IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 16.09.2009 CORAM: THE HON'BLE MR. JUSTICE F.M.IBRAHIM KALIFULLA AND THE HON'BLE MRS. JUSTICE R.BANUMATHI Writ Petition No.9319 of 2009 and Contempt Petition No.802 of 2009 W.P.No.9319/2009: Thervoy Gramam Makkar Munnetra Nala Sangam (Reg.No.87/09), Rep. by its Secretary K.Dhanraj, Thervoy Village, Gummidipoondi Taluk, Thiruvallur District – 601 202. ... Petitioner. vs. 1. The Union of India, rep. by the Secretary to Government, Ministry of Environment and Forests, 6th Floor, CGO Complex, Paryavaran Bhavan, Lodhi Road, New Delhi. 2. The State of Tamil Nadu rep. by the Secretary to Government, Department of Environment and Forests, Fort St. George, Chennai-600 009. 3. The State of Tamil Nadu rep. by the Secretary to Government, Department of Revenue, Fort St. George, Chennai-600 009. 4. The State of Tamil Nadu rep. by the Secretary to Government, Department of Animal Husbandry, Dairying and Fisheries, Fort St. George, Chennai-600 009. 5. The Tamil Nadu Pollution Control Board, rep. by its Member Secretary, 100, Anna Salai, Chennai. 6. The District Collector, Thiruvallur District, Thiruvallur. https://hcservices.ecourts.gov.in/hcservices/ 7. State Industries Promotion Corporation of Tamil Nadu, rep. by its Chairman and Managing Director, 19-A, Rukmani Lakshmipathy Road, Egmore, Chennai-8. ... Respondents Contempt Petition No.802/2009: Thervoy Gramam Makkal Munnetra Nala Sangam (Reg.No.87/09), Rep. by its Secretary K.Dhanraj, Thervoy Village, Gummidipoondi Taluk, Thiruvallur District – 601 202. ... Petitioner. vs. 1. Mr. Vijai Sharma, The Secretary to Government, Union of India, Ministry of Environment and Forests, 6th Floor, CGO Complex, Paryavaran Bhavan, Lodhi Road, New Delhi. 2. Mr.Debendranath Sarangi, The Secretary to Government, Department of Environment and Forests, Fort St. George, Chennai-600 009. 3. N.S.Palaniappan, The Secretary to Government, Department of Revenue, Fort St. George, Chennai-600 009. 4. Mr.Muthukumarasamy, The Secretary to Government, Department of Animal Husbandry, Dairying and Fisheries, Fort St. George, Chennai-600 009. 5. R.Ramachandran, Member Secretary, Tamil Nadu Pollution Control Board, 100, Anna Salai, Chennai. 6. V.Palanikumar, The District Collector, Thiruvallur District, Thiruvallur. 7. Mr.Mohan Verghese Chunkath, Chairman and Managing Director, State Industries Promotion Corporation of Tamil Nadu, 19-A, Rukmani Lakshmipathy Road, Egmore, Chennai-8. ... Respondents. https://hcservices.ecourts.gov.in/hcservices/ [Respondents 1 to 6 in C.P.No.802/2009 are deleted as per Court's Order dated 31.08.2009] R1 to R6 Dismissed vide Court order dated 31.8.2009 For Petitioner in WP and Cont.P : Mr. T.Mohan For Respondents WP and Cont.P : Mr. M.Ravindran Addl. Solicitor General of India assisted by Mr. K.Elango, ASG - R1 Mr. S.N.Kirubanandam Spl Government Pleader[Forest]-R2 Mr. R.Thirugnanam SplGovernment Pleader[W] -R3,4&6 Mr.R.Ramanlaal [TNPCB] – R5 Mr. P.Wilson Addl. Advocate General Cont.Petition 802/09 assisted by Mr. M.Devaraj – R7 in Contempt Petition No.802/09: Presented to this Court under Section 11 of the Contempt of Court Act 1971 to punish the respondents for willful and wanton disobedience of the order dated 27.5.2009 in MP.No.1/09 in WP.No.9319/09 COMMON ORDER R.BANUMATHI,J Writ Petition has been filed to quash G.O.Ms.No.650 Revenue Department dated 13.11.2008 transferring/assigning the lands comprised in S.Nos.32/2 and 33/2 in Thervoy kandigai village, Gummidipoondi Block, Tiruvallur District to the 7th Respondent and from changing the use of such land from Meikkal poramboke to any other use. 2. Brief facts which led to the filing of Writ Petition is as follows:- (i) 250 Hectares in S.Nos.32/2 and 33/2 was classified as Meikkal poramboke. Government decided to form an Industrial park in the said lands and issued notice on 11.1.2007 regarding transfer of lands. Thervoy panchayat had passed resolution on 30.1.2007 consenting for the transfer of the above lands to State Industries Promotion Corporation of Tamil Nadu [SIPCOT]. As per G.O.Ms.650 Revenue department dated 13.11.2008, Government alienated an extent of 250 hectares of grazing ground poramboke lands comprised in S.Nos.32/2 and 33/2 of Thervoy village for establishment of second Industrial complex in Tiruvallur District to be transferred to the name of SIPCOT subject to certain conditions. Petitioner association claims to have been formed working for the benefit of residents of Thervoy kandigai village. https://hcservices.ecourts.gov.in/hcservices/ (ii) Grievance of the Petitioner association is that the lands in S.Nos.32/2 and 33/2 are being used as grazing lands as well as afforestation programme under the village community forest programmes. An Agreement to the afforestation of about 250 hectares in S.Nos.32/2 and 33/2 as part of social programme was entered into on 04.2.2008 by the department of Forest and Thervoy panchayat. According to Petitioner Association, after the execution of the agreement, village community and their representatives have been actively participating in the afforestation programme. While so, acquiring Meikkal poramboke lands for industrial estate would cause depletion of forest area. Further case of the Petitioner is that conditions imposed in the said G.O. do not address the problem that will be encountered by the residents of Thervoy kandigai village. Tyre manufacturing unit is a highly polluting red category industry and the lands have been acquired by the SIPCOT for Special Economic Zone [SEZ]. The environmental governance mechanisms have been given a go by the Respondents. (iii) Case of Petitioner is that even at the initial stage of such proposal, there was strong opposition for such move from the local communities on the ground that the proposal for establishing industrial park would severely pollute the land as well as the limited water resources and the Respondents have not considered the disastrous impact that would follow to the lands of forest and grazing land and catchment area for rain water and there was no assessment of adverse impact on the eco-system. It is further averred that pollution likely to be caused by industrial activity particularly the effluent and suspended particulate matter that will be released from the tyre factory would have repercussions on the residents of Thervoy Kandigai and Petitioner Association seeks Writ of Certiorarified Mandamus to quash G.O.Ms.650 Revenue Department dated 13.11.2008. 3. Onbehalf of the 1st Respondent counter filed stating that as per Notification dated 14.9.2006 under Environmental (Protection) Act, the environmental clearance for developing the land for industrial park below 500 hectare is not required if such industrial park is not housing any of the industries categorized as A or B in the said Notification. 4. Denying the Petition averments, 2nd Respondent filed counter- affidavit contending that only to thwart establishment of industrial complex by the SIPCOT, some vested interested people have formed Sangam of the Petitioner and that there is no bonafide in the Petition. It is further averred that establishment of Industrial Park will pave way for development of area to provide infrastructure besides provision of employment of the people. 5. Tamil Nadu Pollution Control Board / 5th Respondent has filed counter stating that so far no application has been received for the grant of consent for the manufacture of Tyres or other in the proposed SIPCOT Complex. In its counter, 5th Respondent-Board has averred that once such application is made, Tamil Nadu Pollution Control Board would consider all relevant aspects before grant of consent to the industries proposed to be set up. https://hcservices.ecourts.gov.in/hcservices/ 6. SIPCOT / 7th Respondent has filed counter contending that the lands transferred are not forest lands and there is no prohibition to transfer such lands and the lands in question were not acquired, but transferred by the revenue department to SIPCOT. The lands are though classified as grazing lands are not used for grazing for the past many decades which are covered by thorny bushes and shrubs are only converted into industrial land without any disturbance to water bodies and there is no forest or forest land in S.F.Nos.32/2 and 33/2. It is further averred that any industry established in any area will have to get clearance of the 5th Respondent with respect to pollution level and no effluent will be discharged as apprehended by the Petitioner and the catchment area will be preserved. 7. Submitting that only in exceptional circumstances Meikkal poramboke could be transferred, Mr.T.Mohan, learned counsel for the Petitioner inter alia raised the following contentions:- ●Without obtaining environmental clearance as per Notification of Ministry of Environment and Forests, New Delhi dated 14.09.2006, there cannot be development of industrial park. ●There are no reasonings in the impugned order warranting such transfer of Meikkal poramboke. ●Valuation of transferred land is arbitrary and there are no reasons as to why it departs from the Collector's advice. ●There was objection from the public, but there was no public notice before Notification transferring the land to SIPCOT. Without hearing the affected parties, the impugned Notification was issued and transfer was made without following the regular procedure. ●Land being with number of trees and shall be deemed to be forest, conversion of the same to industrial estate would result in depletion of forest resources by felling of trees. ●Eco-system will be affected affecting the water resources. ●Meikkal poramboke is widely used for grazing the cattles of Thervoy Kandigai and other surrounding villages and creation of Industrial park would greatly affect grazing cattle. ●There is violation of G.O.Ms.No.186 Animal Husbandry and Fisheries department dated 11.12.2001. In support of his contention, learned counsel for the Petitioner placed reliance upon AIR 2006 SC 2038 [Karnataka Industrial Areas Development Board v. C.Kenchappa & others]; AIR 2006 SC 2050 [Nayini Narasimha Reddy v. Dr.K.Laxman & others]; (1997) 2 SCC 87 [S.Jagannath v. Union of India and others]; CDJ 2005 MHC 387 [Vengaivasal Village Panchayat by its President v. The State of Tamilnadu & others] and 2005 (40 CTC 1 [L.Krishnan v. State of Tamil Nadu, rep. by its Secretary, Department of Revenue (Land Development), Fort St. George, Chennai-9 and others]. https://hcservices.ecourts.gov.in/hcservices/ 8. Onbehalf of the 1st Respondent – Union of India, Mr.M.Ravindran, learned Additional Solicitor General contended that as per the Notification dated 14.9.2006 under Environmental (Protection) Act, the environmental clearance for developing the land for industrial park below 500 ha. is not required if such industrial park is not housing any of the industries categorized as 'A' or 'B' in the said Notification. Learned Additional Solicitor General would submit that the matter being in the initial stage, 1st Respondent-Union of India may not have such say in the matter. 9. Mr. S.N.Kirubanandam, learned Special Government Pleader[Forest] for 2nd Respondent submitted that S.Nos.32/2 and 33/2 are classified as Meikkal poramboke and there was no intention to notify them as forest land. It was further argued that there is no forest land in S.Nos.32/2 and 33/2 and therefore, provisions of Forest Conservation Act would not apply. 10. Mr.R.Ramanlaal, learned standing counsel for 5th Respondent – Tamil Nadu Pollution Control Board [TNPCB] submitted that so far no application has been received for the proposed SIPCOT blocks and as and when application is received, 5th Respondent would examine and consider all the aspects before grant of consent to the industries proposed to be set up in the said land as per the provisions of relevant Acts. 11. Raising serious doubts about the bonafide of Petitioner Sangam, Mr. P.Wilson, learned Additional Advocate General for 7th Respondents submitted the following contentions:- ●Petitioner's Sangam came into existence only ten days prior to the filing of the Writ Petition and lacking in bonafide. ●For development of industrial park/estate by clearing bushes and shrubs, no environmental clearance is required as per the Notification dated 14.9.2006. ●Before transfer of land to SIPCOT on 11.1.2007 there was public notice in the village and statement of public was also recorded. After due hearing, G.O.Ms.No.650 Revenue Department dated 13.11.2008 transferring the lands in S.Nos.32/2 and 33/2 in favour of SIPCOT was passed. ●The land in existence is Meikkal poramboke and not classified as a forest land. ●The project would not affect water bodies and water table would be maintained. ●As per the observation of Supreme Court in 2006 (6) SCC 371 is to carry out environmental study before acquisition and environmental study has been undertaken by ITCOT Consultancy Services. ●Even after the transfer of lands 1127.00 acres, there is balance of about 241.85 acres is available for use as grazing ground. Apart from this, SIPCOT has also come forward to set apart about 100.00 acres of lands from 1127.00 acres of lands transferred for its use as grazing land to cater the needs of the livestock in the village. https://hcservices.ecourts.gov.in/hcservices/ 12. Learned Additional Advocate General would further submit that before transfer of lands, environmental study has been undertaken by the ITCOT Consultancy Services Limited on various aspects. Placing reliance upon 2006 (6) SCC 543 [Susetha v. State of T.N. and others]; 2006 (6) SCC 371 [Karnataka Industrial Areas Development Board v. C.Kenchappa and others] and 2008-4-LW-220 [K.Balamurugan & 7 others v. The State of Tamil Nadu, rep. by the Secretary, Environment and Forest Department, Secretariat, Fort St. George, Chennai and others], the learned Additional Advocate General further submitted that the Supreme Court has approved the concept of 'Sustainable Development' and while there is an obligation to protect and preserve the environment, one cannot shut down the development. 13. Reiterating the contention of learned Additional Advocate General, Mr.R.Thirugnanam, learned Special Government Pleader for Respondent Nos.3,4 and 6 would contend that merely because there is an administrative classification as that of grazing land and any administrative decision to convert the same for industrial purpose cannot give any cause of action to the Writ Petitioner. Learned Special Government Pleader further submitted that Thervoy Kandigai village has passed resolution even as early as on 30.1.2007 consenting for the transfer of the above lands to SIPCOT. It was further argued that only after careful consideration of the proposal, the lands were alienated to SIPCOT for establishment of industrial complex which would pave the way for development of area. 14. Land and grounds of challenge: The lands are located in Thervoy kandigai village about 65 kilometres from Chennai and has proximity to Ennore Port and also Gummidipoondi Industrial Estate. The proposed lands are classified as Meikkal Poramboke. 15. In Thervoy kandigai village, details of grazing ground poramboke are : S.No. Extent in (Hect) 32/2 348.97.0 33/2 107.30.0 33/1 6.50.0 239 91.42.0 ---------- Total 554.19.0 Hectares (or) 1368.85 acres ---------- Out of said 1368.85 acres, S.Nos.32/2 and 33/2, an extent of 1127 acres has been transferred to SIPCOT for establishment of industrial complex. Necessary entries are made in the 'A' Register and Adangal of Thervoy kandigai village evidencing transfer of S.Nos.32/2 and 33/2 to an extent of 348.97.0 and 107.30.0 hectares respectively. https://hcservices.ecourts.gov.in/hcservices/ 16. The main occupation of the area is agriculture and allied activities. The land is located in industrially backward area and the educated youth are stated to be plenty and unemployed. According to the Government, to provide job opportunities besides developing the industrially backward area of Gummidipoondi, Government have proposed to set up new industrial park and identified the above lands. The alienated land infavour of SIPCOT is stated to be a barren dry land. According to 7th Respondent, it has proposed to invest around 22.50 crores for providing approach road from the State Highways 51 to Thervoy Kandigai site. SIPCOT also proposed to lay road from State Highways 52 to Thervoy Kandigai site and all the development will improve the overall area of Thervoy Kandigai village in respect of connectivity, transport facility and job opportunity. As per development plan prepared by ITCOT Consultancy and Services Ltd., the project will have socio-economic benefits and it would generate direct employment to around 5000 persons besides indirect employment generation to more than 25000 persons. According to the 7th Respondent, available man power would get opportunities to acquire advanced skills which would help them to get higher wages and technology trained persons such as ITI holders would get exposure in the advanced technology machines. 17. Transfer of land to SIPCOT and the proposed industrial estate is sought to be challenged on the ground of:- (i)Adverse impact to the eco-system to water bodies, forest and pollution were not considered; (ii)Failure to obtain environment clearance certificate would vitiate development of industrial estate; (iii)There was no public hearing and violation of principles of natural justice; (iv)Impact of industrial estate on depletion of forest area and greenery was not considered; (v)Change of user from Meikkal poramboke to industrial estate is arbitrary and not in accordance with the Policy of Government. Though, non-obtaining of environment clearance as per Notification dated 14.9.2006 was raised as first point, we propose to deal with that contention after considering other grounds of challenge. 18. Scope of Judicial Review:- In 1994 (6) SCC 651 [Tata Cellular v. UOI], Supreme Court observed that "Judicial quest in administrative matters is to strike the just balance between the administrative discretion to decide matters as per Government Policy, and the need of fairness. Any unfair action must be set right by judicial review." 19. Considering the scope of judicial review and referring to various case laws, in 2009 AIR SCW 4623 [Meerut Development Authority v. Association of Management Studies and another], the Supreme Court has held as under:- "25. ....... There is no difficulty to hold that the authorities owe a duty to act fairly but it is equally well https://hcservices.ecourts.gov.in/hcservices/ settled in judicial review, the court is not concerned with the merits or correctness of the decision, but with the manner in which the decision is taken or the order is made. The Court cannot substitute its own opinion for the opinion of the authority deciding the matter. The distinction between appellate power and a judicial review is well known but needs reiteration. By way of judicial review, the court cannot examine the details of the terms of the contract which have been entered into by the public bodies or the State. Courts have inherent limitations on the scope of any such enquiry. If the contract has been entered into without ignoring the procedure which can be said to be basic in nature and after an objective consideration of different options available taking into account the interest of the State and the public, then the court cannot act as an appellate court by substituting its opinion in respect of selection made for entering into such contract. But at the same time the courts can certainly examine whether 'decision making process' was reasonable, rational, not arbitrary and violative of Article 14." Further, the Supreme Court cited in Para 25, the following speech of Lord Templeman and Lord Goff. In the concluding section of his speech, Lord Templeman stated as under:- " 25. ...... Of course in judicial review proceedings, as in any other proceedings, everything depends on the facts. But judicial review should not be allowed to run riot. The practice of delving through documents and conversations and extracting a few sentences which enable a skilled advocate to produce doubt and confusion where none exists should not be repeated." It was further held in Para (25) as under:- "........ One has to bear in mind the caution administered by Lord Scarman in Nottinghamshire Country Council v. Secretary of State for the Environment [(1986) 1 All ER 199] that "'Judicial review' is a great weapon in the hands of the Judges; but the Judges must observe the constitutional limits set by our parliamentary system upon the exercise of this beneficial power" ....." 20. There could be no two opinion that unreasonable decisions are susceptible to be interfered with and corrected in the judicial review proceedings. In the given facts and circumstances, it is for the Court to decide whether the action complained of is unreasonable. 21. Point falling for consideration is whether arbitrary exercise of power warranting interference in the judicial review. It is well settled that power of judicial review is not concerned with the merits or correctness of the decision, but the manner in which the decision has been taken. https://hcservices.ecourts.gov.in/hcservices/ 22. Bearing in mind the above parameters, we proceed with the question whether the impugned notification transferring the land Meikkal poramboke to SIPCOT for forming industrial estate is vitiated by abuse of power and arbitrariness. 23. Sustainable Development:- The neo-expansion of Article 21 of the Constitution of India guarantees two important fundamental rights, right to life and right to personal liberty. In the area of environmental justice, the right to live is most relevant. After Maneka Gandhi's case [AIR 1978 SC 597], the right to live has seen new dimensions and one of the new emerging facets is the right to live in a clean environment. In this wave length the Apex Court in Chhetriya Pradushan Mukti Sangharsh Samiti's case [AIR 1990 SC 2060], once again reiterated that, "every citizen has a fundamental right to have the enjoyment of quality of life and living as contemplated by Article 21 of the Constitution of India." Thus anything that endangers or impairs the quality of life or living of the people, will attract the provision of Article 21 of Constitution of India. 24. In the context of human rights, right to life and liberty, pollution free Air and Water is guaranteed by our Constitution by Articles 21, 48-A and 51-A (g). 25. Article 21 reads as under:- "21. Protection of life and personal liberty.- No person shall be deprived of his life or personal liberty except according to procedure established by law." 26. Article 48-A reads as under:- "48-A. Protection and improvement of environment and safeguarding of forests and wildlife.- The State shall, endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country." 27. Apart from the above we may also refer to Article 51-A(g) of the Constitution which makes it a fundamental duty of every citizen "to protect and improve the natural environment including forests, lakes, rivers and wild life". This duty can be enforced by the Court [See Animal and Environment Legal Defence Fund v. Union of India, 1997 (3) SCC 549]. 28. In M.C.Mehta v. Union of India, 1997 (3) SCC 715, the Supreme Court observed as under;- "Articles 21, 47, 48-A and 51-A(g) of the Constitution of India give a clear mandate to the State to protect and improve the environment and to safeguard the forests and wildlife of the country. It is the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures. The "Precautionary Principle" makes it mandatory for the State Government to https://hcservices.ecourts.gov.in/hcservices/ anticipate, prevent and attack the cause of environment degradation. We have no hesitation in holding that in order to protect the two lakes from environmental degradation it is necessary to limit the construction activity in the close vicinity of the lakes." 29. In a catena of cases, Supreme Court has reiterated right to clean environment is a guaranteed fundamental right. Re-stating the 'Sustainable Development', in 2004 (9) SCC 362 [N.D.Jayal and another v. Union of Indian and others], the Supreme Court held as under:- "24. The right to development cannot be treated as a mere right to economic betterment or cannot be limited as a misnomer to simple construction activities. The right to development encompasses much more than economic well-being, and includes within its definition the guarantee of fundamental human rights. The "development" is not related only to the growth of GNP. In the classic work, Development As Freedom, the Nobel prize winner Amartya Sen pointed out that "the issue of development cannot be separated from the conceptual framework of human right" ........ The right to development includes the whole spectrum of civil, cultural, economic, political and social process, for the improvement of peoples' well-being and realization of their full potential. It is an integral part of human rights. ......" 30. In 1996 (5) SCC 647 [Vellore Citizens' Welfare Forum v. Union of India and others], the Supreme Court dealt with the principles of "Sustainable Development" as a concept recognised in the international sphere. The Supreme Court made it clear that the traditional concept of development and ecology are opposed to each other is no longer acceptable and that "Sustainable Development" is an acceptable principle in the present day context. The emergence of the concept of "Sustainable Development" as pronounced in the Stockholm Declaration of 1972 and the later decision of giving a definite shape to the said concept in the year 1987 by the World Commission on Environment and Development in its