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IN
THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:
17.12.2004 CORAM
THE
HON’BLE MR.MARKANDEY
KADJU, CHIEF JUSTICE and
THE
HON’BLE MR. JUSTICE N.V.BALASUBRAMANIAN
W.P.NOS.33528
AND 34436 OF 2004 and
W.P.M.P.Nos.40521
and 41570 of 2004
W.P.No.33528
of 2004
O.
Fernandes,
Co-Convener,
Coastal
Action Network,
No.10,
Thomas Nagar,
Little
Mount, Saidapet,
Chennai
- 600 015.
…Petitioner.
Vs.
1.
Tamil Nadu Pollution Control Board,
rep. by its Chairman,
Anna Salai, Chennai
– 32.
2.
Union of India,
rep. by Ministry of
Environment & Forest,
through its Secretary,
Paravaran Bhavan,
CGO Complex, Lodi
Road,
New Delhi – 110 003.
3.
Tuticorin Port Trust,
rep. by its Chairman,
Tuticorin – 628 004.
4.
District Collector,
Ramanathapuram
District,
Ramanathapuram.
5.
District Collector,
Tuticorin District,
Tuticorin.
6.
District Collector,
Thanjavur District,
Thanjavur.
7.
District Collector,
Thiruvarkur District,
Thiruvarur.
8.
District Collector,
Pudukottai District,
Pudukottai.
9.
District Collector,
Nagapattinam District,
Nagapattinam.
10.
Government of Tamil Nadu,
rep. by its Secretary,
Department of Revenue,
Fort St. George,
Chennai – 600
009.
11.
The Secretary,
representing Ministry
of Surface & Transports,
Transport Bhavan, 1
Sansad Marg,
New Delhi – 110 001.
12.
Mr. T.R. Balu,
Ministry of Surface
& Transports,
Transport Bhavan, 1
Sansad Marg,
New Delhi – 110 001.
13.
The Director,
National Environment
Engineering Research Institute (NEERI),
Nehru Marg, Nagpur –
440 020.
….Respondents.
W.P.No.34436
of 2004
Tuticorin
Port Trust,
Rep.
by its Chairman,
Tuticorin
– 628 004.
….Petitioner
Vs.
1.
Tamil Nadu Pollution Control Board,
rep. by its Chairman,
Anna Salai, Chennai
– 32.
2.
District Collector,
Tuticorin District,
Tuticorin.
3.
District Collector,
Thanjavur District,
Thanjavur.
4.
District Collector,
Thiruvarkur District,
Thiruvarur.
5.
District Collector,
Pudukottai District,
Pudukottai.
6.
District Collector,
Nagapattinam District,
Nagapattinam.
….Respondents.
PRAYER:
Petition under Article 226 of the Constitution of India
for the issuance of writ of mandamus, as stated therein.
----------
Mr.
V. Prakash, Senior Counsel
:For Pentioner in W.P.33528/04
For
Mr. P. Chandrasekaran.
Mr.
V.T/Gopalan, Addl. Solicitor General
:For petitioner in W.P.34436/04
For
Mr.P.Wilson, S.C.G.S.C
&
for respondents 2,11 & 12 in
W.P
.33528/04
Mr.R.Gandhi,
Senior Counsel
:For
R3 in W.P.33528/04
For
Mr. G.Damodharan
Mr.N.R.Chandran,
Advocate General
:For R1 in both the W.Ps.
For
Mrs.Rita Chandrasekaran
Mr.A.L.Somayaji,
Addl.Advocate General
:For R4 to R10 in W.P.33528/04
For
Mr.V.Raghupathy, Government Pleader
& R2 to R6 in W.P.34436/04
----------
O R D E R
THE
HON’BLE THE CHIEF JUSTICE
Heard
learned counsel for the parties.
1.
Write Petition No.33528 of 2004 has been filed for a direction
to declare the public hearing conducted in connection with the
Sethu Samudram Shipping Canal Project (hereinafter referred to
as SSSCP) in Tuticorin, Thanjavur, Thiruvarur, Nagapattinam,
Pudukkottai and Ramanathapuram districts on several dates to be
ineffective and not in compliance with the requirements of law.
The petitioner has stated that such public hearing would become
meaningful only after a comprehensive Environment Impact
Assessment Report on the SSSCP is made ready. The petitioner
further prayer for a director against respondents 1 and 2 to
constitute panels in accordance with the notification issued by
the Central Government on 27.1.1994 as amended on 10.4.1997, and
for a further direction to regulate all public hearings to
ensure presentation of rational and scientific data.
2.
The petitioner claims that he is the co-convener of a group of
organizations coming together under the banner of Coastal Action
Network. He further claims that the objective of the said
network is to ensure protection of environment and bio-diversity
in the costal areas. The SSSCP visualizes making a canal for
passage of ships through the Palk Strait, and as per the
proposal the total length of the canal would be about 260Kms.
The Government of India is proposing to dredge a width of 300
Metres through 44 Nautical Miles stretch. It is estimated that
32.5 Million Cubic Metres of sand would be dredged in Adams
Bridge and 52 Million Cubic Metres in Palk Strait. The
Government’s proposal is aimed at reducing the distance for
ships, which now go around Sri Lanka after berthing
in Colombo to reach the Bay of Bengal. It is proposed to
dredge a shipping canal in the Palk Strait to avoid going around
Sri Lanka.
3.
The Government of India issued notification on 27.01.1994 under
Rule 5(3)(a) of the Environment (Protection) Rules,1986, which
was framed under the Environment Protection Act, 1986. By the
said notification objections were invited from the public within
60 days from the date of notification. This notification was
amended on 10.4.1997, by which, environment
clearance by the Central Government was made compulsory.
4.
It is stated by the petitioner that the initial Environment
Impact Assessment was done by the National Environment
Engineering Research Institute (hereinafter referred to as NEERI).
It is alleged by the NEERI is not a comprehensive environment
impact assessment report, but it is a Rapid Environmental Impact
Assessment in May 2004 to the Nodel Agency namely Tuticorin Port
Trust. The detailed project report has to be submitted by the
Larsen and Turbo of India and Rampaul of Denmark, who are the
contractors for the SSSCP. Techno Economic Feasibility Report
was expected by July 2004.
5.
It is recited in paragraph – 12 of the petitioner’s
affidavit that the original public hearing for the SSSCP was held
on 08.09.2004 at the respondent District Collectorates. The
panel which gave the public hearing in each district on various
dates is mentioned in paragraph – 12 of the affidavit. In
paragraph – 13 of the affidavit it is alleged that the public
hearing held on 14.09.2004 at Tuticorin was unruly and so also
the one which was held at Pudukottai. It is alleged that the
panel constituted was not in accordance with the notification.
Various political parties created pandemonium when views opposed
to their professed political interests were being voiced.
6.
In paragraph – 14 of his affidavit, the petitioner has given
details about the alleged damage to the environment which would
be caused by the said project. In paragraph – 16, it is
alleged that the present public hearing is not meaningful and
does not give effective participation to the citizens and
various environment protection groups. The public hearings have
become by and large a shouting match of different political
groups without systematic presentation of views. In paragraph
– 17 it is alleged that the present panelists do not have the
necessary qualification or experience.
7.
Several counter affidavits have been filed by several
respondents in this case, and we have perused the same. The
hearings by the Hearing Committees in the six coastal districts
of Tamil Nadu are being conducted pursuant to the Environment
Impact Assessment Notification dated 27.1.1994 issued by the
Central Government in exercise of the powers conferred under
Sub-section (1) and Clause (v) of Sub-section (2) of Section 3
of the Environment (Protection) Act, 1986 read with Clause (d)
of Sub-rule (3) of Rule 5 of the Environment (Protection) Rules,
1986.
8.
Section 3(1) and 3(2) (v) of the Environment (Protection) Act,
1986 runs as follows:
“3.Power
of Central Government to take measures to protect and improve
environment. (1) Subject to the provisions of this Act, the
Central Government, shall have the power to take all such
measures as it deems necessary or expedient for the purpose of
protecting and improving the quality of the environment and
preventing, controlling and abating environment pollution.
(2)
In particular, and without prejudice to the generality to the
provisions of sub-section (1), such measures with respect to all
or any of the following matters, namely:-
(i)
-----------
(ii)
-----------
(iii)
-----------
(iv)
-----------
(v)
restriction of areas in which any industries, operations
or class of industries, operations or processes shall not be
carried out or shall carried out subject to certain
safeguards;”
9.
Rule 5(3) of the Environment (Protection) Rules, 1986 states
that
“(3)
(a) Whenever it appears to the Central Government that it is expedient to
impose prohibition or restrictions on the location or the
carrying on of processes and operation in an areas, it may by
notification in the Official Gazette and in such other manner as
the Central Government may deem necessary from time to time,
give notice of its intention to do so.
(b)
Every notification under clause (a) shall give a brief
description of the area, the industries, operations, processes
in that area about which such notification pertains and also
specify the reasons for the imposition of prohibition or
restrictions on the industries and carrying on of processes or
operations in that area.
(c)
Any person interested in filing an objection against the
imposition of prohibited or restrictions on carrying on of
processes or operations as notified under clause (a) may do so
in writing to the Central Government within sixty days from the
date of publication of the notification in the Official Gazette.
(d)
The Central Government shall within a period of one hundred and
twenty days from the date of publication of the notification in
the Official Gazette consider all the objections received
against such notification and may (three hundred and sixty five
days – inserted by G.S.R. 884(E) dt. 20.11.1992) impose
prohibition or restrictions on location of such industries and
the carrying on of any process or operation in an area.
10.
Under the notification dated 27.01.1994 any person who desires
to undertake any new project in any part of India or the
expansion or modernization
of any existing industry or project listed in the
Schedule-I shall submit an application to the Secretary,
Ministry of Environment and Forest, New Delhi The application
shall be made in the proforma specified in Schedule-II of the
notification and shall be accompanied by a project report
which shall, inter alia, include an Environment Impact
Assessment Report, Environment Management plan and details of
public hearing as specified in Schedule-IV, prepared in
accordance with the guidelines issued by the Central Government
in the Ministry of Environment and Forests from time to time.
Schedule –IV, prepared in
accordance with the guidelines issued by the Central Government
in the Ministry of Environment and Forests from time to time.
Schedule-IV under the notification gives the procedure for
public hearing and Clause (5) of the same states that the public
hearing shall be completed within a period of 60 days from the
date of receipt of complete documents as required.
11.
The reports submitted with the application shall be evaluated
and assessed by the Impact Assessment Agency, and if deemed
necessary it may consult a Committee of Experts, having a
composition as specified in Schedule III of the notification.
The Impact Assessment Agency would be the Union Ministry of
Environment and Forests. The Committee of Experts mentioned
above shall be constituted by the Impact Assessment Agency or
such other body under the Central Government authorized by the
Impact Assessment Agency in this regard. Then, the Impact
Assessment Agency would prepare a set of recommendations based
on technical assessment of documents and data, furnished by the
project authorities, supplemented by the data collected during
visits to sites, if undertaken, and details of the public
hearing. The assessment has to be completed within a period of
90 days from the date of receipt of the requisite documents and
data from the project authorities and completion of public
hearing and decision conveyed within 30 days thereafter. The
project authorities have to submit a half yearly report to the
Impact Assessment Agency to enable it to monitor effectively the
implementation of the recommendations and the conditions imposed
for the environment clearance.
12.
A reading of the aforesaid notification dated 27.01.1994
including Schedule I and IV of the same, makes it clear that a
duty is cast on the person who applies for environment
clearance, which in this case happens to be the Tuticorin Port
Trust which is appointed as nodal agency for executing the SSSCP,
to provide the requisite materials/documents to the 1st
respondent viz., Tamil Nadu Pollution Control Board. The 1st
respondent on being satisfied called for public hearings and
conducted the same in the six coastal districts on various
dates. The said notices were also published in English and Tamil
dailies on 07.08.2004.
13.
In our opinion, this writ petition is premature, and is liable
to be dismissed on this ground alone. The public hearings were
going on when this writ petition was filed, and no adverse
orders have yet been passed against anyone. A cause of action
arises only when an adverse order has been passed or some action
adversely affecting someone’s rights is taken. Since, no
adverse orders have been passed not action taken against anyone
as yet, we fail to understand how this writ petition can be
entertained at this stage. It seems to us that the petitioner
has rushed to this Court to block a project which is in the
national interest.
14.
It is evident that Sethu Samudhram Ship Canal Project would be
of great benefit to the country, because at present ships have
to go around Sri Lanka to reach the Bay of Bengal. By dredging a
Ship Canal in the Palk Strait huge amount of expense and a lot
of time would be saved. The distance, time and money on fuel,
which will be saved by the shipping industry, can certainly
augment business, and traffic in Tuticorin Port and other
coastal areas. Hence, it is certainly in the public interest,
like the Suez Canal after making which ships coming from Europe
did not have to go all around Africa to reach Asian countries,
resulting in a huge saving of time and expenditure.
15.
In view of the above, Writ Petition No.33528 of 2004 is
dismissed as premature.
16.
W.P.No.34436 of 2004 has been filed for a writ of mandamus
directing the respondent-District Collectors to have the public
hearings completed in accordance with the public hearing notice
dated 10.10.2004 and to send their reports along with the
minutes of the public hearing to the Ministry of Environment and
Forests, Government of India forthwith. In our option this
prayer is an appropriate one, and hence we direct that the
public hearings as contemplated by IV schedule to the
notification dated 27.01.1994, as amended, be completed
expeditiously, if not already completed, and the reports with
the minutes be sent to the Ministry of Environment and Forests,
Government of India forthwith We further direct that the Sethu
Samudhram Ship Canal Project be completed as expeditiously as
possible. With these directions, W.P.No.34436 of 2004 is
disposed off.
17.
Before parting with the above cases, we would like to mention
that we should not obstruct the scientific and technical
progress of the country in the name of environment protection.
No doubt, the environment has to be protected, but at the same
time. We must never overlook
the basis aim
of our country which is to make India a powerful and modern
industrial state. Today the real would is cruel and harsh. It
respects power, not poverty or weakness. The truth is that
Indians, despite being intelligent and industrious people, are
not respected by Westerners, not because our skin is brown or
black in colour, but because our country is poor. Nobody
respects the poor. When the Chinese and Japanese were poor
people they were derisively called ‘yellow’ races by the
Westerners, but today they are industrialized and powerful
nations, and now nobody dares to call them that. Similarly, if
we wish to get respect in the world community we must make our
country highly industrialized and prosperous. Also,
industrialization along can generate the wealth we require for
taking care of the welfare of our people, as is the mandate of
the Directive Principles in our Constitution.
18.
Now a days, in seminars, newspaper articles, book etc., the
constant refrain is of protecting the environment, and hardly
any thought is given about the need for rapid industrialization.
Everyone seems to have forgotten the basic goal of our country,
that is to make India a modern, powerful, highly industrialized
and prosperous country. The implicit message which seems to be
conveyed is that the environment must be protected, even if that
has to be done by closing down our industries. The impression
sought to be created is that there is an imbalance in our
country between man and nature because there has been too much
industrialization in India, and not too much. Nobody can dispute
the need for protecting the environment. After all, people are
entitled to pure air and water, forests have to be prepared for
ensuring regular rainfall and preventing soil erosion, wildlife
has to be protected for maintaining ecological balance, etc.
But, what is overlooked is that protection of the environment is
incidental to industrialization. In other words, if we
industrialize we will by compelled to protect the environment
and there is no conflict between industrialization and
environment protection. Thus, industrialization itself ensures a
good environment. For instance, in Western countries, which are
industrialized, the are
clean, the air has little pollution, etc., The factories and
motor cars in North America and Europe have to be fitted with
pollution avoidance devices to meet the high standards of
pollution control fixed by the authorities. The forests and
wildlife in these countries are carefully preserved by experts
scientifically. People in Western countries are fined heavily if
they throw litter and garbage on the road or public places,
while in our country’s cities one can see garbage and litter
lying everywhere. Industrialization not only created the wealth
necessary for preserving and protecting the environment, it also
creates the modern mind in which protecting the environment is
installed since childhood. Parents in Western countries teach
their children that they must
not throw litter anywhere except in the public bins established
for this purpose. When one takes a dog for a walk in any Western
city, and the dog excretes on the road or park, the owner must
pick up the excreta (with a paper or whatever) and throw it in
the bin set up for this purpose, otherwise he is fined. Thus,
the very mindset of Westerners is towards protection of the
environment, and this is because they are highly industrialized.
We are not truing to say that we should not care for the
environment. We should certainly not let certain unscrupulous
businessmen discharge toxic effluents into our rivers or
hazardous fumes into the atmosphere. We should not let greedy
forest contractors destroy our forests and ecology. We must
certainly place restrictions and regulations for protecting the
environment. But, at the same time a balance has to be struck.
No doubt Article 48-A of the Constitution states that “the
State shall endeavor to protect and improve the environment and
to safeguard the forests and wild life of the country” and
Article 51A(g) makes it a fundamental duty of all citizens to
protect forests, lakes, rivers, wildlife, etc. However, these
provisions have to be read along with the basic objective of the
country, that is to make India a powerful, highly industrialize,
and protection of environment must be regarded as only
incidental to this main aim, and not itself the main aim. Unless
we are industrialized we will never get respect in the comity of
nations and will not be able to promote the welfare of our
people (because we will not be able to generate the wealth for
this purpose) as required by Article 38 of the Constitution.
Without industrialization our people shall also not be able to
get work, education, unemployment and sickness benefits and
other public assistance as required by Article 41 of the
Constitution, because all these require huge resources and funds
which can only be generated by a high degree of
industrialization. The massive unemployment in our country can
also be eradicated by rapid industrialization.
19.
Consequently, connected miscellaneous petitions are closed. No
costs.
Index:
Yes/No
Internet:
Yes/No
sm
1.
Tamil Nadu Pollution Control Board,
rep. by its Chairman,
Anna Salai, Chennai
– 32.
2.
Union of India,
rep. by Ministry of
Environment & Forest,
through its Secretary,
Paravaran Bhavan,
CGO Complex, Lodi
Road,
New Delhi – 110 003.
3.
Tuticorin Port Trust,
rep. by its Chairman,
Tuticorin – 628 004.
4.
District Collector,
Ramanathapuram
District,
Ramanathapuram.
5.
District Collector,
Tuticorin District,
Tuticorin.
6.
District Collector,
Thanjavur District,
Thanjavur.
7.
District Collector,
Thiruvarur District,
Thiruvarur.
8.
District Collector,
Pudukottai District,
Pudukottai.
9.
District Collector,
Nagapattinam District,
Nagapattinam.
10.
Government of Tamil Nadu,
rep. by its Secretary,
Department of Revenue,
Fort St. George,
Chennai – 600 009.
11.
The Secretary,
representing Ministry
of Surface & Transports,
Transport Bhavan, 1
Sansad Marg,
New Delhi – 110 001.
13.
The Director,
National Environment
Engineering Research Institute (NEERI),
Nehru Marg, Nagpur –
440 020.
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