IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11.5.2011 CORAM: THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAO AND THE HONOURABLE MR.JUSTICE M.VENUGOPAL Writ Petitions No.11747 of 2002; 37081 of 2002; 41163 of 2002; 7444 of 2009 and M.P.Nos.1 and 2 of 2009 in W.P.No.11747 of 2002 W.P.No.11747 of 2002: Avoor Muthiah Maistry Street Residents Welfare Association, 64/7, Avoor Muthiah Street, Chennai-81, rep.by its President S.M.K.Swamy ... Petitioner Vs. 1.The Government of Tamil Nadu, rep.by the Chief Secretary to Government, Fort St.George, Madras-9. 2.The Chairman, Chennai Port Trust, Chennai. 3.The Director, Pollution Control Board, Guindy, Chennai. ... Respondents W.P.No.37081 of 2002: The Registrar (Administration), High Court, Madras. ... Petitioner Vs. https://hcservices.ecourts.gov.in/hcservices/ 1.The State of Tamilnadu, rep.by Secretary to Government, Department of Environment and Forest, Fort St.George, Chennai-600009. 2.The Chair Person, Tamil Nadu Pollution Control Board, 76, Anna Salai, Guindy, Chennai-600032. 3.The Chairman, Port Trust, Madras. 4.The District Environment Engineer, Tamilnadu Pollution Control Board, Chennai District, Panagal Maligai, First Floor D Wing, No.1, Jennis Road, Saidpet, Chennai-600015. 5.The Member Secretary, Tamil Nadu Electricity Board, Anna Salai, Chennai-600002. (R.5 impleaded as per the order of the Court dated 26.9.2002) 6.M/s.T.C.P.Limited, T.C.P.Sapthagiri Bhavan, No.10, Karpagambal Nagar, Mylapore, Chennai-4. 7.M/s.South India Corporation Ltd., "Rani Seethai Hall", 6th Floor, No.603, Anna Salai, Chennai-6. 8.M/s.Seaport Logistics Limited, No.42, Moores Street, II Floor, Chennai-1. ... Respondents (R.6 to R.8 impleaded as per the order of the Court dated 3.10.2002) (Though The Reserve Bank of India, rep.by its Regional Director (TN), No.16, Fort Glacis, Rajaji Salai, Chennai-1 was impleaded as R.9 as per the https://hcservices.ecourts.gov.in/hcservices/ order of the Court dated 3.10.2002, subsequently, by the suo motu order of the Court dated 26.7.2007, this respondent was deleted from the array of parties) W.P.No.41163 of 2002: Royapuram Residents Welfare Association, No.41, Mariadoss Street, Royapuram, Chennai-13, represented by its Vice President ... Petitioner Vs. 1.Tamil Nadu State Pollution Control Board, rep.by its Chairman, No.76, Anna Salai, Guindy, Chennai-600032. 2.The Central Pollution Control Board, Parivesh Bhavan, CBD cum Off Complex, East Arjun Nagar, New Delhi, represented by its Chairman. 3.Chennai Port Trust, represented by its Chairman, Rajaji Salai, Chennai-600001. 4.Minerals and Metals Trading Corporation Ltd. (MMTC), represented by its Managing Director, Core I, SCOPE Complex, 7 Institutional area, Lodhi Road, New Delhi-110003. 5.MMTC Limited, 'Chennai House', 6, Esplanade, Chennai-600108. https://hcservices.ecourts.gov.in/hcservices/ 6.M/s.National Mineral Development Corporation, Khanji Bhavan, 10-3-311/A, Castle Hills, Masab Tank, Hyderabad-500028. 7.MSPL Ltd., Co-operative Colony, Hospet-583203. 8.Bellary Iron Ores Pvt.Ltd., 60/356-A, Hospet Road, Allipur, Bellary-583105. 9.M/s.Sesa Goa Ltd., 'SESA GHOR', 20, EDC Complex, Patto, Panjim, Goa-403001. 10.Tungabhadra Special Products, Division of Tungabhadra Minerals Private Limited, Salgaocar Chambers, P.O.Box No.114, Margao, Goa-403601. 11.Hothur Traders, 'HOTHUR TOWERS', No.153, Amar Jyothi Layout, Ring Road, Domlur, Bangalore-560071. ... Respondents (Respondents 5 to 11 impleaded as per the order dated 4.4.2003) W.P.No.7444 of 2009: Madras High Court Practising Advocates Association, rep.by its President Elephant G.Rajendran, Advocate, No.51/24, South Usman Road, T.Nagar, Chennai-17. ... Petitioner Vs. https://hcservices.ecourts.gov.in/hcservices/ 1.The Chairman, Madras Port Trust, Chennai-600001. 2.The Chairman, Pollution Control Board, Guindy, Chennai. 3.The Director, Archaeological Department, Egmore, Chennai-600008. 4.The Director of Medical Service, Teynampet, Chennai-600018. 5.Union of India, rep.by its Secretary, Shipping and Transports, New Delhi. 6.Ennore Port Trust Ltd., rep.by its Chairman & Managing Director, No.23, Rajaji Salai, Chennai-600004. 7.Union of India, rep.by its Secretary, Ministry of Commerce and Industry, New Delhi. (R.6 impleaded as per order dated 31.8.2009 made in M.P.No.4/2009) (R.7 impleaded as per the order dated 24.3.2010 made in M.P.No.1/2010 in W.P.No.7444/2009) ... Respondents * * * W.P.No.11747 of 2002 is a taken up Writ Petition by this Court on the letter addressed by the petitioner Association to the then Honourable The Chief Justice of this Court on 27.3.2002. The prayer in this Writ Petition is to issue a Writ of Mandamus directing the https://hcservices.ecourts.gov.in/hcservices/ respondents to grant immediate relief by passing necessary orders against the Chairman, Chennai Port Trust, to prevent the reckless and inhuman acts caused by unloading of reddish iron ore dust in Chennai Harbour and the consequential unbearable pollution in the New Wahsermanpet area. W.P.No.37081 of 2002 is also a taken up Writ Petition by this Court. The prayer in this Writ Petition is to issue a Writ of Mandamus, directing the respondents, more particularly the 3rd respondent to immediately stop dumping and handling of dusty powdered coal and to take effective steps to prevent the pollution. W.P.No.41163 of 2002 has been filed as a probono publico under Article 226 of the Constitution of India, praying to issue a Writ of Mandamus, directing the first respondent to frame an appropriate scheme to eliminate the chronic air pollution caused due to the bulk handling of iron ore and coal at the Chennai Port and compensate residents affected by pollution on account of the third respondent's operation for damage to health and property. W.P.No.7444 of 2009 has been filed as a probono publico under Article 226 of the Constitution of India, praying to issue a Writ of Mandamus, to restrain the respondents the Madras Port Trust and respondent-5 namely Union of India, by its Secretary, Shipping and Transports, New Delhi from dumping the chemicals in the Madras Port Trust area and to shift the chemicals to Ennore Port immediately. * * * Appearance in W.P.No.11747/2002: For petitioner : M/s.T.Mohan For R.1 : Mrs.Malarvizhi Udayakumar, Spl.G.P. (W) For R.2 : Mr.P.Wilson, S.C. and Addl.Advocate General for M/s.P.Wilson Associates For R.3 : Mr.Ramanlal Appearance in W.P.No.37081/2002: For petitioner : Mr.A.Jenasenan For R.1 : Mrs.Malarvizhi Udayakumar, Spl.G.P. (W) For R.2 & R.4 : Mr.Ramanlal For R.3 : Mr.P.Wilson, S.C. and Addl.Advocate General for M/s.P.Wilson Associates For R.5 : Mr.M.Vaidyanathan For R.6 to R.8 : No appearance https://hcservices.ecourts.gov.in/hcservices/ Appearance in W.P.No.41163/2002: For petitioner : Mr.V.Achuthan For R.1 : Mr.Ramanlal For R.3 : Mr.P.Wilson, S.C. and Addl.Advocate General for M/s.P.Wilson Associates For R.6 : Mr.S.A.Rajan For R.7,8 & 11 : Mr.V.Aravamudan Others : No appearance Appearance in W.P.No.7444/2009: For petitioner : Mr.Elephant G.Rajendran For R.1 : Mr.P.Wilson, S.C. and Addl.Advocate General for M/s.P.Wilson Associates For R.2 : Mr.Ramanlal For R.3 & R.4 : Mrs.Malarvizhi Udayakumar,Spl.G.P, (W) For R.5 & R.7 : Mr.M.Ravindran, Addl.Solicitor General of India * * * COMMON ORDER ELIPE DHARMA RAO, J. Right to life guaranteed under Article 21 of the Constitution, with its extended meaning by judicial pronouncements that it includes the right to have clean and healthy environment, is again the subject matter in all these matters. 2. The letter dated 27.3.2002, addressed by Avoor Muthiah Maistry Street Residents Welfare Association, 64/7, Avoor Muthiah Street, Chennai, signed by its President Mr.S.M.K.Swamy, to the then Honourable Chief Justice of this Court, thereby explaining their turmoil because of the iron ore unloaded in the Harbour being blown to their houses and causing unbearable pollution and requesting to provide respite for them by treating the said letter as a public interest litigation, has laid the foundation for initiation of these proceedings as the said letter has been ordered to be treated as a taken up Writ Petition. Accordingly, the said letter was treated as a writ petition and numbered as W.P.No.11747 of 2002. This writ petition was admitted on 25.4.2002. 3. While so, on 21.9.2002, the then Honourable Chief Justice along with the Honourable Judges of the Building Committee of this Court, during their inspection of the premises noticed coal dust on the walls https://hcservices.ecourts.gov.in/hcservices/ and floor due to the handling of the loading and unloading of the coal in huge quantity by the Madras Port Trust. Hence, the Registrar (Administration) of this High Court was directed to immediately bring to the notice of the Pollution Control Board the state of affairs so as to take necessary remedial steps. Since it has been brought to the notice of the then Honourable Chief Justice that despite issuance of three notices dated 18.7.2001, 22.5.2002 and 14.8.2002 by the Pollution Control Board, there was no response from the Chennai Port Trust, the Honourable The Chief Justice has ordered to treat the said notices issued by the Pollution Control Board to the Chennai Port Trust as a taken up Writ Petition. Accordingly, W.P.No.37081 of 2002 has been numbered as a taken-up Writ Petition. 4. During pendency of these two taken up Writ Petitions, the Royapuram Residents Welfare Association, has filed a Public Interest Litigation in W.P.No.41163 of 2002, seeking compensation under the 'polluter pays' principle and for other remedial measures. Likewise, the Madras High Court Practising Advocates Association has also come forward to file W.P.No.7444 of 2009 as a public interest litigation. Since the issue involved is one and the same, all these matters are taken up for a common hearing and are being disposed of by this common order. 5. The City of Chennai, considered as the 'gateway to South Indian Culture' is the fourth Metropolis and situated in the North-East end of Tamil Nadu, along 26 kilometres of coastline on the Bay of Bengal. 6. Ennore Port, declared as a 'Major Port' under the Indian Ports Act, is created in the year 2001, at a distance of 20 kms. North of the Chennai Port. Chennai Port is situated in the close proximity of the power seat of Tamil Nadu/Fort St.George, the High Court, Reserve Bank of India, surrounded by the old settlements of Chennai i.e. Madras like Royapuram, Triplicane, Broadway, etc. with high density of population. As per a study conducted by the Environmental Information Systems (ENVIS) Centre, Department of Environment, Government of Tamil Nadu, in the year 2008, there are more than 10 million people living along the coast of Chennai city alone. 7. Chennai Port Trust is handling coal for various thermal power stations located in Tamilnadu under the Tamil Nadu Electricity Board since 1970 and the vessels carrying coal were accorded priority berthing at the Port as per the instructions of the Government of India. There is no doubt that the volume of coal traffic through this Port has steadily increased over the years. 8. The Tamil Nadu Electricity Board (TNEB) has established four thermal power stations namely North Chennai Thermal Power Station, https://hcservices.ecourts.gov.in/hcservices/ Ennore Thermal Power Station, Mettur Thermal Power Station and Tuticorin Thermal Power Station, wherein coal is being used for the purpose of generation of power. The coal required by the Tamil Nadu Electricity Board is allotted every quarter by the Government of India's Standing Linkage Committee. This coal was allotted from Eastern Coal Fields of West Bengal and Mahanadhi Coal fields Limited from Orissa State. From these coal fields, the coal is moved by rail to the nearest Ports namely Haldia, Paradip and Vizag. Thereafter, they are transported to either Chennai Port or Tuticorin Port. From Chennai Port, the required coal for North Chennai Thermal Power Station, Ennore Thermal Power Station and Mettur Thermal Power Station are being transported by rail and from Tuticorin Port, the coal is being transported to Tuticorin Thermal Power Station by conveyor system. 9. The case of the petitioners in all these writ petitions is that the unabated pollution caused by the Chennai Port is the reason for many health hazards of the people living in the surrounding areas. It is also their case that the bulk handling of iron ore is handled by the channelising agencies namely Minerals and Metals Trading Corporation and that the Port and the channelising agencies are not taking the prescribed steps to control the dust pollution generated by their activities; that due to the chronic air pollution from the Chennai Port Trust, iron ore, which is stored for handling, settles on all building surfaces, transforming the entire area into a pink area. The situation is so drastic that the entire area is engulfed in fine red and black dust which has affected the health of the residents and the problem is further complicated by the sea breeze which pushes the dust towards the residential areas adjoining the Port. It has further been stated that the flying chemicals are defacing the buildings in the surrounding areas, including the High Court building, besides causing breathing problem, diseases related to lungs, cancer etc. On such and other such similar averments, the petitioners have prayed to shift the unloading and dumping of the imported coal and iron ore from Chennai Port Trust to Ennore Port. Since originally, Ennore Port Trust, which is a separate entity, was not a party to these proceedings, the petitioner in W.P.No.7444 of 2009 has filed a petition in M.P.No.4 of 2009, praying to implead Ennore Port Trust also as a party respondent to these proceedings. This petition having been allowed by this Court, Ennore Port Trust was also brought on record as party respondent to W.P.No.7444 of 2009. 10. The crux of objection by the Chennai Port Trust to the prayers of the petitioners is that this Port has been in the trade of import and export for more than 100 years and it is yielding huge revenue to the Government of India and if the handling of iron ore and coal is https://hcservices.ecourts.gov.in/hcservices/ suddenly and forcibly shifted out of the Chennai Port Trust, it will adversely and severely affect the trade as well as revenue to the state exchequer and the traders are preferring to import coal and iron ore export through Chennai Port Trust because of the full-fledged facilities available in the Chennai Port Trust and the transport connectivity by road as well as rail, but, if it is forcibly shifted to Ennore Port, the traders may not prefer Chennai as a hub of import, export and they may go for other options. It has also been contended by them that the Chennai Port has been handling coal and iron ore based on the trade's requirement and the Government of India, considering the location of Chennai Port in the heart of the city decided to shift the dusty cargoes, such as coal and iron ore to nearby Ennore Port, which is readying its facilities for handling coal and iron ore there, but, in fact, the Chennai Port has no role in shifting of the coal and iron ore as it is the trade which is to take a decision to do so, once the alternate facilities at Ennore Port are ready; that the trade chooses a particular Port for its operations based on different parameters like the location of the Port, availability of expert operators and equipments, cost of operations in the Port etc. and only if all such parameters are suitable for handling the material in the Port, the trade will choose that Port and forcing the trade to use Ennore Port may not be practical as the trade has now other options like the nearby private Ports like Karaikal (Puducherry Union Territory) and Krishnapatnam (Andhra Pradesh) and any forceful unilateral decision to shift these cargoes to Ennore Port may become counter productive to the benefit of the above said Private Ports only. It has also been contended by them that leaning towards the prayers of the petitioners would result in dark days to the State as the TNEB would lose its supply of coal, a necessity for production of power through its Thermal Power Stations. 11. In the affidavit filed on behalf of the TNEB, it has been stated that they have programmed not to handle the TNEB coal from Chennai Port from October, 2002, except in exceptional cases or due to break down of conveyor system at Ennore Port, necessitating handling of coal at Chennai Port to maintain the continuous movement of coal to TNEB Thermal Power stations to avoid stoppage of generation of power and even in such emergency situations, it has been asserted on their behalf that they will take necessary measures to contain the pollution due to the coal handling within the norms prescribed by the State Government and the Pollution Control Board. Hence, they have stated that they are not the necessary parties to these proceedings. 12. Since it has been reported before this Court that certain firms are stacking coal adjacent to the railway track on the Secretariat building, which is leading to flying of the coal dust to https://hcservices.ecourts.gov.in/hcservices/ the nearby residential localities, thus causing air pollution, and notices were also issued by the Chennai Port Trust to such firms, this Court ordered to implead such firms also as parties to the writ petitions and accordingly, they are impleaded as respondents 6 to 8 to W.P.No.37081 of 2002. 13. The impleaded 8th respondent is the handling agent of the 6th respondent for the coal imported by the 6th respondent, who has put up a Thermal Power Plant at Gummidipoondi, generating 63.75 MW power and requires coal as raw material. The respondents 6 and 8 have filed separate counter affidavits, wherein, besides adopting the counter affidavit filed by the Chennai Port, they have contended that to facilitate easy handling of imported coal and for quick despatch and transportation thereof by rail, the coal discharged from vessels calling at the Chennai Port were being stacked on the plots along side railway sidings. It has also been contended by them that the Thermal coal that was hitherto being imported mainly by the TNEB, being of high ash content, has caused considerable inconvenience both within and outside the Port premises due to the flying coal dust and ash and realizing the immediate need to control such flying coal dust and ash and to abate pollution, TNEB has been causing vessels carrying thermal coal cargo to berth at the Ennore Port and discharging coal cargo at Ennore Port for several months past and this thermal coal cargo constituted almost 80 per cent of the total coal that was being discharged from vessels calling at the Chennai Port. According to these respondents, now that the discharge of 80 per cent of the coal has been shifted from Chennai Port to Ennore Port, the cause for the alleged pollution has also come down to that extent and the coal that was being handled, discharged and transported within and without the Chennai Port premises may not have caused so much pollution as before since that coal does not contain so much dust content as thermal coal imported by TNEB and hence, the cause for pollution has also drastically been reduced. These respondents would contend that since TNEB has shifted their discharge operations to Ennore Port from July, 2001, these respondents were expecting the Port authorities to allot to them an alternate site within a part of the land that had hitherto been under the occupation and use of the TNEB. These respondents have endorsed the statement of the Chennai Port that they are taking all the steps necessary to combat the pollution. The averments of the counter affidavits of these respondents would show that they are bothered only with regard to the allotment of plots and berths at the Port and it is not at all their case that the shifting of coal and iron ore operations to Ennore Port would prove drastic to them, as has been wrongly tried to be impressed upon on the part of the Chennai Port. 14. The Ennore Port has filed a common affidavit on 24.11.2009, https://hcservices.ecourts.gov.in/hcservices/ stating that it became operational in the year 2001 and is at present handling about 11.5 Million Tonnes of cargo per annum, which consists mostly of coal for TNEB Power plants and small quantities of iron ore; that the second stage expansion of Ennore Port comprises of, inter alia, a most modern Coal Import Terminal (8 MT) and iron ore export terminal (12 MT) and these facilities consist of fully mechanized unloading/loading systems at the berth, completely closed conveyors and vast stackyards with mechanized loading/receipt facilities; that the coal stackyard is 128.86 acres and iron ore stackyard is 168 acres; that the coal terminal including the stackyard facilities and equipments are being developed with pollution mitigating stipulations/conditions as approved by the Government of Tamil Nadu and Ministry of Environment and Forests, Government of India and the investment in coal terminal is Rs.399 crores and that of the iron ore is Rs.480 crores and both the projects are in advanced stage of construction and are scheduled to be completed by August, 2010; that the Ennore Port is also constructing and providing rail connectivity for coal and iron ore stackyards for aggregation/evacuation of cargoes from Athipattu Pudunagar stations at an investment of Rs.80 crores and the work was awarded in November 2008 and the same was in full swing and in the meanwhile, pending transfer of Salt Department land belonging to Department of Industrial Promotion and Policy, Ministry of Commerce and Industry, Government of India, the project's works have been held up and only after transfer of Salt Department land (35 acres) for which the proposal is under consideration with Government of India, it would be possible for Ennore Port to establish rail connectivity to the stackyards of coal and iron and without the rail connectivity, both the terminals which are under advanced stage of construction cannot be made operational as planned. Submitting so, the Ennore Port Limited has expressed its readiness and willingness to accept and follow any direction/order given by this Court. 15. It has been averred before this Court that the Ennore Port has elaborate plans of developing all the back up area with railway siding having connectivity upto Attipattu village, but is facing shortage of land for developing the complete railway loading, unloading yard and the Ministry of Commerce and Industry was requested to transfer 35 hectares of land which is owned by the Salt Commissioner. In view of this situation, the petitioner in W.P.No.7444 of 2009 has filed a petition in M.P.No.1 of 2010, praying to implead the Government of India, represented by the Secretary, Ministry of Commerce and Industry as a party respondent to the proceedings so as to issue a direction to transfer the requested land at an earliest possible time. This Miscellaneous Petition having been allowed, the Government of India, represented by the Secretary, Ministry of Commerce and Industry was brought on record as 7th respondent in W.P.No.7444 of 2009. https://hcservices.ecourts.gov.in/hcservices/ 16. In the affidavit filed on 20.11.2009, the Director of the Ministry of Shipping, Government of India, has submitted that the Ennore Port Limited has already obtained environmental clearances from the statutory authorities and has plans to develop green belt to control pollution caused due to handling of iron ore and coal. Furnishing the details of coal traffic, it has been clearly stated that in addition to what has been stated therein, Chennai Port is also handling about 8 MT of iron ore and since Ennore Port is adding a capacity of 25 MT per annum with modern facilities and the transportation, the pollution levels are expected to be much lower as compared to the present type of handling at Chennai Port and the traffic which is handled at Chennai Port is likely to be shifted once all the facilities are developed at Ennore Port Limited. 17. While so, we were informed by the Ennore Port Limited, by filing a memo. on 4.8.2010 that the construction of coal terminal is at an advanced stage, the physical progress being about 91% and with regard to the iron ore terminal it was 92% and this terminal will be operational to full capacity by September, 2011. With regard to rail connectivity to stackyards, it has been submitted by them that the main part of land required for rail connectivity from Salt Department was physically handed over to Ennore Port Limited on 31.5.2010 and to provide the rail connectivity to the coal and iron ore stackyards in time, a quick single line rail connectivity is planned and it will be fully operational by September, 2011. This shows the fast phase manner in which the things are moving at Ennore Port Limited. 18. Reverting back to the point of pollution at Chennai Port, owing to the nature of lis, this Court, has issued several directions to the Chennai Port to maintain ecology and to combat pollution, like the one on 27.4.2007, but the compliance reports filed by the Chennai Port having been disputed by the petitioners, to find out the truth and