(The Order of the Court was made by S.J.Mukhopadhaya,J) Writ Petition No.46988 of 2002 has been filed seeking for issuance of a Writ of Certiorarified Mandamus, to call for the records of the third respondent relating to Letter No.HWM/31532/97-1, dated 18.9.2002, quash the said order and further direct the respondents to forbear from interfering with the ship breaking activity of the petitioner at Valinokkam.
2. Writ Petition No.3220 of 2003 has been filed for issuance of a Writ of Certiorarified Mandamus, to call for the records relating to the proceedings of the first respondent, dated 20.3.2002 in Letter No.1422/S1/02 and consequential Letter dated 21.1.2003 in Letter No.309/S1/03, quash the same and direct the first respondent to continue the lease.
3. The petitioner-T.N.S.S.Steels Pvt. Ltd., an industrial unit, which is carrying out ship breaking activities at Valinokkam in Ramanathapuram District of the State of Tamil Nadu, has challenged the order dated 18.9.2002 issued by the Tamil Nadu Pollution Control Board (third respondent in W.P.No.46988 of 2002), whereby, it has been informed that the ship breaking activity would not be permitted at Valinokkam, Ramanathapuram District, in view of the probable environmental impact on the marine and coastal ecology, that a decision to that effect was taken at the State Coastal Zone Management Authority meeting held on 18.7.2001 and any violation in that regard will attract the penal provisions of Section 15 of the Environment (Protection) Act, 1986, which includes imprisonment and fine. The petitioner was directed to drop the initiatives taken in that regard.
4. In the meantime, the Tamil Nadu Maritime Board, Government of Tamil Nadu, by letter dated 20.3.2002 informed the petitioner that since the lease agreement has expired, the petitioner was directed not to bring any ships to Valinokkam Port thereafter and Plot No.5 in question which was originally allotted, would be taken in possession by the Tamil Nadu Maritime Board. The lease agreement executed for allotment of such Plot No.5, which was subsequently transferred to M/s.TIDCO, expired on 28.2.2002. For the said reason, by letter dated 21.1.2003, the Tamil Nadu Maritime Board, Government of Tamil Nadu, while informing that no shop breaking plot has been allotted by the Tamil Nadu Maritime Board, asked the petitioner to inform as to where the ship will be beached and broken. All the aforesaid orders have been challenged by the petitioner in these two Writ Petitions, one against the Tamil Nadu Pollution Control Board and the other against the Tamil Nadu Maritime Board.
5. According to the petitioner-Company, it is a small scale industrial unit, carrying on ship breaking activities for more than a decade. It has broken more than 25 ships. The petitioner availed incentive schemes of the Government of Tamil Nadu. By breaking such ships, the petitioner has remitted more than Rs.3 crores towards customs and central excise. Several lakhs of amount was paid towards sales tax to the Government of Tamil Nadu, apart from other taxes and statutory levies. It is further stated that earlier, the Tamil Nadu Maritime Board renewed the lease of the petitioner's industry and collected rent for the area, which is mandatory for ship breaking activities. Such ship breaking activities have been carried out by the petitioner without causing any pollution and without letting out any pollutants.
6. Learned counsel for the petitioner submits that the Central Pollution Control Board (for short, 'the CPCB') has prepared environmental guidelines for ship breaking industries and circulated them to the State Pollution Control Boards in December 1997. The CPCB has noted that the ship breaking industry grew into a full-fledged industry by 1979 when the Government of India recognised it as a manufacturing industry. Ship breaking is one of the sources of re-rollable and melting scrap because of its inherent advantages as against direct import of these materials. The guidelines provide for frame-work for dealing with the pollutants from the process and the measures to be adopted by the ship breaking industries to protect the marine environment from degradation. The locations at which ship breaking activity is carried on have also been specified in the said guidelines, which includes in Tamil Nadu--Valinokkam and Tuticorin.
7. It is further stated that the Tamil Nadu Pollution Control Board (for short, 'the TNPCB'), by proceedings dated 21.5.1999 issued certain directions to the petitioner under
Section 33-A of the Water (Prevention and Control of Pollution) Act, 1974 (for short, 'the Water Act'). The petitioner was asked to obtain a certificate from the State Maritime Board that the vessels awaiting to be broken up were free from prohibited materials and hazardous wastes. The petitioner was also directed to provide infrastructures specified in the communication. The petitioner was also directed to obtain consent under
Section 25 of the Water Act and
Section 21 of Air (Prevention and Control of Pollution) Act (for short, 'the Air Act').
8. It is further alleged that the TNPCB, by letter dated 24.5.2002, in disregard to the directives of the CPCB, directed that the ship breaking activities should not come up in the coastal areas of Ramnad District, particularly in Valinokkam area, though under the guidelines of the CPCB, it is permissible even in the Valinokkam area.
9. In the above background, the petitioner, while explaining the importance of ship breaking industry, by letter dated 18.6.2002 undertook to abide by the stipulations/guidelines, but inspite of such undertaking, the impugned order was issued on 18.9.2002. The petitioner has been informed that the ship breaking activity will not be permitted at Valinokkam area, in view of the probable environmental impact on the marine and coastal ecology.
10. It is contended on behalf of the petitioner that the decision denying permission is contrary to the policy of breaking activity at Valinokkam. The Central Government is the authority to decide the issue of marine pollution and the State Pollution Control Board (SPCB) cannot take a policy decision or act contrary to the guidelines framed.
11. It is further contended that the Coastal Regulation Zone Notification provides for setting up of the industries directly related to waterfront or directly needing foreshore facilities and the ship breaking industry is therefore not prohibited from operating in the coastal zone. In the environmental guidelines of the CPCB regarding the ship breaking activity, the location is not open to be altered by the State authorities and they cannot act contrary to the same.
12. While it is stated that the Water Act has no application to marine waters, it is also contended that the State has no jurisdiction over the marine areas, which is within the purview of the Central Government in terms of the Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 1976.
13. Learned counsel appearing on behalf of the TNPCB, while contradicting the aforesaid submissions, submitted that the ship breaking activity is highly polluting activity, in view of the reasons shown hereunder:
(i) To ensure the integrity of ships and to enable ships to withstand forces of stress and strain while in operation at tough marine environment, several hazardous substances and toxic materials like tributyl tin, anticorrosive paints containing lead and zinc chromate, antifouling paints containing heavy metals like mercury, arsenic, cadmium and strontium have been used in building ships. The said heavy metals are released on to the marine environment during ship breaking activities. These heavy metals are bio-accumulative in nature and could result in adverse environmental impacts due to bioaccumulation.
(ii) Breaking the ship in tidal zones results in discharge of above pollutants on to sea-water and soil. During ship breaking operations, workers who use torches to cut the hull of the ship are exposed to dust, fumes and toxic vapours containing heavy metals and polycyclic hydrocarbons. Dust containing these toxic substances contaminates the entire working area as well as the beach at which the ship is berthed. The dust and fumes generated during cutting operations pose serious threat to the environment and to the health of the workers. The toxic substances are often carcinogens and endocrine disruptors.
(iii) Other solid wastes like broken tiles, cement debris and incineration ash add on to the environmental problem. In addition, sea-water is polluted by the waste-water generated during ship breaking in terms of suspended solids, nitrates, nitrite, phosphate, heavy metal, oil and grease.
(iv) Ship breaking activity has a potential hazard of release of mineral oil on to the marine environment.
(v) Another matter of concern is the asbestos dust generated from ship breaking activities. Exposure to asbestos dust results in lung and peritoneum cancer.
(vi) Non-reclaimable oil wastes are usually burned or incinerated with other combustible scrap including plastics. Due to burning of residual oil, oil sludge, paints, glass, wool and woolen items products of incomplete combustion, polycyclic aromatic hydrocarbons, dioxins and furans, which are known carcinogens and endocrine disruptors, are released into the marine environment.
(vii) Because of the above environmental problems, ship-breaking activities are shifting from developed nations to developing countries. The pressures from the environmental groups of developed countries, stringent environment and safety regulations prevailing in developed countries and availability of cheap labour are some of the reasons for shifting such polluting industries to developing countries.
It is also contended by the learned counsel for the TNPCB that the hazards of ship breaking is not restricted only to occupational hazard and safety concerns, but it has larger impact on the environment of the area.
It is further stated on behalf of the TNPCB that the CPCB had communicated the environmental guidelines for ship breaking industries, vide letter in Lr.No.B-33014/7/97/PCI-II/18688, dated 5.12.1997 and as per the Environmental Guidelines for Ship Breaking Industries, issued by CPCB, the siting of ship breaking industries should be done in the following ways:
(i) After obtaining a certificate from the State Maritime Board/concerned Port Authority to the effect that the vessels is free from prohibited materials and that it does not contain hazardous wastes banned for Transboundary Movement as per the provisions of Basel Convention on transboundary movement of hazardous wastes.
(ii) Strictly as per the Coastal Regulation Zone (CRZ) Notification, 1991 and its amendments, no such industry shall be located in CRZ-I(i) meant for all ecologically fragile areas, viz. national parks, marine parks, coral reefs, mangrove swamps etc.
(iii) After obtaining consent of the TNPCB as required under
Section 25 of the Water Act and
Section 21 of the Air Act.
(iv) After obtaining authorisation in Form 2 as per the provisions of Rule 3(c) and 5(5) of the Hazardous Waste (Management & Handling) Rules, 1989, for handling hazardous wastes generated from the ship breaking activity.
Learned counsel for the TNPCB further submitted that the TNPCB, vide proceedings in No.HWM/31532/97-3, dated 21.5.1999, communicated the copy of the Environmental Guidelines for Ship Breaking Industries and directions were issued not to carry any further activity for breaking the ships already berthed near the seashore at Valinokkam without obtaining the consent of the TNPCB under
Section 25 of the Water Act, as amended and under
Section 21 of the Air Act, as amended from time to time. It is stated that inspite of such notice, the petitioner-industry has not taken the consent. For the said reason, the directions were issued to the petitioner to the following effect:
(i) As a pre-requisite, the ship breaking activities shall not be carried out, without obtaining a certificate from the State Maritime Board/concerned Port Authority to the effect that the vessels berthed at Valinokkam, awaiting to be broken up at Valinokkam, as scrap, is free from prohibited materials and that it does not contain hazardous wastes banned for Transboundary Movement as per the provisions of Basel Convention on transboundary movement of hazardous wastes.
(ii) Even after obtaining the said certificate from the State Maritime Board/concerned Port Authority, the ship breaking activities shall not be carried out unless the necessary infrastructures stated therein are provided as per the environmental guidelines contained in "Environmental Guidelines for Ship Breaking Industries".
(iii) The Unit shall make an application for consent under
Section 25 of the Water Act, as amended and under
Section 21 of the Air Act, as amended, for carrying out the ship breaking activities at Valinokkam, only after providing the necessary infrastructures and measures to carry out the ship breaking activities in compliance with the environmental guidelines issued by the CPCB.
It is further stated on behalf of the TNPCB that the petitioner has not complied with the provisions of the Environment (Protection) Act, 1986, by not filing any application for authorisation in Form-I as per the provisions of Rule 5(2) of the Hazardous Waste (Management & Handling) Rules, 1989, as amended in 2000, for handling hazardous wastes generated from the ship breaking activity.
14. We have heard the learned counsel appearing for the parties and perused the records.
15. "The Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones, Act, 1976, (for short, 'the Continental Shelf Act') was enacted to provide for certain matters relating to territorial waters, continental shelf, exclusive economic zone and other maritime zones of India. It was so made in respect of lands, minerals and other things of value underlying the ocean within the territorial waters or the continental shelf or exclusive economic zone.
The Continental Shelf of India, commonly known as Continental Shelf, comprises the sea-bed, subsoil of the submarine areas that extend beyond the limit of its territorial waters throughout the natural prolongation of its land territory to the outer edge of the continental margin. It will be evident from Section 6 of the Continental Shelf Act, 1976, relevant portion of which reads as follows:
"6. Continental shelf--(1) The continental shelf of India (hereinafter referred to as the continental shelf) comprises the seabed and subsoil of the submarine areas that extend beyond the limit of its territorial waters throughout the natural prolongation of its land territory to the outer edge of the continental margin or to a distance of two hundred nautical miles from the baseline referred to in sub-section (2) of S.3 where the outer edge of the continental margin does not extend up to that distance.
(2) India has, and always had, full and exclusive sovereign rights in respect of its continental shelf.
(3) Without prejudice to the generality of the provisions of sub-section (2), the Union has in the continental shelf,--
(a) Sovereign rights for the purposes of exploration, exploitation, conservation and management of all resources;
(b) exclusive rights and jurisdiction for the construction, maintenance or operation of artificial islands, off-shore terminals, installations and other structures and devices necessary for the exploration and exploitation of the resources of the continental shelf or for the convenience of shipping or for any other purpose;
(c) exclusive jurisdiction to authorise, regulate and control scientific research; and
(d) exclusive jurisdiction to preserve and protect the marine environment and to prevent and control marine pollution.
......."
Exclusive Economic Zone of India is an area beyond and adjacent to the territorial waters, and the limit of such zone has been prescribed under
Section 7 of the Continental Shelf Act and under the said provision, the Central Government has exclusive jurisdiction to preserve and protect the marine environment and to prevent and control marine pollution, and the relevant portion of
Section 7 is quoted hereunder:
"7. Exclusive economic zone--
(1) .....
(2) .....
(3) .....
(4) In the exclusive economic zone, the Union has,--
(a) ....
(b) exclusive rights and jurisdiction for the construction, maintenance or operation of artificial islands, off-shore terminals, installations and other structures and devices necessary for the exploration and exploitation of the resources of the zone or for the convenience of shipping or for any other purpose;
(c) ....
(d) exclusive jurisdiction to preserve and protect the marine environment and to prevent and control marine pollution; and ...... "
16. The CPCB, from its Ministry of Environment and Forests Department, Government of India, by letter dated 5.12.1997, forwarded to the Member Secretary of the TNPCB, Madras, the Environmental Guidelines for Ship Breaking Industries, draft of which was earlier circulated to all the concerned SPCBs as well as others for comments, and by the said letter dated 5.12.1997, the CPCB enclosed the finalised guidelines for implementation in the State. Under the said Environmental Guidelines for Ship Breaking Industries, the locations at which the activity can be undertaken have been shown, which includes Valinokkam and Tuticorin in Tamil Nadu. The primary centres lie on the West Coast at Alang, Sachana and Mumbai.
In the said Guidelines, while transboundary movement of ships, siting of industry, etc., have been shown, under Clause 4.0, the "Consent Mechanism" has been stipulated. Under Clause 4.1, it is stipulated that the individual ship breaking unit shall obtain 'Consent to Operate' from the concerned SPCB under the relevant Section of the Water Act and in case of any new unit, 'Consent to Establish' should also be obtained from the SPCB before its commissioning. Under Clause 4.2 therein, it is further stipulated that the 'Consent' should be taken from the concerned SPCB under the relevant Section of the Air Act, for common incinerator provided for a cluster of units for disposal of their wastes and the executing body responsible for running up the incinerator should get the 'Consent' in that case.
Under Clause 5.0 of the Environmental Guidelines for Ship Breaking Industries, it is accepted that the ship breaking activities are generating hazardous wastes including oil and oily sludge, paints, heavy metals, asbestos, etc., and therefore, it is stipulated that appropriate authorisation under Hazardous Waste (Management & Handling) Rules, 1989, should be taken from the concerned SPCB.
Clause 6.1 of the said Guidelines deals with the pollution generation as being committed during the ship breaking activity, which includes release of pollutants such as:
(a) fuel oil and lubricants;
(b) oil sludge in fuel/lubricating oil tanks and cargo holds of oil tankers and oil/bulk/ore carriers;
(c) solid wastes like hydrated/solidified cement;
(d) heavy metal like tin, lead and chemical constituents of paints and coatings;
(e) remnants of toxic chemicals in the cargo compartments of chemical carriers; and
(f) asbestos.
Apart from the above, significant amount of pollution is also generated from non-industrial activities. Thousands of workers have been employed in these industries without providing any toilet facility. As a result, they resort to take just the open land to ease themselves, thus creating insanitary conditions at site and posing health hazard.
17. From the aforesaid "Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones, Act, 1976", while it will be evident that the Central Government has exclusive jurisdiction to preserve and protect the marine environment and to prevent and control the marine pollution, both for "Continental Shelf" and for "Exclusive Economic Zone", in the present case, the Central Government, from its Ministry of Environment and Forests, vide letter dated 5.12.1997, issued from the CPCB, has issued "the Environmental Guidelines for Ship Breaking Industries", empowering the SPCBs to grant the "Consent" under the provisions of the Water and Air Acts, and the SPCBs have also been empowered to grant such 'Consent' under the Hazardous Waste (Management and Handling) Rules, 1989.
18. In the above background, the stand taken by the petitioner that the TNPCB cannot issue any direction to the petitioner, cannot be accepted, and such a submission is rejected.
19. Admittedly, the TNPCB asked the petitioner to obtain "Consent" under the provisions of the Water and Air Acts and the Hazardous Waste (Management and Handling) Rules, 1989, but inspite of the same, the petitioner-industry did not choose to obtain such "Consent".
20. In the above background, if the TNPCB has issued the impugned letter dated 18.9.2002 (in W.P.No.46988 of 2002) and the Tamil Nadu Maritime Board has refused to renew the lease agreement with regard to Plot No.5 in question (in W.P.No.3220 of 2003), they do not call for any interference.
21. There being no merits, both the Writ Petitions are dismissed. No costs. W.P.M.Ps. are closed.
cs To
1. Union of India, represented by The Secretary, Ministry of Environment & Forests, New Delhi.
2. The Central Pollution Control Board, Parivesh Bhavan, East Arjun Nagar, Shahdra, New Delhi-110 032.
3. Tamil Nadu Pollution Control Board, represented by its Secretary, 76, Mount Salai, Guindy, Chennai-600 032.
4. State Coastal Zone Management Authority, No.16, Mount Salai, Guindy, Chennai-600 032.
5. Tamil Nadu Maritime Board, rep. by its Chairman, "Vairam Complex" II Floor, No.112, Sir Thyagaraya Road, T.Nagar, Chennai-17.
6. The State Port Officer, "Vairam Complex" II Floor, No.112, Sir Thyagaraya Road, T.Nagar, Chennai 17