M.Nizamuddin vs M/S Chemplast Sanmar Ltd.& Ors

2. In this group of five matters before us, civil appeal is

directed against the judgment of Madras High Court passed on October 31, 2008 whereby a writ petition in the nature of Public

Interest Litigation (PIL) filed by the appellant - M. Nizamudeen -

has been dismissed. Out of the other four matters; one is a writ

petition being W.P. (C) No. 130 of 2009 preferred directly

before this Court under Article 32 of the Constitution while the

other three matters are transfer petitions seeking transfer of

Writ Petition nos. 37043 of 2006, 8125 of 2007 and 23122 of

2007 filed before the Madras High Court.

3. M/s. Chemplast Sanmar Limited (for short,

`Chemplast') proposed to set up a project for manufacturing

Poly-Vinyl Chloride (PVC) at Semmankuppam village, SIPCOT

Industrial Complex, Phase-II, Cuddalore District (Tamil Nadu).

An Environmental Impact Assessment Report (EIA) as well as

Risk Analysis Report (RA) for the proposed PVC project was

obtained by Chemplast and, then, they made proposal (vide

application dated May 27, 2002) to the concerned authorities

for setting up the said project. The feasibility of the project was

considered by public hearing panel in the meeting held on June

7, 2002. The proposal of Chemplast was sent by the

government of Tamil Nadu with its recommendations, after

2 accepting the conditional consent issued by Tamil Nadu

Pollution Control Board (for short `TNPCB'), to the Ministry of

Environment and Forests, Government of India (for short,

`MOEF'). The MOEF examined the proposal submitted by the

Chemplast in light of the questionnaire, EIA, RA and other

relevant documents and accorded environmental clearance to

the project proposed by Chemplast on November 28, 2005

subject to strict compliance to the specific and general

conditions laid down therein.

4. One of the raw-materials for manufacturing PVC is

Vinyl Chloride Monomer (VCM). VCM is not available

indigenously and Chemplast planned to import the said raw-

material for their plant use from international suppliers.

Chemplast in their proposal also proposed to install a Marine

Terminal Facility (for short, `MTF') near the seashore at

Chitrapettai Village for receiving and transferring VCM from the

ships to the PVC plant through underground pipeline.

5. The District Coastal Zone Management Committee

in its meeting held on June 7, 2005 considered the proposal of

Chemplast for setting up of MTF including the conveyance

3 mains and resolved to recommend to the Tamil Nadu State

Coastal Zone Management Authority (TNSCZMA) to consider in

principle clearance for the following facilities:

"01. Laying of pipe lines for the transportation of Vinyl Chloride Monomer (VCM) as permitted vide Ministry of Environment and Forests, Coastal Regulation Zone Notification dated 19th February 1991 In paragraph 2 (Prohibited Activities), in sub paragraph (ii) with proviso "except transfer of hazardous substances from ships to ports terminals and refineries and vice-versa In the port areas".

02. Treated effluent lines and sea water intake and return lines as permitted vide Ministry of Environment and Forests, Costal Regulation Zone Notification dated 19th February 1991 in paragraph 2 (Prohibited Activities) in sub paragraph

(xii) with proviso "except facilities for carrying treated effluents and waste water discharges into the sea, facilities for carrying sea water for cooling purposes, oil, gas and similar pipelines and facilities essential for activities permitted under this Notification'.

03. Constructions for jetty activities and control room as permitted vide Ministry of Environment and Forests, Coastal Regulation Zone Notification dated 19th February 1991 in paragraph 3 (Regulation of Permissible Activities) in sub paragraph 2 of (ii) with proviso "operational constructions for ports and harbours and light houses and constructions for activities such as jetties, wharves, quays and slipways'."

6. The aforesaid recommendations were considered

by the TNSCZMA and they resolved in its meeting held on

October 17, 2005 to recommend to the state government to

4 forward the proposal to the MOEF for the issue of CRZ

clearance to Chemplast with the following conditions :

"1. The unit shall comply safety measures stipulated by the Navigational Safety in Ports Committee (NSPC), Goa and shall obtain the clearance from NSPC before Commissioning of the jetty.

2. The unit shall inform in advance to the Assistant Director of Fisheries Department, Cuddalore as and when the loading and unloading of VCM is done from the ship.

3. The unit shall obtain NOC from the Tamil Nadu Pollution Control Board before commissioning of the jetty and the unit shall comply with the norms prescribed by the Tamil Nadu Pollution Control Board from time to time.

4. The unit shall submit the Disaster Management Plan to the District Authorities before commissioning of the jetty.

5. The Unit shall transport and dispose the treated effluent and R.O rejects of the Desalination Plant by conducting Hydrological study through National Institute of Ocean Technology/National Institute of Oceanography.

6. The Unit shall install double walled pipeline in a concrete trench for the transport of VCM from the Jetty to the Plant.

7. The Unit shall install Emergency shutdown valves in the Jetty and leak detection system in the onshore pipeline.

8. The unit shall install adequate fire fighting equipment to encounter any eventuality due to fire.

9. The unit's marine activity shall not give any hindrance to the public as well as to the aquatic life.

10. The unit shall provide and operate sufficient Navigational lighting Indication system during the night hours,

11. The waste water after treatment in the effluent treatment plant should not be discharged into the sea."

5 7. Pursuant thereto, the Director, Department of

Environment, Government of Tamil Nadu considered the

resolution dated October 17, 2005 of the TNSCZMA and

forwarded the proposal to the state government by his

communication dated October 28, 2005.

8. The government of Tamil Nadu by its

communication dated November 9, 2005 informed the National

Coastal Zone Management Authority its acceptance of the

recommendation made by the TNSCZMA and recommended

the proposal of Chemplast seeking environmental clearance for

setting up of MTF. Along with its communication dated

November 9, 2005, the state government sent, inter-alia :

(i) questionnaire for environmental appraisal for MTF (ii) EIA

prepared by LT Ramboll; (iii) RA prepared by LT Ramboll; and

(iv) minutes of the 34th meeting of the TNSCZMA held on

17.10.2005.

9. Chemplast submitted further application to the

MOEF on November 14, 2005. The MOEF, then, considered

the proposal involving the activities namely, (i) construction of

island jetty at 1000 meters from the shoreline; (ii) laying of

6 sub-sea pipelines from jetty to landfall point; (iii) construction of

port office with communication facilities; and (iv) laying of

onshore piping from landfall point to the CRZ area and thereon

to the plant. The MOEF took into consideration, inter alia, that

the MTF will be located offshore of Chitrapettai village; that the

landfall point will be at Chitrapettai village, which is 2500 meters

from the PVC plant; that the total length of the pipelines

onshore will be 3500 meters; that the offshore pipelines and the

onshore pipelines will be laid in a covered RCC trench; that the

island jetty would be consisting of an operating platform,

berthing dolphins, mooring dolphins and interconnecting

walkway; that the platform and dolphins will be RCC structures

suitable for open sea marine service; that sub sea pipelines will

be laid with proper insulation and mechanical protection; that

piping design would also take into effect stresses arising out of

risers, temperature variation, buckling, buoyancy and sea bed

erosion. In the backdrop of aforesaid facts and aspects, the

MOEF granted environmental clearance on December 19, 2005

under the provisions of Coastal Regulation Zone Notification,

1991 (for short, `1991 Notification') as amended from time to

7 time for construction of revetment for setting up of MTF on the

specific and general conditions set out therein including all the

conditions stipulated by the government of Tamil Nadu in the

letter dated November 9, 2005 and recommendations of the

TNSCZMA.

10. The environmental clearance dated December 19,

2005 granted by the MOEF clarified that the

stipulations/conditions set out therein will be enforced among

others under the Water (Prevention and Control of Pollution)

Act, 1974, Air (Prevention and Control of Pollution) Act, 1981,

Environment (Protection) Act, 1986, the Hazardous Chemicals

(Manufacture, Storage and Import) Rules, 1989, the 1991

Notification and its subsequent amendments and the Public

Liability Insurance Act, 1991 and the Rules made thereunder.

Chemplast was also directed to ensure that the proposal

complies with the provisions of the approved Coastal Zone

Management Plan of Tamil Nadu, 1996 (for short, `1996 Plan').

11. The TNPCB in light of the environmental clearance

dated December 19, 2005 granted by the MOEF accorded its

8 consent on September 14, 2006 for the PVC plant as well as

MTF and pipeline project of the Chemplast.

12. Chemplast made an application on February 6,

2008 to the Executive Engineer, PWD, Vellar Basin Division,

WRO, Vridhachalam (for short, `Executive Engineer') seeking

permission for carrying seawater and raw-materials through

pipelines laid 3.50 meter below the river bed. The Executive

Engineer granted permission on February 27, 2008 subject to

the conditions set out therein. In less than a month on March

19, 2008, the Executive Engineer, cancelled the aforesaid

permission observing that VCM may cause pollution and health

hazard to the public.

13. The order cancelling permission was challenged by

Chemplast by filing writ petition before the High Court of

Judicature at Madras. The High Court allowed writ petition on

July 18, 2008 and set aside the order of the Executive Engineer

passed on March 19, 2008 revoking the permission granted on

February 27, 2008. It was then that the appellant - M.

Nizamudeen - filed PIL before the Madras High Court praying

therein that the order passed by the Executive Engineer on

9 February 27, 2008 be quashed and Chemplast be directed to

forebear from laying of pipelines for drawing VCM raw-material

from jetty to their plant in Semmankuppam village. In the writ

petition, M. Nizamudeen did not challenge environmental

clearances granted by MOEF on November 28, 2005 and

December 19, 2005. The High Court, vide its Judgment dated

October 31, 2008, dismissed the writ petition which is subject

matter of challenge in the civil appeal.

14. It appears that after Petition for Special Leave to

Appeal challenging the judgment of Madras High Court came to

be filed by M. Nizamudeen before this Court that a writ petition

under Article 32 of the Constitution has been preferred directly

before this Court by A. Bhunanenthiran praying therein that the

permission granted by the MOEF on December 19, 2005 be

quashed and a Writ of Mandamus be issued to the MOEF,

TNSCZMA and TNPCB to ensure that no prohibited activity,

viz., handling of any hazardous chemical through pipelines or

otherwise takes place in CRZ areas on both sides of Uppanar

river.

10

15. Be it noted here that three more writ petitions (Writ

Petition nos. 37043/2006, 8125/2007 and 23122/2007) came to

be filed before Madras High Court challenging environmental

clearances granted by the MOEF to the Chemplast. The

appellant - M. Nizamudeen - has sought transfer of these

petitions to this Court. I.A. No. 7 has been made therein for

deletion of respondent nos. 21 and 22. As the issues are

common, these writ petitions are transferred to this Court and

respondent nos. 21 and 22 are deleted from array of parties.

16. We heard learned senior counsel and counsel for the

parties at considerable length.

17. Mr. Ranjit Kumar, learned senior counsel for the

appellant - M. Nizamudeen - submitted: that 100 meters from

the High Tide Line (HTL) on both sides of Uppanar river are

CRZ-III areas where handling of hazardous substance is

prohibited; that VCM is hazardous substance notified under the

Notification of MOEF issued on November 27, 1989 and

handling of a substance includes transfer, as per Section 2(d)

of Environment (Protection) Act, 1986; that Chemplast did not

11 seek any permission in respect of the pipelines in the CRZ on

both sides of Uppanar river, rather existence of Uppanar river

itself was suppressed in the proposals made; that 1996

Plan was neither annexed nor referred to in the proposals

made before the competent authorities, nor was even brought

to the notice of the High Court and it is being referred to and

relied upon for the first time by Chemplast before this Court;

that Chemplast while submitting proposals to the competent

authorities itself annexed a demarcation map prepared by the

National Institute of Oceanography (NIO) to show the High Tide

Line/Low Tide Line [HTL/LTL] and the relevant CRZ area; that

the said demarcation map prepared by NIO, for the purpose of

environmental clearance, must prevail over 1996 Plan and in

any case 1996 Plan has become redundant by the

amendments in 1991 Notification.

18. Mr. Ranjit Kumar, learned senior counsel also

submitted that a close look at the environmental clearance

dated December 19, 2005 granted by the MOEF would show

that it neither covers nor includes the activities of laying of

pipelines across and underneath Uppanar river and drawing of

12 VCM through pipelines. He lastly submitted that Executive

Engineer had no authority to permit laying of pipelines in the

CRZ of Uppanar river.

19. Dr. Rajeev Dhavan, learned senior counsel for writ

petitioner - A. Bhunanenthiran - adopted the submissions of

Mr. Ranjit Kumar and further submitted that identification and

demarcation of CRZ of any particular State involve two distinct

processes and, although, 1996 Plan does not show the land

portion of the banks of Uppanar river under CRZ area but the

very concept of CRZ areas surrounding rivers changed in 2002.

He would submit that 1998 amendment in 1991 Notification lays

down that demarcation of CRZ has to be done by the

authorized agencies and, therefore, the initial determination of

CRZ has to be reassessed in light of the demarcation of the

HTL / LTL and CRZ area carried out by authorized demarcating

agencies.

20. Dr. Rajeev Dhavan, learned senior counsel would

submit that the application made on May 27, 2002 was

abandoned by Chemplast because the statutory designated

authority, in its inspection held in the month of June 2005,

13 declared the relevant area to be CRZ and the District Coastal

Zone Management Committee and TNSCZMA had examined

the earlier application for the port area alone. He submitted that

realising that the CRZ extended to the Uppanar river,

Chemplast made devious hidden changes in its application

made on November 14, 2005. Learned senior counsel

submitted that the permission granted by MOEF on December

19, 2005 is limited to MTF and no more. He reiterated that the

phrase "and thereon to the plant" in the permission dated

December 19, 2005 does not cover permission for the pipeline

all the way to the Uppanar river.

21. Learned senior counsel urged that 1996 Plan is

obsolete and must make way for the plan prepared by NIO and

the demarcation of CRZ by the NIO being final, the said plan

must prevail over 1996 Plan.

22. According to Dr. Rajeev Dhavan, CRZ-III status has

to be attributed to both banks of the Uppanar river through

which the pipeline carrying the hazardous substance VCM is to

be taken to the plant. Referring to the 1991 Notification as

amended in 2002, Dr. Rajeev Dhavan submitted that VCM can

14 be brought on to the port area but not carried any further by

pipeline in or across CRZ area including the CRZ-III area in

relation to rivers, creeks and backwaters where the salinity

concentration is 5 ppt for a distance of 100 meters from the

HTL or the width of the river whichever is less. He referred to

public trust doctrine and precautionary and public interest

principles and submitted that in relation to the CRZ, the public

interest to protect the environment is paramount and the benefit

of doubt and precaution should be given to the environment.

Learned senior counsel submitted that interest of Chemplast

and the industry must yield to the public interest in the

environment. He would submit that although there has been no

challenge to the permission granted on November 28, 2005 to

the PVC plant utilizing the VCM but, since the tanks of

Chemplast probably fall in the CRZ area, this Court must order

the plant to be CRZ compliant by shifting the storage tanks. As

regards carriage of VCM, Dr. Rajeev Dhavan suggested that

VCM can be carried in tankers at minus 13 degree centigrade

which cannot be done by pipeline by going upstream and

crossing a bridge and this being an alternative solution, the

15 Court may accept the same which would be consistent with the

public interest principles.

23. On the other hand, Mr. K.K. Venugopal, learned

senior counsel for the Chemplast submitted that PIL filed before

the High Court and also directly before this Court are not bona

fide as the petitioners in these matters have been set up by a

corporate rival, viz., Cuddalore Powergen Corporation Limited

(CPCL) who wanted the land in question at a much cheaper

price. CPCL instigated and got these persons who had objected

to the scheme in 2002. Learned senior counsel submitted that

after obtaining necessary approvals and permissions, the plant

at the cost of about Rs. 600 crores has been set up and after

having obtained the consent to operate, the plant has started its

commercial production. He also submitted that 1996 Plan still

holds the field and as per that plan, particularly, sheet no. 10

prepared for the Cuddalore District, the tidal influence in the

Uppanar river ends above Thiyagavalli village and below

Kudigadu village of Cuddalore Old Town area and, therefore,

the area on both sides of Uppanar river through which the

pipeline traverses is not CRZ area at all. Mr. K.K. Venugopal

16 contended that the plan prepared by the NIO is not approved

plan and the said plan cannot override 1996 Plan approved by

the central government under 1991 Notification. Learned senior

counsel also submitted that laying of pipelines for transfer of

VCM is not a prohibited activity as contended by the petitioners

as the interpretation given by them to paragraph 2(ii) of 1991

Notification is too restrictive and narrow.

24. Learned counsel for Union of India urged that the

point at which the pipelines pass under the Uppanar river and

its banks is not a part of CRZ as per 1996 Plan prepared by the

state government and approved by the central government and,

therefore, no permission or environmental clearance is required

for that portion of the pipeline that passes under the Uppanar

river nor such permission was granted. He submitted that

environmental clearance was only required for the MTF and

that portion of the pipeline that falls within the CRZ abutting the

sea, i.e. within 500 meters from HTL and vide permission dated

December 19, 2005, environmental clearance was granted for

this portion of the pipeline only. He would also submit that the

interpretation given to paragraph 2(ii) of 1991 Notification by the

17 petitioners is not correct interpretation and that exception in

paragraph 2(ii) needs to be construed in a purposive manner.

25. In view of the contentions advanced by the senior

counsel and counsel for the parties, the first question which we

have to look to is, whether Uppanar river and its banks at the

point where pipelines pass, fall in the CRZ III area. If the

answer to this is in the affirmative, obviously, the pipelines

crossing underneath Uppanar river would require environmental

clearance. The other main question we have to consider in

connection with these matters is, whether paragraph 2(ii) of

1991 Notification restricts transfer of VCM (hazardous

substance) beyond port area to the PVC plant through

pipelines. Other considerations would depend on answer to

these two core issues.

26. In considering the first question, we need to look to

1991 Notification which came to be issued by the MOEF

declaring the coastal stretches as Coastal Regulation Zone

(CRZ) and regulating activities in such area. 1991 Notification

18 has been amended from time to time. To the extent it is

relevant, it reads :

"Now, therefore, in exercise of the powers conferred by Clause (d) of sub-rule (3) of Rule 5 of the Environment (Protection) Rules, 1986, and all other powers vesting in its behalf, the Central Government hereby declares the coastal stretches of seas, bays, estuaries, creeks, rivers and backwaters which are influenced by tidal action (in the landward side) upto 500 metres from the High Tide Line (HTL) and the land between the Low Tide Line (LTL) and the HTL as Coastal Regulation Zone; and imposes with effect from the date of this Notification, the following restrictions on the setting up and expansion of industries, operations or processes etc. in the said Coastal Regulation Zone (CRZ).

1 [(i) For the purposes of this notification, the High Tide Line means the line on the land up to which the highest water line reaches during the spring tide. The High Tide Line shall be demarcated uniformly in all parts of the country by the demarcating authority or authorities so authorised by the Central Government, in accordance with the general guidelines issued in this regard] 2 [(ii) The distance from the High Tide Line shall apply to both sides in the case of rivers, creeks and backwaters and may be modified on a case to case basis for reasons to be recorded in writing while preparing the Coastal Zone Management Plans provided that this distance shall not be less than 100 meters or the width of the creek, river or backwaters, which ever is less. The distance up to which development along rivers, creeks and backwaters is to be regulated shall be governed by the distance up to which the tidal effects are experienced which shall be determined based on salinity concentration of 5 parts per thousand (ppt). For the purpose of this notification, the salinity measurements shall be made during the driest period of the year and the distance upto which tidal effects are experienced shall be clearly identified and demarcated accordingly in the Coastal Zone Management Plans.;]

1 Substituted by S.O.1122(E), dated 29th December, 1998. Gazette of India (Extra). No. 849, dated 29-12-1998.

2 Inserted as per S.O.(E). No. 550 (E), dated 21st May, 2002

19

2. Prohibited Activities :

The following activities are declared as prohibited within the Coastal Regulation Zone, namely :

(i) .............

(ii) manufacture or handling or storage or disposal of hazardous substances as specified in the

Notifications of the Government of India in the Ministry of Environment & Forests No. S.O. 594(E) dated 28th July, 1989, S.O. 966(E) dated 27th November, 1989 and GSR 1037(E) dated 5th December, 1989; 3[except transfer of hazardous substances from ships to ports, terminals and refineries and vice versa, in the port areas:] ...........................

3. Regulation of Permissible Activities :

All other activities, except those prohibited in para 2 above, will be regulated as under :

1. .........

2. The following activities will require environmental clearance from the Ministry of Environment and Forests, Government of India, namely:

(i) .........

(ii) 4[Operational constructions for ports, harbours and light houses and construction activities of jetties, wharves, Slipways, pipelines and conveying systems including transmission lines provided that environmental clearance in case of constructions or modernization or expansion of jetties and wharves in the Union Territory of Lakshadweep for providing embarkation and disembarkation facilities shall be on the basis of a report of scientific study conducted by the Central Government or any agency authorized or 3 Added by S.O. 494(E), dated 9th July, 1997. Gazette of India (Extra) No. 393, Part II, Sec. 3(ii), dated 9th July, 1997.

4 Substituted by Notification No. S.O. No. 636 (E), dated 30-05-2003.

20 recognized by it suggesting environmental safeguard measures required to be taken for minimizing damage to corals and associated biodiversity.]

(3) (i) The coastal States and Union Territory Administrations shall prepare, within a period of one year from the date of this Notification, Coastal Zone Management Plans identifying and classifying the CRZ areas within their respective territories in accordance with the guidelines given in Annexures-I and II of the Notification and obtain approval (with or without modifications) of the Central Government in the Ministry of Environment & Forests;

(ii) Within the framework of such approved plans, all development and activities within the CRZ other than those covered in para 2 and para 3 (2) above shall be regulated by the State Government, Union Territory Administration or the local authority as the case may be in accordance with the guidelines given in Annexures-I and II of the Notification; and

(iii) In the interim period till the Coastal Zone Management Plans mentioned in para 3(3)(i) above are prepared and approved, all developments and activities within the CRZ shall not violate the provisions of this Notification. State Governments and Union Territory Administrations shall ensure adherence to these regulations and violations, if any, shall be subject to the provisions of the Environment (Protection) Act, 1986."

27. Indian Council for Enviro-Legal Action filed a writ

petition before this Court challenging some of the amendments

made in 1991 Notification; they also raised the grievance that

the MOEF except for issuing the 1991 Notification had taken no

steps to follow up its own directions contained in that

21 Notification. This Court while disposing of writ petition filed by

Indian Council for Enviro-Legal Action [(1996) 5 SCC 281], inter

alia, issued the following directions:

"(1) .........................

(2)..........................

(3) Considering the fact that the Pollution Control Boards are not only overworked but simultaneously have a limited role to play insofar as it relates to controlling of pollution for the purpose of ensuring effective implementation of the notifications of 1991 and 1994, as also of the Management Plans, the Central Government should consider setting up under Section 3 of the Act, State Coastal Management Authorities in each State or zone and also a National Coastal Management Authority.

(4) The States which have not filed the Management Plans with the Central Government are directed to file the complete plans by 30-6-1996. The Central Government shall finalise and approve the said plans, with or without modifications within three months thereafter. It is possible that the plans as submitted by the respective State Governments and Union Territories may not be acceptable to the Ministry of Environment and Forests. Returning the said plans for modifications and then resubmission of the same may become an unnecessary, time-consuming and, perhaps, a futile exercise. In order to ensure that these plans are finalised at the very earliest, we direct that the plans as submitted will be examined by the Central Government who will inform the State Government or the Union Territory concerned with regard to any shortcomings or modifications which the Ministry of Environment and Forests may suggest.

If necessary, a discussion amongst the representatives of the State Governments and the Ministry of Environment and Forests should take place and thereafter the plans should be finalised by the Ministry of Environment, if necessary, by carrying out such modifications as may be required. The decision by the Ministry of Environment and Forests in this regard shall be final and binding.

22 A report with regard to the submission and the finalisation of the plans should be filed in this Court and the case will be listed for noting compliance in September 1996. ........................................................"

28. Paragraph 3(3)(i) of 1991 Notification requires the

Coastal States and UT Administrations to prepare Coastal Zone

Management Plans for identification and classification of the

CRZ areas within their respective territories in accordance with

the guidelines given in Annexures I and II of the Notification. It

further mandates Coastal States and UT Administrations to

obtain approval of such plans from the Central Government. As

a matter of fact, the said provision provided a period of one

year for preparation of such plans from the date of the

Notification, but the Coastal States and UT Administrations

remained dormant for many years in this regard. However,

consequent upon directions of this Court, the State of Tamil

Nadu submitted its Coastal Zone Management Plan to the

MOEF on August 23, 1996 which was approved on

September 27, 1996 (1996 Plan) containing 31 sheets

corresponding to maps for different stretches of the coastline of

the State of Tamil Nadu with certain conditions/modifications/

23 classifications. Sheet no.10 pertains to the coastal stretch of

Cuddalore District. The MOEF, based on sheet no. 10 (1996

Plan) have stated in their affidavit that the land portion of the

banks of Uppanar river adjacent to the plant in Thiyagavalli

village where the pipeline crosses Uppanar river does not come

under the CRZ area. This position is reiterated by the

TNSCZMA in their affidavit filed before this Court:

"..................as per the approved Coastal Zone Management Plan, the banks of Uppanar River adjacent to the Plant in Thiyagavalli Village where the pipeline crosses River Uppanar does not come under CRZ area.................. ......."

29. We were also shown a copy of sheet no.10 from

which it did not transpire that Uppanar river and its banks where

the pipelines pass have tidal influence and come under the

CRZ area. That 1996 Plan does not reflect the area on both

sides of the Uppanar river through which the pipelines pass as

CRZ area is not in dispute. The contention of the senior counsel

for the petitioner/appellant is that 1996 Plan has become

redundant and obsolete in view of change in the CRZ regime

24 due to amendments in 1991 Notification, first on December

29, 1998 and then on May 21, 2002.

30. By 1998 amendment, it has been provided in 1991

Notification that HTL shall be demarcated uniformly in all parts

of the country by the demarcating authority or authorities so

authorized by the central government in accordance with the

general guidelines issued in this regard. By further amendment

on May 21, 2002, sub-paragraph (ii) was inserted in the first

para of 1991 Notification providing therein that the distance

from the HTL shall apply to both sides in the case of rivers,

creeks and backwaters. The said amendment provides that the

distance up to which development along rivers, creeks and

backwaters is to be regulated shall be governed by the distance

up to which the tidal effects are experienced which shall be

determined based on salinity concentration of 5 ppt. It further

provides that salinity measurements shall be made during the

driest period of the year and distance up to which tidal effects

are experienced shall be clearly identified and demarcated in

the Coastal Zone Management Plans. It is perfectly true that at

the time of preparation and approval of 1996 Plan, the

25 amendments of December 29, 1998 and May 21, 2002 in 1991

Notification had not seen the light of the day and the declaration

made in first para that the coastal stretches of seas, bays,

estuaries, creeks, rivers and backwaters which are influenced

by tidal action (in the landward side) upto 500 meters from the

HTL and the land between the LTL and the HTL are CRZ was

kept in view but in the absence of any modification carried out

thereafter, 1996 Plan remains operative. The authorities

authorized to demarcate HTL, we are afraid, cannot override

the plan prepared and approved under paragraph 3(3)(i) as the

said paragraph leaves no manner of doubt that Coastal Zone

Management Plan prepared by the Coastal State (or for that

matter State Coastal Zone Management Authority) and duly

approved by the MOEF is the relevant plan for identification and

classification of CRZ areas. The plan prepared by NIO, thus,

cannot be said to have superseded 1996 Plan for the

Cuddalore coastal stretch.

31. Moreso, while giving approval on September 27,

1996 to 1996 Plan, the MOEF appended, inter alia, a condition

that government of Tamil Nadu would not make any change in

26 the approved categorization of CRZ area without its prior

approval. Seen thus, 1996 Plan for the purposes of

demarcation and classification of CRZ area in the state of Tamil

Nadu has to be treated as final and conclusive and has been

rightly treated as such by the MOEF. We hold, as it must be,

that the Uppanar river and its banks at the relevant place where

the pipelines laid by the Chemplast pass do not fall under CRZ

III area as per 1996 Plan and no environmental clearance is

needed for such pipelines. The stand of the MOEF is, which

seems to us to be correct, that they have granted permission to

the onshore pipelines insofar as these pass through the CRZ

abutting the sea, i.e. 500 meters from the HTL and no

clearance has been granted as it was not required for laying of

pipelines under the Uppanar river.

32. Here, we may also deal with the objection of the

petitioners that Chemplast has suppressed the material facts

regarding the existence of Uppanar river in its proposals. In the

first place, there seems to be no substance in the said

objection. From the materials available on record that include

the Environment Impact Assessment Report (EIA) and Risk

27 Analysis Report (RA), it cannot be said that existence of

Uppanar river has been suppressed by the Chemplast in its

proposals although in these reports Uppanar river has been

described as Uppanar canal. In EIA prepared by L & T Ramboll,

in Section 3.6.2.2., it is stated:

"The onshore pipeline to the extent possible is routed in a direct line from the landfall point to the Plant in order to minimise the length. The route crosses the Uppanar canal where the pipeline will be trenched sufficiently deep into the canal bed to avoid impact from grounding vessels, dropped objects or dragged anchors. The pipeline section crossing the Uppanar will be of a type similar to the marine pipeline section. As regards the onshore section, the selection of pipeline type and installation is discussed in the following paragraphs :

The main options for the land pipeline will be :

7 Trenched, sub terrain pipe line (-1.0 to -1.5 m) 7 Pipeline on low supports at the terrain surface (+0.2 to +0.5m) 7 Overhead pipeline on masts/columns above bus/truck passage heights (+4.5 to 5m)

(Approximate levels given from existing natural ground level)"

Similarly, in Section 5 of RA, reference is made to

pipeline crossing Uppanar canal. The position is clarified by

Chemplast in their subsequent application made on November

14, 2005. In the second place, and more importantly, this

objection pales into insignificance in view of our finding that the

28 land portion of the banks of Uppanar river where the pipelines

laid by Chemplast pass Uppanar river does not fall under CRZ

III area.

33. Now, we advert to the other main issue concerning

paragraph 2(ii) of 1991 Notification. This paragraph prohibits

manufacture or handling or storage or disposal of hazardous

substances, as specified in the Notifications issued by MOEF

(dated 28th July, 1989, 27th November, 1989 and 5th December,

1989), except transfer of hazardous substances from ships to

ports, terminals and refineries and vice-versa, in the port areas.

That VCM is hazardous substance notified vide notification

dated November 27, 1989 is not in dispute. There is also no

dispute, rather it is an admitted position, that handling of a

substance includes transfer as per Section 2(d) of the

Environment (Protection) Act, 1986. It was contended by the

senior counsel for the appellant/petitioner that transfer of VCM

in CRZ area is completely prohibited and VCM 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

29 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 paragraph 2(ii) on 9th July,

1997. We are called upon to ascertain the true meaning and

intention of the Executive in bringing this exception. 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 in to 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. It is well settled that if exception

has been added to remedy the mischief or defect, it should be

30 so construed that 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 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. 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 paragraph 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 paragraph 3(2)(ii) which permits the activity of

31 laying pipelines in the CRZ area. As a matter of fact, the MOEF

in their affidavit before this Court have clearly stated that the

permission granted to Chemplast on 19th December, 2005 is in

exercise of the powers conferred under paragraph 3(2)(ii) of

1991 Notification. We do not find any infirmity in the permission

granted by the MOEF on 19th December, 2005. Having held

that, there is no illegality in the permission granted by the

Executive Engineer on February 27, 2008 either.

34. In view of our foregoing discussion in respect of the

two core issues, we do not deem it necessary to deal with the

objection raised by Mr. K.K. Venugopal, learned senior counsel

for the Chemplast about the maintainability of PILs and that the

petitioners have been instigated and set up by a corporate

rival - Cuddalore Powergen Corporation Limited.

35. By way of footnote, we may observe that the project

has been established by investing huge amount of about

Rs. 600 crores and has already been commissioned after

obtaining necessary approvals and, therefore, it shall not be in

the interest of justice nor in the public interest now to interfere

with the project. The alternative solution suggested by

32 Dr. Rajeev Dhavan for carrying VCM across Uppanar river to

the plant is noted to be rejected.

36. In the result, Civil Appeal and Writ Petition (Civil)

No. 130 of 2009 are dismissed. Writ Petition Nos. 37043 of

2006, 8125 of 2007 and 23122 of 2007 filed before Madras

High Court and transferred to this Court are dismissed.

Transfer Petitions and I.A. No. 7 stand disposed of. I.A. No. 4

filed by the appellant - M. Nizamudeen - for initiating

proceedings for perjury against the MOEF is dismissed. The

parties shall bear their own cost.

........................CJI

........................J (R. M. Lodha)

........................J New Delhi, (Dr.B.S. Chauhan) March 10, 2010.

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