IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 19/04/2004 Coram The Honourable Mr. B. SUBHASHAN REDDY, Chief Justice and The Honourable Mr. Justice K. GNANAPRAKASAM W.P. No.33493 of 2003 and W.P.Nos., 35205, 35517, 35691, 35692 and 35825 of 2003 and W.P.M.P. Nos.40556, 42562, 43720, 45348 to 45350, 42791, 42792, 43882 , 43181, 43366 to 43369, 43544 and 43545 of 2003 W.P. No.33493 of 2003 1. C.S. Kuppuraj 2. S.M. Arasu 3. T.S. Balasubramanian 4. P. Krishnan ... Petitioners -Vs- 1. The State of Tamil Nadu, rep. by its Secretary to Government, Public (Buildings) Department, CHENNAI - 600 009. 2. The Chennai Metropolitan Development Authority, rep. by its Member Secretary, Thalamuthu Natrajan Maligai, Egmore, CHENNAI - 600 008. 3. The Commissioner, Corporation of Chennai, CHENNAI - 600 003. 4. The State of Tamil Nadu, rep. by its Secretary to Government, Public Works Department, Fort St. George, CHENNAI - 9. 5. The State of Tamil Nadu, rep. by its Secretary to Government, Department of Housing and Urban Development, Fort St. George, CHENNAI - 9. 6. The Anna University, rep. by its Registrar, Guindy, Chennai - 600 025. 7. The University of Madras, rep. by its Registrar, Kamaraj Salai, Chennai - 600 005. 8. The Science City Authority, rep. by its Vice Chairperson, Directorate of Technical Education Buildings, Chennai - 600 032. 9. The Madras School of Economics, rep. by its Director, Chennai - 600 032. 10. The State of Tamil Nadu, rep. by its Secretary to Government, Dept. of Education, Science & Technology (S & T) Dept. Fort St. George, CHENNAI - 9. 11. The State of Tamil Nadu, rep. by its Secretary to Government, Department of Higher Education, Fort St. George, CHENNAI - 9. 12. The State of Tamil Nadu, rep. by its Secretary to Government, Department of Environment & Forests, Fort St. George, CHENNAI - 9. 13. The Chief Wildlife Warden, Panagal Buildings, Chennai - 600 015. 14. The Council of Architecture, rep. by its Registrar, Habitat Centre, New Delhi. 15. The Union of India, rep. by its Secretary to Government, Ministry of Environment & Forests, Paryavaran Bhavan, CGO Complex, Lodhi Road, NEW DELHI. 16. The Union of India, rep. by its Secretary to Government, Housing & Urban Development, NEW DELHI. 17. The Chennai Metropolitan Water Supply & Sewerage Authority, Rep. by its Chairperson, No.2, Pumping Station, Off Mount Rd. CHENNAI - 600 002. ... Respondents Petition under Article 226 of Constitution of India for the issuance of Writ of Mandamus for the reasons stated therein. W.P. No.35517 of 2003 M/s.Ramaniyam Real Estates Ltd. Chennai - 600 020. ... Petitioner Vs. 1. The Union of India, rep. by its Secretary to Government, Ministry of Environment & Forests, Paryavaran Bhavan, CGO Complex, Lodhi Road, NEW DELHI. 2. The Chennai Metropolitan Development Authority, rep. by its Member Secretary, Thalamuthu Natrajan Maligai, Egmore, CHENNAI - 600 008. 3. The Tamil Nadu Pollution Control Board, rep. by its Chairman, Guindy, CHENNAI - 600 032. 4. The Chennai Metropolitan Water Supply & Sewerage Authority, Rep. by its Chairperson, No.2, Pumping Station, Off Mount Rd. CHENNAI - 600 002. 5. The Commissioner, Corporation of Chennai, CHENNAI - 600 003. ... Respondents Petition under Article 226 of Constitution of India for the issuance of Writ of Declaration for the reasons stated therein. W.P. Nos.35205, 35691, 35692 and 35825 of 2003 Foundation for Fair Practices in Property Development (FAIRPRO) Rep. by its Secretary, M.S. Raja Manickam, Chennai - 600 018. ... Petitioner in WP 35205/2003 Sheikh G. Mohideen ... Petitioner in WP 35691/2003 S. Abdul Ravoof ... Petitioner in WP 35692/2003 A.A. Abdul Khaliq ... Petitioner in WP 35825/2003 Vs. 1. The Union of India, rep. by its Secretary to Government, Ministry of Environment & Forests, NEW DELHI. 2. The State of Tamil Nadu, rep. by its Secretary to Government, Department of Environment & Forests, Fort St. George, CHENNAI - 9. 3. The State of Tamil Nadu, rep. by its Secretary to Government, Municipal Administration Department, Fort St. George, CHENNAI - 9. 4. The State of Tamil Nadu, rep. by its Secretary to Government, Department of Housing and Urban Development, Fort St. George, CHENNAI - 9. 5. The Tamil Nadu Pollution Control Board, rep. by its Chairman, Guindy, CHENNAI - 600 032. 6. The Chennai Metropolitan Development Authority, rep. by its Member Secretary, Thalamuthu Natrajan Maligai, Egmore, ... Respondents in CHENNAI - 600 008. all petitions. Petitions under Article 226 of Constitution of India for the issuance of Writ of Declaration for the reasons stated therein. For Petitioners in W.P. No.33493 : Mr. Sriram Panchu, S.C of 2003 for M/s.T. Mohan For Petitioner in W.P. No. 35205 : Mr. Mohan Parasaran, S.C. of 2003 for M/s. R. Parthasarathy For Petitioner in W.P. No. 35517 : Mr. R. Thiagarajan, S.C. of 2003 for M/s. S. Sundaresan For Petitioners in W.P. Nos. 35691 : Mr. R. Thiagarajan, S.C. and 35692 of 2003 for Mr. P.V. Ramachandran For Petitioner in W.P. No.35825 of : Ms. R. Latha 2003 For Respondent/Govt. of Tamil Nadu : Mr. N.R.Chandran, A.G. assisted by Mr. V. Raghupathi, G.P., Mr. K.A. Ravindran for CMDA, and Mr. P. Sundaram & Mrs. P. Bagyalakshmi for Chennai Corporation For Respondent/Central Govt. : Mr. V.T.Gopalan, Addl. S.G. assisted by Mr. P. Wilson, ACGSC For Respondent/Anna University : Mr. G. Masilamani, S.C. for M/s.G.M. Mani Associates :J U D G M E N T THE HONOURABLE THE CHIEF JUSTICE Justiciability of Governmental decision to construct a new Secretariat at Kottuppuram of Chennai city is a question for consideration in these matters. The further question is whether a draft notification issued under Environment (Protection) Rules, 1986, can be put into action even before its emergence as a final notification under subclause (d) of sub-Rule 3 of Rule 5 thereof. 2. The Secretariat of the Government of Tamil Nadu is presently located in Fort St.George, Kamarajar Salai. Apart from the building constructed during the British regime, new structures were erected later during 1970s. The State Government felt that accommodation was not sufficient and that the existing structures, be it old or the one constructed during 1970s, are not in good condition and that a new Secretariat building was necessary, both in terms of quantity and quality of accommodation. Earlier, the State Government thought of constructing a new Secretariat in the property occupied by Queen Mary's College, which is a few buildings away from the present Secretariat. But there was spate of litigations in W.P. Nos.10750 of 2003 etc. batch before this Court and because of the interim orders, status quo had to be maintained and later on, the Government had reconsidered the matter regarding location of a new Secretariat building and then changed the venue to the present area at Kotturpuram and issued G.O. Ms. No.1080 , Public (Buildings) Department, dated 1.9.2003. We feel it apt to extract the same. "ABSTRACT Secretariat Buildings - Construction of a new full-fledged Secretariat Complex along with the Legislative Assembly Hall - Orders issued. ----------------------------------------------------------------------------- PUBLIC (BUILDINGS) DEPARTMENT G.O. Ms. No.1080 Dated the 1st September, 2003 ORDER:- The present Secretariat consists of the main building constructed in 1781 A.D. and the Namakkal Kavignar Maaligai constructed in 1975. The Namakkal Mavignar Maligai building was designed and constructed just as an office accommodation without any of the state-of-the-art facilities that are required of a modern Secretariat. The interior of the Namakkal Kavignar Maligai building has developed cracks and leakages at several places putting the staff to great difficulty in attending to their work. There is no space to put up any new building in the existing campus. In view of the major problem of shortage of space, structural defects and the lack of other facilities in the existing buildings of the Secretariat, the Government has been considering the construction of a new Secretariat Complex for some time past. The States like Karnataka, Andhra Pradesh and Gujarat have got imposing Secretariat buildings with all modern facilities. The Government of Kerala has also built up a separate Legislative Assembly complex for the State. Considering all these factors, the Government has decided to construct a new Secretariat complex along with the Legislative Assembly Hall for Tamil Nadu with all facilities. 2. After considering various options, it was decided to identify a suitable site which is free from restrictions by any State or Central Regulations so that a new modern Secretariat Complex can be constructed with the next two to three years. Accordingly, the site in Kottur village of Mylapore Triplicane Taluk of Chennai District comprising certain lands belonging to Anna University, Government Date Centre and the Madras University, measuring about 43.20 acres has been identified for the purpose of locating the new Secretariat Complex as detailed below:- Kottur village: Extent Owned by Block No.1, TS No.1/2 - 18.40 acres Government Block No.1, TS No.1/1 - 20.38 acres Anna University Block No.7, TS No.1 - 1.14 acres Anna University Block No.2 - 0.64 acres Anna University Block No.1, TS No.2 - 2.23 acres Madras University Block No.7, TS No.2 - 0.41 acres Madras University -------------- Total - 43.20 acres -------------- Out of the total extent of 43.20 acres, 22.16 acres belong to the Anna University and 2.64 acres belong to the Madras University. The exact area will be determined based on field measurement at the time of actual take over. The matter was examined in detail in consultation with the Higher Education Department and the Chennai Metropolitan Development Authority, Chennai. The Higher Education Department has forwarded the resolutions passed by the Syndicates of the Anna University and the Madras University to part with the lands owned by them for the purpose of constructing a new Secretariat Complex. The Syndicates of the Anna University and the Madras University have resolved to hand over the lands indicated above to the Project and accept alternate lands. 3. The Government, after careful consideration has decided to construct a new full-fledged Secretariat Complex including Legislative Assembly Hall and a big Conference Hall with a total floor space of about 10 to 12 lakhs sq.ft. in the site measuring about 43.20 acres mentioned in para 2 above and to provide equal extent of alternate site to the Anna University and the Madras School of Economics in lieu of the lands proposed to be taken from them for the new Project. The Government accordingly pass the following orders in pursuance of the above decision. (i) A new full-fledged Secretariat Complex including Legislative Assembly Hall and a big Conference Hall with a total floor space of about 10 to 12 lakhs sq.ft. will be constructed in the site measuring about 43.20 acres comprising the lands owned by the Anna University, the Madras University and the Government Date Centre as detailed in para 2 above. (ii) Alternate sites in Venkatapuram and Adyar villages of Chennai District be identified in the lands owned by the Highways Department and the Directorate of Technical Education along the Sardar Patel Road for handing over to the Anna University and the Madras School of Economics in lieu of the lands proposed to be taken as mentioned in para 2 above for the Secretariat Complex Project. The compensatory land to be allotted to the Anna University should be equal to the extent of the land proposed to be taken over from it. (iii) One of the newly constructed bungalows on the Greenways Road will be handed over to the Madras University to be used as the official residence of the Vice Chancellore, Madras University. (iv) Suitable buildings will be constructed at Government cost for relocating the Madras School of Economics, the buildings of the Anna University and other buildings. These buildings will be included as a part of the new Secretariat Complex Project and will be constructed simultaneously. 4. The Government also directs that the Chennai Metropolitan Development Authority be entrusted with the work of selecting the architects and the construction agency for both the new Secretariat complex and also the other buildings for the Anna University and the Madras School of Economics through appropriate tender process, monitoring the construction work, mobilizing the required funds for the projects etc. 5. The Chennai Metropolitan Development Authority, Chennai, is also authorized to mobilize the required funds by approaching the Financial Institutions like the HUDCO. The Member Secretary, Chennai Metropolitan Development Authority is requested to take urgent action as per the orders contained in para 4 above and to send the conceptual architectural design proposals of the new Secretariat Complex and the buildings to the Government before 5.10.2003 for selection. 6. This order issues with the concurrence of Finance Department vide its U.O. No.2886/FS/P/2003, dated 1st September, 2003. (By ORDER OF THE GOVERNOR) Lakshmi Pranesh Chief Secretary to Government" 3. Pursuant to the above decision, tenders were called for and the last date for submission of tenders was fixed as 30.9.2003. Six tenderers responded and, on evaluation thereof, one Mr. C.R. Narayana Rao, Chennai, was selected to submit the design of new Secretariat Complex vide G.O. Ms. No.1184, Public (Buildings) Department, dated 8.10.20 03. We feel it apt to extract G.O. Ms. No.1184. "ABSTRACT Secretariat Buildings - Construction of a new full-fledged Secretariat Complex along with the Legislative Assembly Hall - Selection of architectural design and the architect - Orders issued. ----------------------------------------------------------------------------- PUBLIC (BUILDINGS) DEPARTMENT G.O. Ms. No.1184 Dated the 1st September, 2003 Read: G.O. Ms. No.1080, Public (Buildings) Department, dt. 1.9.2003 ----- O R D E R: In the G.O. read above, sanction was accorded for the construction of a new full-fledged Secretariat Complex including Legislative Assembly Hall with a total floor space of about 10 to 12 lakhs sq.ft. in the site measuring about 43.20 acres at Kottur village of Mylapore Triplicane Taluk of Chennai District comprising of lands owned by the Anna University, Madras University and the Government Data Centre. It was also ordered that the Chennai Metropolitan Authority be entrusted with the work of selecting the architect and the construction agency for both the New Secretariat Complex and also the other buildings for the Anna University and Madras School of Economics, through appropriate tender process, monitoring the construction work, mobilizing the required funds for the projects etc. The Member Secretary, Chennai Metropolitan Development Authority was requested to take urgent action as per the above orders and to send the conceptual architectural design proposals of the New Secretariat Complex and the buildings to the Government for selection. 2. Accordingly, the Chennai Metropolitan Development Authority had called for architect services for the New Secretariat Complex by floating open tenders and evaluated the tenders received in complete shape, and short listed them through an evaluation committee. The Member Secretary, Chennai Metropolitan Development Authority recommended four tenderers and their designs for selection by the Government. The Government carefully considered the designs furnished by the four Architect firms recommended by the Chennai Metropolitan Authority and also viewed their presentation in respect of the New Secretariat Complex. After detailed discussions and taking into account the architectural and aesthetic aspects and other features of the designs, the Government has decided to select the design offered by M/s.C.R. Narayana Rao, Chennai. 3. The Government accordingly directs the Chennai Metropolitan Development Authority to proceed further to entrust the work of Architectural and Consultancy Services of the New Secretariat Complex project to M/s.C.R. Narayana Rao, Chennai, with the scope of work as put to bid. 4. The Member Secretary, Chennai Metropolitan Development Authority is requested to take urgent action as per the orders contained in para 3 above and to send an action taken report to Government before 15.10.2003. (By ORDER OF THE GOVERNOR) Lakshmi Pranesh Chief Secretary to Government" 4. The said architect had already submitted the design for the complex. Civil contractors were selected by tender process and vacant land has been cleared of shrubs. Some of the buildings were to be demolished and arrangements have also been made to accommodate the persons, including the hostel inmates, who will get affected by such displacement. Persons who were to be affected have already expressed their willingness to vacate the premises, which they are occupying, enabling the demolition of buildings. Foundation stone was also laid on the vacant land, which was cleared of bushes. The Chief Minister laid the foundation stone in a function held on 30.10.2003. 5. In the meanwhile, a notification in S.O. 1236(E), dated 27.10.200 3 was issued by the Ministry of Environment and Forests, seeking to introduce sub-paragraphs (g) and (h) after sub-paragraph (f) in Paragraph 3 in the Notification No.S.O. 60 (E), dated 27.1.1994, as also adding new construction projects and new industrial estates as Items 31 and 32 in Schedule I and some other aspects. The above is the draft notification calling for objections. As yet, the said draft notification did not transform into a final notification, so as to operate as law. For better understanding, we reproduce the entire impugned Notification, which reads thus:- "The Gazette of India Extraordinary New Delhi, Monday, October 27, 2003/Kartika 5, 1925 Ministry of Environment and Forests Notification New Delhi, the 27th October 2003 S.O.1236(E) - Whereas, the Central Government recognizing the need for evolving procedures for the environmental impact assessment of proposed new towns as also laying down broad guidelines for such assessment, constituted an Expert Group which submitted its report during 1 989. The Government is implementing various measures for control of pollution from various sources including industrial, domestic, biomedical wastes etc. Under the National River Conservation Plan (NRCP), the pollution abatement works in 157 towns along 31 rivers in 18 States have been undertaken in addition to Ganga Action Plan Phase-I. Despite these efforts, the sewerage system and sewage treatment capacity already provided under NRCP including the Ganga Action Plan are not adequately maintained by the respective local bodies, resulting in partial achievement of the objectives of NRCP; And whereas, such projects have adverse impact on environment including wetlands, lakes, rivers, and coastal waters posing serious health hazards to the local population including children. Even for construction of a house in a Panchayat area, plans are approved only after the provision of a septic tank. For an industrial project, an effluent treatment plant is necessary and for an industrial estate a common effluent treatment plant is necessary. On the other hand, local bodies / development authorities in towns have been approving new construction projects of various categories and sizes without any concern for the environment; And whereas, the Hon'ble Supreme Court in the Writ Petition (C) No.725 of 1994 with I.A.No.20,21,1207,1183,1216 and 1251 in Writ Petition No.4677 (C) of 1985 in the matter of news item Hindustan Times titled "And Quiet Flows the Maily Yamuna" ..Vs.. Central Pollution Control Board and others, observed on 4th December, 2001, as under: "The learned Solicitor General submits that in relation to town planning the provisions of the Environment (Protection) Act, 1986 would be applicable and whenever any decision is taken in regard to town planning, environment impact assessment must first be undertaken, clearance obtained and then the decision taken. Unfortunately, the Rules under Environment (Protection) Act as such do not cover town planning. In regard to this aspect, the learned Solicitor General wants to address arguments and give suggestions to the Court as to what effective orders can be passed with a view to prevent the river Yamuna from becoming history. The Central Government should also consider and inform the Court on the next date of hearing whether it should not amend the Rules under the Environment (Protection) Act so as to require the environment impact assessment for the purposes of the town planning Acts". And whereas, the Central Government took a serious view of continuing pollution of rivers and other water bodies and in order to control further deterioration of water quality in these water bodies, it is felt necessary that new projects relating to construction of new townships, industrial townships, settlement colonies, commercial complexes, hotel complexes, hospitals, office complexes for 1000 persons and above or discharging sewage of 50,000 litres / day and above or with an investment of Rs.50 crores and above and new industrial estates having an area of 50 hectares and above and the industrial estates irrespective of area if their pollution potential is high, are proposed to be brought under the purview of Environment Impact Assessment Notification: And whereas, the proposal shall be subject to the following conditions, namely; (1) Project proponent intending to implement the proposed project in a phased manner or in modules, shall be required to submit the detailed project report of the entire project covering all phases or modules for appraisal under Environment Impact Assessment. (2) Project proponent intending to take up projects of very urgent nature during the pendency of the draft Notification shall be required to submit a certificate from the concerned local bodies / authorities with regard to the availability of sewage treatment capacity in their existing sewage treatment plant for incremental quantity to be generated by the project. Such projects can be considered by the Government for environmental clearance on a priority basis on the receipt of the complete proposal with all relevant documents subject to verification of such documents. (3) New construction projects where construction work has not come up to the plinth level on the date of issue of this draft Notification shall require clearance under the Environment Impact Assessment Notification. (4) In the case of new Industrial Estates, where the construction work has not commenced or the expenditure does not exceed 25% of the total sanctioned cost on the date of issue of this draft Notification shall require clearance under Environment Impact Assessment Notification. (5) In respect of projects covered under Clauses 3 and 4 above, application for environmental clearance shall be submitted by the project proponent within 30 days of finalization of this draft Notification. And whereas, by Notification of the Government of India in the Ministry of Environment and Forests No.S.O.60(E). dated the 27th January, 1 994 the Central Government imposed certain restrictions and prohibitions on the expansion and modernization of any activity or the undertaking of any project unless environmental clearance has been accorded by the Central Government or the State Government in accordance with the procedure specified therein; Now, therefore, the following draft amendments to the said Notification, which the Central Government proposes to make in exercise of the powers conferred by sub-section (1) read with clause (v) of subsection (2) of Section 3 of the Environment (Proection) Act, 1986 (29 of 1986) read with clause (d) of sub-rule (3) of rule 5 of the Environment (Proection) Rules, 1986, for the information of all persons likely to be attached thereby; and notice is hereby given that the said draft amendments shall be taken into consideration after the expiry of a period of sixty days from the date of on which copies of the Gazette containing the said draft amendments are made available to the public; Any person desirous of making any objection or suggestion in respect of the said draft amendments may forward the same in writing for consideration of the Central Government within the period so specified to the Secretary, Ministry of Environment and Forests, Paryavaran Bhawan, CGO Complex, Lodhi Road, New Delhi - 100 003. DRAFT AMENDMENTS In the said Notification, - (i) in para 3, after sub-para (f), the following sub-paras shall be inserted, namely;- "(g) any construction project falling under entry 31 of Schedule I including new townships, industrial townships, settlement colonies, commercial complexes, hotel complexes, hospitals, office complexes for 1000 (one thousand) persons or below or discharging sewage of 50,000 (fifty thousand) litres per day or below or with an investment of Rs.50,00,00,000 (Rupess fifty crores) or below; (h) any industrial estate falling under entry 32 of Schedule I including industrial estates accommodating industrial units in an area of fifty hectares or below but excluding the industrial estates irrespective of area if their pollution potential is high; Explanation :- Any project proponent intending to implement the proposed project under sub-paras (g) and (h) in a phased manner or in modules, shall be required to submit the detailed project report