Summary
Two edible oil companies built storage tanks a few kilometres outside Chennai Port in a CRZ-II area and pipelines linking them to the port. The Environment Ministry later granted ex post facto clearance under paragraph 4.3 of the 2011 Coastal Regulation Zone Notification. The National Green Tribunal set it aside and ordered removal. The Supreme Court upheld the finding on the tanks: paragraph 8(II)(vi) permits storage of non-hazardous cargo only 'in notified ports', which bears the same meaning as 'within' and cannot extend outside the port's notified limits. It gave six months to demolish the tanks and left the permitted pipelines to the District Coastal Zone Management Authority.
Issues
- Whether storage of edible oil in tanks located outside the notified limits of Chennai Port in a CRZ-II area falls within paragraph 8(II)(vi) of the CRZ Notification, 2011, which permits such storage 'in notified ports', so that ex post facto clearance under paragraph 4.3 could be granted.
- Whether the storage tanks could alternatively be supported as buildings on the landward side of an existing road under paragraph 8(II)(i), or by the administrative understanding of the authorities.
Provisions considered
- Paragraphs 3, 4, 4.3, 7 and 8(I)(i)(b), 8(I)(ii)(f), 8(II)(i) and (vi), Coastal Regulation Zone Notification, 2011 (under Section 3, Environment (Protection) Act, 1986)Paragraph 4.3 permits post facto clearance only for activities otherwise permissible and not in violation of CRZ norms; the norms in paragraph 8 permit storage of non-hazardous cargo 'within' notified ports in CRZ-I and 'in' notified ports in CRZ-II, which in context mean the same, and pipelines are a permitted activity. (¶¶ 20, 21, 27, 28, 29, 30, 41, 42, 45, 59, 60)
- Section 2(q), Major Ports Act; Sections 2(11)-(13), 7(a) and 57, Customs Act, Major Ports Act, 1964 and Customs Act, 1962A 'port' is a major port within the limits notified by the Central Government; licensing the tanks as a public warehouse under Section 57 of the Customs Act may make them a customs area but cannot place them 'in a notified port'. (¶¶ 47, 48, 49, 50, 51, 52)
Held
- The objects of the 2011 Notification are protection of coastal livelihoods and environment, conservation and guarding against natural hazards and sea level rise, so arguments that the pipeline and tanks improved port efficiency, reduced lorry traffic and pollution are not germane. M. Nizamudeen, which read 'in the port areas' as 'in or through' to avoid an absurdity in transferring hazardous cargo, is inapposite; reading 'in' to include places outside port limits would introduce uncertainty as to distance and vest arbitrary power in the administrator. (¶¶ 36, 38, 40, 43, 45, 46, 55, 59)
- Paragraph 8(II)(i) on buildings landward of an existing road was neither the basis of the clearance nor relied on by the Ministry, and storage facilities are specifically dealt with by paragraph 8(II)(vi); the doctrine of contemporanea expositio (K.P. Varghese) cannot prevail over the plain meaning, as the authorities' understanding may itself be erroneous. (¶¶ 53, 54, 56, 57, 58, 59)
- The pipelines are in a zone where they are permitted and may receive ex post facto permission, so whether they can continue to be used without the tanks is for the District Coastal Zone Management Authority to decide on application. (¶¶ 60, 61, 63)
Result
Civil Appeal Nos. 3626 and 3639 of 2020 partly allowed without costs: NGT order upheld as to the storage tanks, with six months granted for their demolition and one month to the first appellant to pay the Rs. 25 lakh environmental compensation if not already paid; the appellants may within one month apply to the District Coastal Zone Management Authority for continued use of the pipelines, to be decided within six weeks, and demolition of the pipelines awaits that decision.