M/S. SOUTHERN PETROCHEMICAL INDUSTRIES CORPN. LTD. versus S. JOEL & ORS. on 4 February 2019

O R D E R

1. Appeals Admitted.

E2. This batch of appeals arises from a decision of the NationalGreen Tribunal[1] dated 28 November 2018.[1]

3. On 15 June 2004, the Government of India in the Ministry ofEnvironment and Forests[2 ]issued guidelines regulating the diversion offorest land for non-forest purposes under the Forest (Conservation) Act1980. These guidelines were clarified on 3 January 2005. The guidelinesFdelegate to the state governments the authority to permit diversion offorest land up to one hectarefor the purpose of government departmentsfor public utility purposes. The permissible activities are :

“1. Schools;

2. Dispensary/hospital;

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3. Electric and Telecommunication lines;

4. Drinking water;

5. Water/rainwater harvesting structures;

6. Minor irrigation canal;

1 “The Tribunal”H2 “MoEF”

7. Non-conventional sources of energy;

8. Skill up-gradation/vocational training centre;

9. Power sub-stations;

10. Communication posts; and

11. Police establishments like police stations/outposts/border outposts/ watch towers, in sensitive areas (identified by Ministry of Home Affairs).”

(emphasis supplied)

4. Based on the above guidelines of the Government of India,on 7 March 2008, the Government of Tamil Nadu accorded approval fordiversion of 0.055 hectares of forest land in Sy.No.600 of SrivaigundamVillage in Thoothukudi Division of the Tamil Nadu Water Supply andDrainage Board (TWAD Board) for construction of an intake well (along“”with a control room and foot bridge) fordrinking water purposes. Thispermission was subject to certain conditions. The facility has been setup.

5. A proceeding was instituted before the National Green Tribunalby the first Respondent, complaining that instead of confining the use ofwater for drinking purposes, TWAD Board has permitted the use ofwater for industrial purposes.

6. The Union Ministry of Environment, Forests and ClimateChange (MoEF&CC) submitted before the Tribunal that if the proposalinvolved a diversion of forest land both for drinking water and industrialpurposes, then it would not fall within the purview of the “Generalapproval” category under the Forest Conservation Act, 1980. MoEF&CCsubmitted that the user agency had acted in violation of the Act by utilizingan additional area measuring 0.025 hectares of forest area for non-forestrypurposes in addition to a change in the purpose for which the approvalwas accorded by the State Government.

7. TWAD Board submitted before the Tribunal that on 23 July2018, it has moved the State Government to approach MoEF&CC forits clearance, so as to permit the use of the area in question for bothdrinking water and industrial purposes.

8. The proposal submitted by TWAD Board has not yet beenreceived by the Union Government. It is pending with the Governmentof Tamil Nadu.

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A9. The Tribunal issued a direction to the TWAD Board to prohibitthe use of water drawn under the forest clearance for 0.055 hectaresfor industrial purposes, since it was granted only for the purpose of drinkingwater. The Tribunal, however, clarified that it was not prohibiting the useof water for drinking purposes by housing colonies, schools, hospitals,etc. and the prohibition was only confined to the industrial units.B

10. During the pendency of the proceedings before the Tribunal,an interim order was initially passed on 31 May 2017, in the followingterms :

“In so far as the area concerned, the water shall be drawnConly for supply of drinking water. Therefore, there shall be aninterim order directing the respondents to strictly act in accordancewith G.O.Ms.18 Environment and Forest (FR.10) Departmentdated 7.3.2008 supplying water only for drinking purpose untilfurther orders of this Tribunal.”

11. This order was modified on 7 July 2017, to the following Deffect :

“Therefore, as an interim arrangement, we modify our orderdated 31.5.2017 to the effect that the situation which was inexistence before our interim order dated 31.5.2017 shall becontinued, however, subject to the condition that the 3rdErespondent Board shall closely scrutinise whatever water isrequired for industrial purpose and also subject to the conditionthat sufficient quantity of water is available for drinking purposefor the people.”

The above arrangement held the field until the proceedings wereFdisposed of by the impugned order.

12. Initially, when this Court was moved in a batch of civil appeals,on 11 January 2019, a grievance was urged on behalf of Tuticorin ThermalPower Plant to the effect that as a result of the order of the Tribunal,serious hardship was faced in its operational activities and that the situationGwas assuming a critical dimension in the absence of regular supply ofwater. Accordingly, while issuing notice this Court directed that theorder of the Tribunal shall remain stayed insofar as the Tuticorin ThermalPower Plant is concerned, subject to the condition that drinking waterneeds are fully met. This Court clarified that any supply thereafterofsurplus water to the power plant shall be in accordance with the termsHof the interim order (of the Tribunal) dated 7 July 2017, extracted above.

TWAD Board was directed to file an affidavit indicating

i) the extent of water which is available for distribution;

ii) the water which is required to fully meet the drinking water needs; and

iii) the surplus, if any, that is available.

13. On 28 January 2019, finding that the TWAD Board had notindicated a bifurcation of the requirements of water for drinking andindustrial use, this Court called for fresh affidavits on the anticipatedrequirements for the period between 1 February 2019 and 30 June 2019.An affidavit has been filed on 31 January 2019 on behalf of the Board.

14. Learned senior counsel appearing on behalf of the Boardhas drawn our attention to relevant extracts from the affidavit, in supportof the submission that even after meeting drinking water requirementsfully, there is surplus water available which can be allocated for industrialuse. The affidavit indicates that requirement of water for drinking,irrigation and other industrial purposes, in Tirunelveli and ThoothukudiDistricts, is met from the water drawn from Tamirabarani River. Forthat purpose, water is released from three dams, namely, (i) PapanasamDam; (ii) Servalaru Dam; and (iii) Manimuthar Dam. Paragraph 6 ofthe affidavit is extracted below :

“6. The Water Account details as annexed prepared to knowthe storage position of dams and anticipated Inflow of waterfrom the data obtained form the office of the PWD and ElectricityBoard as detailed below :-

i) Expected inflow of water and the storage of water tobe used is 10285.60 MCft (31.01.2019 to 30.06.2019)

ii) Losses due to evaporation and leakages is estimated as1028.56 MCft

iii) Balance quantity of water is 9257.04 MCft

iv) Water requirement for drinking use from 1.01.2019 to 30.06.2019

(150 days x 167.73 Cusecs x 0.0864) is 2173.78 MCft [.0864 is conversion factor from cusecs to MCft]

v) Water required for industrial usage from 31.01.2019 to30.06.2019 (150 days x 52.27 cusecs x 0.0864) is 742.22 MCft

vi) Anticipated average release of water from 31.01.2019to 31.03.2019, 1000 cusecs per day for irrigation (60 days x1000 cusecs x 0.0864) is 5184.80 MCft A

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Avii) Expected inflow and available storage for use of damon 30.06.2019 is (9257.04 -(2173.78 + 742.22 + 5184.00)=1157.04 MCft”

15. Accordingly, it has been submitted that the water availablein the dams is sufficient to meet the requirement of water for drinking,Birrigation and industrial purposes upto 31 March 2019 and for meetingthe requirement of water for drinking needs and industrial purposes upto30 June 2019 in both Tirunelveli and Thoothukudi Districts. The affidavitstates that in case there is any shortfall in the expected inflow, it will becompensated with the seasonal rains in the lower part of the dams inTamirabarani River basin and irrigation tanks, as per the report of theCPWD authorities. Finally, it has been stated that if any shortfall arises inthe expected inflow of water, the first priority will be given to drinkingwater requirements.

16. Placing reliance on the affidavit which has been filed by theTWAD Board, Shri Ranjit Kumar and Shri Huzefa Ahmadi, learned seniorDcounsel submitted that it would be appropriate if the stay granted by theTribunal is modified so as to permit the release of water for industrialpurposes, subject to the drinking water needs being fully met. Learnedcounsel submitted that a blanket stay of the nature which has been issuedby the Tribunal will not serve any purpose.E17. On the other hand, Ms. Anitha Shenoy, learned counsel E17. On the other hand, Ms. Anitha Shenoy, learned counselappearing on behalf of the first respondent, who is the original petitionerbefore the Tribunal, submitted a chart containing the data of theGovernment of India in the Ministry of Earth Sciences (IndiaMeteorological Department), Regional Meteorological Centre, Chennai.Learned counsel submitted that for Thoothukudi District official statisticsFshow that the rainfall as of 31 January, 2019 has been below normal (-100 or as the case may be -92). Moreover, on the basis of the datacollated from the affidavit of the Board, it has been submitted that thereis a precipitous decline in the current position of water in the reservoirsin Tirunelveli District and in consequence, it would not be appropriate toGissue any direction, modifying the direction of the Tribunal.

18. We may note that it was urged on behalf of the appellantsthat the permission which was granted on 7 March 2008 by the StateGovernment for the diversion of 0.055 hectares of land for the constructionof an intake well for drinking water purposes, did not contain a prohibitionHfor utilizing the water for industrial purposes. We cannot accept the submission. Both before the Tribunal as well as before this Court, theconsistent position of the State Government as well as of MoEF&CChas been that Government of India delegated its authority under theForest Conservation Act, 1980 to the states to grant a diversion of forestland upto one hectare and for specified projects of a public utility. Amongthem is drinking water. Hence, in the face of this position, the submissioncannot be accepted.

19. The position as it now exists is that TWAD Board has movedthe State Government with a proposal to seek the clearance of MoEF&CCfor the purpose of authorizing the use of the surplus water also for industrialpurposes under the Forest Conservation Act, 1980. TWAD Boardsubmitted before this Court that even after meeting the drinking waterrequirements fully, a surplus of water is available which it may bepermitted to utilize for industrial purposes. On the other hand, as wehave noted earlier, this is disputed on behalf of the petitioner before theTribunal who has submitted that there has been a paucity of rain fall, asa result of which, Thoothukudi District has recorded scarcity conditions.

20. In our view, it would be necessary for this Court to put inplace an administrative mechanism that would ensure that a decision torelease water for industrial purposes is monitored by the Collector of theDistrict who shall conduct a due verification of the data which is availablewith the TWAD Board. The Collector should independently assess thesituation so as to ensure that the need for drinking water and irrigation isnot compromised.

21. We, accordingly, direct that within a period of one weekfrom today the Collector responsible for Thoothukudi division shallconvene a meeting of all the concerned departments, including the PublicWorks Department, the Irrigation department and the TWAD Board.The Collector shall ascertain whether any surplus water is availableafter fully meeting the requirement for drinking water. The Collectorshall conduct a fortnightly review of the position thereafter to determineas to whether any further direction or modification is required to meetthe exigencies of the situation. If the Collector does find that the datawhich has been produced is adequate to sustain the conclusion in regardto the availability of surplus water after fully satisfying the need fordrinking water, directions may be issued for allocating a suitable quantityof water for industrial purposes. We reiterate that this should be withoutin any manner compromising the present and anticipated drinking water A

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Aneeds of the residents of the district concerned. Until the Collector takesa decision and for one week from today we restore the position as itobtained under the interim order of the Tribunal dated 7 July 2017 tofacilitate the supply of water for industrial purposes, including for theTuticorin Thermal Power Plant. This is subject to the condition thatdrinking water requirements are fully met on priority. Thereafter, partiesBshall abide by the decision of the Collector. Until the Collector takes adecision, the interim order which we have passed in the case of TuticorinThermal Power Plant shall also continue in operation.

22. Insofar as the proposal under the Forest (Conservation) Act1980 is concerned, we are apprised that TWAD Board had forwarded itCto the State Government on 11 June 2018. We have been apprised thatthere were communications between the State Government and the Boardwith a view to rectifying certain deficiencies in the proposal. Be that asit may, we direct that within a period of two weeks from today, a jointmeeting be held of the representatives of the State Government and ofDthe TWAD Board to resolve the issue. The proposal shall thereupon beforwarded to MoEF&CC within three weeks from today. The competentauthority shall take a decision on the proposal in accordance with lawwithin a period of two months thereafter. Any allocation of water forindustrial purposes in the meantime shall abide by such final decision asmay be arrived at by the Union of India after considering the proposal.EWe have not expressed any opinion on the merits of such a proposal.

23. We dispose of the appeals in the above terms. Pendingapplications, if any, shall also stand disposed of. There shall be no orderas to costs.

FKalpana K. Tripathy

Appeals disposed of

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