods or other activities.
61. Coastal Regulation Zone Notification restricts certain activities within the CRZ Zone and if such activities are to be done within the port area or in the notified port then, it can be done in those areas alone and not beyond that area.
62. Further, in the decision reported in Dr. T.K. Mohan Vs. Chennai Port Trust and Ors. 2009 SCC Online Madras 907, the Hon‟ble Madras High Court while considering the question as to whether the storage facility in the property belonging to the port trust requires any further permission under the regulations framed under Development Regulations [35] of 2nd Master Plan for Chennai Metropolitan Area, 2006 from the Tamil Nadu Town and Country Planning Act, 1971 held that it is not necessary.
63. Further, a reading of that decision will go to show that the port trust has to provide such facilities either within the port or near to the port belonging to them and that was a case where the storage facility for edible oil was provided in the property belonging to the Chennai Port in Royapuram area and that was very near to the port and the property belonged to them.
64. So that interpretation will not be helpful to the respondents to come to the conclusion that the storage terminal can be provided outside the port area or outside the notified port area.
65. Further, the legislature was very careful in using the word while permitting certain activities in the Coastal Zone Regulation restricted and regulated areas and if that is liberally construed and it was allowed to provide beyond that area without any restriction then, it is likely to be misused by the authorities and such facilities will be permitted in such zone indiscriminately throughout the foreshore area of the Coastal Zone which will have a great adverse impact on [36] coastal environment and also it will affect the interest of the traditional fishermen community as such.
66. Further, the dictum laid down in the decision reported in M. Nizamudeen Vs. Chemplast Sanmar Ltd. & Ors 2010 (4) SCC 240 is not applicable to the facts of this case for the purpose of extending the principle of purposive interpretation, considering the facts of this case. That was dealing with transfer of hazardous substance from ships to the port and the word except in the port area has been interpreted so as to read "in or through" the port areas. There also it was not beyond the port area or outside the port area.
67. Drawing of pipeline is different from establishment of storage terminal outside the port. In this case, storage facility will have to be provided outside the port area in the land not belonging to the port but to the industrial estate which was allotted to the 6th respondent.
68. These aspects were not considered by the authorities, while granting the clearance to the 6th respondent for the project. Further, it was an ex-post facto clearance and this was clear from the proceedings itself, but it was treated as a fresh proposal which itself is not a legal procedure. If it is treated as a violation case then, the procedure to be adopted by them is different.
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69. So under such circumstances, there is some merit in the submission made by the counsel for appellant that Coastal Regulation Zone Clearance granted to the 6th respondent for establishment of an oil storage facility in CRZ -II area outside the notified port is not permissible and the clearance granted is illegal and the same is liable to be set aside.
70. The decisions relied on by the counsel appearing for the 6 th respondent namely Mary George Vs. Special Tahsildar and Anr. 2010 (3) SCC 98, M/s. Rubber House Vs. M/s. Excelsior Needle Industries Private Limited 1989 (2) SCC 413, Sharifuddin Vs. Abdul Gani 1980 (1) SCC 403 are not applicable to the facts of this case as those decisions are relating to the interpretation of certain provisions to consider a particular provision is mandatory or directory. But the question in this case is not that. Whenever, the environmental issues are there, procedure will have to be followed strictly as it was intended for particular purpose of protecting the environment and that should not be interpreted in a different way so as to defeat the purpose itself. The distance within which beyond the port area if at all such activities can be permitted is a matter for the rule making authority to incorporate if the intention of the legislature/rule making authority was to provide such facilities even beyond [38] the port area. In the absence of such criteria provided in the Rule, it cannot be treated as a causes omises and that could not be substituted by the Court. If the intention of the legislature or the rule making authority was that, it could be beyond the port area as well, then they ought to have included that aspect also in the Rules by providing a distance criteria in the absence of which it can only be presumed that they did not have such an intention and as such intention cannot be inferred by the Court or Tribunal.
71. In view of the discussion made above, the impugned CRZ Clearance granted to the 6th respondent by the 1st respondent evidenced by Proceeding No. F.No.11-4/2017-IA-III dated 12.07.2017 is not valid in law and the same is liable to be set aside.
72. Since, this Tribunal had earlier imposed environmental compensation for violation committed by the 6th respondent in O.A. No.239 of 2016, this Tribunal is not imposing any further environmental compensation for the violation committed by them.
73. In view of the discussion made above, the appeal is allowed and the CRZ Clearance granted as per Proceeding No. F.No.11-4/2017-IA-III dated 12.07.2017 is set aside. [39]
(ii) The 6th respondent is directed to remove the construction made in the disputed area within a period of 3 (Three) months and if it is not done, the Tamil Nadu Coastal Zone Management Authority is directed to take steps to remove the same and recover the expenses incurred for removing the same from the 6th respondent.
(iii) Considering the circumstances, the parties are directed to bear their respective costs in the appeal.
....................................J.M. (Justice K. Ramakrishnan) .................................E.M. (Shri. Saibal Dasgupta) Appeal No. 62/2017, 30th September, 2020. Mn.
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