# K.T.V. HEALTH FOOD PVT. LTD v. UNION OF INDIA AND ORS

- **Citation:** 2023 INSC 91
- **Court:** Supreme Court of India
- **Decided:** 2023-02-01
- **Case number:** CIVIL APPEAL NO.3626 OF 2020
- **Bench:** K. M. Joseph, B. V. Nagarathna, J. B. Pardiwala
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/k-t-v-health-food-pvt-ltd-v-union-of-india-and-ors-37856
- **Pages:** 39

## Headnote

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
[2023] 9 S.C.R. 246 : 2023 INSC 91
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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
du

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K.T.V. HEALTH FOOD PVT. LTD.
v.
UNION OF INDIA AND ORS.
CIVIL APPEAL NO.3626 OF 2020
FEBRUARY 01, 2023
[K. M. JOSEPH, B. V. NAGARATHNA AND
J. B. PARDIWALA, JJ.]
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
[2023] 9 S.C.R. 246 : 2023 INSC 91
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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
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ORS.
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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
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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
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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
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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
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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]
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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
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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.
Case Law Reference
[2010] 3 SCR 315
relied on
Para 12
[1982] 1 SCR 629
referred to
Para 16
[1996] 1 Suppl. SCR 507
referred to
Para 19
[1996] 9 Suppl. SCR 848
referred to
Para 19
[2004] 2 SCR 1135
referred to
Para 19
[2013] 17 SCR 965
referred to
Para 19
[2020] 1 SCR 909
referred to
Para 19
[2019] 8 SCR 625
referred to
Para 19
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CIVIL APPELLATE JURISDICTION : Civil Appeal No.3626
of 2020.
From the Judgment and Order dated 30.09.2020 of the National
Green Tribunal, Southern Zone, Chennai in Appeal No.04 of 2019.
With
Civil Appeal No.3639 of 2020
Ranjit Kumar, Dhruv Mehta, Sr. Advs., R.Sarvana Kumar,
R.Jawahar Lal, Siddharth Bawa, Anuj Garg, Mohit Sharma, Mayank
Kshirsagar, Advs. for the Appellant.
Ms. Aishwarya Bhati, A.S.G., Amit Anand Tiwari, A.A.G., Ms.
Anitha Shenoy, Sr. Adv., Ritwick Dutta, Ms. Srishti Agnihotri, Ms.
Ayushma Awasthi, Ms. Sanjana Grace Thomas, Ms. Namrata Sarah
Caleb, Ms. Itisha Awasthi, Ms. Sruthi K., Ms. Mantika Vohra, Gurmeet
Singh Makker, Ms. Archana Pathak Dave, Navanjay Mahapatra,
Chinmayee Chandra, Ms. Preeti Rani, Dr. Joseph Aristotle S., Ms.
Devyani Gupta, Ms. Tanvi Anand, Shobhit Dwivedi, T. R. B. Sivakumar,
Advs. for the Respondents.
The Judgment of the Court was delivered by
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 National
Green Tribunal (NGT), Southern Zone. By the impugned Order, the NGT
has allowed the appeal filed 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
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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').
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 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
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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 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 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
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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 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.
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 nonhazardous 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 2011 Notification. The Tribunal went
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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 anda 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
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 appealhad 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
Counselfor 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. 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
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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 other hand, storage of non-hazardous
cargo such as edible oil, fertilizers and foodgrain ispermitted '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
interpretationand, in this regard, he drew our attention to the judgment of
this court in M. Nizamudeen v. ChemplastSanmar 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 isnot inits 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 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 awider
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
1 (2010) 4 SCC 240
2 (2021) SCC OnLine 1247
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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.
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 Counselin 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 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 NGTand submits
3 (2022) SCC OnLine SC 362
4 (2022) SCC OnLine SC 993
5 (2020) 17 SCC 157
6 1981 (4) SCC 173
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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 subservesa
salutary and sublimeobject.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.
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.