K.T.V. Health Food Private Limited vs Union Of India

K.T.V. HEALTH FOOD PVT. LTD. …APPELLANT (S)

VERSUS

UNION OF INDIA AND ORS. …RESPONDENT(S)

With

CIVIL APPEAL NO. 3639 of 2020

K.T.V. OIL MILLS PRIVATE LIMITED …APPELLANT (S)

VERSUS

THE SECRETARY TO GOVERNMENT, UNION OF INDIA & ORS. …RESPONDENT (S)

JUDGMENT

K.M. JOSEPH, J.

1. The Appeals are lodged under Section 22 of the

National Green Tribunal Act, 2010.

C.A. NO. 3626 OF 2020 (THE FIRST APPEAL)

2. The appellant challenges the Order passed by the Signature Not Verified Digitally signed by

National Green Tribunal (NGT), Southern Zone. By the Nidhi Ahuja Date: 2023.02.01 16:38:00 IST Reason:

impugned Order, the NGT has allowed the appeal filed

1 by Respondent No.5 and set aside proceedings dated

08.03.2019. By the said proceedings, Respondent No.1

had granted ex post facto clearance purporting to

invoke paragraph-4.3 of the Notification issued in the

year 2011 (hereinafter referred to as, ‘the 2011

Notification’) under the Environment Protection Act,

1986 (hereinafter referred to as, ‘the Act’). By the

said clearance, the appellant was given clearance for

the laying of pipeline for transfer of edible oil from

the Chennai Port to the storage terminal tank and for

the establishment of the storage transit terminal of

the appellant. The NGT has found that while the ex post

facto clearance could be granted under paragraph-4.3,

and that it would have prospective operation, however,

the activity of putting up a storage tank transit

terminal, being contrary to the 2011 Notification, the

same was illegal. It was found to be illegal in turn,

on the ground that the storage terminal was not located

‘in’ the Chennai Port, in which case alone, it would

have been permissible under the permitted activities

of Coastal Regulation Zone II (for short, ‘CRZ II’).

2 THE FACTS

3. The appellant is in the business of processing and

refining edible oil. Towards the said business, the

appellant imports edible oil. The edible oil is

imported through the Chennai Port. On 05.11.2014, in

the public auction, the appellant purchased an existing

storage facility. It was located at Old Door No. 4061/A

and New Survey No. 4061/2 in the Ennore Expressway. The

appellant thereafter, according to it, started the

process to seek approvals for laying an underground

pipeline of 4.5 kilometres to the said storage

facility. On payment of Rs.5097921/-, the Chennai

Fishing Harbour Management Committee granted

permission to lay the underground pipeline. The NHAI

granted permission to lay the underground pipeline. On

03.03.2015, allegedly based on inspection of the

storage facility, and on payment of charges, including

service tax, the Chennai Port Trust granted permission

for laying the underground pipeline from the Chennai

Port to the storage facility. On 10.07.2015, purporting

to act under paragraph-4 of the 2011 Notification, the

appellant made a proposal to the District Coastal 3 Management Authority, Chennai (hereinafter referred to

as ‘the DCZMA’). It would appear that the said Body

recommended the proposal. The third respondent, viz.,

the Tamil Nadu State Coastal Zonal Management Authority

(hereinafter referred to as, ‘the State Authority’)

considered the proposal and it forwarded the same

through the second respondent, viz., the State of Tamil

Nadu to the first respondent, viz., the Union of India,

in the Ministry of Environment and Forests and Climate

Change. Respondent No.4, viz., the Expert Appraisal

Committee, CRZ, sought two clarifications. On

24.08.2016, the Chennai Port Trust issued a Certificate

and permitted the laying of the pipeline, which,

according to the appellant, was based on the need to

avoid usage of tanker lorries and as it resulted in

better handling of vessels at the Port. While the

recommendation of the third respondent was pending

before the first respondent, appellant started laying

the pipeline with the prior permission of the NHAI, the

Chennai Fishing Harbour Committee and the Port Trust.

On 19.10.2016, Respondent No. 5 filed O.A. No. 238 of

2016 against the activities of the appellant in

4 question. A Local Commissioner was appointed, who

inspected the Facility. We may, at this juncture,

notice the following physical features noticed during

the inspection.

“1) The premises of the 12th Respondent (in A. No. 238 of 2016), M/s. KTV Health Foods Pvt. Ltd., is situated at No.1,2,3, Suriyanarayana Chetty Street, Tondiarpet, Chennai- 600 001, facing the Bay of Bengal. In between the premises of the 12th respondent and Bay of Bengal, the State Highway (Ennore Express Highway) runs North to South. The State Highway measures about 120 Feet in width and from the road, there is a space of about 40 Feet up to the sea shore. Thus, the distance between the entrance of the 12th respondent and the seashore is about 160 Feet.”

[The appellant was the 12th Respondent]

4. The NGT disposed of the said O.A. noting that the

storage facility was closed and that till the first

respondent took a decision, no activity will be carried

out. It would appear that Respondent No. 4 recommended

the proposal for CRZ clearance, subject to certain

conditions. This was even after finding that there was

no provision in the 2011 Notification, but taking

inspiration from the provisions of the 2006

Notification. On 06.02.2018, the 2011 Notification was

amended by the insertion of paragraph-4.3. Based on the

5 said amendment, the State Authorities recommendations

were called for. On 27.12.2018, the storage facility

was inspected by the DCZMA. The Tamil Nadu State

Pollution Control Board, it would appear, intimated the

third respondent that except for not obtaining prior

clearance, there was no other violation. Accordingly,

the State Authority recommended the proposal. It is on

this basis, the first respondent granted post facto

clearance by proceedings dated 08.03.2019. The

appellant obtained consent to operate from the

Pollution Control Board. On 08.04.2019, the fifth

respondent filed the appeal before the NGT and the NGT

has allowed application, as already noticed.

CIVIL APPEAL NO. 3639 OF 2020 (THE CONNECTED APPEAL)

5. The appellant-company is a sister concern of the

appellant in the first Appeal. It has also constructed

a storage facility, being engaged in the business of

edible oil, for the purpose of storing the imported

edible oil at a distance of nearly 600 meters from the

location of the storage tank of the appellant in the

first Appeal. It has also drawn a pipeline from the 6 storage tank to the facility it has put up for storing

edible oil, for transmission to its factory. We must

mention here that the idea was to import edible oil,

unload it at Chennai Port, take the edible oil by a

pipeline to the storage facility and from there,

transmit the same by tanker lorries to their factories,

wherein the manufacturing activities were being carried

out.

6. The issues arising in both the Appeals are common

and, hence, we discuss the issues with reference to the

first Appeal.

THE SALIENT FEATURES OF THE ORDER DATED

08.03.2019 BY THE FIRST RESPONDENT

7. The salient Features of the Order dated 08.03.2019

passed by the First Respondent:

i. The site falls in CRZ II.

ii. Five number of storage tanks have been

installed.

7

iii. Permissions has been obtained from the Chennai

Port Trust, NHAI and the Harbour Management

Committee.

iv. The project will reduce traffic to the Chennai

Port Trust.

v. As per CRZ Notification, vide para 8, storage

of non-hazardous cargo such as edible oil,

fertilizers and food grain can be established

‘only in notified ports’.

8. There are other aspects and specific conditions,

apart from general conditions. It is also made clear

that the clearance is subject to the final Order of

this Court in the matter of Goa Foundation v. Union of

India in Writ Petition (Civil) No. 460 of 2004.

THE IMPUGNED ORDERS

9. The NGT found merit in the contention of the

appellants that the first respondent had the power to

grant ex post facto clearance. However, it would have

only prospective operation. The clearance could,

however, be supported, if the activity which was

permitted, was one, which was contemplated under the 8 2011 Notification. The Tribunal went on to note that

the storage facilities were not located ‘in’ the

Chennai Port. In fact, it was on the basis that under

paragraph-8 of the 2011 Notification, storage of edible

oil, inter alia, was permissible ‘in’ the limits of a

notified port. The attempt of the appellants to support

the clearance with reference to the fact that under

permitted activities in CRZ I, storage of non-hazardous

cargo, including edible oil, was permitted ‘within’ the

limits of a port and a distinction, therefore, existed

between the words ‘within’ and ‘in’, did not find

favour with the NGT. It was the contention of the

appellants that being two different words and a

meaningful interpretation being warranted in the case

of CRZ I, the activity to be permitted had to be

strictly within the limits of the port. Both, taking

into account the difference in the words used, as also

the fact that CRZ II contemplated a less harsh regime,

the case of the appellants was that a purposeful

interpretation would warrant the view that the storing

of the edible oil in the CRZ II area, could be permitted

9 even outside the limits of the port. It is this argument

that failed.

10. The NGT has found the impugned Order of the first

respondent illegal. The construction of the storage

facility and the pipeline were directed to be removed.

The appellant in the first appeal was directed to pay

environmental compensation in a sum of Rs.25 lakhs. We

may only elucidate that the appellant in the connected

appeal had initially succeeded before the Tribunal.

However, it was after allowing a Review Petition, which

decision was not challenged and, on hearing the Appeal

again, that the present impugned Order came to be

passed. Noting that the appellant in the connected case

was earlier visited with environmental compensation,

no compensation was imposed on it.

11. We heard Shri Ranjit Kumar, learned Senior Counsel

for the appellant in the first appeal and also Shri

Dhruv Mehta, learned Senior Counsel for the appellant

in the other appeal. We further heard Ms. Anitha

Shenoy, learned senior Counsel on behalf of respondent

No.5 and Shri Anand Tiwari, learned Counsel on behalf

of respondents 2 and 3. We also further heard Mr.

10 Archana Pathak Dave, learned Counsel on behalf of Union

of India.

12. Shri Ranjit Kumar, learned Senior Counsel would

submit that the appellant was engaged in the

manufacture of edible oil. In order to avoid the

traffic snarls and the congestion it caused in the

Chennai Port, it was the Chennai Port itself which

suggested that the appellant may draw the pipeline from

the Port area so that the edible oil which was

downloaded on import could be taken to a storage

facility and from there carried to the factory of the

appellant. He would submit that the provisions of 2011

Notification would reveal that paragraph-3 declares

activities which are prohibited. The storage tank has

been put up in CRZ-II area. There are construction

activities permitted in CRZ-I area which is the most

fragile area. He would take us through the Notification

and point out that on a combined reading of paragraphs-

3, 4, 7 and 8, the following will be the upshot. In

regard to CRZ-II, it is less sensitive than CRZ-I. In

CRZ-I, the “storage of edible oil inter alia is

permitted within the notified ports”. In CRZ-II on the

11 other hand, storage of non-hazardous cargo such as

edible oil, fertilizers and foodgrain is permitted ‘in

notified ports’. Since the word ‘within’ which is used

in CRZ-I is not employed in regard to the similar

activity in CRZ-II and instead the word ‘in’ is used,

the principal contention is that they must receive a

different meaning. He would further contend that this

Court may adopt purposive interpretation and, in this

regard, he drew our attention to the judgment of this

court in M. Nizamudeen v. Chemplast Sanmar Limited and

Others1. The words ‘in notified ports’, occurring in

pargraph-8(II)(vi) of the 2011 Notification must be

construed to mean “in or around the notified ports”.

He would submit that storage tanks have been

constructed not within the Chennai Port but on a

purposive interpretation, the storage tank must be

treated as “in” the Chennai Port though it is not in

its notified limits. The storage container was located

in the Customs Notified Area of the Chennai Port. He

would contend that CRZ-II even permits facility for the

storage of petroleum products and liquified natural

1 (2010) 4 SCC 240 12 gas. If that is so, he poses the question that having

regard to the fact that CRZ-II generally provides for

a less harsh regulatory regime and CRZ-I, it may result

in an absurdity to not permit storage of non-hazardous

cargo which includes edible oil in CRZ II. He would

refer to the company that edible oil keeps in the

clause, namely, fertilizers and foodgrains. He would

point out that it may be absurd to disallow storage of

foodgrains, fertilizers and edible oil in CRZ-II. This

is all the more reason to place a wider meaning on the

word ‘in’ the notified port.

13. Shri Ranjit Kumar, learned Senior Counsel, drew

support from the decisions of this Court as indicated

herein. In Electrosteel Steels Limited v. Union of

India and Others2, this Court held that the Act does

not prohibit grant of ex post facto environmental

clearance. It also held that the Court cannot be

oblivious to the interest of the economy or need to

protect the livelihood of hundreds of employees and

others employed in the project, if such project

complies with environment norms.

2 (2021) SCC OnLine 1247 13

14. The said view has been followed in the judgment in

Pahwa Plastics Pvt. Ltd. and Another v. Dastak NGO and

Others3 and Gajubha Jadeja Jesar v. Union of India and

Others4. It is, therefore, contended that there was no

occasion for the NGT to interfere.

15. Relying on the Judgment in Alembic Pharmaceuticals

Ltd. v. Rohit Prajapati and Others5, it is contended

that the impugned Order does not do justice to the

Principle of Proportionality. It is pointed out that

in the said case, on payment of environmental

compensation, the industry was permitted to continue.

16. Shri Dhruv Mehta, learned Senior Counsel in the

other case would adopt the arguments. He would further

contend that the principles of contemporaneous exposito

are attracted. In this regard, Shri Dhruv Mehta,

learned Senior Counsel sought to draw considerable

support from the decision of this Court in K.P.

Varghese v. Income Tax Officer, Ernakulam and Another6.

This is on the basis that the understanding of all the

3 (2022) SCC OnLine SC 362 4 (2022) SCC OnLine SC 993 5 (2020) 17 SCC 157 6 1981 (4) SCC 173

14 authorities including respondent No.1 in the impugned

Order is that construction of the container for storage

facility is permissible under CRZ-II. The Tribunal

clearly erred in interfering with the views of all the

authorities.

17. Shri Dhruv Mehta, learned Senior Counsel, would

also contend that the matter may be viewed in the

context of Principles of Sustainable Development and

Polluter Pays Principle.

18. Shri Anand Tiwari, learned counsel appearing on

behalf of respondent 2 and 3 would also support the

appellants. He would contend that a purposive

interpretation is to be placed. Smt. Archana Pathak

Dave, learned Counsel for the Union of India equally

supported the stand of the Government of India.

19. Smt. Anitha Shenoy, learned Senior Counsel

appearing on behalf of respondent No.5 strongly

supported the order of the NGT and submits that the

matter relates to the defending of the environment. In

constructing outside the limits of the notified port,

a fact, which is not disputed by the appellant, there

is an indefensible violation of a law which subserves 15 a salutary and sublime object. She would draw support

from the body of case law consisting essentially of the

views of this Court indicating that this Court has

firmly set its face against the trampling of law

relating to the environment [See Indian Council for

Enviro-Legal Action v. Union of India7, S. Jagannathan

v. Union of India and others8, Piedade Filomena

Gonsalves v. State of Goa9, Vaamika Island (Green Lagoon

Resort) v. Union of India10, Kapico Kerala Resorts (P)

Ltd. v. State of Kerala11, Kerala State Coastal Zone

Management Authority v. State of Kerala12]. She would

submit the word ‘in’ cannot mean ‘out’. In other words,

it certainly cannot countenance the storage facility

being located outside the notified port. In the facts

of this case, it is at quiet a long distance from the

Chennai Port and the laws relating to environment

should be strictly construed.

7 (1996) 5 SCC 281 8 (1997) 2 SCC 87 9 (2004) 3 SCC 445 10 (2013) 8 SCC 760 11 (2020) 3 SCC 18 12 (2019) 7 SCC 248

16 ANALYSIS

20. The 2011 Notification has been issued under Section

3 of the Act. The first notification in regard to the

notification of Coastal Zone was issued in the year

1991. There were amendments. It is thereafter that the

notification was issued in the year 2011. The 2011

notification came to be published on 6th January, 2011.

We may indicate that, in fact, the notification which

holds the field today was issued in the year 2019.

THE SCHEME OF THE 2011 NOTIFICATION

21. The Central Government declared certain areas as

Coastal Regulation Zone (‘CRZ’, for short). The CRZ in

the First Clause consists of the land area from high

tide line to 500 meters on the land along the sea front.

The High Tide line is the line based on the highest

water mark during the spring tide. We may only further

notice that among the other 4 categories of CRZ, the

CRZ includes the water and the bed area between the LTL

(LOW TIDE LINE)(which line is based on the lowest

height of the water body during the spring tide) to the

territorial water limit (12 nautical miles) in the case

17 of the sea and the water bed and area between the LTL

at the bank to the LTL on the opposite of the bank of

the tidal influenced water bodies. CRZ has been

classified under para 7 into CRZ I, CRZ II, CRZ III,

CRZ IV and CRZ V. Since, we are concerned with CRZ II

we may notice the elements which constitute the same.

“7. Classification of the CRZ – For the purpose of conserving and protecting the coastal areas and marine waters, the CRZ area shall be classified as follows, namely:-

XXXX XXXX XXXX

(ii) CRZ-II,-

The areas that have been developed upto or close to the shoreline.

Explanation.- For the purposes of the expression “developed area” is referred to as that area within the existing municipal limits or in other existing legally designated urban areas which are substantially built-up and has been provided with drainage and approach roads and other infrastructural facilities, such as water supply and sewerage mains;”

22. Paragraph-3 provides for prohibited activities

within CRZ. We may notice that it is divided into 14

categories and the noticeable feature is that certain

exceptions to the prohibitions are also declared. Of

relevance to the cases before us, are certain Clauses

in paragraph-3. They are:

18

“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,-

(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.;”

23. Paragraph-3(i)(b) permits projects of department

of Atomic energy. Paragraph-3(i)(d) permits projects

of greenfield project already permitted at Navi Bombay.

3(i)(e) allows construction, repair work of dwelling

units of local community including fishermen in

accordance with Local Town and Country Planning

Regulation.

24. Paragraph 3(ii) deals with a prohibited category

which reads as follows:

“(ii) manufacture or handling oil storage or disposal of hazardous substance as specified in the notification of Ministry of Environment and Forests, No. S.0.594 (E), dated the 28th July, 1989, S.0. No. 966(E), elated the 27th November, 1989 and GSR 1037 (E), dated the 5th December, 1989 except,-“

19

25. However, by way of exception to the prohibition

3(ii)(a) permits transfer of hazardous substances from

ships to ports terminals and refineries and vice versa.

Clause 3(ii)(a) reads as follows:

“(a) transfer of hazardous substances from ships to ports, terminals and refineries and vice versa;”

26. Paragraph-3(viii), enacts the following

prohibitions:

“(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 in consultation with the State Government or the Union territory Administration.”

(Emphasis supplied)

27. Paragraph-3(xi) provides for prohibition of

construction activity in CRZ1 except those specified

in para 8 of the notification. We need not be detained

with various others clauses. Regulation 4 deals with

permissible activities in CRZ area. It is declared that

activities which are enumerated under paragraph-4 shall

be regulated except those prohibited in paragraph-3. 20 This means what is prohibited in paragraph-3 cannot

either be permitted or regulated within the meaning of

paragraph-4. Paragraph-4 reads as follows:

“4. Regulation of permissible activities in CRZ area.- The following activities shall be regulated except those prohibited in para 3 above,-

(i)(a) clearance shall be given for any activity within the CRZ only if it requires waterfront and foreshore facilities;

(b) for those projects which are listed under this notification and also attract EIA notification, 2006 (S.O.1533 (E), dated the 14th September, 2006), for such projects clearance under EIA notification only shall be required subject to being recommended by the concerned State or Union territory Coastal Zone Management Authority (hereinafter referred to as the CZMA).

(c) Housing schemes in CRZ as specified in paragraph 8 of this notification;

(d) Construction involving more than 20,000sq mts built-up area in CRZ-!1 shall be considered in accordance with EIA notification, 2006 and in case of projects less than 20,000sq mts built-up area shall be approved by the concerned State or Union territory Planning authorities in accordance with this notification after obtaining recommendations from the concerned CZMA and prior recommendations of the concern CZMA shall be essential for considering the grant of environmental clearance under EIA notification, 2006 or grant of approval by the relevant planning authority.

(e) MoEF may under a specific or general order specify projects which require prior public hearing of project affected people.

(f) construction and operation for ports and harbours, jetties, wharves, quays, slipways,

21 ship construction yards, breakwaters, groynes, erosion control measures;

(ii) the following activities shall require clearance from MoEF, namely:-

(a) those activities not listed in the EIA notification, 2006.

(b) construction activities relating to projects of Department of Atomic Energy or Defence requirements for which foreshore facilities are essential such as, slipways, jetties, wharves, quays; except for classified operational component of defence projects.

Residential buildings, office buildings, hospital complexes, workshops of strategic and defence projects in terms of EIA notification, 2006.;

(c) construction, operation of lighthouses;

(d) laying of pipelines, conveying systems, transmission line;

(e) exploration and extraction of oil and natural gas and all associated activities and facilities thereto;

(f) Foreshore requiring facilities for transport of raw materials, facilities for intake of cooling water and outfall for discharge of treated wastewater or cooling water from thermal power plants. MoEF may specify for category of projects such as at

(f), (g) and (h) of para 4;

(g) Mining of rare minerals as listed by the Department of Atomic Energy;

(h) Facilities for generating power by non- conventional energy resources, desalination plants and weather radars;

(i) Demolition and reconstruction of (a) buildings of archaeological and historical importance, (ii) heritage buildings; and buildings under public use which means buildings such as for the purposes of worship, education, medical care and cultural activities;”

22

28. Since Clause 2 of paragraph-4 provides that the

activities described thereunder would require

clearance from MoEF, the question would arise as to

whether for the other activities, which are

permissible, does it require clearance? Paragraph-4.2

provides the answer. It provides for the procedure for

clearance of permissible activities. Various

formalities have to be undergone. Originally, the 2011

notification did not provide for any ex post facto

approval. It is in the year 2018, i.e., on 09.03.2018

that paragraph-4.3 came to be inserted in the 2011

Notification. It read as follows:

"4.3 Post facto clearance for permissible activities.-

(i) all activities, which are otherwise permissible under the provisions of this notification, but have commenced construction without prior clearance, would be considered for regularisation only in such cases wherein the project applied for regularization in the specified time and the projects which are in violation of CRZ norms would not be regularised;

(ii) the concerned Coastal Zone Management Authority shall give specific recommendations regarding regularisation of such proposals and shall certify that there have been no violations of the CRZ regulations, while making such recommendations;

23 (iii) such cases where the construction have been commenced before the date of this notification without the requisite CRZ clearance, shall be considered only by Ministry of Environment, Forest and Climate Change, provided that the request for such regularisation is received in the said Ministry by 30th June, 2018.” (Emphasis supplied)

29. It will at once be noticed that thereunder

violation of ‘norms’ would disentitle a person to post

facto clearance. The norms are laid down in Paragraph-

8. Paragraph-8 provided for regulation of activities

permissible under the 2011 Notification. It declares

that the development or construction activities in

different categories of CRZ shall be regulated by the

concerned CZMA in accordance with the following norms.

In CRZ-I, the norms were as follows:

“l. CRZ-1,-

(i) no new construction shall be permitted in CRZ-1 except,-

(a) projects relating to Department of Atomic Energy;

(b) pipelines, conveying systems including transmission lines;

(c) facilities that are essential for activities permissible under CRZ-l;

(d) installation of weather radar for monitoring of cyclones movement and prediction by Indian Meteorological Department;

24 (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 plants;

(g) construction of trans harbour sea links, roads on stilts or pillars without affecting the tidal flow of water.”

30. In CRZ-II, the norms were as follows:

“II. CRZ-11,-

(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 25 existing authorized 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;”

31. CRZ-III, comprised of area up to 200 meters from

HTL on the landward side in the case of sea front inter

alia. It is marked as the NDZ [or No Development Zone}.

It was, inter alia, provided that NDZ shall not apply

“in such area falling within any notified port”. There

are various restrictions therein. Certain activities

were shown as permitted activities in the NDZ. They

26 included in Clause (e) facilities for receipt and

storage of petroleum products and liquified gas as

specified in Annexure-II. Interestingly, in regard to

the area between 200 meters to 500 meters falling in

CRZ-III, paragraph-8 permitted storage of non-

hazardous cargo such as edible oil, fertilizers,

foodgrains ‘in’ notified ports.

32. Having set out the relevant provisions of the 2011

notification, we may proceed to examine the contentions

of the parties.

33. The appellants would contend that CRZ-I provides

for the harshest regime having regard to the fact that

the areas are ecologically sensitive and the

geomorphological features play a role in the

maintaining the integrity of the coast. They included

mangroves. In case, the area of mangroves was more than

1000 sq.mts, a buffer of 50 mts. along the mangroves

was to be provided. Sand dunes came under CRZ-I, as did

corals and coral reefs and associated biodiversity.

34. It may be true that the appellant had secured

permission of the local authority. Shri Ranjit Kumar

may be correct in contending also that the laying of 27 the pipeline ensured that additional vehicle load was

not thrust on the Chennai port. There may be merit also

in the contention of the appellants that the no

objection certificate may indicate that the pipeline

would lead to increased evacuation of edible oil

through the pipeline, leading to increased port

efficiency. As found by the NGT and not disputed by the

fifth respondent also the power to grant post facto

approval flowed from paragraph-4.3 inserted in the 2011

Notification, though in the year 2018. The case of the

appellant that the storage facility is located in CRZ

II is beyond dispute. The storage facility being

located on the landward side may be correct. The

appellants assertion that between the storage facility

and the Bay of Bengal there exists the Ennore Express

Highway appears to be correct. We proceed on the basis

further that the distance between the entrance of the

storage facility and the sea shore is ‘160 feet’.

Laying of pipeline is permissible in CRZ I. Appellant’s

contention that there is no space at the Chennai port

is sought to be buttressed with reference to

28 certificate dated 24.08.2016. We may notice its

contents:

“The cargo through put and number of vehicles moving in and out of Chennai Port has increased manifold over the past years. In order to reduce the road traffic and resultant congestion, the port has been encouraging alternate modes of cargo evacuation like Rail evacuation and evacuation through pipeline.

Accordingly Chennai Port has permitted M/s. KTV Health Food Private Limited to lay pipeline from BD2 berth where the firm is laying a 10 inch pipeline for evacuation of the cargo. This will result in increased evacuation of edible oil through pipeline thus avoiding inter carting using tanker lorries.

This will in turn result in better turnaround of the vessels thereby enabling the port to handle more and more volume of edible oil cargo and vessels thus increasing the port efficiency. This certificate is issued to enable the firm to obtain the required statutory clearances for laying the pipeline.”

35. It will be noticed that the Certificate is silent

as regards the storage facility and it being in the

port. The Certificate does not exactly declare that

there is no space at the Chennai port. Appellants may

be correct in contending that edible oil is not

hazardous and that edible oil imports may be necessary

to meet the requirement of a growing population. It may

29 be true that there is no manufacturing process which

may be involved in constructing or maintaining the

storage facility.

36. The contention of the appellants that by

decongesting the traffic and allowing the edible oil

to be transferred through pipelines for onward

transmission to the factories of the appellant, the

baneful impact flowing from tanker lorry traffic by way

of pollution is reduced, overlooks the true purport of

the 2011 notification. We must demystify the object of

the law as contained in the coastal regulation

notification. As far as pollution is concerned, it is

the subject matter of laws specifically relating to

regulation and prohibition of activities on the said

score. A perusal of the 2011 notification reveals the

following as the avowed objects: (i) ensuring

livelihood security to the fisher communities and other

communities living in the coastal areas, (ii)

conservation and protection of coastal stretches; (iii)

the protection of the unique environment of the coastal

stretches and its marine area; (iv) promotion or

development through sustainable manner based on

30 scientific principles taking into account the dangers

of natural hazards in the coastal areas; (v) the aspect

of sea level rise due to global warming. Therefore, we

are unable to agree with the appellants that as the

laying of the pipeline would result in greater

efficiency in the functioning of the port or for that

matter, it would reduce the traffic congestion, and

what is more, thereby there would be a reduction in the

pollution may not by itself be relevant or for

concluding the issue. It is the duty of the Court to

glean the true object of a law and give effect to it.

It is equally the duty of the Court to eschew from its

consideration matters which may not be strictly germane

to the object. Hence, we proceed on the basis that the

argument based on increased efficiency of the port and

avoidance of traffic congestion, and the decreased

pollution in the landward area, as it were, may not be

by themselves relevant.

37. The next argument is the argument based on the

difference between the words ‘within’ as found in CRZ-

I as contrasted with the word ‘in’ in CRZ-II. We are

called upon to employ a purposeful interpretation

31 bearing in mind also the distinction in the words used.

Much reliance has been placed on the judgment reported

in M. Nizamudeen (supra). The said matter arose under

the coastal regulation notification issued in the year

1991. The MoEF granted permission to the respondent

therein for construction for setting up of a marine

terminal facility near the sea shore for receiving and

transferring VCM which was one of the raw materials for

manufacturing PVC. Under the terms of the 1991

notification, certain activities were prohibited under

paragraph-2. They included manufacturing or handling

or storage or disposal of hazardous substances as

provided therein except transfer of hazardous

substances from ships to ports, terminals and

refineries and vice versa ‘in the port areas’.

38. The question fell for consideration as to the

interpretation to be placed on the words ‘in the port

areas’. We feel advised to refer to the following

portions of the judgment reported in M. Nizamudeen

(supra):

“36. It was contended by the Senior Counsel for the appellant-petitioner that transfer of VCM in CRZ area is completely prohibited and VCM 32 cannot be carried through the CRZ except in the port area. Their argument is that VCM can be brought onshore by pipeline to the port area but not in the CRZ area. The arguments of learned Senior Counsel have put in issue the scope of expression, “except transfer of hazardous substances from ships to ports, terminals and refineries and vice versa in the port areas” which was added in Para 2(ii) on 9-7-1997. We are called upon to ascertain the true meaning and intention of the executive in bringing this exception.

37. In the original 1991 Notification there was no exception clause. It appears to have been added for the purpose of enabling transfer of hazardous substances from ships to ports, ships to terminals and ships to refineries and vice versa. Is such transfer of hazardous substances confined to terminals and refineries located in the port areas? The answer in the affirmative may make the said provision unworkable and would also result in absurdity inasmuch as the hazardous substance would be brought into the port, refinery or terminal in the port area from the ship and would remain there and could not be taken beyond the port area because of the prohibition. This surely could not have been the intention of the executive in adding the exception clause.

38. It is well settled that if exception has been added to remedy the mischief or defect, it should be so construed that it remedies the mischief and not in a manner which frustrates the very purpose. Purposive construction has often been employed to avoid a lacuna and to suppress the mischief and advance the remedy.

It is again a settled rule that if the language used is capable of bearing more than one construction and if construction is employed that results in absurdity or anomaly, such construction has to be rejected and preference should be given to such a construction that 33 brings it into harmony with its purpose and avoids absurdity or anomaly as it may always be presumed that while employing a particular language in the provision absurdity or anomaly was never intended.

39. Notwithstanding imperfection of expression and that exception clause is not happily worded, we are of the view that by applying purposive construction, the expression, “in the port areas” should be read as “in or through the port areas”. The exception in Para 2(ii) then would achieve its objective and read, “except transfer of hazardous substances from ships to ports, ships to terminals and ships to refineries and vice versa, in or through the port areas”. This construction will be harmonious with Para 3(2)(ii) which permits the activity of laying pipelines in the CRZ area.”

39. On the one hand, the learned counsel for the

appellants would place considerable reliance on the

view taken by this Court. Per contra, Smt. Anitha

Shenoy, learned Senior Counsel, would submit that the

aforesaid decision turned on the facts obtaining

therein and, in particular, the expression ‘in the port

areas’, whereas the language used in paragraph-

8(II)(vi) and also the context should persuade this

Court to place an interpretation advancing the object

of a notification such as the 2011 Notification.

34

40. A perusal of paragraph-36 of the Judgment would

show that the contention of the appellant therein was

that the transfer of the raw material in the CRZ area

was completely prohibited and it could not be carried

through the zone except ‘in the port area’. This Court

understood the terms of the notification to be that it

permitted transfer of the hazardous substances from the

ships to the ports, ships to terminals and finally,

ships to the refineries. The vice versa was also found

to be within the contemplation of the notification as

permitted activities. The Court posed the question

whether the transfer was to be confined to refineries

and terminals which were located in the port area. In

other words, if the argument of the appellant therein

was accepted, it could have resulted in confining the

transfer of the raw material from the ship by pipeline

to the port area but it could not be taken to a refinery

located outside the port area. But the provision did

contemplate transporting of the material from the ship

to the refineries as also to terminals and vice versa.

It was in this context that the Court proceeded to hold

that a purposive construction was needed to avoid a

35 situation of absurdity. Much turned on the presence of

the words ‘in the port area’. Therefore, keeping in

mind the clear object of the Notification, which was

self-evident, the Court added the words ‘or through’

to the words ‘in the port area’. This facilitated the

transfer of the raw material from the ships to a

refinery or a terminal which need not have to be located

in the port area. We must understand the decision of

this Court in M. Nizamudeen (supra) in the aforesaid

context. The rationale and principle appear inapposite

to the cases before us.

41. Paragraph-8(I)(f) relating to CRZ-I, may be

recaptured:

“(8). Norms for regulation of activities permissible under this notification,-

CRZ-I

(ii) Areas between LTL and IITL which are not ecologically sensitive, necessary safety measures will be incorporated while permitting the following, namely:-

(f) storage of non-hazardous cargo such as edible oil, fertilizers and food grain within notified ports;”

42. We also do bear in mind that in paragraph-

8(I)(i)(b), construction of pipelines, inter alia, was

permitted. It is thereafter that in paragraph-8(II),

36 under CRZ-II, Clause VI contemplated permitting of

storage of non-hazardous cargo, such as edible oil,

fertilizers and food grain ‘in’ notified ports. We may

broaden our inquiry into the relevant contents of CRZ-

III. CRZ-III of the 2011 Notification was divided into

area ‘A’, which, inter alia, dealt with areas up to 200

meters from HTL on the landward side in the case of sea

front. The said Clause proclaimed further that the said

area would be a No Development Zone (NDZ). We notice

that in CRZ-III the NDZ was not to be applicable in

‘such areas’ within any port limits. Thus, the

expression ‘within’ made its appearance in relation to

notified port limits again. In the permitted activities

in the NDZ under area ‘A’, viz., up to 200 meters as

aforesaid, we find Clause (e), which permitted

facilities for receipt and storage of petroleum

products and liquified petroleum gas as specified in

Annexure-II. Area B of CRZ-III is described as the area

comprised from 200 meters to 500 meters. Since the CRZ

itself would terminate upon the 500 meters distance

being obtained, this constituted, in other words, the

residuary area, of CRZ-III. Under the same we notice

37 that again facilities for receipt and storage of

petroleum products and liquified natural gas as

specified in Annexure-II was permitted. We may bear in

mind that the very same activity had also been

contemplated in area A of CRZ-III, viz., the area

comprised to 200 meters of the high tide line of the

landward area in the case of the sea front, inter alia.

Interestingly, when it comes to storage of non-

hazardous cargo, such as edible oils fertilizers and

food grain ‘in’ the notified ports, it was permitted

activity in area ‘B’ of CRZ-III under Clause 4 thereof,

that is, an area located between 200 metres to 500

metres. It must be noticed that CRZ-III had been

classified in paragraph-7 essentially as relatively

undisturbed area, which did not belong to either CRZ-I

or II, which included the coastal zone in rural areas,

both developed and undeveloped and also areas within

municipal limits or in other legally designated urban

areas, which were not substantially built up. We have

already noticed the classification of CRZ-II earlier,

as areas which had been developed up to or close to the

shore line. Can it then be said that storage of non-

38 hazardous cargo, such as edible oil, fertilizers food

grain, permitted in the notified ports in CRZ-III, Area

‘B’, be also permitted in CRZ-III Area ‘A’? Going by

the contents of CRZ-III under activities which were

permitted in the NDZ, we are unable to find any clause

which permitted such storage of non-hazardous cargo

including edible oil, inter alia. Therefore, in the NDZ

area falling under area ‘A’ of CRZ-III, it may have

been impermissible.

43. We have made this discussion only to remind

ourselves that in interpretation of the Notification

we are concerned with, a pursuit of a purposive

interpretation or a search for a rationale which the

Court finds fair may meet with limitations which flow

from the object of the maker of the notification being

confined to the plain meaning of the words used. No

doubt, a situation found in the facts of the case

reported in M. Nizamudeen (supra) may call for a

different approach.

44. Reverting back to the controversy, projected from

the difference between the words ‘within’ and ‘in’, we

may notice the following discussion of the NGT, which

39 is a specialised Body, consisting of a Judicial Member

and a Technical Member in a statutory appeal under the

Act.

“54. 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 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 i11fo1mal enjoying friendly relations with. the ins and outs informal all the details. - Origin Old English"

55. 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.”

40

56. 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.”

45. Going by the definition of the word ‘in’, it

includes ‘so as to be enclosed, surrounded or inside’.

One way of looking at the word ‘in’ the notified port

in para 8(II)(vi) would be that storage of non-

hazardous material is permitted inside the notified

port. We notice that the definition of the word

‘within’ also includes the word meaning inside. No

doubt, Justice Oliver Wendell Holmes declared: “A word

is not a crystal, transparent and unchanged; it is the

skin of a living thought and may vary greatly in color

and content according to the circumstances and time in

which it is used.”

46. Smt. Anita Shenoy, learned Senior Counsel, would

assert that what is ‘out’ cannot be considered as being

‘in’. She expatiates by pointing out that the storage

facility of the appellants is located a few kilometres

away of the notified limits of the Chennai Port. She

poses the question that on such facts could this Court

41 be persuaded to still hold that it is inside the

notified port, viz., the Chennai Port. It would involve

doing violence to the clear words. The word ‘within’

and ‘in’ therefore, in the context of the Notification

must be given the same meaning. The Notification and

the policy is not under a shadow, by way of a challenge

to the Notification. It is the plain duty of the Court

to give effect to the law as it is found. No doubt, as

pointed out by Shri Dhruv Mehta, if it is found

otherwise acceptable, an interpretation which accords

with constitutional principles, may appeal to the

Court, even if there is no challenge mounted.

47. A detour may be apposite. Chennai Port is a Port,

which is, admittedly, a major port within the meaning

of Major Ports Act, 1964. Another enactment, which

deals with ports, is the Indian Ports Act, 1908. The

appellants would contend that, while the storage

facility may not be located within the Chennai Port,

it is licenced under Section 57 of the Customs Act as

a customs station. In the Major Ports Act, the word

‘port’ is defined in Section 2(q). It reads as follows:

42

“(q) “port” means any major port to which this Act applies within such limits as may, from time to time, be defined by the Central Government for the purposes of this Act by notification in the Official Gazette, and, until a notification is so issued, within such limits as may have been defined by the Central Government under the provisions of the Indian Ports Act.”

48. Section 57 of the Customs Act, 1962 reads as

follows: -

“57. Licensing of public warehouses. —The Principal Commissioner of Customs or Commissioner of Customs may, subject to such conditions as may be prescribed, licence a public warehouse wherein dutiable goods may be deposited.”

49. It is not the case of the appellants that the

storage is located within the limits of the Chennai

Port as contemplated in Section 2(q). It is, therefore,

not inside the said Port. However, it is appellants

case that the storage facility is located in the

Customs notified area. This is based on the license

issued under Section 57 of the Customs Act. Under

Section 15 of the Customs Act, the date for

determination of the rate of duty and tariff valuation

of any imported goods in the case of goods cleared from

a warehouse, under Section 68, is declared to be the 43 date, on which, a bill for entry for home consumption,

in respect of such goods, is presented under Section

15. Goods, which are imported may be cleared

immediately with reference to their being entered for

home consumption under Section 46, and the relevant

date, would then be the date of presentation of the

bill of entry. An importer may wish to warehouse the

goods. It is in such cases that it is only upon the

bill for entry for home consumption is presented that

the crucial date emerges. It is in this context that

to regulate and control the collection of duty apart

from other aspects that a license is procured under

Section 57 of the Act. Section 2 sub-Section (11) of

the Customs Act, defines the words ‘customs area’. It

reads as follows:

“2(11) “customs area” means the area of a customs station or a warehouse and includes any area in which imported goods or export goods are ordinarily kept before clearance by Customs Authorities”

50. Section 2 sub-Section (12) defines ‘customs port’,

whereas, Section 2 sub-Section (13), defines ‘customs

station’:

44 “(12) “customs port” means any port appointed under clause (a) of section 7 to be a customs port, and includes a place appointed under clause (aa) of that section to be an inland container depot”

(13) “customs station” means any customs port, customs airport, international courier terminal, foreign post office or land customs station”

51. Section 7(a), to which reference may be necessary

in view of the definition of the words ‘customs port’,

reads as follows:

“7. Appointment of customs ports, airports, etc.-(1) The Board may, by notification in the Official Gazette, appoint-

(a)The ports and airports which alone shall be customs ports or customs airports for the unloading of imported goods and the loading of export goods or any class of such goods;”

52. Thus, every port falling under the Indian Port Act

and the Major Port Act may not be on their own become

a customs port. A customs port under Section 2(12)

comes into being on a port being appointed as such

under Section 7(a). A customs station no doubt,

includes any customs port and a land customs station.

The case of the appellant based on the license under

Section 57 of the Customs Act may make it a customs

45 area as it includes a warehouse but it is inconceivable

as to how it would transform it into ‘in a notified

port’.

53. An argument, which is raised by the learned Senior

Counsel for the appellants is traceable to Clause (1)

of paragraph-8 falling under CRZ-II. It reads as

follows:

“CRZ-11, -

(i) buildings shall be permitted only on the landward side of the existing road, or on the landward side of existing authorized structures;”

It is the contention of the appellants that even if

it is found that the storage facility cannot be treated

as permitted in the port, as it does not fall in the

port, both having regard to the fact that CRZ-II

constitutes an area where the regime is less harsh than

the one contemplated in CRZ-I and also bearing in mind

that edible oil is non-hazardous cargo and still, what

is more important, in CRZ-II, facilities for receipt

and storage of petroleum products and liquified natural

gas can be permitted, and lastly, as a storage facility

would constitute a building, which, in the facts of

46 this case, is located on the landward side of the

existing road, the NGT was wrong. The argument appears

to be that the Chennai metro development authority

which is a local body has granted permission for the

construction of the storage facility treating the area

as a general industrial use zone. This means that the

building was permissible under the Town planning law.

The argument is further sought to be buttressed with

reference to the definition of the word building which

encompasses a storage facility.

54. This argument is sought to be met by Smt. Anita

Shenoy, learned Senior Counsel, by pointing out that

it would be plainly incongruous with the use of the

words ‘storage facilities’ as contained in paragraph-

8(II)(vi), falling under permitted activities under

CRZ-II with the word ‘building’, which must make the

position clear that placed side-by-side, building

cannot include the storage facility, which has been

expressly articulated and permitted as long as it is

‘in’ a notified port.

55. We notice certain salient features. CRZ-II has been

classified in para 7 as areas that have been developed

47 up to or close to the shore line. The storage tank of

the appellant in the first case appears to be located

at a distance of 160 feet from the shore line. At the

same time, it is located a few kilometres away from the

Chennai port. We have already noticed that under CRZ

III, the facility of storage of non-hazardous materials

including edible oil is permitted only at a distance

between 200-500 meters. This is even though both

handling and storage of petroleum products is

permitted, both within a distance of up to 200 meters

from the high tide line as also between 200-500 meters

from the high tide line. It may defy logic. At least

at first blush. We have already set out the objects of

the notification. They include guarding against the

dangers of natural hazards in coastal areas and the sea

level rise due to global warming. This is no doubt also

to be balanced with the need for sustainable

development. The coastal regulation appears to be based

on considerations which appear to accommodate

conflicting interests premised on considerations of

what is felt as indispensably necessary and the nature

of the zone in question. Allowing storage facilities

48 for non-hazardous activities like edible oil, is,

apparently, considered as an indispensable part of the

operation of a port. The Port Authorities would have

full control over the storage facility located within

its limits. No doubt, Section 35 of the Major Port

Trust Act, 1964, inter alia, empowers the port to

execute works outside its limits for securing and

storing goods to be landed or to be shipped. The storage

tanks in question are not works executed by the port.

56. As far as the case that is sought to be built up

on the basis that since CRZ-II permitted buildings on

the landward side of the existing road, we must notice

that this is not the basis for the decision of the

first respondent which was successfully impugned before

the NGT. We, in fact, queried Smt. Archana Pathak Dave,

learned counsel for the first respondent as to whether

this was the basis. She did not appear to support the

decision on the basis that it forms the basis for the

decision. We may notice further, the following pleading

of the first respondent which has been adverted to by

the NGT in their reply affidavit before the NGT even:

49

“5. It is submitted that the said activity under scrutiny is a permissible activity and regulated under para No. 8(I)(i) (b), para No. 8(I)(ii)(f) and para No. 8.II.(vi) of the CRZ Notification, 2011.”

57. Paragraph-8(I)(i)(b), undoubtedly, related to

permitting of pipelines being constructed in CRZ-I.

Paragraph-8(I)(ii) related to CRZ-I. The further

reference is only to paragraph 8(II)(vi) which permits

the activity in question ‘in’ notified ports. The

aspect relating to buildings being permitted on the

landward side of the existing road dealt with in

paragraph 8(II)(i) was not the basis for the decision

even according to the counter affidavit. This is apart

from the fact that impugned decision of the first

respondent does not proceed on the basis of paragraph

8 (II)(i). This is also apart from noticing the

contention of Respondent No.5 that storage facility

being specifically dealt with, ‘building’ under

paragraph-8(II)(i), would not include storage

facility. We would therefore, think that we must not

be persuaded to allow the appellants or allow them to

lean on paragraph 8(II)(i) of the 2011 Notification.

50

58. Another argument, which has been raised by Shri

Dhruv Mehta, appears to stem from the law relating to

contemporanea expositio. The authorities are experts.

They have applied their minds. Their understanding

should govern. At least, it should be given the weight

that is due to them. This forms the premise. Moreover,

he refers to the judgment of this Court in K. P.

Varghese v. ITO13. K.P. Varghese (supra) involved the

interpretation of Section 52 (2) of the Income Tax Act,

1961. This Court took the view inter alia that to invoke

Section 52(2), it was not enough only to show that the

fair market value of the capital asset as on the date

of the transfer exceeded the full value of the

consideration declared by the assessee by not less than

15 per cent of the value so declared. This Court

eschewed a purely literal interpretation on the basis

that it led to manifestly unreasonable and absurd

consequences. It was found that Parliament did not

intend to target bona fide transactions, where the

assessee had truthfully declared the actual

consideration. This Court drew upon the speech of the

13 (1981) 4 SCC 173 51 Finance Minister, the Heydon’s Rule or the Mischief

Rule and the importance of the word ‘declared’ figuring

in Section 52 (2) and the fact that soon after the

introduction of the provision, the Central Board of

Direct Taxes issued statutory circulars under Section

119 of the Income Tax Act explaining the scope of

central. It was specifically held that the circulars

would bind the Revenue even if they were not found to

be in accordance with the correct interpretation of the

provision. It is apart from all these that, no doubt,

this Court went on to hold as follows: -

“These two circulars of the Central Board of Direct Taxes are, as we shall presently point out, binding on the Tax Department in administering or executing the provision enacted in sub-section (2), but quite apart from their binding character, they are clearly in the nature of contemporanea expositio furnishing legitimate aid in the construction of sub-section (2). The rule of construction by reference to contemporanea expositio is a well-established rule for interpreting a statute by reference to the exposition it has received from contemporary authority, though it must give way where the language of the statute is plain and unambiguous. This rule has been succinctly and felicitously expressed in Crawford on Statutory Construction, (1940 Edn.) where it is stated in para 219 that “administrative construction (i.e. contemporaneous construction placed by administrative or

52 executive officers charged with executing a statute) generally should be clearly wrong before it is overturned; such a construction, commonly referred to as practical construction, although non-controlling, is nevertheless entitled to considerable weight; it is highly persuasive”.

The validity of this rule was also recognised in Baleshwar Bagarti v. Bhagirathi Dass [ILR 35 Cal. 701] where Mookerjee, J., stated the rule in these terms:

“It is a well-settled principle of interpretation that courts in construing a statute will give much weight to the interpretation put upon it, at the time of its enactment and since, by those whose duty it has been to construe, execute and apply it.”

and this statement of the rule was quoted with approval by this Court in Deshbandhu Gupta & Co. v. Delhi Stock Exchange Association Ltd. [(1979) 4 SCC 565] It is clear from these two circulars that the Central Board of Direct Taxes, which is the highest authority entrusted with the execution of the provisions of the Act, understood sub-section (2) as limited to cases where the consideration for the transfer has been understated by the assessee and this must be regarded as a strong circumstance supporting the construction which we are placing on that sub-section.”

59. The principle is inapposite in the facts. That the

authorities have proceeded on a particular basis, may

as well betray their erroneous understanding. That such

views do not clinch the issue relating to the

53 construction of the law is elementary. We would think

that in the facts of this case and on a construction

of the statute or the law in question, viz., the 2011

notification, the understanding of the authorities if

that be the basis of the contention, cannot overwhelm

our understanding of the notification. We again

reiterate that the words ‘within’ and ‘in’ cannot

include what is outside the port. The maker of the

notification has not even contemplated the activities

in question in a ‘port area’. We must here elucidate

and observe that if the contention is to be upheld that

a storage tank can be permitted outside the port

limits, it will introduce chaos. The question would

arise as to up to what distance from the port area it

would be considered as the ‘in the port area’. The 2011

Notification cannot receive an interpretation which

would leave matters of moment to be afflicted with the

vice of uncertainty. This is apart from the importance

of avoiding an interpretation which seemingly allows

free play in the joints to the Administrator but, at

the same time, vest an arbitrary power in him.

54 60. As far as the pipeline is concerned, no doubt, it

is permitted in CRZ I and arguments were addressed

before us that even if the storage facility is to be

demolished, making use of the edible oil brought

through the pipelines, which are, no doubt, located

underground, the oil could be collected at the spot

from where it is currently located viz., where the

pipeline ends and transported therefrom to the factory.

There is no dispute that the pipeline is located in a

zone where it is permitted activity. There can be no

dispute that ex post facto permission can be given for

permitted activity as found by the NGT itself. No

doubt, the pipeline, may have meaning only as so far

as it is connected to the storage tank. As to whether

the pipeline can continue to be used if the storage

tanks are demolished is a matter which must engage the

attention of the authorities. We would think that in

regard to the pipelines, it would be the District

Coastal Zonal Management Authority, which could take a

decision.

55

61. The upshot of the above discussion is as follows:

As regards the pipelines which have been drawn,

the appellants may approach the relevant District

Coastal Zonal Management Authority within a period of

one month from today. The District Coastal Zonal

Management Authority will consider any application made

in regard to the continued use of the pipeline and take

a decision in accordance with law within a further

period of six weeks from the date of the receipt of the

application.

62. In view of the request made by the appellants that

they may be permitted to continue to use the pipeline

along with the storage facility for a period of one

year, we would think that the interest of justice do

require grant of some time. The appellants are

accordingly given a period of six months from today to

comply with the impugned order of the NGT. This is in

regard to the direction to demolish the storage tanks.

The appellant in the first appeal is given a month’s

time to pay the compensation ordered, if not already

paid.

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63. As far as the direction to demolish the pipeline,

the matter will await the decision to be taken by the

District Coastal Zonal Management Authority.

64. The appeals are partly allowed. There will be no

order as to costs.

……………………………………………J. [K.M. JOSEPH]

…………………………………………J. [B.V. NAGARATHNA]

……………………………………………J. [J.B. PARDIWALA] NEW DELHI;

DATED: FEBRUARY 01, 2023.

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