(The Honourable The Chief Justice) Heard Mr. Sriram Panchu, learned senior counsel appearing on behalf of Mr. V. Achuthan for the petitioner in W.P. No.23461 of 2009 and Mr. S. Arokia Maniraj, learned counsel for the petitioner in W.P. No.21315 of 2009. Mr. P. Wilson, learned senior counsel appears on behalf of the Chennai Port Trust; Mr. J. Ravindran, learned counsel appears on behalf of the Chennai Metropolitan Development Authority; Mr. G. Masilamani, learned senior counsel appears on behalf of Mr. Mani Sundargopal for the third respondent in both the writ petitions; and Mr. R. Ramanlal, learned standing counsel for the Tamil Nadu Pollution Control Board appears on behalf of the fourth respondent in W.P. No.21315 of 2009.
2. Both these writ petitions are concerning nine tanks for storing edible oil which are to be constructed/are being constructed for the first respondent-Chennai Port Trust. The principal submission in both these writ petitions is that these tanks are situated nearby a residential neighbourhood and it would be hazardous to permit them to come up over there. The first of these two writ petitions, i.e., W.P. No.23461 of 2009 refers to some seven survey numbers wherein these tanks are supposed to be located, though the first respondent-Chennai Port Trust has pointed out that they are being located only in one of these survey numbers, i.e., Survey No.282 of Royapuram, Chennai, and which survey number is a part of the Chennai Port Trust area. The prayer in this writ petition is that the Chennai Port Trust be refrained from putting up these structures contrary to the provisions of the Tamil Nadu Town and Country Planning Act, 1961 and the Environment (Protection) Act, 1986. The second writ petition, i.e., W.P. No.21315 of 2009 also makes the same prayer, though the prayer therein is that the first respondent-Chennai Port Trust be restrained from installing these storage tanks to store molasses in the residential area without obtaining prior approval of re-conversion/re-classification of the area from the Chennai Metropolitan Development Authority and prior clearance from the Tamil Nadu Pollution Control Board.
3. It is contended on behalf of the petitioners that this construction would be governed by the Tamil Nadu Town and Country Planning Act, 1971 and the Rules framed thereunder. Reliance is placed on the definition of a 'building' under Section 2(7) of the Act which covers in sub-clause (b) thereof, even a structure on wheels or simply resting on the ground without foundations and in clause (c), it includes even a ship, vessel, boat, tent, van and any other structure used for human habitation or used for keeping or storing any article or goods. Reference is also made to the definition of the term 'development' coming under Section 2(13) of the Act, which states that 'development' means the carrying out of all or any of the works contemplated in a regional plan, master plan, detailed development plan or a new town development plan prepared under the Act and which also includes the carrying out of the building, engineering, mining or other operations in, or over or under land, or the making of any material change in the use of any building or land. Amongst the exclusions from this definition given in the proviso, only temporary works for maintenance, improvement or alteration are excluded under sub-clause (a) of the proviso. It is then pointed out that under Section 47 of the Act, after the coming into operation of any development plan in any area, no person (other than any State Government or the Central Government or any local authority) shall use or cause to be used any land or carry out any development in that area otherwise than in conformity with such development plan. It is emphasised that a 'local authority' as defined under Section 2(23) of the Act includes the Municipal Corporation of Chennai, or of Madurai, or a municipal council constituted under the Tamil Nadu District Municipalities Act, 1920 and some of the township committees and panchayat union council specified thereunder. It does not specifically cover the Chennai Port Trust as a local authority. In the section on the extent of application of this Act, i.e., Section 1, it is stated that it extends to the whole of the State of Tamil Nadu except the cantonments as declared under
Section 3 of the Cantonments Act, 1924. Thus, it is submitted that this Act would apply to the area covered under the Chennai Port Trust and the disputed construction.
4. It is then submitted that if that is so, every such construction can come up only after making an appropriate application for grant of permission to the planning authority, which, in the case of the city of Chennai is the Chennai Metropolitan Development Authority. The relevant section, i.e., Section 49 reads as follows :-
"49. Application for permission.- (1) Except as otherwise provided by rules made in this behalf, any person not being any State Government or the Central Government or any local authority intending to carry out any development on any land or building on or after the date of the publication of the resolution under sub-section (2) of section 19 or the notice in the Tamil Nadu Government Gazette under section 26 shall make an application in writing to he appropriate planning authority for permission in such form and containing such particulars and accompanied by such documents as may be prescribed.
(2) The appropriate planning authority, shall, in deciding whether to grant or refuse such permission, have regard to the following maters, namely :
(a) the purpose for which the permission is required;
(b) the suitability of the place for such purpose;
(c) the future development and maintenance of the planning area.
(3) When the application planning authority refuses to grant a permission to any person, it shall record in writing the reasons for such refusal and furnish to that person on demand a brief statement of the same."
5. Reference is then made to the Second Master Plan for the Chennai Metropolitan Area, which is supposed to be valid till the year 2026. It is framed under the Development Regulations framed for regulating the development in the area covered by the Master Plan. The Master Plan divides the areas covered into various zones including primary residential use zones, mixed residential use zones and commercial use zone, industrial use zone etc. It is submitted that the area in question where these storage tanks are coming up is a mixed residential use zone. Regulation 15 of the Development Regulations deals with the mixed residential use zone. Regulation 15(2) lays down that all uses/activities not specifically mentioned under sub-regulations (1) shall be prohibited. It is urged on behalf of the petitioners that the storage tanks of the type which are being constructed in the present case are not covered in Regulation 15(1), although fuel filling stations and automobile service stations with installation not exceeding 30HP are covered under Regulation 15(1)(A)(viii).
6. On the other hand, it is pointed out by the respondents that these storage tanks are temporary structures and are not permanently fastened to he earth and they are basically meant for storing edible oil and molasses. The respondents 1 and 3 submit that the structures in dispute are to be used as warehouses and that edible oil and molasses are not hazardous. Reliance is placed on report of experts from I.I.T that they are not embedded in soil. Mr.Panchu, however, refers to the very report to point out as to how the tanks are heavy and huge and they are to be construed as falling in the definition of a building.
7. The petitioners however contend that the said items are hazardous and abnoxious in nature and storage therof is not amongst the normally permissible uses under Regulation 16 of the Development Regulations which deals with commercial use zone. Clause (1)(A) restricts the use of warehouses in sub-clause (vi) thereof as follows :-
"(vi) Warehouses and other uses connected with storage of wholesale trade in commodities not notified under the Specified Commodity Act, but excluding storage of explosives or products which are either obnoxious or likely to cause health hazards."
It is further pointed out that the industries which are permitted in mixed residential use zone are only what are known as "Green Industries" which are listed in Annexure-VI to the Development Regulations and they do not include any such warehouse.
8. The second limb of the petitioners' argument is based on the provisions of the Coastal Regulation Zone Notification which has been issued under
Sections 3(1) and
3(2)(v) of the Environment (Protection) Act, 1986. There is no dispute that the area in question would be falling in the category known as CRZ-II since this area is already developed upto or close to the shoreline. Reliance is placed on Clause (i) of the Regulations governing CRZ-II, which provides as follows :-
"(i) Buildings shall be permitted only on the landward side of the existing road (or roads approved in the Coastal Zone Management Plan of the area) or on the landward side of existing authorised structures. Buildings permitted on the landward side of the existing and proposed roads/existing authorised structures shall be subject to the existing local Town and Country Planning Regulations including the existing norms of Floor Space Index/Floor Area Ratio :
Provided that no permission for construction of building shall be given on landward side of any new roads (except roads approved in the Coastal Zone Management Plan) which are constructed on the seaward side of an existing road.
Provided further that the above restrictions on construction, based on existing roads/authorised structures, roads proposed in the approved Coastal Zone Management Plans, new roads shall not apply to the housing schemes of State Urban Development Authorities implemented in phases for which construction activity was commenced prior to 19th February, 1991 in atleast one phase and all relevant approvals from State/Local Authorities were obtained prior to 19th February, 1991; in all such cases specific approval of the Ministry of Environment and Forests would be necessary on a case to case basis.
..."
9. Thereafter, Regulation 3(1) concerning the permissible activities is referred to, which states that clearance shall be given for any activity in the Coastal Regulation Zone only if it requires waterfront and foreshore facilities. It is contended that there is no need to have these storage tanks in the Chennai Port area where there are residential colonies nearby. Photographs showing these tanks being set up and dwelling houses situated in the near vicinity have been produced. Newspaper reports were cited on the massive fire that erupted in an oil refinery belonging to the Hindustan Petroleum Corporation near Jaipur some time in the last week of October, 2009, resulting in the death of three civilians and serious injuries to six staff members, apart from the huge monetary loss of Rs.300 Crores. According to the petitioners, it is better to exercise caution in advance rather than looking for a cure at a later stage. Reliance is placed on paragraph 48 of the judgment of the Apex Court in the case of M.C. Mehta vs. Union of India reported in (2004) 12 S.C.C. 118, which states that a balance has to be struck between development and protection of environment. The Supreme Court, in the above judgment, goes on to observe, "....in case of doubt, however, protection of environment would have precedence over the economic interest. Precautionary principle requires anticipatory action to be taken to prevent the harm. The harm can be prevented even on a reasonable suspicion. It is not always necessary that there should be direct evidence of harm to the environment".
10. The submissions of Mr. Sriram Panchu, learned senior counsel appearing for the petitioner in W.P. No.23461 of 2009 were adopted by Mr. Arokia Maniraj, learned counsel appearing for the petitioner in W.P. No.21315 of 2009. He, however, added that the party which had been awarded the contract to set up the storage tanks, i.e., the third respondent herein, had not obtained any clearance from the Tamil Nadu Pollution Control Board nor from the Coastal Regulation Zone authorities.
11. Mr. J. Ravindran, learned counsel appearing for the Chennai Metropolitan Development Authority supported the submissions of the petitioners, in that according to the learned counsel, permission from the Chennai Metropolitan Development Authority is required and without such permission, this construction could not be permitted. Mr. Ravindran stated that as of now, no application has been made to the Chennai Metropolitan Development Authority for grant of any such permission.
12. Mr. P. Wilson, learned senior counsel appearing for the Chennai Port Trust pointed out that the activities of a major port were multifarious. They were not confined merely to provide berthing facilities to the ships, as was the position some years ago. Chapter V of the Major Port Trusts Act, 1963 was referred to, which laid down the works and the services which are to be provided at such ports. Section 35(1) of the said Act laid down that the Board of Trustees of a given port may execute such works within or without the limits of the port and provide such appliances as it may deem necessary or expedient. The works and appliances defined in Section 35(1) would include the various items which are mentioned in Section 35(2) of the Act. Just for a ready reference, one may refer to sub-clauses (a) and (b) of Section 35(2) which read as follows :-
"(a) wharves, quays, docks, stages, jetties, piers and other works within the port or port approaches or on the foreshore of the port or port approaches, with all such convenient arches, drains, landing places, stairs, fences, roads, railways, bridges, tunnels and approaches and buildings required for the residence of the employees of the Board as the Board may consider necessary;
(b) buses, railways, locomotives, rolling stock, sheds, hotels, warehouses and other accommodation for passengers and goods and other appliances for carrying passengers and for conveying, receiving and storing goods landed, or to be shipped or otherwise."
Thus, it is pointed out that if the Port Trust is entitled to have its own railways within its premises and which the Chennai Port Trust does have, it is not expected to approach the Chennai Metropolitan Development Authority for grant of permission. Section 35(2)(b) specifically requires the Port Trust to provide warehouses and facilities for conveying, receiving and storing goods landed or to be shipped or otherwise. Mr. Wilson drew our attention to the berth sheets of the Chennai Port Trust for the period between 16th and 24th November, 2009 in order to demonstrate how a number of ships, including those carrying oil, were required to wait in the sea for want of berthing facility at the port and pointed out that many of the ships which were waiting in the sea for non-availability of berths at the Port were oil tankers. The berth sheets of 16th November, 2009 showed one ship by name Royal Natura waiting in the sea carrying palm oil. On 17.11.2009, another ship by name Songa Eagle carrying vegetable oil is waiting, and continues to wait on 18.11.2009 and 19.11.2009 for want of berth at the Port. That is the position of a number of such oil tankers.
13. In the affidavit filed on behalf of the Chennai Port Trust, which has been signed by the Traffic Manager of the Port Trust, it is specifically stated that the demand for oil is increasing with the increase in population. That apart, there are already more than 52 tanks permitted within the Port area, which store various liquid bulk cargo and they are found to be insufficient. These are liquid bulk cargo tanks within the Port premises. In paragraph 6 of the affidavit, it is stated that apart from these tanks in the Port area, there are some 30 tanks situated in Royapuram area, from where the residents of the second writ petition have come to the Court. Those tanks are located in the midst of a residential area and also include a big storage tank of the Hindustan Petroleum Corporation storing inflammable petroleum products.
14. Mr. Wilson then submitted that the Major Port Trusts Act, 1963 draws its authority from Entry 27 in the Union List of Seventh Schedule to the Constitution of India, which is concerning the ports declared by or under law by Parliament or existing law to be major ports, including their delimitation, and the constitution and powers of port authorities therein. According to the learned senior counsel, the Tamil Nadu Town and Country Planning Act, 1971 would be referable to Entry 18 in the second list, i.e., the State List, which is concerning land, that is to say right in or over land, land tenures including the relation of landlord and tenant, and the collection of rents, transfer and alienation of agricultural land, land improvement and agricultural loans and colonisation. Learned senior counsel submits these two entries are independent and separate entries and therefore, there is no question of the Port Trust being required to obtain any permission from the Chennai Metropolitan Development Authority for setting up the storage tanks in question.
15. That apart, learned senior counsel pointed out that even under the regulations which are framed under the Development Regulations of the Second Master Plan for Chennai Metropolitan Area, 2006, warehouses which were not storing explosives or items which were not hazardous were permitted in the commercial use zone. Even the mixed residential use zone permitted fuel filling stations and automobile service stations upto a certain limit. Looking at it from the point of view of the Coastal Regulation Zone Notification also, learned senior counsel pointed out that the Coastal Regulation Zone Notification permitted the activities of setting up new industries and expansion of existing industries except those directly related to waterfront or directly needing foreshore facilities. Thus, activities directly relating to waterfront or directly needing foreshore facilities were not prohibited even under Clause 2(i) of CRZ-II. It reads as follows: -
" 2. Prohibited Activities:
The following activities are declared as prohibited within the Coastal Regulation Zone, namely:
(i) setting up of new industries and expansion of existing industries, except (a) those directly related to water front or directly needing foreshore facilities (b) Projects of Department of Atomic Energy; and (c) non-polluting industries in the field of information technology and other service industries in the Coastal Regulation Zone of Special Economic Zones (SEZ) provided that (a) facilities for generating power by non conventional energy sources and setting up of desalination plants may be permitted within the said zone in areas not classified as CRZ-I(i); and (b) construction of airstrips in the said zone in areas not classified as CRZ-I(i) may also be permitted in the Islands of Lakshwadeep and Andaman & Nicobar by Government of India in the Ministry of Environment & Forests"
16. Mr. Wilson pointed out that already one round of litigation had taken place in this matter. One writ petition had already been filed concerning this very construction and a learned single Judge of this Court had rejected a miscellaneous application for an interim order in Writ Petition No.16555 of 2009. The learned single Judge had noted that the construction being set up was only for a period of eleven months; it was a temporary structure and there was no need to injunct the said construction.
17. The writ petitions are opposed by Mr. G. Masilamani, learned senior counsel appearing for the party which is setting up the storage tanks in question, i.e., the third respondent herein. Learned senior counsel pointed out that firstly, though these tanks are meant for storing liquids to be imported and exported, and presently they will be utilised only for storing edible oil. The storing of molasses and edible oil was not considered as in any way a polluting or hazardous industry. He relied upon the extracts from texts by leading authors, one such article being the "Principles of Sugar Technology", Volume-III by one Pieter Honig published in 1963, which refers that Beet Molasses have 16.5% of water content, whereas Cane Molasses have 20% water content. Similarly, the "Cane Sugar Handbook", XII Edition by one James C.P. Chen records that cane molasses contain 17 to 25% water. Learned senior counsel, therefore, submitted that there was no question of these items being inflammable or hazardous in any manner whatsoever. According to the learned senior counsel, there was no violation of any of the provisions of the Water Act or the Air Act and the activity which was supposed to be carried on was only storage and it was not a manufacturing activity. Learned senior counsel also pointed out that even in the Coastal Regulation Zone Notification, under CRZ-II, petroleum products were permitted to be stored. Last, but not the least, the learned senior counsel submitted that both these writ petitions were motivated; the petitioners were set up by persons who had lost out in the tender process for construction of these storage tanks. According to the learned senior counsel, persons who are aggrieved by any of the actions or decisions of public authorities must approach them first and without doing that, if they approach the Court, they should not be entertained.
18. We have noted the submissions of learned counsel for both parties. The petitioners contend that they have moved these writ petitions in view of their apprehension arising out of the explosion of petroleum products, which have taken place in Jaipur at the end of October, 2009. The respondents, on the other hand, contend that the petitions are motivated, and that they are not genuine public interest petitions. It is pointed out that one petition was filed earlier, challenging this very tender process and to block the coming up of these oil tanks, and a learned single Judge has already taken a view that they are temporary and could not be objected. It cannot be disputed that it is only edible oil, which is to be stored in these tanks, and as shown from the literature produced by the respondents, the material is non-hazardous. The fact remains that there is a large requirement of edible oil for the growing population, and therefore, edible oil is required to be imported. The Port has to give these facilities nearby to the Port Area. As rightly pointed out by Mr.Wilson, ships carrying oil are waiting for getting a berth in the Port. They have to be relieved at the earliest. For that purpose, the storage of edible oil nearby to the Port is essential.
19. Mr.Wilson has also pointed out from the necessary land survey records that the particular Survey Number i.e., 282 is part of the Port's property. That being so, it is up to the Port Trust to do all that is necessary and it is its responsibility to provide for the storage facilities under
Section 35 of the Major Port Trusts Act, 1963. This is apart from the fact that as already held by the learned single Judge that these structures are temporary, and the material to be stored is not imflammable. The requirements of CMDA would not get attracted to these constructions in the port area, the moment they are covered under the Major Port Trusts Act, 1963. Entry 27 of the Central list of the Seventh Schedule governs the activities in a major port and these are activities permitted under the Act of Parliament. The Tamil Nadu Town and Country Planning Act, 1972, operates in another area. It cannot control the activities in the port area. The objection based on the CRZ Notification is also equally futile. The Notification itself permits such facilities upto the foreshore area. It has also been shown to us that this particular survey number namely, S.No.282, even under the classification, falls in Commercial Zone, where such storage is not objectionable.
20. For the reasons stated above, we do not find any merit in these writ petitions, and they are accordingly dismissed. No costs.
ab/pv To
1. Chennai Port Trust, Rep. by its Chairman, Rajaji Salai, Chennai-1.
2. Chennai Metropolitan Development Authority, Rep. by its Chairman, Thalamuthu Natarajan Building, No.1, Gandhi Irwin Road, Egmore, Chennai-8.
3. The Joint Secretary, Port & Administration, Room No.411, Parivahan Bhavan, Sansad Marg, New Delhi-110 001.
4. The Chairman, Tamil Nadu Pollution Control Board, No.950/1, Poonamallee High Road, Arumbakkam, Chennai 106