# M. NIZAMUDDIN v. MIS. CHEMPLAST SANMAR LTD. AND ORS

- **Citation:** [2010] 3 S.C.R. 315
- **Court:** Supreme Court of India
- **Decided:** 2010-03-10
- **Case number:** Civil Appeal No. 2284 of 2010
- **Bench:** K.G. Balakrishnan, R.M. Lodha, Dr. B.S. Chauhan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/m-nizamuddin-v-mis-chemplast-sanmar-ltd-and-ors-26696
- **Pages:** 29

## Headnote

Coastal Regulation Zone Notification, 1991:
Paragraph 3(3)(i) - Uppanar river and its banks adjacent
A
B
c
to the plant in Thiyagavalli village where the pipeline crosses
Uppanar river does not come under the CRZ area - On facts,
MOEF rightly granted permission to the onshore pipelines
insofar as these pass through the CRZ abutting the sea, i.e.
D
500 meters from the HTL and no clearance was required for
laying of pipelines under the Uppanar river - Coastal Zone
Management Plan of Tamil Nadu, 1996 - Environment
Protection Act, 1986 - s.2(d).
Paragraph 2(ii) - Transfer of VCM (hazardous substance) . E
beyond port area to the PVC plant through pipelines -
Permissibility - Held: Paragraph 2(ii) permits transfer of
hazardous substances from ships to ports, terminals and
refineries and vice-versa, in the port areas.
Coastal Zone Management Plan of Tamil Nadu, 1996:
Demarcation plan prepared by National Institute of
Oceanography- Held: Shall not prevail over the 1996 Plan.
F
Interpretation of statutes:
G
Mischief rule - If exception is added to remedy the
mischief or defect, it should be so construed that remedies
the mischief and not in a manner which frustrates the very
315
H
316
S_UPREME COURT REPORTS
[2010] 3 S.C.R.
A purpose - Purposive construction to be employed to avoid a
lacuna and to suppress the mischief and advance the remedy
- Coastal Ragulation Zone Notification, 1991 - Paragraph
2(ii).
8
Chemplast Ltd. proposed to set up a project for
manufacturing Poly-Vinyl Chloride (PVC) at Cuddalore
District, Tamil Nadu. Chemplast was also required to
import, a raw material Vinyl Chloride Monomer (VCM) for
manufacturing PVC. Chemplast proposed to install a
C Marine Terminal Facility (MTF) near the seashore at
Chittrapettai village for receiving and transferring VCM
from ships to the PVC plant through underground
pipeline.
Ministry of Environment and Forests (MOEF) granted
D environmental clearance on 19.12.2005 under the
provisions of Coastal Regulation Zone Notification, 199(
TNPCB in the light of the environmental clearance dated
19.12.2005 granted by MOEF accorded its consent on
14.9.2006 for the PVC plant as well as MTF and pipeline
E project of the Chemplast.
Chemplast made an application on February 6, 2008
to the Executive Engineer, PWD seeking permission for
carrying seawater .and raw-materials through pipelines
laid 3.50 meter below the river bed. The Executive
F 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 permission observing that VCM may cause
pollution and health hazard to the public.
G
The order cancelling permission was challenged by
Chemplast by filing writ petition before the High Court.
The High Court allowed writ petition. Thereafter appellant
filed PIL praying that the order passed by Executive
H Engineer on February 27, 2008 be quashed and
M. NIZAMUDDIN v. CHEMPLAST SANMAR LTD. AND317
ORS.
Chemplast be directed to forbear from laying of pipelines A
for drawing VCM raw material from jetty to their plant. High
Court dismissed the writ petition. A writ petition was filed
under Article 32 of the Constitution of India before
Supreme Court by another individual challenging the
permission granted by MOEF on 19.12.2005. Three more B
writ petitions came to be filed before High Court
challenging environmental clearances granted by the
MOEF to Chemplast. The appellant also sought transfer
of these petitions to this Court. IA7 was made therein for
deletion of respondent 21 and 22. The writ petition, appeal c
against the impugned judgment of High Court, transfer
petitions and IAs were heard together in these inatters.
The questions which arose for consideration in these
matters were whether Uppanar river and its banks at the
point where pipelines pass, fall in the CRZ Ill area; and D
whether paragraph 2(ii) of 1991 Notification restricts
transfer of VCM (hazardous substance) beyond port area
to the

## Text

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[2010] 3 S.C.R. 315
M. NIZAMUDDIN
V.
MIS. CHEMPLAST SANMAR LTD. AND ORS.
(Civil Appeal No. 2284 of 2010)
MARCH 10, 2010
[K.G. BALAKRISHNAN, CJI., R.M. LODHA AND DR.
B.S. CHAUHAN, JJ.]
Coastal Regulation Zone Notification, 1991:
Paragraph 3(3)(i) - Uppanar river and its banks adjacent
A
B
c
to the plant in Thiyagavalli village where the pipeline crosses
Uppanar river does not come under the CRZ area - On facts,
MOEF rightly granted permission to the onshore pipelines
insofar as these pass through the CRZ abutting the sea, i.e.
D
500 meters from the HTL and no clearance was required for
laying of pipelines under the Uppanar river - Coastal Zone
Management Plan of Tamil Nadu, 1996 - Environment
Protection Act, 1986 - s.2(d).
Paragraph 2(ii) - Transfer of VCM (hazardous substance) . E
beyond port area to the PVC plant through pipelines -
Permissibility - Held: Paragraph 2(ii) permits transfer of
hazardous substances from ships to ports, terminals and
refineries and vice-versa, in the port areas.
Coastal Zone Management Plan of Tamil Nadu, 1996:
Demarcation plan prepared by National Institute of
Oceanography- Held: Shall not prevail over the 1996 Plan.
F
Interpretation of statutes:
G
Mischief rule - If exception is added to remedy the
mischief or defect, it should be so construed that remedies
the mischief and not in a manner which frustrates the very
315
H
316
S_UPREME COURT REPORTS
[2010] 3 S.C.R.
A purpose - Purposive construction to be employed to avoid a
lacuna and to suppress the mischief and advance the remedy
- Coastal Ragulation Zone Notification, 1991 - Paragraph
2(ii).
8
Chemplast Ltd. proposed to set up a project for
manufacturing Poly-Vinyl Chloride (PVC) at Cuddalore
District, Tamil Nadu. Chemplast was also required to
import, a raw material Vinyl Chloride Monomer (VCM) for
manufacturing PVC. Chemplast proposed to install a
C Marine Terminal Facility (MTF) near the seashore at
Chittrapettai village for receiving and transferring VCM
from ships to the PVC plant through underground
pipeline.
Ministry of Environment and Forests (MOEF) granted
D environmental clearance on 19.12.2005 under the
provisions of Coastal Regulation Zone Notification, 199(
TNPCB in the light of the environmental clearance dated
19.12.2005 granted by MOEF accorded its consent on
14.9.2006 for the PVC plant as well as MTF and pipeline
E project of the Chemplast.
Chemplast made an application on February 6, 2008
to the Executive Engineer, PWD seeking permission for
carrying seawater .and raw-materials through pipelines
laid 3.50 meter below the river bed. The Executive
F 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 permission observing that VCM may cause
pollution and health hazard to the public.
G
The order cancelling permission was challenged by
Chemplast by filing writ petition before the High Court.
The High Court allowed writ petition. Thereafter appellant
filed PIL praying that the order passed by Executive
H Engineer on February 27, 2008 be quashed and
M. NIZAMUDDIN v. CHEMPLAST SANMAR LTD. AND317
ORS.
Chemplast be directed to forbear from laying of pipelines A
for drawing VCM raw material from jetty to their plant. High
Court dismissed the writ petition. A writ petition was filed
under Article 32 of the Constitution of India before
Supreme Court by another individual challenging the
permission granted by MOEF on 19.12.2005. Three more B
writ petitions came to be filed before High Court
challenging environmental clearances granted by the
MOEF to Chemplast. The appellant also sought transfer
of these petitions to this Court. IA7 was made therein for
deletion of respondent 21 and 22. The writ petition, appeal c
against the impugned judgment of High Court, transfer
petitions and IAs were heard together in these inatters.
The questions which arose for consideration in these
matters were whether Uppanar river and its banks at the
point where pipelines pass, fall in the CRZ Ill area; and D
whether paragraph 2(ii) of 1991 Notification restricts
transfer of VCM (hazardous substance) beyond port area
to the PVC plant through pipelines.
Dismissing the writ petition and the appeal as well as E
IA for initiating contempt proceedings against MOEF and
disposing of the Transfer Petitions and IA7, the Court
HELD: 1.1. Coastal Regulation Zone Notification, 1991
was issued by the MOEF declaring the coastal stretches
as Coastal Regulation Zone (CRZ) and regulating F
activities in such area. 1991 Notification was amended
from time to time. Paragraph 3(3)(i) of 1991 Notification
required the Coastal States and UT Administrations to
prepare Coastal Zone
Management Plans for
identification and classification of the CRZ areas within G
their respective territories in accordance with the
guidelines given in Annexures I and II of the Notification.
It further
mandated
Coastal
States
and
UT
Administrations to obtain approval of such plans from the
H
318
SUPREME COURT REPORTS
[2010] 3 S.C.k.
A 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
B
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
c of Tamil Nadu with certain conditions/modifications/
classifications. Sheet no.10 pertained to the coastal
stretch of Cuddalore District. The MOEF, based on sheet
no. 10 (1996 Plan) stated in their affidavit that the land
portion of the banks of Uppanar river adjacent to the plant
0
in Thiyagavalli village where the pipeline crosses Uppanar
river does not come under the CRZ area. [Paras 26 and
28) [333-C-D; 337-H; 338-A-E]
1.2. The Coastal Zone Management Plan of Tamil
Nadu, 1996 does not reflect the area on both sides of the
E Uppanar river through which the pipelines pass as CRZ
area. By 1998 amendment, it has been provided in 1991
Notification that High Tide Line (HTL) shall be
demarcated uniformly in all parts of the country by the
demarcating authority or authorities so authorized by the
F
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 paragraph of 1991 Notification providing therein that
the distance from the HTL shall apply to both sides in the
G case of rivers, creeks and backwaters. The said
amendment provided that the distance up to which
development along rivers, creeks and backwaters is to be
regulated shall be governed by the distance up fo which
the tidal effects are experienced which shall be
H
M. NIZAMUDDIN v. CHEMPLAST SANMAR LTD. AND 319
ORS.
determined based on salinity concentration of 5 ppt. It is A
perfectly true that at the time of preparation and approval
of 1996 Plan, the 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 B
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 remained operative. The authorities c
authorized to demarcate HTL 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) D
and duly approved by the MOEF is the relevant plan for ·
identification and classification of CRZ areas. The plan
prepared by National Institute of Oceanography thus,
cannot be said to have superseded 1996 Plan for the
Cuddalore coastal stretch. More so, while giving approval E
·on September 27, 1996 to 1996 Plan, the MOEF appended
a condition that government of Tamil Nadu would not
make any change in the approved categorization of CRZ
area without its prior approval. 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
F
conclusive and was rightly treated as such by the MOEF.
The Uppanar river and its banks at the relevant place
where the pipelines laid by the Chemplast pass do not
fall under CRZ Ill area as per 1996 Plan and no
environmental clearance is needed for such pipelines. G
The MOEF rightly 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
was required for laying of pipelines under the Uppanar
river. [Paras 29, 30 and 31] [338-G; 339-A-G-H; 340-A-Q]
H
320
SUPREME COURT REPORTS
[2010] 3 S.C.R.
A
~.1. From the materials available on record that
include the Environment Impact Assessment Report (EIA)
and Risk 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
B
Uppanar river has been described as Uppanar canal.
c
D
E
F
Similarly, in Section 5 of RA, referen_ce is made to pipeline
crossing Uppanar canal. The position is clarified by
Chemplast in their subsequent application made on
November 14, 2005. [Para 32] [340-0-F]
2.2. Paragraph 2(ii) of 1991 Notification 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. The VCM is
hazardous substance as notified by notification dated
November 27, 1989. It is also an admitted position, that
handling of a substance includes transfer as per Section
2(d) of the Environment (Protection) Act, 1986. The
expression, "except transfer of hazardous substances
from ships to ports, terminals and refineries and vice
versa in the port areas" was added in paragraph 2(ii) on
9th July, 1997. Ir 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. Such transfer of
hazardous substances are not confined to terminals and
G
refineries located in the port areas. Interpreting otherwise
would make the said provision unworkable and would
also result i~ 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
H
M. NIZAMUDDIN v. CHEMPLAST SANMAR LTD. AND321
ORS.
there and could not be taken beyond the port area A
because of the prohibition. This surely could not have
been the intention of the Executive in adding the
exception clause. [Para 33] [341-F-H; 342-A-E]
2.3. It is well settled that if exception has been added 8
to remedy the mischief or defect, it should be 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 C
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 D
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, by applying E
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
F
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 activily of laying
pipelines in the CRZ area. As a matter of fact, the MOEF
in their affidavit before this Court have clearly stated that G
the permission granted to Chemplast on 19th December,
2005 is in exercise of the powers conferred under
paragraph 3(2)(ii) of 1991 Notification. There is not
infirmity in the permission granted by the MOEF on 19th
H
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[2010] 3 S.C.R.
A
December, 2005. Having held that, there is no illegality in
the permission granted by the Executive Engineer on
February 27, 2008 either. The project was established by
investing huge amount of about Rs. 600 crores and had
already been commissioned after obtaining necessary
B approvals and, therefore, it would not be in the interest
of justice nor in the public interest now to interfere with
the project. The alternative solution suggested for
carrying VCM across Uppanar river to the plant is
c
rejected. [Paras 33 and 35) [342-E-H; 343-A-C; 343-E]
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
2284 of 2010.
From the Judgment & Order dated 31.10.2008 of the High
Court of Judicature at Madras in Writ Petition No. 21791 of
D 2008.
E
F
G
WITH
W.P. (C) No. 130 of 2009, T.P.(C) No. 365-367 of 2009.
Parag P. Tripathi, ASG, Ranjit Kumar, Vikas Singh, Dr.
Rajeev Dhawan, R. Balasubramanian, K.K. Venugopal, Vijay
Narayan, Altaf Ahmed, R.F. Nariman, V. Balaji, Naren~fra
Kumar, Abhishek Anand, C. Kannan, Parvesh Thakur (for
Rakesh K. Sharma), Aman Ahluwalia, Kunal Bahri Shreekant
N. Terdal, K.V. Mohan, K.V. Balakrishnan, Gopal
Sankaranarayanan, R. Nedumaran, T. Harish Kumar, P.
Prasanth, V. Vasudevan, Sushma Manchanda, Senthil
Jagadet::san (N.P.) for the appearing parties.
The Judgment of the Court was delivered by
R.M. LODHA, J. 1. Leave granted in SLP (Civil) No. 7101
Of 2009.
2. In this group of five matters before us, civil appeal is
H directed against the judgment of Madras High Court passed
M. NIZAMUDDIN v. CHEMPLAST SANMAR LTD. AND 323
ORS. [R.M. LODHA, J.]
on October 31, 2008 whereby a writ petition in the nature of A
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 B
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 · C
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 D
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
accepting the conditional consent issued by Tamil Nadu E
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
F
the project proposed by Chemplast on November 28, 2005
subject to strict compliance to the specific anj general
conditions laid down therein.
4. One of the raw-materials for manufacturing PVC is Vinyl G
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 seashor.e at Chitrapettai Village for H
A
B
c
D
E
F
G
H
324
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[2010] 3 S.C.R.
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
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
pt:rmitted 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'."
M. NIZAMUDDIN v. CHEMPLAST SANMAR LTD. AND 325
ORS. [R.M. LODHA, J.]
6. The aforesaid recommendations were considered by
A
the TNSCZMA and they resolved in its meeting held on October
17, 2005 to recommend to the state government to forward thP
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.
B
2. The unit shall inform in advance to the Assistant Director
C
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
D
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.
E
F
8. The unit shall install adequate fire fighting equipment to
G
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.
H
,.·,·
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[2010] 3 S.C.R.
A
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
8
plant should not be discharged into the sea."
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
C 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
D 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
E Raniboll; (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
F jetty at 1000 meters from the shoreline; (ii) laying of 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
G 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
H be consisting of an operating platform, berthing dolphins,
M. NIZAMUDDIN v. CHEMPLAST SANMAR LTD. AND 327
ORS. [R.M. LODHA, J.]
mooring dolphins and interconnecting walkway; that the platform
A
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
8
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 time for
construction of revetment for setting up of MTF on the specific C
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/ D
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
E
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').
F
11. The TNPCB in light of the environmental clearance
dated December 19, 2005 granted by the MOEF accorded its
consent on September 14, 2006 for the PVC plant as well as
MTF and pipeline project of the Chemplast.
12. Chemplast maderan application on February 6, 2008
G.
to the Executive Engineer, PWD, Vellar.Basi.n 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
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[2010] 3 S.C.R.
A
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.
B
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
C 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
February 27, 2008 be quashed and Chemplast be directed to
forebear from laying of pipelines for drawing VCM raw-material
D 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
E 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
F
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
G activity, viz., handling of any hazardous chemical through
pipelines or otherwise takes place in CRZ areas on both sides
of Uppanar river.
15. Be it noted here that three more writ petitions (Writ
Petition nos. 37043/2006, 8125/2007 and 23122/2007) came
H to be filed before Madras High Court challenging environmental
M. NIZAMUDDIN v. CHEMPLAST SANMAR LTD. AND 329
ORS. [R.M. LODHA, J.]
clearances granted by the MOEF to the Chemplast. The A
appellant - M. Nizamudeen - has sought transfer of these
petitions to this Court. I.A. No. 1 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.
B
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 C
the High Tide Line (HTL) on both sides of Uppanar river are
CRZ-111 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) D
of Environment (Protection) Act, 1986; that Chemplast did not
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 E
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 t~is Court; that
Chemplast while submitting proposals to t,he competent
authorities itself annexed a demarcation map prepared by the
F
National Institute of Oceanography (NIO) to show the High Tide
Line/Low Tide Line [HTULTL] 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 redunciant by the G
amendments in 1991 Notification.
18. Mr. Ranjit Kumar, learned senior counsel alsq
submitted that a close look at the environmental clearance·
dated December 19, 2005 gran~ed by the MOEF would show
that it neither covers nor includes the activities of laying of H
330
SUPREME COURT REPORTS
[2010] 3 S.C.R.
A
pipelines across and underneath Uppanar river and drawing of
VCM through pipelines. He lastly submitted that Executive
B
· Engineer hi!id 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
C
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 I LTL
D
and CRZ area carried out by authorized demarcating agencies.
E
F
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,
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
G. not cover permis~:on 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
. H
must prevail over 1996 Plan.
M. NIZAMUDDIN v. CHEMPLAST SANMAR LTD. AND 331
ORS. [R.M. LODHA, J.]
22. According to Dr. Rajeev Dhavan, CRZ-111 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
A
be brought on to the port area but not carried any further by · B
pipeline in or across CRZ area including the CRZ-111 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 c
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
D
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
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
E
F
as the petitioners in these matters have been set up by a
G
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
H
332
SUPREME COURT REPORTS
[2010] 3 S.C.R.
A 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
B 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 contended that the plan prepared by
c 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 pip~lines for transfer of VCM is not a prohibited activity as
contended by the petitioners as the interpretation given by them
D 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
E 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
F 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, enyironmental 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
G the 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
H
M. NIZAMUDDIN v. CHEMPLAST SANMAR LTD. AND 333
ORS. [RM. LODHA, J.]
have to look to is, whether Uppanar river and its banks at the A
point where pipelines pass, fall in the CRZ Ill 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 s
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 C
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
has been amended from time to time. To the extent it is rele\tant,
it reads:
D
"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
E
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 (L TL) and
the HTL as Coastal Regulation Zone; and imposes with
F
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 G
means the line on the land up to which the highest water
line reaches during the spring tide. The High Tide Line shall
1.
Substituted by S.0.1122(e), dated 29th December, 1998. Gazette of India
(Extra) No. 849, dated 19.12.1998.
H
334
A
B
c
D
E
SUPREME COURT REPORTS
[2010] 3 S.C.R.
be demarcated uniformly in all parts of the country by the
demarcating aythority 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.;]
2.
Prohibited Activities :
The following activities are declared as prohibited
within the Coastal Regulation Zone, namely :
F
(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 &
G
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
H
2.
Inserted as per S.O.(E). No. 550 (E), dated 21st May, 2002.
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.
M. NIZAMUDDIN v. CHEMPLAST SANMAR LTD. AND 335
·ORS. [R.M. LODHA, J.]
substances from ships to ports, terminals and refineries A
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 ......... .
B
2. The following activities will require environmental C
clearance from the Ministry of Environment and Forests,
Government of India, namely:
(i) ........