BSES LIMITED Vs. UNION OF INDIA

JUDGEMENT

(1.) THE first petitioner herein, BSES Limited, is a company registered under the Indian Companies Act, 1913, having a Thermal Power Station at Dahanu, in the State of Maharashtra, which has challenged the decision of the Dahanu Taluka Environment Protection Authority (DTEPA, for short), an authority constituted under the provision of section 3 (3) of the Environment Protection Act, 1986 ("the Act", for short) dated 12th May, 1999, whereby it has directed the petitioners to instal a Flue Gas Desulphurisation (FGD) Plant for environmental safety and protection and for the well-being of the people of Dahanu. It has been directed to start the installation of the FGD Plant within a period of 6 months, and to complete the work within a reasonable time. The petitioners had preferred and appeal before the Ministry of Environment and Forests, Government of India, against the impugned order of DTEPA, but the same was not entertained on the ground that no appeal was provided for against the decision of the authority before the Ministry of Environment and Forests under the notification constituting DTEPA. The order of rejection of the appeal is exhibit "hh", dated 29th July, 1999. Thereafter, the petitioners had filed a review petition before DTEPA. That was also rejected by DTEPA on 28th September, 1999, observing that there was no provision for a review, and additionally, no new material had been placed before DTEPA justifying a review, even if such review was permissible. The said Extract of Minutes of Meeting of DTEPA has been filed as Exhibit A-3. Though, in this writ petition, it was prayed that respondent No. 1 be directed to review the order dated 12th May, 1999, as it had authority to do so, no submissions were advanced before us in this regard.

(2.) AT the threshold, it may be noticed that by notification dated 20th June, 1991, the Government of Maharashtra in the Ministry of Environment and Forests, in exercise of powers conferred by Clause (v) of sub-section (2) of section 3 of the Act, in consultation with the Government of Maharashtra, after considering the need for protecting the ecologically sensitive of Dahanu Taluka, and to ensure that the development activities are consistent with principles of environmental protection and conservation, has declared Dahanu Taluka, in the District of Thane (Maharashtra), as an ecologically fragile area, and has imposed restrictions on the setting up of industries which have detrimental effect on the environment. It is well-known that the local economy of Dahanu is totally dependent upon the orchards, fisheries and minor forest produce, as it is an ecologically fragile area. By the aforesaid notification, industries have been classified under three categories, viz. , Green, Orange and Red, for the purpose of permitting/restricting such industrial activities in Dahanu Taluka on the basis of environmental and ecological considerations. In the Green Category are industries that can be considered by the Maharashtra Government agencies for approval or rejection in approved industrial areas without prior approval of the Ministry of Environment and Forests, Government of India, subject to the conditions laid down in the notification being fulfilled. Even in respect of industries included in the Green Category, only those industries that do not use coal in their manufacturing processes are to be permitted. In the Orange Category are industries that can be permitted with proper environmental assessment and adequate Pollution Control measures in sites that have been approved by the Ministry of Environment and Forests, Government of India. The Red Category contains list of industries that cannot be permitted in Dahanu Taluka, and includes "industries based on the use of coal/coke". Since this notification has been issued on 20th June, 1991, the fact that Dahanu Taluka is an ecologically fragile area, must be kept in mind while considering the issues that arise in this writ petition.

(3.) THE first petitioner, BSES Limited, initially, was a licensee for distribution of electricity under section 3 of the Indian Electricity Act, 1910, but, since 1976, as a condition of the licence, it was required to erect its own 500 MW Power Station for direct supply to its licensed area of distribution. The licence was renewed from time to time, and ultimately on 21st July, 1988, the Government of Maharashtra gave its clearance to the BSES Limited to set up the Thermal Power Station at a site in Dahanu on certain terms and conditions. The conditions relevant are the following :---