A Petition filed by Meenava Thanthai Nala Sangam challenged the clearances that were granted to K.T.V. Health Food Private Ltd. by Union of India. The purpose behind laying pipeline was for transfer of edible oil from Chennai Port to the storage terminal tank and establishment of storage transit terminal at Tondiarpet Village and Taluk in Chennai District. The Appellant is an organization engaged in protecting the coastal zone and the welfare of the local fishermen community. When the appellant came to know that K.T.V. Health Food Private is engaged in making some construction in the CRZ Zone without getting necessary clearance from the authorities, he filed an Original Application.
The main contentions raised in the appeal were that the firm commenced operations without getting the mandatory prior CRZ clearance. Later, it obtained ex-post-facto clearance which was not permissible under CRZ Notification, 2011 and these projects could be established only “in notified port”. The Appellant contended that the Coastal Regulation Zone Clearance granted to the 4th Respondent was illegal and the same was liable to be set aside and they filed the appeal seeking for reliefs.
The counsel for KTV, Union Environment Ministry and TNCZMA argued that ex-post facto clearance was permissible and storage of edible oil, which is non-hazardous, was a permissible activity, and as such, the clearance granted was legal. The firm had also laid an underground pipeline measuring about 5 km, for transfer of edible oil from Chennai port to storage terminal tank.
However, the Petitioner’s counsel argued that as per CRZ Notification, storage of non-hazardous cargo such as edible oil, and fertilizers, could be established only in notified port, and as per KTV’s own submission, the terminal was about 5.3 km from the city port jetty.
The principle of Hyden’s was reiterated in the case of Workmen of Jimithi Tea Estate Vs. Management of Jimithi Tea Estate AIR 1958 SC 353, R.L.
In the case of in Lafarge Umiam Mining Private Limited Vs. Union of India 2011 (7) SCC 338, it has been held that there is no concept of giving ex-post-facto clearance either under the EIA Notification, 2006 or under the Environment (Protection) Act, 1986 and the past act of violation cannot be ratified by providing an ex-post-facto clearance and it will not have a retrospective operation but it will have an only prospective operation from the date on which it was issued and till then the act committed by the project proponent will be deemed to be unauthorized or an illegal act for which he will have to pay environmental compensation applying the “Polluter Pays” principle.
The tribunal had to consider as to how the two clauses could be harmoniously construed for the purpose of making both of them more congenial and conducive. The principle of Hyden’s Rule of interpretation (remove the mischief and advance the purpose) could be used by the Courts while interpreting the particular provision of enactment only if the Court felt that unless it was differently interpreted, the purpose and intention of the legislature in enacting the provision itself would be defeated or end in absurdity.
With these principles in mind, this Tribunal had to consider the question of interpretation of the word “in the notified port” and “within the notified port.
After hearing both the sides, the tribunal decided that the activity was not a permissible activity within the CRZ-2 zone as it has to be established beyond the port area. Even assuming that the amended notification of 2018 can be made applicable for granting the ex-post-facto clearance if such application were filed within the specified time mentioned therein, the Bench ruled that even then it cannot be treated as a category permissible activity falling under that notification.
“So under such circumstances, the authorities were not justified in considering the application and granting ex-post-facto clearance to an activity which is not permissible and the same is unsustainable in law and hence, the clearance is liable to be set aside,”
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