IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 31.10.2008 CORAM THE HONOURABLE MR.A.K.GANGULY, CHIEF JUSTICE AND THE HONOURABLE MR.JUSTICE F.M.IBRAHIM KALIFULLA W.P.No.21791 of 2008 and M.P.Nos.1 & 2 of 2008 M.Nizamudeen ... Petitioner -vs- 1. M/s. Chemplast Sanmar Limited, Having its registered office at No.9, Cathedral Road, Chennai, Rep. by its General Manager (Legal), Mr.T.Ravichandran. 2. State of Tamilnadu, Rep. by its Secretary, Public Works Department, Fort St. George, Chennai – 600 009. 3. The Executive Engineer, Public Works Department, Vellar Basin Division WRO, Vridhachalam – 606 001. 4. Tamil Nadu Pollution Control Board, Rep. by its Member-Secretary, Guindy, Chennai – 600 032. 5. Union of India, Rep. by its Secretary, Ministry of Environment and Forests, Paryavaran Bhavan, New Delhi. ... Respondents Petition under Article 226 of The Constitution of India, praying for the issue of a Writ of Certiorarified Mandamus, calling for the records of proceedings of the third respondent in letter No.D3/JDO.2/F.46/2008 dated 27.02.2008, quash the same and consequently direct the first respondent to forbear from laying of pipeline for drawing VCM raw material from the Jetty to their plant in Semmankuppam village, Cuddalore District. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner :: Mr.R.Thiagarajan Senior Counsel for Mr.V.Vijay Shankar For Respondent 1 :: Mr.Vijay Narayan Senior Counsel for Mr.P.Vasudevan For Respondents 2 & 3 :: Mr.Raja Kalifulla Government Pleader For Respondent 4 :: Mr.R.Ramanlal Standing Counsel for TNPCB For Respondent 5 :: Mr.P.Chandrasekaran SCGSC. - - - - O R D E R F.M.IBRAHIM KALIFULLA, J. This is a public interest litigation and the petitioner seeks to challenge the proceedings of the third respondent in letter No.D3/JDO.2/F.46/2008, Dated 27.02.2008. While seeking to set aside the said proceedings, the petitioner also seeks to forbear the first respondent from laying any pipeline for drawing the raw material Vinyl Chloride Monomer (VCM) from the Jetty located at Tiyagavalli village to their plant in Semmankuppam village, Cuddalore district. 2. The petitioner claims himself to be the Executive Secretary of a body called Cuddalore District Consumer Protection Organization stated to have been registered under the provisions of the Tamil Nadu Societies Registration Act, 1975. 3. The brief facts which are required to be stated are that the first respondent is a company which has planned to set up a project for manufacturing Poly Vinyl Chloride (PVC) in Semmankuppam Village in Cuddalore District. One of the essential raw material for the manufacture of PVC is stated to be Vinyl Chloride Monomer (VCM) which according to the first responded is not available indigenously. The first respondent is stated to have therefore planned to import the said raw material for its use at Cuddalore plant. According to the first respondent by virtue of its nature, the raw material VCM should be stored at minus 30 degree Celsius in a liquid state, that therefore the first respondent proposed to set up a Marine Terminal Facility (MTF) along the sea coast near Cuddalore by constructing an island jetty, that after offloading the same from the ship, through an under sea pipeline, pump the same to a landfall point and that thereafter to transfer the same from the landfall point to the PVC plant through an underground pipeline at a depth of 3.5 mtrs, housed https://hcservices.ecourts.gov.in/hcservices/ in a concrete chamber. The plant is stated to be located 2.5 km away from the said point. As per its working schedule the pipeline is to cross the Uppanar creek and the project envisaged the laying of pipeline at a depth of 3.5 metres below the river bed. 4. The first respondent is stated to have submitted its application for environment clearance to the Ministry of Environment and Forests (for short ‘MoEF’) to carryout the pipeline project as well as the MTF. The said application was stated to have been filed on 14.11.2005. The first respondent is stated to have got the necessary clearance from the District Coastal Zone Management Authority as well as the State Coastal Zone Management Authority. It is also stated that as directed by the MoEF, the first respondent also submitted a map showing the Low Tide Line (LTL), High Tide Line (HTL), the Coastal Regulation Zone Area (CRZ) abutting the sea as well as the Uppanar Creek. The said map was stated to have been prepared by National Institute of Oceanography and approved by the scientists of the National Institute of Oceanography. The said Institute is stated to be one of the approved authorized agencies of the MoEF. Based on the first respondent's application, MoEF granted its approval and permission for pipeline project as well as the MTF in their proceedings dated 19.12.2005. 5. Based on the said clearance granted by the MoEF, the Tamil Nadu Pollution Control Board (for short TNPCB) also granted its consent on 14.09.2006, under the Air & Water Acts for the PVC Plant, as well as MTF and the pipeline project of the first respondent. As the laying of the pipeline had to be made underneath the river which belonged to the State Government, the first respondent is stated to have filed an application dated 06.02.2008, to the third respondent which also granted its approval vide letter dated 27.02.2008. The said order of the third respondent dated 27.02.2008, is under challenge in this writ petition. 6. Mr.R.Thiagarajan, learned senior counsel appearing for the petitioner while assailing the impugned order of the third respondent dated 27.02.2008, submitted that whatever clearance granted by the MoEF or other Authorities were all relating to the setting up of the MTF viz., establishment of an Island Jetty of the coast near Cuddalore and the same cannot be taken to mean that the first respondent was permitted to lay the pipeline underneath the Uppanar Creek which falls within the CRZ area. The learned senior counsel in his submissions took pains to point out that going by the Coastal Regulation Zone Notification dated 19.02.1991, as amended upto 25.01.2005, handling of hazardous substance such as the present one viz., VCM was prohibited within the CRZ area except transfer of the said substance from the ship to a point in the ports area, terminals and refineries and vice versa in the port area. According to the learned senior counsel, the ultimate clearance stated to have been granted by the MoEF dated 19.12.2005, cannot be taken to have covered https://hcservices.ecourts.gov.in/hcservices/ the laying of the pipeline underneath the Uppanar river which also falls within the CRZ area. The learned senior counsel also contended that the impugned order does not refer to any valid clearance granted in favour of the first respondent for laying the pipeline underneath the river falling within Survey Nos. 132, 133 and 134 within which Survey numbers the CRZ along side the Uppanar Creek falls. The learned senior counsel therefore contended that what is prohibited under the Notification dated 19.02.1991, issued under the provisions of the Environment Protection Act, 1986 could not have been granted under the impugned order dated 27.02.2008. 7. The sum and substance of the contention of the learned senior counsel for the petitioner was that neither the first respondent's application nor the consideration made by various authorities including the MoEF while granting clearance in their order dated 19.12.2005, laying of pipeline in the CRZ area beyond 500 meters of the High Tide Line of the Cuddalore coast was contemplated and therefore the clearance stated to have been granted by the MoEF cannot be taken to have permitted the first respondent to lay the pipeline within CRZ area along side the Uppanar Creek falling under Survey Nos.132, 133 and 134. The learned senior counsel therefore contended that by taking advantage of the impugned order dated 27.02.2008, such a prohibited act under the Statutory Notification dated 19.02.1991, cannot be permitted to be made by the first respondent and therefore the impugned order is liable to be set aside. 8. As against the above submissions, Mr.Vijay Narayan, learned senior counsel appearing for the first respondent took us through the applications of the first respondent dated 11.06.2005 and 29.07.2005 and the enclosures submitted along with it including the topography of the proposed area and contended that the said detailed applications of the petitioner was considered by a High Level Committee called Expert Committee for Environment Impact Assessment, which consisted of as many as 11 members with a Chairman as its head and that all of whom had held pivotal positions in different State and Central Government organizations of vital importance. The learned senior counsel contended that such a High Level Committee examined the proposal submitted by the first respondent and based on whose recommendation the MoEF came forward to grant the clearance in its proceedings dated 19.12.2005. The learned Senior Counsel further contended that when such an expert body applied its mind by following the procedure prescribed at the time of constitution of the said Committee as well as the relevant Notification issued under the Environment Protection Act, 1986 dated 19.02.1991, as well as the Environment Impact Assessment Notification dated 27.01.1994, the petitioner cannot be permitted to indirectly challenge the said proceedings by seeking to quash the impugned order dated 27.02.2008. 9. According to the learned Senior Counsel when once the recommendation was made by an Expert Committee and the clearance is https://hcservices.ecourts.gov.in/hcservices/ granted by the MoEF, such a proceedings can only be challenged by way of an Appeal as provided under Section 11 of the National Environment Appellate Authority Act, 1997 and that too within the stipulated time limit. The learned senior counsel would therefore contend that if the petitioner's challenge is countenanced by setting aside the impugned order dated 21.02.2008, of the third respondent, the same would virtually amount to nullifying a valid order granted by MoEF under the provision of the Environment Protection Act, 1986 which has become final and conclusive. The learned senior counsel also pointed out that the contention of the petitioner that the first respondent's application for laying the pipeline was only within 500 meters from the HTL of the Cuddalore coast was wholly misconceived. The learned senior counsel also pointed out that the first respondent's applications dated 11.06.2005 & 29.07.2005 and the enclosures would amply demonstrate that its applications were for the entire stretch of 2,500 meters from the HTL up to the terminating point of its PVC plant at Semmankuppam village which was duly considered by the concerned authorities while granting the clearance dated 19.12.2005. 10. As far as the contentions based on the Notification dated 19.02.1991, to the effect that it prohibits the handling of hazardous substance within the CRZ area, the learned senior counsel pointed out that such a contention cannot be accepted in as much as the prohibition imposed was restricted to 100 meters distance on both sides of the river from the point of estuary and not in its entirety along side the river which would be governed by paragraph 3 of the said Notification which provides for regulation of permissible activities. The learned senior counsel pointed out that in paragraph 3(2) of the said Notification laying of pipeline could be permitted by imposing necessary restrictions and that by proceedings dated 19.12.2005, the MoEF while granting clearance imposed necessary restrictions which would safeguard the interest of the public at large. The learned senior counsel therefore contended that the challenge made by the petitioner to the impugned order of the third respondent dated 27.02.2008, cannot be accepted. 11. Mr.P.Chandrasekar, learned Senior Central Government Standing Counsel appearing for the 5th respondent by referring to the counter affidavit filed by MoEF pointed out that the first respondent submitted the map demarcating HTL / LTL prepared by a recognized agency of the MoEF and that the Notification dated 19.02.1991 as amended up to 25.01.2005 empowered the MoEF to grant necessary clearance for laying the pipeline in so far as it relates to the Uppanar creek and that it did not fall within the prohibited area and therefore when the said clearance granted by the MoEF dated 19.12.2005 remains in force, the challenge made to the impugned order of the third respondent dated 27.02.2008, cannot be granted. The learned SCGSC placed before us the communication of the 5th respondent dated 29.12.1999, by which the National Institute of Oceanography was included as one of the authorized agencies of the Central Government https://hcservices.ecourts.gov.in/hcservices/ for demarcating HTL / LTL alongside the CRZ, and contended that the first respondent's application consisted of a map prepared by the said agency and that when the Expert Committee having acted upon the said map while considering the various particulars furnished by the first respondent in their application, it is too late in the day for the petitioner to question the same by seeking to challenge the impugned order of the third respondent dated 27.02.2008. 12. Mr.Ramanlal, learned standing counsel for the Tamil Nadu Pollution Control Board (TNPCB) in his submissions stated that the clearance certificate granted by the 5th respondent in its order dated 19.12.2005, contained Annexure-1 which imposed certain special conditions which included condition Nos.11,13 and 14 and that those conditions have to be strictly adhered to by the first respondent while laying the pipeline and continue to follow the same after its set up and that the same would sufficiently safeguard the interests of the public at large. 13. The learned standing counsel contended that in the letter dated 19.05.2005, of the Secretary to Government of the Environment and Forest Department of the State of Tamil Nadu addressed to the 5th respondent while expressing no objection for granting clearance pointed out the changes which were directed to be made by the first respondent in the original proposal and that such conditions imposed by the TNPCB while expressing its no objection was considered by the Expert Committee pursuant to whose recommendation the ultimate clearance came to be granted by MoES dated 19.12.2005. The learned standing counsel therefore contended that every strenuous effort was taken by various authorities before the clearance was granted by the proceedings dated 19.12.2005 and therefore the present attempt of the petitioner in seeking to challenge the impugned order of the third respondent dated 27.02.2008, is only a vain attempt to challenge the clearance itself granted by the MoEF in its proceedings dated 19.12.2005 which cannot be allowed. 14. Having bestowed our serious consideration to the various submissions of the respective parties, we are not persuaded to accede to the contentions made on behalf of the petitioner. At the outset, it will have to be stated that the petitioner having failed to challenge the proceedings dated 19.12.2005, of the Ministry of Environment and Forest in having granted the clearance to the first respondent for laying the pipeline to an extent of 2,500 meters from the High Tide Level of the Cuddalore coast between Tiyagavalli village and Semmankuppam village, the petitioner cannot be permitted to make a collateral challenge to the said proceedings by seeking to challenge the impugned order of the third respondent dated 27.02.2008. As rightly contended by the learned counsel for the respondents 1,4 and 5, the impugned order of the third respondent dated 27.02.2008, is nothing but a mere permission to carry out the work of laying of pipelines underneath the river bed of Uppanar river https://hcservices.ecourts.gov.in/hcservices/ in the light of the clearance granted by the 5th respondent in its proceedings dated 19.12.2005. The third respondent was not the Appellant Authority to consider the laying of the pipelines either in the HTL or LTL or within the CRZ area. The competent Authority is the Ministry of Environment and Forest under the provisions of the Environment Protection Act, 1986 and the Notification issued therein dated 19.02.1991 as amended upto 25.01.2005. 15. As pointed out by the learned Senior Counsel for the first respondent, in the case on hand, the said Authority viz., the 5th respondent granted the clearance as early as on 19.12.2005, to the first respondent permitting the first respondent to lay the pipeline to an extent of 2,500 meters between its island jetty and its PVC plant located in between Tiyagavalli village and Semmankuppam village. Under Section 11 of the National Environment Appellate Authority Act, 1997, if any person is aggrieved by the order granting environment clearance, such appeal should be filed within 30 days from the date of such order before the Appellate Authority which is constituted under Section 3 of the said Act. Sub-Section (1) of Section 11 provides for entertaining an Appeal after 30 days but within 90 days thereafter, if such appeal was not filed due to sufficient cause. Having regard to such specific provision providing for extension of time beyond the initial period of 30 days and the petitioner having admittedly not challenged the proceedings dated 19.12.2005, within the statutory time limit, it will have to be held that the petitioner cannot be permitted to canvass very many contentions which were virtually directed against the clearance order dated 19.12.2005. In other words in the guise of challenging the impugned permission granted by the 3rd respondent dated 27.02.2008, the petitioner was only attempting to attack the correctness of the clearance granted by the 5th respondent in its order dated 19.12.2005. If such a contention of the petitioner is countenanced, the same would amount to permitting the petitioner to challenge the order of the 5th respondent dated 19.12.2005, in this writ petition de hors the fact that such challenge could have been validly made only before the appropriate statutory Appellate Authority specifically constituted under the provisions of the National Environment Appellate Authority Act, 1997 and that too within the time limit prescribed under the said period. It will have to be noted that the constitution of such an Authority under Section 3 read along with Section 5 of the said Act, would consist of a Judge of the Supreme Court of India or Chief Justice of the High Court as Chairperson, the appointment of a person as Vice-Chairperson who held the post of Secretary to the Government of India or any other post under the Central or State Government carrying a scale of pay which is not less than that of a Secretary to the Government of India, apart from such persons having expertise or experience in administrative, legal, managerial or technical aspects of problems relating to environment. That apart the members to be appointed to the Appellate Board should be of persons who have professional https://hcservices.ecourts.gov.in/hcservices/ knowledge or practical experience in the areas pertaining to conservation, environmental management, law or planning and development. All of whom are appointed by the President of India. When such an Appellate Board consisting of personalities of high caliber, alone can deal with any appeal preferred as against any order passed by the 5th respondent, the petitioner having failed to challenge the clearance order dated 19.12.2005, before the appropriate Appellate Forum, cannot be permitted to indirectly challenge the same in this writ petition by interfering with the impugned order of the third respondent dated 27.02.2008. Therefore, on this sole ground the present challenge made by the petitioner to the impugned order of the third respondent dated 27.02.2008, is liable to be set aside. 16. We also do not find any merit in the other contentions of the petitioner based on the Notification dated 19.02.1991, as amended upto 25.01.2005. In fact on a reading of the said Notification, we are convinced that the application of the first respondent falls under paragraph 3 of the Notification dated 19.02.1991, which provides for regulations of permissible activities. In paragraph 3(2) (ii), it is provided that operational constructions for ports and harbours and light houses and constructions for activities such as Jetties, wharves, quays and slipways, pipelines, conveying systems including transmission lines can be regulated by the MoEF. Of the various activities which can be regulated by the MoEf laying of pipelines is one such activity. 17. The opening words in paragraph 3 of the Notification states that all other activities except those prohibited under paragraph 2 of the Notification will be regulated as specified in the sub- paragraphs. When the proceedings of the MoEF dated 19.12.2005, is examined we find that based on the recommendations of the High Level Committee, the MoEF after a detailed consideration passed its order to the effect that environment clearance was accorded to the project of the first respondent with specific conditions and general conditions. Specific conditions have been set out in paragraph captioned ‘A’ while the general conditions have been mentioned in paragraph captioned ‘B’. Ultimately it was held in the said order that those conditions would be enforced apart from the provisions contained in the Water (Prevention and Control of Pollution) Act, 1974, the Air (Prevention and Control of Pollution) Act, 1981, the Environment (Protection) Act, 1986, the Hazardous Chemicals (Manufacture, Storage and Import) Rules, 1989, the Coastal Regulation Zone Notification, 1991 along with its subsequent amendments and the Public Liability Insurance Act, 1991 as well as the Rules made thereunder from time to time. The first respondent was also directed to ensure that the proposals comply with the provisions of the approved Coastal Zone Management Plan of Tamil Nadu and the Supreme Court's order dated 18.04.1996 in Writ Petition No.664 of 1992 to the extent the same are applicable to the proposal. https://hcservices.ecourts.gov.in/hcservices/ 18. A perusal of the conditions both specific and general discloses that every cautious step should be taken by the first respondent to ensure that in the course of transfer of the raw material viz., VCM through the pipeline no untoward incident should take place. In fact the observance of the specific conditions and the general conditions would involve the authorities of Pollution Control Board, Public Works Department, Electricity Board, Controller of Explosives, Chief Inspector of Factories, the authorities of the CRZ as well as the MoEF to have a close watch on the first respondent both at the time of the laying of the pipelines as well as its subsequent operation after its completion. In the earlier part of the order a detailed reference has been made to the claim of the first respondent made in its project involving the setting up of PVC manufacturing plant at SIPCOT Phase-II, near Semmankuppam village, Cuddalore district, the location of the island jetty and the Marine Terminal Facility (MTF) for receiving and transferring VCM from the ships to the PVC plant. 19. The 5th respondent also took note of the extension of the Cuddalore port limits to include the project area as per G.O.Ms.No.73, dated 25.04.2000. Moreover, the 5th respondent was conscious of the fact that the MTF proposed by the first respondent would be located in the offshore of Chittrapetti village with the landfall point at Chittrapetti which is 2,500 meters from the PVC plant and that the total length of the pipelines onshore would be 3,500 meters. It was also fully conscious of the fact that offshore and onshore pipelines would be laid in a covered RCC trench and would be protected. Though Mr.R.Thiagarajan, learned senior counsel appearing for the petitioner attempted to contend that the lying of pipeline will fall under Part-II of the Notification dated 19.02.1991, having considered the said Part and the items specified in Part-III, the MoEF was vested with the Authority to grant permission by regulating such activities which include the laying of pipeline. We are not persuaded to agree with the contention of the learned senior counsel. 20. Mr.R.Thiagarajan learned senior counsel strenuously contended that the first respondent never approached for clearance beyond 500 meters of HTL and therefore its present attempt to lay the pipeline underneath the Uppanar river was not duly covered by the proceedings dated 19.12.2005. Such a contention of the learned senior counsel cannot be accepted for more than one reason. 21. In this context when we refer to the applications of the first respondent seeking environmental clearance dated 11.06.2005 and 29.07.2005, we find that along with the said applications six plus three documents respectively were enclosed viz., https://hcservices.ecourts.gov.in/hcservices/ 1.Environmental Impact Assessment Report for the Plant 2. Addendum to EIA report 3. Risk Assessment report for the Plant 4. Environmental Impact Assessment report for the Marine Terminal facility