Madras High Court
S.Killai Ravindran vs Union Of India on 31 July, 2019
Equivalent citations: AIRONLINE 2019 MAD 1664
Author: S.Manikumar
Bench: S.Manikumar, Subramonium Prasad
W.P.No.22716 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 31.07.2019
CORAM:
THE HONOURABLE MR.JUSTICE S.MANIKUMAR
and
THE HONOURABLE MR.JUSTICE SUBRAMONIUM PRASAD
W.P.No.22716 of 2017
and
WMP No.23807 of 2017
S.Killai Ravindran ... Petitioner
Vs
1. Union of India,
Principal Secretary to the
Hon'ble Prime Minister of India,
152, South Block,
Raisina Hill,
New Delhi - 110 011.
2. The Department of Ministry of Home Affairs,
Represented by its Home Secretary,
North Block, Central Secretariat,
New Delhi - 110 001.
3. The Department of Law and Justice,
Represented by its Secretary,
26, Mansingh road,
Jaisalmer House,
New Delhi - 110 011.
4. The Department of Environment and Forest,
Represented by its Secretary,
New Delhi - 110 003.
5. The State of Tamil Nadu,
http://www.judis.nic.in
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W.P.No.22716 of 2017
Rep. by the Chief Secretary of State,
Secretariat Buildings,
Fort St. George,
Chennai - 9.
6. The State of Tamil Nadu,
Rep. by its Home Secretary,
Secretariat Buildings,
Fort St. George,
Chennai - 9.
7. The State of Tamil Nadu,
Department of Environment and Forest,
Rep. by its Secretary,
Fort St. George, Chennai - 9. ... Respondents
Prayer: Writ Petition is filed under Article 226 of the Constitution of India,
issuance of a writ of mandamus, directing the respondents 1 and 5 for
appointment of commission headed by the Scientist of Environment and Ecology
along with 3 members of connected departments under the provisions of
Commissions of Inquiry Act, 1952 be set up by the Central Government to find out
the truth and to inquire into the impact of power plant / petrochemical plants to
Mangroves with Special Reference to Pitchavaram, Cuddalore District, Tamilnadu.
For Petitioners : Mr.V.Lakhsminarayanan
For Respondents : Mr.K.Srinivasamurthy (for R1 to R4)
Central Government Standing Counsel
Mr.E.Manoharan (for R5 & R6)
Additional Government Pleader
Mr.S.V.Vijay Prashanth (for R7)
Additional Government Pleader (Forests)
ORDER
(Order of this Court was made by S.MANIKUMAR, J.) Claiming himself to be a public interest litigant, the petitioner, has filed the instant writ petition, for a direction to the respondents viz., the Principal Secretary to the Hon'ble Prime Minister of India, New Delhi and the Chief http://www.judis.nic.in 2/18 W.P.No.22716 of 2017 Secretary of State of Tamil Nadu, Chennai, respondents 1 and 5, respectively, for appointment of a commission headed by the Scientist of Environment and Ecology along with 3 members of connected departments under the provisions of Commissions of Inquiry Act, 1952, to be set up by the Central Government to find out the truth and to inquire into the impact of power plant / petrochemical plants to Mangroves with Special Reference to Pitchavaram, Cuddalore District, Tamilnadu.
2. In the supporting affidavit to this writ petition, the petitioner has averred as follows :
(i) Normally forest is found in hilly area and it is connected lands. But Mangroves are found only in backwater and bog places which is near to the sea (confluence). This kind of mangroves are seen in two countries one in Australia and another one in India. (Pichavaram, Tamilnadu, India). The mangroves forests attracted the attention of western scientist only in 1960 but the Sangam Tamil Literature tells us that mangrove forests were part of the day to day lives of the Tamils time immemorial. According to the petitioner, what is being termed as "Blackish Marshlands" today, was already known in Sangam Tamil Literature as "Khandal" which roughly translates into Mangroves. The Tamil name given to these trees is "Alaiaathi" which translates into calming the waves.
(ii) Mangroves are seen only on tropical zones and too close to the Equator.
Tamilnadu has a coastline of 950 kms. Extensive Mangroves wetlands are located http://www.judis.nic.in 3/18 W.P.No.22716 of 2017 in two places-in Pitchavaram, Cuddalore District and Muthupet in Thiruvarur and Thanjavur districts. Pitchavaram mangrove wetland is located in the northern extreme of Cauvery delta, near the mouth of river Coleron. Its many small islands are colonized by 13 mangrove species. Presence of Rhizophora species in large number, is one of the important features of this mangrove wetland from the standpoint of biodiversity.
(iii) Pitchavaram Mangroves wetland is also rich in fishery resources. Annually about 245 tons of fishery is harvested from this mangrove wetland. People belonging to 17 hamlets of five revenue villages, utilize fishery and forest resources of Pitchavaram mangrove wetlands. A total number of 1900 fishers are annually dependent on the fishery resources for their livelihood/ some fishers fish seasonally in mangrove waters. Mangroves forests are among the world's most and carbon storehouses but they are increasingly disappearing in the face of costal development and aquaculture. In general, the chemical power plant will suck up 9,150 cubic meters of water from the nearby water resources every hour, and run it through a desalination plant.- Since the available mangroves depend on brackish mix of fresh and salt water, scientists not only fear that ground water levels in the Cauvery delta areas will run low, but also that the blend of fresh and salt water could be disrupted, dooming swaths of the Pitchavaram mangroves. Further, water dumped back into the reservoir will be up 20 to 25 degrees F warmer than the river water, threatening aquatic species like fish, prawn, crab and other associated animals.
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(iv) Pitchavaram mangrove forests are located between Vellaar estuary and Kollidam estuary. In Muthupet, there is a lagoon where five rivers merge. This lagoon has an estuary which joins the sea. These estuaries are the primary spots in mangrove forests. It is through these estuaries that shrimp and fish hatchlings enter the waters of the mangroves. Since sea water entering these lagoons are deep, it suits these hatchlings to grow. However, these estuaries have undergone changes in the recent times due to the impact of power plants and petrochemical plants.
(v) Now a big danger threatening the very existence of this planet is climate change. Global warming is the root cause of the climate change and it is believed that the planet gets hotter by 0.3 degrees every 10 years. Even under normal condition without global warming, when surface level temperature of the sea reaches 26 degrees Celsius, the sea gets turbulent, but with global warming, tropical storms will turn even more furious. This will have serious adverse effects on the mangrove forests. If the mangrove forests are destroyed, then the sea food, 80% of which is constituted by various varieties of fish, will also become extinct. Not only this, these waters are home to some 308 varieties of snails, 7 kinds of fish parasites, 3 amphibians and 11 types of sea grass varieties and also for various types of insects, invertebrates, reptiles, mammals and birds. All these living organisms in the mangroves are not only easily visible to the observer. The reason for this is the colour of the water as the bunch of roots of the trees in the http://www.judis.nic.in 5/18 W.P.No.22716 of 2017 mangroves mix with the water and turn into colour of sludge; it has created an environment in which all these species manage to hide themselves from potential enemies of predator species.
(vi) During Tsunami attack in the year 2004, no damage was caused to the Pitchavaram area in Cuddalore District, because of Mangroves. But other areas in Cuddalore district were affected by Tsunami, nearly 176 human life was lost in the nearby Town Panchayat. Other major concern is the air pollution and toxics generated by petrochemical plants, including arsenic, mercury, lead, nickel and radium. The proposed plant could discharge upto 52,000 tons of sulfur a year, which, depending on the type of hydrocarbons, could lead to acid rain in Pitchavaram and surrounding regions. Similarly, a coal power plant isgoing to implemented in Bangladesh by a joint venture of Bangladesh Power Development Board (BPDB) and National Thermal Power Corporation (NTPC) of India. This project is under threat in Bangladesh, by the public. Meanwhile, international bodies, such as UNESCO, World Heritage Committee, Ramsar Convention Secretariat and International Union for the Conservation of Nature(IUCN) Bangladesh, have formally expressed their concern over the grave threats posed by the proposed power plant to the Sundarbans and urged the government to review their position.
(vii) Some Environmentalists are familiar with the term "Minamatta disease". Minamatta is a small town in Japan where cars in this town started http://www.judis.nic.in 6/18 W.P.No.22716 of 2017 behaving as if they had gone mad, shrieking and convulsing. Like this, the people in the town were also subject to numbness of the body impaired blindness, brain damage, fainting and coma. Nobody could make out the reason behind this phenomenon. This mysterious disease, which attacked the central nervous system and made the brain dysfunctional, was named the "Minamatta disease."
(viii) Notification in Tamilnadu Government Gazette dated 19-07-2017 "Tamilnadu Town and Country Planning Act-Declaration of the delineation of certain villages in Cuddalore and Nagapatinam Districts as Petroleum, Chemicals and Petrochemicals Investment Region as Local Planning Area from page 607 to 608 shows that Tamilnadu Government is also preparing to destroy the Mangrove forest in Pitchavaram in Cuddalore District. Moreover opinion of the local people was not asked by the government and nearly 5 Districts are supplied drinking water from Kollidam River. Now there is a threat to the Mangroves since ONGC has already planned to take oil and gas from the region of coastal area, especially in Cuddalore, Nagapattinam and Thanjavur districts and State of Tamilnadu has given its consent to ONGC. Thus the live hood of the above region is questionable.
(ix) No meeting with the area people was conducted by the government authorities about the delineation of certain villages in Cuddalore district as Petroleum, Chemicals and Petrochemical Investment Region before published in http://www.judis.nic.in 7/18 W.P.No.22716 of 2017 the Tamilandu Government Gazette dated 19-07-2017. If the above area mentioned in the Tamilnadu Gazette dated 19-07-2017 is allotted to ONGC, then the livelihood of the villagers will be affected. The proposed 12 Thermal power stations to produce 14,700 Mega Watts of Electricity are being built on the coastal areas between Pitchavaram and Muthupet. These thermal plants can cause immense damage to the mangrove forests and environment. Further the Tamilnadu State Government have also proposed delineation of certain villages in Cuddalore and Nagapatinam Districts as Petroleum, Chemicals and Petrochemicals Investment Region. The discharge from the thermal power plants/petrochemical plants along the Tamilnadu Coastline has the same disastrous implication, similar to the Minamatta incident in Japan.
(x) Therefore, petitioner has sent representations to the respondents 1 and 5 viz., the Principal Secretary to the Hon'ble Prime Minister of India, New Delhi and the Chief Secretary to the State of Tamil Nadu, Chennai, respectively. As the respondents have not properly attended the petitioner’s grievance, left with no other efficacious and alternative remedy, the petitioner has filed the instant writ petition for the relief stated supra.
3. On 28.08.2017, when the writ petition came up for hearing, a Hon'ble Division Bench of this Court, has passed the following orders. http://www.judis.nic.in 8/18 W.P.No.22716 of 2017 "It is the submission of the learned counsel for the petitioner that delineation of certain areas in Cuddalore and Nagapattinam Districts where the Mangrove Forests are in abundance, the establishment of Petroleum, Chemicals and Petro-chemicals Investment Region, is per se unsustainable as it may have an impact on the ecology and environment of the region and the livelihood of the fishermen would also be affected and hence, prays for appropriate orders.
2. Mr.K.Srinivasamoorthy, learned Central Government Standing Counsel accepts notice on behalf of the respondents 1 to 4; Mr.M.K.Subramanian, learned Government Pleader accepts notice on behalf of the respondents 5 and 6 and Mr.M.Santhanaraman, learned Additional Government Pleader [Forests] accepts notice on behalf of the 7th respondent and he would submit that the matter falls within the domain of the National Green Tribunal and as such, the writ petition is not maintainable.
3. Learned counsel for the petitioner seeks time to work out the said position.
4. Call on 01.09.2017."
4. Heard the learned counsel for the parties and perused the materials available on record.
5. Representation of the petitioner dated 01.08.2017, addressed to the Principal Secretary, Union of India, the Office of the Hon'ble Prime Minister of India, New Delhi, and the Chief Secretary, State of Tamil Nadu, Chennai, is as follows:
http://www.judis.nic.in 9/18 W.P.No.22716 of 2017 I am residing in the above said address. I am President in Delta Water Resources Protection Centre (Trust) which was registered in the year 2016. I am a social worker, and my main source of income is from the agriculture. I have received award for social service from universities like Gandhigramam University, Rajiv Gandhi University and Usmania University and Vijay TV also gave a award for me to the 2015 flood "Mazhaiai Vendra Manidham".
The Government of Tamil Nadu has published in the notification dated 19.07.2017 sitting 45 village as a petro, chemical and "Petro Chemical Zone" in Nagai and Cuddalore District. I am very much shock and surprise to see this notification. Since, I am coming from agriculture background. I am very much aware of the impact of the petro chemical project. It will ruin the agriculture land and ground water. Earlier one project was started in Madhanam Village in Sirkazhi constituency way back in 2012, impact which reflect in the agriculture land and ground water is ruined in that place. The people are very much afraid because of this notification. Moreover the opinion of the local people was not asked by government and nearly five district drinking water from this Kollidam river. The Government spend several crores of rupees in this "Kollidam Koottu Kudineer Thittam Project"
In Cuddalore district pitchavaram Mangroves forests are among the world's most important ecosystems serving as fish nurseries and carbon storehouses but they are increasingly disappearing in the fact of coastal development and aquaculture. In general, the chemical power plant will suck up 9,150 cubic meters of water from the nearby water resources every hour and run it through a desalination plant. Since the available mangroves depend on a brackish mix of fresh and salt water, scientists not only fear http://www.judis.nic.in 10/18 W.P.No.22716 of 2017 that ground water levels in the Cauvery delta areas will run law, but also that the blend of fresh and salt water could be disrupted, dooming swaths of the Pitchavaram mangroves. Further, water dumped back into the reservoir will be up 20 to 25 degrees F warmer then the river water, threatening aquatic species like fish, prawn, crab and other associated animals.
Now a big danger threatening the very existence of this planet is climate change. Global warming is the root cause of climate change and it is believed that the planet gets hotter by 0.3 degrees every 10 years. Even under normal condition without global warming, when surface level temperature of the sea reaches 26ºC, the sea gets turbulent but with global warming, when surface level temperature of the sea reaches 26ºC, the sea gets turbulent but with global warming, tropical storms will turn even more furious. This will have serious adverse effects on the mangrove forests. If the mangrove forests are destroyed, then the sea food, 80% of which is constituted by various varieties of fish, will also become extinct. Not only this, these waters are home to some 308 varieties of snails, 7 kinds of fish parasites, 3 amphibians and 11 types of sea grass varieties and also for various types of insects, invertebrates, reptiles, mammals and birds. But all these living organisms in the mangroves are not only easily visible to the observer. The reason for this is the colour of the water as the bunch of roots of the trees in the mangroves mix with the water and turn into colour of sludge; it has created an environment in which all these species manage to hide themselves from potential enemies of predator species.
During the Tsunami attack in the year 2004, no damage was caused to the Pitchavaram area in Cuddalore district because of Mangroves. But other than the area of Pitchavaram in Cuddalore http://www.judis.nic.in 11/18 W.P.No.22716 of 2017 district was affected by Tsunami. But there was nearly 176 human life was lost in near Town panchayat Notification in Tamilnadu Government Gazette dated 19-07- 2017 "Tamilnadu Town and Country Planning Act", declaration of the delineation of certain villages in Cuddalore and Nagapattinam Districts as Petroleum, Chemicals and Petrochemicals Investment Region as Local Planning Area from page 607 to 608 shows that the Tamilnadu Government is also preparing to destroy the Mangrove forest in Pitchavaram in Cuddalore District.
Therefore, I request you esteem government to stop the petrochemical project in the above mentioned zone. Many people planting more trees to reduce the risk of global warming, if these king of mangrove forest is destroyed it will have a great impact on the human life."
6. In the matter of filing a Public Interest Litigation, High Court, Madras, has issued guidelines in Circular No.SRO C-2/2010, dated 26.07.2010, and the same reads thus:-
NOTIFICATIONS BY HEADS OF DEPARTMENTS, ETC.
JUDICIAL NOTIFICATION Rules to Regulate the Public Interest Litigations filed under Article 226 of the Constitution of India (Roc.No.670-A/2010/F-1) No.SRO C-2/2010.
By virtue of Article 225 of the Constitution of India and of all other powers hereunto enabling, the High Court makes the following Rules to http://www.judis.nic.in 12/18 W.P.No.22716 of 2017 regulate Public Interest Litigations (PIL) filed under Article 226 of the Constitution of India:
Every Public Interest Litigation must be filed in accordingly with the following rules:-
1. Every PIL must indicate that the petitioner has no personal interest in the case. If he has any personal interest, he must disclose the same. In the event of the High Court finding the claim as frivolous or vexatious, the PIL shall be dismissed with exemplary cost.
2. If the PIL is filed on behalf of a class of persons, the details of the persons for whose benefit the PtL 's filed, must be indicated. If it is a society or association of persons, the writ petitioner must enclose a resolution from such society or association of persons, authorising the petitioner to file the writ petition and if the body is duly registered with competent authority, a copy of the bye-laws of the said body authorising the petitioner to file the writ petition, shall be enclosed.
3. If the petitioner has filed any PIL earlier, the details of the petition, and the final order, if any, passed in that petition, the relief granted and costs, if any, awarded, shall be indicated. No Public Interest litigation Petition will be entertained in respect of civil disputes between individuals or in service matters. The petitioner shall give an undertaking that he will pay the costs, if any, if it is found to be intended for personal gain or oblique motive.
4. The petitioner must disclose whether he has filed the petition out of his own funds or from other sources. If it is the latter, the particulars should be given.
5. The petitioner must state in the affidavit that to his knowledge, no PIL arising on the same issue, has been filed anywhere.
6. The affidavit filed by the petitioner must contain the averments that he has filed the writ petition based on his information and his personal knowledge. If he has filed the writ petition based on an information received from any other source, he must clearly indicate the http://www.judis.nic.in 13/18 W.P.No.22716 of 2017 source. If it is a newspaper report, the affidavit shall clearly state as to whether the deponent has verified the facts by personally visiting the place or talking to any responsible person or Reporter or Editor of the newspaper concerned.
7. If the petitioner has given any representation to any authority, a copy of the same shall be filed in the typed set of papers along with reply, if any, received from the authority. He shall file the proof of service of representation before the Court.
The above rules will not be applicable to the Public Interest Litigations taken on .file by the High Court suo motu.
High Court, Madras, S. VIMALA, 26th July 2010. Registrar-General.
NOTIFICATIONS BY HEADS OF DEPARTMENTS, ETC.
JUDICIAL NOTIFICATIONS Amendment to the Rules to regulate the Public Interest Litigations Framed by the High Court.
(R.O.C.No.4452-A/2014/F1) No.SRO C-7/2015.
By virtue of Article 225 of the Constitution of India and of all other powers hereunto enabling, the High Court makes the following amendment to Rule 4 of the Rules to regulate the Public Interest Litigations filed under Article 226 of the Constitution of India as published in Tamil Nadu Government Gazette, Part III-Section 2, Issue No. 31, dated 11-08-2010.
AMENDMENT:- For Rule 4, the following Rule shall be substituted namely-
"4. The petitioner must disclose his avocation, annual income and other particulars as to whether he is an Income Tax Assessee http://www.judis.nic.in 14/18 W.P.No.22716 of 2017 or not? If he is an Assessee, he must furnish the PAN number. The petitioner must also disclose whether he has filed the petition out of his own funds or from other sources. If it is the latter, the particulars should be given.
High Court, Madras, P. KALAIYARASAN, 6th January 2015. Registrar General.
7. At this juncture, we deem it to consider a decision of the Hon'ble Supreme Court in Bharat Singh and others Vs. State of Hariyana and others, reported in [1988 (4) SCC 534], wherein, the Hon'ble Supreme Court, has explained the difference in pleadings and evidence, between a proceeding under the Code of Civil Procedure and a Writ Petition, under Article 226 of the Constitution of India.
"13.As has been already noticed, although the point as to profiteering by the State was pleaded in the writ petitions before the High Court as an abstract point of law, there was no reference to any material in support thereof nor was the point argued at the hearing of the writ petitions. Before us also, no particulars and no facts have been given in the special leave petitions or in the writ petitions or in any affidavit, but the point has been sought to be substantiated at the time of hearing by referring to certain facts stated in the said application by HSIDC. In our opinion, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter-affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter-affidavit, as the case may be, the Court will not entertain the point. In this context, it will not be out of place to point out that in this regard there is a distinction between a pleading under the Code of Civil Procedure and a writ petition or a counter- affidavit. While in a pleading, that is, a plaint or a written http://www.judis.nic.in 15/18 W.P.No.22716 of 2017 statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter-affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it. So, the point that has been raised before us by the appellants is not entertainable. But, in spite of that, we have entertained it to show that it is devoid of any merit."
8. Except the representation, petitioner has not enclosed any document to substantiate the averments. Writ petition does not satisfy the requirement of a public interest litigation.
9. In view of the above, writ petition is dismissed. No Costs. Consequently, the connected Writ Miscellaneous Petition is closed.
[S.M.K., J.] [S.P., J.] 31.07.2019 Index: Yes/No. Internet: Yes Speaking / Non-speaking Order ars/dm Note:
Issue order copy on 08.08.2019.
http://www.judis.nic.in 16/18 W.P.No.22716 of 2017 To
1. The Principal Secretary to the Hon'ble Prime Minister of India, Union of India, 152, South Block, Raisina Hill, New Delhi - 110 011.
2. The Home Secretary, Department of Ministry of Home Affairs, North Block, Central Secretariat, New Delhi - 110 001.
3. The Secretary, Department of Law and Justice, 26, Mansingh road, Jaisalmer House, New Delhi - 110 011.
4. The Secretary, Department of Environment and Forest, New Delhi - 110 003.
5. The Chief Secretary of State, State of Tamil Nadu, Secretariat Buildings, Fort St. George, Chennai - 9.
6. The Home Secretary, State of Tamil Nadu, Secretariat Buildings, Fort St. George, Chennai - 9.
7. The Secretary, State of Tamil Nadu, Department of Environment and Forest, Fort St. George, Chennai - 9.
http://www.judis.nic.in 17/18 W.P.No.22716 of 2017 S.MANIKUMAR, J.
AND SUBRAMONIUM PRASAD, J.
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