Environment Protection Act, 1986 – 2011 Notification issued under the 1986 Act – Respondent No.1 granted ex post facto clearance to the appellant purportedly invoking paragraph-4.3 of the aforesaid Notification, for laying of pipeline for the transfer of edible oil from the Chennai Port to the storage terminal tank and for the establishment of the storage transit terminal – NGT held that the activity of putting up a storage tank transit terminal being contrary to the 2011 Notification was illegal as 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 – Construction of the storage facility and the pipeline were directed to be removed, environmental compensation imposed – Appellant inter alia contended that CRZ-II being less sensitive than CRZ-I, in CRZ-I, the “storage of edible oil inter alia is permitted within the notified ports” while, in CRZ-II, storage of non-hazardous cargo such as edible oil, fertilizers and foodgrain is permitted ‘in notified ports’ – And 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, they must receive a different meaning – Held: Objects of the notification include guarding against the dangers of natural hazards in coastal areas and the sea level rise due to global warming – 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 – 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’ – A storage tank cannot be permitted outside the port limits – If the same is allowed, it will introduce chaos – Question would arise as to up to what distance from the port area it would be ORS.
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 – As far as the pipeline is concerned, it is located in a zone where it is permitted activity – 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 – Appellants may approach the relevant District Coastal Zonal Management Authority – Appellants given six months period to demolish the storage tanks to comply with the impugned order of the NGT – Appellant in the first appeal to pay the compensation ordered within a month – Major Port Trust Act, 1964 – s. 35 – Customs Act – ss.2(11), (12), (13), 7(a), 57 – Indian Ports Act, 1908 – National Green Tribunal Act, 2010.
Customs Act – ss.7(a), 57 – Indian Ports Act, 1908 – Major Port Trust Act, 1964 – s. 35 – Held: 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 u/s.2(12) comes into being on a port being appointed as such u/s.7(a) – The case of the appellant based on the license u/s.57 of the Customs Act may make it a customs area as it includes a warehouse but, it is inconceivable as to how it would transform it into ‘in a notified port’ – Environment Protection Act, 1986.
Partly allowing the appeals, the Court
HELD: 1.1 The Central Government declared certain areas as Coastal Regulation Zone (‘CRZ’). 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 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. This Court is concerned with CRZ II. Paragraph-3 provides for prohibited activities within CRZ. This Court 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. [Paras
21 and 22][262-F-H; 263-A-B, E]
1.2 Paragraph-3(xi) provides for prohibition of construction activity in CRZ1 except those specified in para 8 of the notification. This Court 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. This means what is prohibited in paragraph-3 cannot either be permitted or regulated within the meaning of paragraph4. 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 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 norms. [Paras 27-29][264-G-H; 266-F-G; 267-D-E]
1.3 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 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 ORS.
such as edible oil, fertilizers, foodgrains ‘in’ notified ports. [Para 31][269-D-E]
1.4 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 be true that there is no manufacturing process which may be involved in constructing or maintaining the storage facility. [Para 35][270-GH; 271-A]
1.5 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 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, This Court is 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. [Para 36][271-C-F]
1.6 In paragraph- 8(I)(i)(b), construction of pipelines, inter alia, was permitted. It is thereafter that in paragraph-8(II), under CRZ-II, Clause VI contemplated permitting of storage of nonhazardous cargo, such as edible oil, fertilizers and food grain ‘in’ notified ports. We may broaden our inquiry into the relevant contents of CRZIII. 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). This Court notices 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, this Court finds 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 that again facilities for receipt and storage of petroleum products and liquified natural gas as specified in Annexure-II was permitted. This Court 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 nonhazardous 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. This Court has 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-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. [Para 42][274-E-H; 275-A-E]
1.7 Going by the definition of the word ‘in’, it includes ‘so as to be enclosed, surrounded or inside’. One way of looking at ORS.
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. This Court notices 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.” [Para 45][276-G-H; 277-A]
1.8 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). [Para 47][277-DE]
1.9 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. 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 area as it includes a warehouse but it is inconceivable as to how it would transform it into ‘in a notified port’. [Paras 49 and 52][277-H; 278-A; 279-A-B]
1.10 CRZ-II has been classified in para 7 as areas that have been developed 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. This Court has 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. This Court has 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 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. [Para 55][280-A-F]
1.11 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. 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. [Paras 57 and 58][281-B-E]
ORS.
1.12 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 construction of the law is elementary. This Court 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. This Court 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’. This Court 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. 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. In regard to the pipelines, it would be the District Coastal Zonal Management Authority, which could take a decision. [Para 59 and 60][283-A-D, F-G]
1.13 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. 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.[Paras 61 and 62][283-G-H; 284-AC] M. Nizamudeen v. Chemplast Sanmar Limited and Others (2010) 4 SCC 240 : [2010] 3 SCR 315; Goa Foundation v. Union of India in Writ Petition (Civil) No. 460 of 2004; Electrosteel Steels Limited v. Union of India and Others (2021) SCC OnLine 1247; Pahwa Plastics Pvt. Ltd. and Another v. Dastak NGO and Others (2022) SCC OnLine SC 362; Gajubha Jadeja Jesar v. Union of India and Others (2022) SCC OnLine SC 993;
Alembic Pharmaceuticals Ltd. v. Rohit Prajapati and Others (2020) 17 SCC 157; K.P. Varghese v. Income Tax Officer, Ernakulam and Another 1981 (4) SCC 173 : [1982] 1 SCR 629; Indian Council for Enviro-Legal Action v. Union of India (1996) 5 SCC 281 : [1996] 1 Suppl. SCR 507; S. Jagannathan v. Union of India and others (1997) 2 SCC 87 : [1996] 9 Suppl. SCR 848; Piedade Filomena Gonsalves v. State of Goa (2004) 3 SCC 445 : [2004] 2 SCR 1135; Vaamika Island (Green Lagoon Resort) v. Union of India (2013) 8 SCC 760 : [2013] 17 SCR 965; Kapico Kerala Resorts (P) Ltd. v. State of Kerala (2020) 3 SCC 18 : [2020] 1 SCR 909; Kerala State Coastal Zone Management Authority v. State of Kerala (2019) 7 SCC 248 : [2019] 8 SCR 625 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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