Supreme Court of India
M/S. SOUTHERN PETROCHEMICAL INDUSTRIES CORPN. LTD.versusS. JOEL & ORS.
- Citation
- 2019 INSC 233
- Decided
- 4 February 2019
- Disposal
- Disposed off
Holding
The Court held that the Collector must independently assess surplus water after meeting drinking‑water needs and may permit its use for industrial purposes, restoring the NGT’s interim order pending such assessment.
Summary
The Tamil Nadu Water Supply and Drainage Board (TWAD Board) was granted permission to divert 0.055 hectares of forest land for a drinking‑water intake. It later used the water for industrial purposes, prompting a petition before the National Green Tribunal (NGT) which ordered that the water be used only for drinking purposes. The Tuticorin Thermal Power Plant claimed hardship due to the order, leading the Supreme Court to stay the NGT order for the power plant subject to full satisfaction of drinking‑water needs. The Court directed the District Collector to independently verify whether surplus water exists after meeting drinking‑water requirements and, if so, to permit its allocation to industrial users, thereby restoring the NGT’s interim order pending such assessment. The Court also ordered a joint meeting of the State Government and TWAD Board to forward a proposal to the Ministry of Environment, Forests and Climate Change for clearance under the Forest Conservation Act. No opinion was expressed on the merits of the proposal, and the appeals were disposed of.
Issues considered
- Whether water drawn under a forest‑land diversion clearance for drinking‑water purposes can be used for industrial purposes.
- Whether the NGT’s blanket prohibition on industrial use of the water is valid in view of the guidelines under the Forest (Conservation) Act, 1980.
- Whether the District Collector may assess surplus water availability and authorize its industrial use subject to drinking‑water needs being met.
Legislation cited
Subjects
forest land diversionForest Conservation Actwater allocationindustrial use of waterNational Green Tribunalpublic utilityenvironmental lawinterim orderDistrict Collector
Judgment
[2019] 2 S.C.R. 97 97
M/S. SOUTHERN PETROCHEMICAL A
INDUSTRIES CORPN. LTD.
v.
S. JOEL & ORS.
(Civil Appeal No. 11935 of 2018)
B
FEBRUARY 04, 2019
[DR. DHANANJAYA Y CHANDRACHUD AND
HEMANT GUPTA, JJ.]
Environmental Law:
Diversion of forest land for non-forest purposes – Guidelines C
in respect of – Issued by Union Government – Delegating the
authority to State Governments to permit diversion of forest land
upto one hectare for the purpose of Government departments for
public utility purposes – Government of Tamil Nadu accorded
approval for diversion of 0.055 hectares of forest land to Water
Supply Drainage Board for public purpose as per the guidelines D
i.e. ‘drinking water purposes’ – Complaint before National Green
Tribunal, that instead of confining the use of water for drinking
purposes, the Board permitted the water for industrial purposes –
Tribunal by its interim order dated 7.7.2017 granted status quo
subject to the condition that the Board would scrutinize the need of E
water for industrial purpose and that sufficient quantity of water
was available for drinking purpose – Tribunal finally disposed of
the case directing the Board to use the water drawn under forest
clearance only for drinking purposes and prohibited the use for
industrial units – In appeal to Supreme Court, on the grievance
raised by Tuticorin Power Plant as to difficulties in absence of F
regular water supply, the Court stayed the order of Tribunal in respect
of that power plant subject to condition that drinking water needs
were fully met – Held: Direction issued to the Collector to
independently assess the situation as to ensure that need for
drinking water and irrigation is not compromised; and whether G
surplus water is available after meeting the requirement for drinking
water – If the Collector finds that there is surplus water, direction
may be issued for allocating water for the industrial purposes – Till
the decision is taken by the Collector, the interim order of Tribunal
dated 7.7.2017 is restored – It is also directed that the Board and
the State Government would decide the issue as to the proposal sent H
97
98 SUPREME COURT REPORTS [2019] 2 S.C.R.
A by the Board under Forest Conservation Act, to the State Government
– Appeals disposed of – Forest Conservation Act, 1980.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 11935
of 2018.
From the Judgment and Order dated 28.11.2018 of the National
B Green Tribunal Principal Bench, New Delhi (Through Video
Conferencing) in Original Application No. 128 of 2017 (SZ)
WITH
Civil Appeal Nos. 12224, 12227 of 2018, 834 and 1332 of 2019.
Balaji Srinivasan, (AAG), Ranjit Kumar, Huzefa Ahmadi,
C Ravindra Shrivastav, Sr. Advs., K. K. Mani, Ms. T. Archana, Vinodh
Kanna B., Ms. S. Valarmathi, Ms. Pallavi Sengupta, C. Paramasivam,
M. Avokiyaraj, M. Yogesh Kanna, K. V. Vijayakumar, R. Naveenraj,
Ms. Purbitaa Mitra, Ms. Anitha Shenoy, Y. Arunagiri, Ramesh (for P.
Soma Sundaram), Sanjai Kumar Pathak (for G. S. Makker), Mahesh
Agarwal, Ms. Aastha Mehta, Rajesh Kumar (for E. C. Agrawala),
D
Advs. for the Appearing Parties.
The following Order of the Court was passed :
O R D E R
1. Appeals Admitted.
E 2. This batch of appeals arises from a decision of the National
Green Tribunal1 dated 28 November 2018.1
3. On 15 June 2004, the Government of India in the Ministry of
Environment and Forests2 issued guidelines regulating the diversion of
forest land for non-forest purposes under the Forest (Conservation) Act
1980. These guidelines were clarified on 3 January 2005. The guidelines
F delegate to the state governments the authority to permit diversion of
forest land up to one hectare for the purpose of government departments
for public utility purposes. The permissible activities are :
“1. Schools;
2. Dispensary/hospital;
G
3. Electric and Telecommunication lines;
4. Drinking water;
5. Water/rainwater harvesting structures;
6. Minor irrigation canal;
1
“The Tribunal”
H 2
“MoEF”
M/S. SOUTHERN PETROCHEMICAL INDUSTRIES CORPN. 99
LTD. v. S. JOEL & ORS.
7. Non-conventional sources of energy; A
8. Skill up-gradation/vocational training centre;
9. Power sub-stations;
10. Communication posts; and
11. Police establishments like police stations/outposts/border B
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 for C
diversion of 0.055 hectares of forest land in Sy.No.600 of Srivaigundam
Village in Thoothukudi Division of the Tamil Nadu Water Supply and
Drainage Board (TWAD Board) for construction of an intake well (along
with a control room and foot bridge) for “drinking water purposes”. This
permission was subject to certain conditions. The facility has been set
D
up.
5. A proceeding was instituted before the National Green Tribunal
by the first Respondent, complaining that instead of confining the use of
water for drinking purposes, TWAD Board has permitted the use of
water for industrial purposes.
E
6. The Union Ministry of Environment, Forests and Climate
Change (MoEF&CC) submitted before the Tribunal that if the proposal
involved a diversion of forest land both for drinking water and industrial
purposes, then it would not fall within the purview of the “General
approval” category under the Forest Conservation Act, 1980. MoEF&CC
submitted that the user agency had acted in violation of the Act by utilizing F
an additional area measuring 0.025 hectares of forest area for non-forestry
purposes in addition to a change in the purpose for which the approval
was accorded by the State Government.
7. TWAD Board submitted before the Tribunal that on 23 July
2018, it has moved the State Government to approach MoEF&CC for G
its clearance, so as to permit the use of the area in question for both
drinking water and industrial purposes.
8. The proposal submitted by TWAD Board has not yet been
received by the Union Government. It is pending with the Government
of Tamil Nadu. H
100 SUPREME COURT REPORTS [2019] 2 S.C.R.
A 9. The Tribunal issued a direction to the TWAD Board to prohibit
the use of water drawn under the forest clearance for 0.055 hectares
for industrial purposes, since it was granted only for the purpose of drinking
water. The Tribunal, however, clarified that it was not prohibiting the use
of 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 following
terms :
“In so far as the area concerned, the water shall be drawn
C only for supply of drinking water. Therefore, there shall be an
interim order directing the respondents to strictly act in accordance
with G.O.Ms.18 Environment and Forest (FR.10) Department
dated 7.3.2008 supplying water only for drinking purpose until
further orders of this Tribunal.”
11. This order was modified on 7 July 2017, to the following
D effect :
“Therefore, as an interim arrangement, we modify our order
dated 31.5.2017 to the effect that the situation which was in
existence before our interim order dated 31.5.2017 shall be
continued, however, subject to the condition that the 3rd
E respondent Board shall closely scrutinise whatever water is
required for industrial purpose and also subject to the condition
that sufficient quantity of water is available for drinking purpose
for the people.”
The above arrangement held the field until the proceedings were
F disposed 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 Thermal
Power 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 situation
G was assuming a critical dimension in the absence of regular supply of
water. Accordingly, while issuing notice this Court directed that the
order of the Tribunal shall remain stayed insofar as the Tuticorin Thermal
Power Plant is concerned, subject to the condition that drinking water
needs are fully met. This Court clarified that any supply thereafter of
surplus water to the power plant shall be in accordance with the terms
H of the interim order (of the Tribunal) dated 7 July 2017, extracted above.
M/S. SOUTHERN PETROCHEMICAL INDUSTRIES CORPN. 101
LTD. v. S. JOEL & ORS.
TWAD Board was directed to file an affidavit indicating A
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 not B
indicated a bifurcation of the requirements of water for drinking and
industrial use, this Court called for fresh affidavits on the anticipated
requirements 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 Board C
has drawn our attention to relevant extracts from the affidavit, in support
of the submission that even after meeting drinking water requirements
fully, there is surplus water available which can be allocated for industrial
use. The affidavit indicates that requirement of water for drinking,
irrigation and other industrial purposes, in Tirunelveli and Thoothukudi
D
Districts, is met from the water drawn from Tamirabarani River. For
that purpose, water is released from three dams, namely, (i) Papanasam
Dam; (ii) Servalaru Dam; and (iii) Manimuthar Dam. Paragraph 6 of
the affidavit is extracted below :
“6. The Water Account details as annexed prepared to know
the storage position of dams and anticipated Inflow of water E
from the data obtained form the office of the PWD and Electricity
Board as detailed below :-
i) Expected inflow of water and the storage of water to
be used is 10285.60 MCft (31.01.2019 to 30.06.2019)
ii) Losses due to evaporation and leakages is estimated as F
1028.56 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] G
v) Water required for industrial usage from 31.01.2019 to
30.06.2019 (150 days x 52.27 cusecs x 0.0864) is 742.22 MCft
vi) Anticipated average release of water from 31.01.2019
to 31.03.2019, 1000 cusecs per day for irrigation (60 days x
1000 cusecs x 0.0864) is 5184.80 MCft H
102 SUPREME COURT REPORTS [2019] 2 S.C.R.
A vii) Expected inflow and available storage for use of dam
on 30.06.2019 is (9257.04 -(2173.78 + 742.22 + 5184.00)=
1157.04 MCft”
15. Accordingly, it has been submitted that the water available
in the dams is sufficient to meet the requirement of water for drinking,
B irrigation and industrial purposes upto 31 March 2019 and for meeting
the requirement of water for drinking needs and industrial purposes upto
30 June 2019 in both Tirunelveli and Thoothukudi Districts. The affidavit
states that in case there is any shortfall in the expected inflow, it will be
compensated with the seasonal rains in the lower part of the dams in
Tamirabarani River basin and irrigation tanks, as per the report of the
C PWD authorities. Finally, it has been stated that if any shortfall arises in
the expected inflow of water, the first priority will be given to drinking
water requirements.
16. Placing reliance on the affidavit which has been filed by the
TWAD Board, Shri Ranjit Kumar and Shri Huzefa Ahmadi, learned senior
D counsel submitted that it would be appropriate if the stay granted by the
Tribunal is modified so as to permit the release of water for industrial
purposes, subject to the drinking water needs being fully met. Learned
counsel submitted that a blanket stay of the nature which has been issued
by the Tribunal will not serve any purpose.
E 17. On the other hand, Ms. Anitha Shenoy, learned counsel
appearing on behalf of the first respondent, who is the original petitioner
before the Tribunal, submitted a chart containing the data of the
Government of India in the Ministry of Earth Sciences (India
Meteorological Department), Regional Meteorological Centre, Chennai.
Learned counsel submitted that for Thoothukudi District official statistics
F show 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 data
collated from the affidavit of the Board, it has been submitted that there
is a precipitous decline in the current position of water in the reservoirs
in Tirunelveli District and in consequence, it would not be appropriate to
G issue any direction, modifying the direction of the Tribunal.
18. We may note that it was urged on behalf of the appellants
that the permission which was granted on 7 March 2008 by the State
Government for the diversion of 0.055 hectares of land for the construction
of an intake well for drinking water purposes, did not contain a prohibition
H for utilizing the water for industrial purposes. We cannot accept the
M/S. SOUTHERN PETROCHEMICAL INDUSTRIES CORPN. 103
LTD. v. S. JOEL & ORS.
submission. Both before the Tribunal as well as before this Court, the A
consistent position of the State Government as well as of MoEF&CC
has been that Government of India delegated its authority under the
Forest Conservation Act, 1980 to the states to grant a diversion of forest
land upto one hectare and for specified projects of a public utility. Among
them is drinking water. Hence, in the face of this position, the submission
B
cannot be accepted.
19. The position as it now exists is that TWAD Board has moved
the State Government with a proposal to seek the clearance of MoEF&CC
for the purpose of authorizing the use of the surplus water also for industrial
purposes under the Forest Conservation Act, 1980. TWAD Board
submitted before this Court that even after meeting the drinking water C
requirements fully, a surplus of water is available which it may be
permitted to utilize for industrial purposes. On the other hand, as we
have noted earlier, this is disputed on behalf of the petitioner before the
Tribunal who has submitted that there has been a paucity of rain fall, as
a result of which, Thoothukudi District has recorded scarcity conditions. D
20. In our view, it would be necessary for this Court to put in
place an administrative mechanism that would ensure that a decision to
release water for industrial purposes is monitored by the Collector of the
District who shall conduct a due verification of the data which is available
with the TWAD Board. The Collector should independently assess the E
situation so as to ensure that the need for drinking water and irrigation is
not compromised.
21. We, accordingly, direct that within a period of one week
from today the Collector responsible for Thoothukudi division shall
convene a meeting of all the concerned departments, including the Public
Works Department, the Irrigation department and the TWAD Board. F
The Collector shall ascertain whether any surplus water is available
after fully meeting the requirement for drinking water. The Collector
shall conduct a fortnightly review of the position thereafter to determine
as to whether any further direction or modification is required to meet
the exigencies of the situation. If the Collector does find that the data G
which has been produced is adequate to sustain the conclusion in regard
to the availability of surplus water after fully satisfying the need for
drinking water, directions may be issued for allocating a suitable quantity
of water for industrial purposes. We reiterate that this should be without
in any manner compromising the present and anticipated drinking water
H
104 SUPREME COURT REPORTS [2019] 2 S.C.R.
A needs of the residents of the district concerned. Until the Collector takes
a decision and for one week from today we restore the position as it
obtained under the interim order of the Tribunal dated 7 July 2017 to
facilitate the supply of water for industrial purposes, including for the
Tuticorin Thermal Power Plant. This is subject to the condition that
drinking water requirements are fully met on priority. Thereafter, parties
B
shall abide by the decision of the Collector. Until the Collector takes a
decision, the interim order which we have passed in the case of Tuticorin
Thermal Power Plant shall also continue in operation.
22. Insofar as the proposal under the Forest (Conservation) Act
1980 is concerned, we are apprised that TWAD Board had forwarded it
C to the State Government on 11 June 2018. We have been apprised that
there were communications between the State Government and the Board
with a view to rectifying certain deficiencies in the proposal. Be that as
it may, we direct that within a period of two weeks from today, a joint
meeting be held of the representatives of the State Government and of
D the TWAD Board to resolve the issue. The proposal shall thereupon be
forwarded to MoEF&CC within three weeks from today. The competent
authority shall take a decision on the proposal in accordance with law
within a period of two months thereafter. Any allocation of water for
industrial purposes in the meantime shall abide by such final decision as
may be arrived at by the Union of India after considering the proposal.
E We have not expressed any opinion on the merits of such a proposal.
23. We dispose of the appeals in the above terms. Pending
applications, if any, shall also stand disposed of. There shall be no order
as to costs.
F Kalpana K. Tripathy Appeals disposed of
G
H
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