IMPORTANT POINT
Every port falling under Indian Port Act and Major Port Act may not be on their own become a customs port – Violation of ‘norms’ would disentitle a person to post facto clearance.

JUDGMENT :

K.M. JOSEPH, J.

1. The Appeals are lodged under Section 22 of the National Green Tribunal Act, 2010.

C.A. NO. 3626 OF 2020 (THE FIRST APPEAL)

2. The appellant challenges the Order passed by the National Green Tribunal (NGT), Southern Zone. By the impugned Order, the NGT has allowed the appeal filed by Respondent No.5 and set aside proceedings dated 08.03.2019. By the said proceedings, Respondent No.1 had granted ex post facto clearance purporting to invoke paragraph-4.3 of the Notification issued in the year 2011 (hereinafter referred to as, ‘the 2011 Notification’) under the Environment Protection Act, 1986 (hereinafter referred to as, ‘the Act’). By the said clearance, the appellant was given clearance for the laying of pipeline for transfer of edible oil from the Chennai Port to the storage terminal tank and for the establishment of the storage transit terminal of the appellant. The NGT has found that while the ex post facto clearance could be granted under paragraph-4.3, and that it would have prospective operation, however, the activity of putting up a storage tank transit terminal, being contrary to the 2011 Notification, the same was illegal. It was found to be illegal in turn, on the ground that the storage terminal was not located ‘in’ the Chennai Port, in which case alone, it would have been permissible under the permitted activities of Coastal Regulation Zone II (for short, ‘CRZ II’).

THE FACTS

3. The appellant is in the business of processing and refining edible oil. Towards the said business, the appellant imports edible oil. The edible oil is imported through the Chennai Port. On 05.11.2014, in the public auction, the appellant purchased an existing storage facility. It was located at Old Door No. 4061/A and New Survey No. 4061/2 in the Ennore Expressway. The appellant thereafter, according to it, started the process to seek approvals for laying an underground pipeline of 4.5 kilometres to the said storage facility. On payment of Rs.5097921/-, the Chennai Fishing Harbour Management Committee granted permission to lay the underground pipeline. The NHAI granted permission to lay the underground pipeline. On 03.03.2015, allegedly based on inspection of the storage facility, and on payment of charges, including service tax, the Chennai Port Trust granted permission for laying the underground pipeline from the Chennai Port to the storage facility. On 10.07.2015, purporting to act under paragraph-4 of the 2011 Notification, the appellant made a proposal to the District Coastal Management Authority, Chennai (hereinafter referred to as ‘the DCZMA’). It would appear that the said Body recommended the proposal. The third respondent, viz., the Tamil Nadu State Coastal Zonal Management Authority (hereinafter referred to as, ‘the State Authority’) considered the proposal and it forwarded the same through the second respondent, viz., the State of Tamil Nadu to the first respondent, viz., the Union of India, in the Ministry of Environment and Forests and Climate Change. Respondent No.4, viz., the Expert Appraisal Committee, CRZ, sought two clarifications. On 24.08.2016, the Chennai Port Trust issued a Certificate and permitted the laying of the pipeline, which, according to the appellant, was based on the need to avoid usage of tanker lorries and as it resulted in better handling of vessels at the Port. While the recommendation of the third respondent was pending before the first respondent, appellant started laying the pipeline with the prior permission of the NHAI, the Chennai Fishing Harbour Committee and the Port Trust. On 19.10.2016, Respondent No. 5 filed O.A. No. 238 of 2016 against the activities of the appellant in question. A Local Commissioner was appointed, who inspected the Facility. We may, at this juncture, notice the following physical features noticed during the inspection.

“1) The premises of the 12th Respondent (in A. No. 238 of 2016), M/s. KTV Health Foods Pvt. Ltd., is situated at No.1, 2, 3, Suriyan