DAKSHINA KANNADA PARISARASAKTHA OKKOOTA Vs. UNION OF INDIA

JUDGEMENT

(1.) THESE Writ Petitions are filed in the nature of public interest litigation assailing the grant of permission vide Annexure-A dated 10. 9. 1998 by the Ministry of Environment and Forests, Government of India, New Delhi and Annexure-B dated 20. 12. 1997 issued by the Karnataka State Pollution Control Board, Bangalore, granting permission for establishment of Barge Mounted Power Plant at a place called Tanir Bavi in Mangalore in the State of Karnataka. The brief facts of the case as stated by petitioners as well as respondent No. 4 are as follows: the Government of Karnataka issued a notification dated 8. 12. 1995 inviting bids for setting up Barge Mounted Power Plant (hereinafter referred to as 'bmp Plant' ). After receiving the said bids, the bid of Respondent No. 4 was accepted and awarded fight to set up the BMP Plant vide order dated 5. 3. 1996. Thereafter, Respondent-4 obtained No objection certificate from the Forest Department on 13. 6. 1997. Vide proceedings dated 21st July, 1997 the Bharat petroleum has allotted 212,000 M. T. Naphtha to Respbndent-4. the karnataka Industrial Areas Development Board (KIADB) allotted the land at Tanir Bavi near Mangalore on 25. 7. 1997. The 4th respondent obtained approval from the Foreign Investment and Promotion development Board for 100% foreign investment. Approval was also, obtained for construction of transmission line (Dedicated 220 KV transmission Line) for evacuation of power from the power project on 1. 12. 1997. An agreement was entered into between the 4th respondent and the KEB on 15. 12. 1997 to purchase the power. Thereafter, approval was issued by the Pollution Controt Board on 2. 12. 1997. Respondent No. 4 entered with an agreement with M/sgueleleo inc, USA for technical advisory service on 22. 7. 1998. Writ petition No. 12790/1998 was filed by the 1st petitioner herein and another challenging only the construction of transmission towers by keb on 9. 4. 1998. In that Writ Petition, no challenge was made to environmental clearance issued to Respondent-4. Thereafter, Bharat petroleum enhanced the allocation of fuel Naphtha to 250,000 M. T. vide proceedings dated 4. 8. 1998. The 4th respondent also entered into an agreement with Bharat Petroleum Corporation for supply of fuel on 5. 8. 1998. Respondent-4 entered into an agreement with m/s SSKI Corporate Finance Ltd. , for carrying out obligations of project debt structuring on 12. 8. 1998. On 10. 9. 1998, the Government of India, Ministry of Environment and Forest has issued clearance certificate as at Annexure-A. Respondent-4 entered into an agreement with M/s Amantis International Ltd. , Singapore, for advice and placement of equity. Agreement with M/s Sargent Lundy for technical consultancy was entered into on 19. 12. 1998, Appointment of Saraswathi Consultants Pvt. Ltd. , for financial and legal matters was made on 1. 1. 1999. Later, the Industrial Development Bank of india (IDBI) has issued a letter of intent for Debt Financing of the project. Similar letters of intent were issued by the Bank of India; canara Bank and Industrial Financing Corporation of India for Debt financing of the project. The Government of Karnataka issued a letter of Guarantee on 3. 4. 1999 asssring on behalf of the 4th respondent to KEB that in case the project is stopped, rupees ten crores will be paid to the KEB. Further, Respondent No. 4 entered into a Memorandum of Understanding with Hyundai Engineering and construction Company, Korea, for technical assistance. Similarly, it entered into an agreement with M/s White Case, New York, as Legal consultants. It entered into an agreement with Spark Resources Pvt. Ltd. , for obtaining financial and legal services on 30. 4. 1999. Agreement with Asea Brown Boveri Ltd. , for erection of 220 KV switch yard was entered into on 24. 7. 1999. Respondent-4 further entered into an agreement with Simplex Concrete Piles India Ltd. , for setting up grading, piling and construction of office and filling up work on 7. 8. 1999 and an advance of Rs. 15 lakhs was paid. On 24. 8. 1999 an agreement with Afcons Ltd. , was entered into for purpose of construction of Sea Water Pipeline and pump house. Respondent-4 entered into a Memorandum of Understanding with m/s Natwest Construction Ltd. , for carrying out the land filling works and construction of administrative building and excavation and construction of barge mooring area and advanced a sum of Rs. 4. 30 crores. On 13. 9. 1999. it entered into an agreement with M/s h. R. Wallingford Ltd. , U. K. for consultancy regarding sea water systems. According to respondent No. 4, they have invested more than Rupees two and half crores now apart from other loans taken from different institutions stated supra. It is further stated that Bharat petroleum has constructed a building for their establishment at the estimated cost and further cost of Rs. 15 crores and already spent rs. 6 crores on construction. KEB also has put up their power transmission towers at a huge cost. Thus, as per the facts stated above by the petitioners as well as Respondent-4 the project is in advanced stage as there is much progress from the year 1995 when the bids were called by the Government of Karnataka. Petitioners have now filed the Writ Petitions assailing grant of permission vide Annexure-A by the Ministry of Environment and forests dated 10. 9. 1998 and to quash the same by issue of a writ of certiorari and also to quash the permission granted by the 3rd respondent as per Annexure-B dated 20. 12. 1997. Further, they have prayed for issue of a writ of mandamus directing the 1st and 3rd respondents to withdraw the clearance accorded to the 4th respondent to set up the BMP Plant at Tanir Bavi holding that the said clearance and NOC are wholly illegal, arbitrary, without jurisdiction, violative of Articles 14 and 21 and the provisions of the environment (protection) Act, 1986 and the Notifications issued thereunder. To further declare that the proposed BMP Plant is in a no Development Zone in terms of the Costal Regulation Zone notifications (CRZ Notifications) and the proposed plant to be set up by the 4th respondent, is a prohibited activity under the CRZ regulations. The learned Counsel for the petitioners firstly contented that the permission granted to the BMP Project is in violation of the CRZ notifications and therefore the same is liable to be quashed. It is secondly contended that even assuming for a moment that permission could have been accorded by the respondents to set up a plant in question, it must be done only after public hearing as provided under Section 3 of the Environment (Protection) Act, 1986 (for short, EP Act ). As the same is not followed, the said permission is bad in law. Elaborating his contentions, it is stated that the site falls in the place which is in the no Development Zone as it is situated between Sea and Gurpur river. Apart from it, it is contended that no factory or industry can be established upto 100 Mts. from high tide line of the river and 500 Mts. from the high tide line of the Sea in a no Development Zone. The permission granted under Annexures-A and B are violative of CRZ notifications and therefore liable to be quashed. The learned Counsel appearing for Respondent No. 4 contended that the Writ Petitions are belated as the entire process has started in the year 1995 and crores of rupees have been invested by respondent-4, Bharat Petroelum, KEB and number of financial institutions. Respondent No. 4 has entered into agreements with different organisations to facilitate smooth completion of the project. There is scarcity of Electricity in the State of Karnataka and therefore the Government thought to establish such a project and called for the bids to augment electricity production in the State. If the process of erection of the project for production of electricity is interfered at the instance of some busy bodies in the name of public interest litigation, it causes heavy damage not only to Respondent-4 but also to the society at large as well as the Government and other public and statutory bodies. Writ Petitions are belatedly filed and on the ground of laches itself, they are liable to be dismissed. tt is further contended that there is no public interest as the 1st petitioner alongwith another had filed Writ Petition No. 12790/1998 and in that Writ Petition and 2nd petitioner therein withdrew after taking Rs. 50 lakhs to rehabilitate all the residents of Tanir Bavi locality. Respondent No. 4 has rehabilitated all of them apart from paying heavy amount of Rs. 50 lakhs. 1st Petitioner being one of the parties in earlier Writ Petition, cannot approbate and reprobate. Further he is estopped by the principles of res judicata as he has not raised all these facts in the earlier Writ Petition, though he was aware of the fact that the project is going to be commenced. Though permission is granted to Respondent-4 in the year 1997 and 1998, petitioners were aware that such a project is going to be erected as they themselves had filed Writ Petition earlier. These Writ Petitions are filed to harass Respondent-4 and to cause one or the other obstructions in the progress of the project which is required in the interest of the Nation. The learned Counsel for Respondent-4 further contended that keb has already spent Rs. 8 crores for erection of transmission towers and Bharat Petroleum has spent more than Rs. 6 crores for setting up its office. Respondent-4 has also spent a sum of Rs. 2,550. 67 crores apart from the other expenditure incurred by them after obtaining the amount from other financial institutions. The KIADB has allotted the land on payment of lease amount of Rs. 16. 67 lakhs. Several public bodies have entered into agreements and have invested huge amounts to facilitate advancement of the project so that the electricity production will commence at the earliest. These writ Petitions are filed only to harrass and is motivated and not in public interest. On the other hand, it is a personally motivated Writ petition. It is further contended that there is an efficacious and alternative remedy of appeal under Section 11 of the National Environment appellate Authority Act, 1997 and the present Writ Petitions in the nature of public interest is not maintainable. If any interference is made it will cause hardship and loss in crores of rupees not only to respondent-4 but also to different institutions who have participated in the project. Therefore the Writ Petitions are liable to be dismissed with exemplary costs. In view of the above stated contentions, the 1st point to be considered is whether the Writ Petitions, at this stage, can be entertained when there is long delay and laches on the part of the petitioners in not approaching the Court in time. From the facts stated supra, it is evident that the process started in 1995 and now the project is at the advanced stage. Respondent-4 has entered into agreements with different organisations including financial institutions and statutory bodies apart from taking the land on lease by spending huge amount. It is also not disputed that different bodies and organisations are involved in the project apart from Government and keb. The power transmission towers by the KEB were erected earlier to 1997. Assailing the same, the 1st petitioner herein alongwith another filed Writ Petition No. 12790/1998. In that Writ Petition, they had challenged only erection of power transmission towers for transmitting power to the project. In that Writ Petition no challenge was made to grant of permission. It is also not disputed that one of the Writ Petitioners in the earlier Writ Petition has taken the money from the present Respondent No. 4 to the extent of Rs. 50 lakhs and respondent-4 also has rehabilitated all the inhabitants of that area by spending huge amount. The present petitioners, according to the averments made in the Writ Petitions, is a federation of several voluntary organisations, taluk level federations of environmentalists and individuals. According to them, they are very active in environmental protection and protecting the rights of so many communities. When they are so active and particularly when the 1st petitioner had filed a Writ Petition earlier alongwith another, the contention that they were not aware of the order passed by the government of India at Annexure-A and the order passed by the pollution Control Board at Annexure-B, is not tenable. If really they had any public interest, they ought to have filed the Writ Petitions immediately and challenged the said notifications. The inaction on the part of the present petitioners and the conduct of one of the petitioners withdrawing the Writ Petition after taking money would go to show that this belated exercise is only for their personal interest, but not in public interest. No plausible explanation is given by the petitioners for filing the Writ Petitions at such a belated stage. On the ground of laches itself, the Writ Petitions are liable to be rejected. The facts stated supra clearly show that the exercise started in the year 1995 and now the project is in the advanced stage involving the Government, Bharat Petroleum, KEB and number of financial institutions and foreign institutions by spending huge amounts for production of electricity. The total expenditure now incurred runs to crores of rupees. There is no dispute that there is acute power shortage in the State of Karnataka and urgent augmentation of electricity in the State is required. If the project like this which is in national interest is stalled at the instance of some busy bodies in the nature of public interest, it causes collosol loss and damage to the progress of the Nation. Therefore, the Courts will have to be vigilant in entertaining such public interest litigations where it is a litigation with some personal interest and oblique motives. On this ground also, these Writ Petitions do not deserve to be entertained. The environmental clearance accorded by the Government of india is subject to implementation of the conditions laid down therein (Annexure-A ). Sub-clause (ii) of Clause 2 of Annexure-A provides that project layout should be in conformity with the provisions of coastal Regulation Zone Notification of February, 1991 and its amendments and also the approved coastal Zone Management Plan for Karnataka. Sub-clause (xxii) thereof provides that a Monitoring committee should be constituted for reviewing the compliance of various safeguard measures by involving recognised local NGOs, pollution Control Board, Institutions, Experts etc. , Clause 3 of the permission empowers the Ministry to revoke the clearance if conditions stipulated are not implemented to the satisfaction of the ministry. The CRZ Notification dated 19. 2. 1991 provides for monitoring and enforcement as follows:

(2.) ILR 1997 KAR 2956 (DB)Congentrix Project - Held : Clearance by Ministry of environment and Forests does not violate CR2 as; (a) Plant is outside CRZ; (b) Due care taken in fixing parameters within which project proponents are to act; (c) Conditions prescribed by authorities for prevention of pollution. (d) elaborate details of MOU between State and corporation; (e) Materials on record show application of mind. It becomes very difficult for the Court in Judicial review to upset a decision of the authorities fixing standards, which are informed and based on expertise. SLP against the said order dismissed vide order dated 23. 2. 98.

(3.) (1999) 3 Comp LJ 242 (Bom) (DB)Tata Hydro Electric Power Project - LPG facility challenged as being violative of CRZ. HELD: No breach of CRZ Rules -Various licenses and clearances granted by statutory bodies did not suffer from illegality or mala fides in view of records and, technical materials - Courts defer to experts on technical matters and to Executive on policy matters.