CRZ Notification 2011 : Storage Facility For Edible Oil Not Allowed Outside Port Area; Supreme Court Affirms Quashing Of Post-Facto Clearance

The Supreme Court, on Wednesday, noted that the word ‘within’ used for CRZ-I and ‘in’ used for CRZ-II in the CRZ Notification of 2011 cannot be interpreted to include what is outside the port areas. It is pertinent to note that in CRZ-I, the “storage of edible oil inter alia is permitted within the notified ports” and in CRZ-II, the storage of non-hazardous cargo such as edible oil, fertilizers and foodgrain is permitted ‘in notified ports’.A 3-Judge Bench comprising Justice K.M. Joseph, Justice B.V. Nagarathna and Justice J.B. Pardiwala passed the order while uploading the decision of the National Green Tribunal, Southern Zone (NGT), which set aside the ex post facto clearance granted by the Union Government to an edible oil processing and refining company (appellant) to lay pipeline for transfer of edible oil from Chennai Port to the storage transit terminal. The said clearance was provided on the strength of Paragraph 4.3 of the CRZ Notification, 2011. The NGT had found that the activity of putting up a storage tank transit terminal, is in the teeth of the 2011 Notification. Factual Background The appellant is in the business of processing and refining edible oil. It imports edible oil through Chennai Port. In 2014, through public auction it purchased a storage facility located in the Ennore Expressway. In order to lay an underground pipeline of 4.5 km to the facility, it approached the concerned authorities seeking approval. The Chennai Fishing Harbour Management Committee, the NHAI, the Chennai Port Trust granted permission. On 10.07.2015, as per 2011 Notification it made a proposal to the District Coastal Zonal Management Authority (DCZMA), Chennai. The DCZMA recommended the proposal; then Tamil Nadu State Coastal Zonal Management Authority considered the proposal and forwarded it to the MoEF-CC, Union of India through the State Government. Thereafter, the Expert Appraisal Committee, CRZ, sought two clarifications. On 24.08.2016, the Chennai Port Trust issued a certificate and granted permission. While the recommendation was pending before the MoEF-CC, the appellant started laying pipelines. On 19.10.2016 an application was filed before the NGT against the same. Consequently, a Local Commissioner was appointed to inspect the storage facility. The NGT noted that no activity would be carried out at the facility until MoEFF-CC takes a decision. At proceedings dated 08.03.2019, the MoEF-CC granted post facto clearance. On 08.04.2019, an appeal was filed before the NGT. The NGT set aside the proceedings dated 08.03.2019 whereby the appellant was granted clearance to lay pipeline for transfer of edible oil for the Chennai port to the storage terminal tank and for the establishment of the storage transit terminal of the appellant. It held that the activity of putting up a storage tank transit terminal was contrat to the 2011 Notification and thus illegal. The matter reached the Supreme Court. A similar case arose with respect to the sister concern of the appellant and was considered alongside. Analysis by the Supreme Court By way of Notification issued in the year 2011 under the Environmental Protection Act, 1986, the Central Government declared certain areas as Coastal Regulation Zone. Clause 2 of paragraph 4 of the Notification provides the procedure for clearance from MoEF-CC to conduct permissible activities. Initially, the 2011 notification did not provide for ex post facto approval. In 2018 paragraph 4.3 was inserted to the Notification, which made provision for post facto clearance for permissible activities. However, projects which are in violation of CRZ norms are disentitled to take advantage of the post facto clearance. The Court looked at the object of the law and enumerated the same as under -ensuring livelihood security to the fisher communities and other communities living in the coastal areas, conservation and protection of coastal stretches,the protection of the unique environment of the coastal stretches and its marine area,promotion or development through sustainable manner based on scientific principles taking into account the dangers of natural hazards in the coastal areas; the aspect of sea level rise due to global warming.In view of the same, it rejected the contention of the appellant that laying the pipeline would enhance the efficiency of the port; reduce the traffic congestion, and reduce pollution. It was argued by the appellant that the phrase used for CRZ-I is ‘within’, while for CRZ-II the phrase used is ‘in’. In M. Nizamudeen v. Chemplast Sanmar Limited And Ors., the Supreme Court had interpreted ‘in the port areas’ as ‘in or through the port areas’. The Court noted that the context of the judgment was different and is inapposite to the present case. On perusal of the NGT’s order, it was understood that ‘in’ includes ‘so as to be enclosed, surrounded or inside’. The Court clarified that the words ‘within’ and ‘in’ cannot include what is outside the port. The Court noted...

CRZ Notification 2011 : Storage Facility For Edible Oil Not Allowed Outside Port Area; Supreme Court Affirms Quashing Of Post-Facto Clearance

Sohini Chowdhury

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