M. Nizamudeen v. Chemplast Samnar Limited & Ors. :Decided On 10.03.2010

IN THE SUPREME COURT OF INDIA

Decided On 10.03.2010

M. Nizamudeen v. Chemplast Samnar Limited & Ors.

Judges: K.G. Balakrishnan, C.J., R.M. Lodha & B.S. Chauhan, JJ.

Ratio Decidendi: “If exception has been 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 purpose.”

This is a Civil appeal (SLP No. 7101 of 2009) against the judgment of the Madras High Court dt. October 31, 2008 dismissing a PIL filed against the proposed setting up of a project for manufacturing Poly-Vinyl Chloride (PVC). The facts are as follows:

A proposal was made by Chemplast Sanmar Limited for establishing a project to manufacture Poly-Vinyl Chloride (PVC) at Semmankuppam village, SIPCOT Industrial Complex, Phase-II, Cuddalore District (Tamil Nadu). It had obtained an Environmental Impact Assessment Report (EIA) and a Risk Analysis Report (RA) which were submitted for consideration along with the proposal. All these documents were sent by the government of Tamil Nadu to the Ministry of Environment and Forests (MOEF) after getting conditional consent of the Tamil Nadu Pollution Control Board (TNPCB). After examining them, the MOEF gave environmental clearance on November 28,2005 subject to strict compliance with the general and specific conditions laid down.

Chemplast planned to import Vinyl Chloride Monomer (VCM) which is a raw material used in the manufacture of PVC as it was not available indigenously. Therefore it proposed to establish a Marine Terminal Facility (MTF) and would transport the VCM from the ships to the PVC plant through an underground pipeline. After considering this proposal, the District Coastal Zone Management Committee made certain recommendations to the Tamil Nadu State Coastal Zone Management Authority (TNSCZMA) which recommended to the Tamil Nadu Government to forward the proposal to the MOEF for CRZ clearance with certain conditions that the Chemplast unit would have to comply with in the event of clearance being granted.

After considering the proposal which involved certain activities i.e. (i) construction of island 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 granted environmental clearance under the provisions of the Coastal Regulation Zone Notification, 1991 on December 19, 2005 for constructing the MTF. This was subject to all the specific and general conditions laid down by the Government of Tamil Nadu and the TNSCZMA being complied with.

When Chemplast sought permission from the Executive Engineer, PWD, Vellar Basin Division, WRO to carry seawater and raw materials through pipelines laid 350 m below the river bed, it was initially granted on February 27, 2008 subject to certain conditions and later cancelled on March 19, 2008 on the grounds that VCM may cause pollution and health hazard to the public. Chemplast filed a writ petition before the Madras High Court challenging this order cancelling permission, and it was allowed by the court which set aside the order. A PIL was then filed by M. Nizamudeen seeking that Chemplast be directed not to lay pipelines for transporting VCM material from the jetty to their plant in Semmankuppam village. This was dismissed, and the judgment was challenged in a SLP before the Supreme Court praying that no handling of hazardous chemicals through pipelines or otherwise should be allowed to take place in CRZ areas on both sides of the Uppanar river.

Counsel for the petitioners argued that that 100 meters from the High Tide Line (HTL) on both sides of Uppanar river are CRZ-III areas where handling of hazardous substance is prohibited; that VCM is hazardous substance notified under the Notification of MOEF issued on November 27, 1989 and handling of a substance includes transfer, as per Section 2(d) of Environment (Protection) Act, 1986; that Chemplast did not seek any permission in respect of the pipelines in the CRZ on both sides of Uppanar river; that the environmental clearance granted by the MOEF did not cover the laying of pipelines across and under the Uppanar river or drawing of VCM through these pipelines; and that the Executive Engineer has no authority to permit laying of pipelines in the CRZ of Uppanar river.

Counsel for the respondent argued among other things that the point at which the pipelines pass under the Uppanar river and its banks is not a part of CRZ as per 1996 Plan prepared by the state government and approved by the central government and, therefore, no permission or environmental clearance is required for that portion of the pipeline that passes under the Uppanar river nor such permission was granted; that environmental clearance was only required for the MTF and that portion of the pipeline that falls within the CRZ abutting the sea, i.e. within 500 meters from HTL and vide permission dated December 19, 2005, environmental clearance was granted for this portion of the pipeline only. He also submitted that the interpretation given to paragraph 2(ii) of 1991 Notification by the petitioners was not correct and that exception in paragraph 2(ii) needs to be construed in a purposive manner.

The court held that there were two main issues: whether the Uppanar river and its banks at the point of the pipelines fall in the CRZ III area, and whether paragraph 2(ii) of the 1991 Notification restricts transfer of VCM as a hazardous substance beyond the port area to the PVC plant through pipelines. Regarding the first issue, as per the Coastal Zone Management Plan of the State of Tamil Nadu which was approved by the MOEF in 1996 and is the final authority on demarcation and classification of CRZ area, the Uppanar river and its banks at the relevant place where the pipelines laid by the Chemplast pass do not fall under CRZ III area. Therefore no environmental clearance is needed for such pipelines. The MOEF has granted permission to the onshore pipelines insofar as these pass through the CRZ abutting the sea, i.e. 500 meters from the HTL and no clearance has been granted as it was not required for laying of pipelines under the Uppanar river.

Regarding the second issue, the court applied purposive construction to hold that the expression ‘in the port areas’ should be read as ‘in or through the port areas’ so that the exception in paragraph 2(ii) would read `except transfer of hazardous substances from ships to ports, ships to terminals and ships to refineries and vice versa, in or through the port areas'. This construction would be harmonious with paragraph 3(2)(ii) which permits the activity of laying pipelines in the CRZ area. Further, it was in exercise of the powers conferred under paragraph 3(2) (ii) that the MOEF granted permission. The court also noted that the project had been established by investing a huge amount of about Rs. 600 crores and had already been commissioned after obtaining necessary approvals and. Therefore, it was not in the interest of justice nor in the public interest to interfere with the project. On this basis the Civil Appeal and writ petition was dismissed.