G. Sundarrajan vs Union Of India And Ors

This appeal is directed against the Coastal Regulation Zone (CRZ) Clearance dated 25.7.2012 granted by the Ministry of Environment and Forest (MoEF) for the Kudankulam Nuclear Power Plant Units 3 - 6, sea water intake and outfall at Kudankulam, Tamil Nadu of M/s. Nuclear Power Corporation of India Ltd,. (NPCIL).

The appellant who is stated to be an environmental activist and trustee of Poovulagin Nanbargal, a public trust, working on issues with respect to Kudankulam Nuclear Power Plant who has also filed writ petitions before the High Court of Madras in W.P.No.24770 of 2011 etc., batch, challenging the validity of the Environmental Clearance (EC) and commissioning of units 1 and 2 of Kudankulam Nuclear Power Project (KKNPP) and other proceeding before the High Court for a direction against the Government of India to implement 17 recommendations of the Task Force constituted by the NPCIL, the third respondent herein and Atomic Energy Regulatory Board (AERB).

It is the case of the appellant that the issue involved in this appeal relates to the additional reactors of KKNPP unit 3 to 6. The comprehensive Environment Impact Assessment (EIA) and Environment Management Plan (EMP) for the project has been carried out by National Environmental Engineering Research Institute (NEERI). The Environmental Clearance (EC) was granted by MoEF for units 3 and 4 in September 2008 and units 5 and 6 in December 2009. However, in this appeal, the appellant seeks to quash the CRZ clearance granted in respect of units 3 to 6.

According to the appellant, the project was appraised by the Expert Appraisal Committee (EAC) of MoEF dealing with the infrastructure, miscellaneous projects and CRZ between 2011 and 2012. In the EAC there was no detailed scrutiny and it has not considered the relevant factors. In fact, the EAC in its meeting held on 5th and 6th April, 2011 has found that the EIA report of the project proponent viz, (NPCIL) must be updated, since the data is related is to the period prior to 2004, the necessity of Risk Assessment and Disaster Management Plan (DMP) based on Japan tragedy in Fukushima, the project proponent should consider the pipeline for disposal instead of open channel. The earlier study relates to 7 degrees Celsius in ambient temperature whereas the present report says 3 degrees which was directed to be clarified and if necessary another study to be carried out and overall report submitted is not readable/legible for consideration of the CRZ Clearance.

In the meeting of the EAC held on 21st and 23rd September, 2011 the issue relating to such large variation in the ambient temperature upto 7 degrees was not deliberated. Further, the minutes do not reveal whether there has been any qualitative changes in the EIA document between the two meetings and the likely impact due to the new data, has not been studied. Hence, the EAC has deferred the proposal of the project proponent to amplify the design of plant elevation for Tsunami and flooding and also directing to produce documentary evidence in support of the statement made by the project proponent and that the plant having the most advanced safety features.

In the next meeting of the EAC held on 10th and 11th May, 2013, the Committee recommended the proposal for CRZ clearance without proper application of mind and it is nowhere mentioned that the clearance includes CRZ Clearance for desalination plant which has already been constructed and commissioned and that has been dedicated to serve the freshwater needs of the KKNPP units 1 and 2. That apart, it is the case of the appellant that the EAC while recommending the grant of approval under the CRZ has assumed that the total fresh water requirement for the proposed KKNPP 3 to 6 units will be 12,388 cum per day and it will be met from the desalination plant already under operation at the project site. This amounts to the post facto CRZ clearance and that the EAC's assumption that the currently installed desalination plant of 320 cu.m/hour capacity would suffice to meet the needs of the four units viz., KKNPP 3 to 6 itself is at fault. The appellant, while challenging the CRZ clearance has also raised the issue that there has not been any study and management plan for brine discharge and condenser cooling water. The impact assessment and management plan has been conducted only for half the total discharge of brine rejects from four plants without including KKNPP units 1 and 2 whose needs are met by the first desalination plant which is already running. There has been no study of brine discharge and the EIA does not adequately consider the sub lethal effects of Condenser Cooling Water (CCW) discharge at a temperature of 7 degree Celsius, as every degree rise in temperature leads to a decrease in dissolved oxygen , which in turn detrimentally affects the sources of food and nutrition for fish. The appellant has also raised the point that there has been deficient study of impact on fish resource and misleading information with respect to Travancore Coast. The project of the NPCIL which is a public sector enterprise registered under the Companies Act cannot be treated under exemption category of the Department of Atomic Energy from the location of CRZ area and therefore treating NPCIL as exemption to CRZ Notification is not only impermissible but amounts to shifting nuclear power to commercial domain.

Raising the legal grounds that appropriate study has not been made before the CRZ clearance that, the project proponent has obtained CRZ clearance and also EC based on deficient information regarding the impact and management of desalination plant that the EAC of the MoEF has not clarified as to how it was satisfied that the project proponent is capable of ensuring CCW discharge at 3 degree Celsius above the receiving water's temperature that, the MoEF has wrongly granted exemption to NPCIL which has provided for Department of Atomic Energy (DAE) and its project; and that the EAC has recommended against the ''Precautionary Principles'' on the basis of wrong and misleading data.

The first respondent MoEF in the reply while denying the allegations raised by the appellant has stated that the CRZ clearance for units 3 to 6 including seawater intake and outfall was considered by the EAC which has taken note of the recommendation of the Tamil Nadu State Coastal Zone Management Authority (TNCZMA). It is further stated that the EC was granted earlier for units 1 and 2 in May, 1989 and for the units 3 and 4 in September, 2008 and for the units 5 and 6 in December, 2009. It is also stated that the EAC has deliberated the entire issue in its three meetings and therefore it cannot be said that there is non application of mind. It is also stated that in the meeting of EAC held in September, 2011 the EAC was informed that the terrestrial and marine EIA updation and the mathematical modelling of CCW discharge have been carried out by M/s. Engineers India Ltd., Gurgaon. The CRZ mapping in 1:4000 scale with project layout superimposed, has been carried out by M/s. CESS Trivandrum. Further the EAC has deferred consideration till the additional provisions are made in KKNPP for withstanding Tsunami effects like grade elevation of the buildings in addition to the Tsunami level and also the plant safety features like passive heat removal system etc. The study found that the underwater pipeline discharge scheme is the most optimal scheme, since the CCW discharge of KKNPP units 3, 4, 5 and 6 will be through underwater pipelines to a location of 4 - 5 m bathymetry. This is for ensuring proper dilution of the CCW discharge temperature to near ambient at a short distance from discharge point. Further, it was found that KKNPP shore region has no sensitive habitats like mangroves and coral reefs, apart from the fact that there was no impact on the marine eco system due to the proposed CCW scheme. After submission of various materials the EAC has again considered in its meeting held in May, 2012 and recommended the project for the grant of CRZ clearance subject to the following conditions:

''i.Proponent submitted schematic diagram of outfall. The technical details of outfall, diffusers etc shall be submitted to the Ministry prior to the commencement

ii. Regular monitoring at outfall shall be carried out especially for the temperature and marine life quality.

iii. All physico-chemical and biological parameters including radioactivity shall be carried out regularly''

It was as per the said recommendation the CRZ clearance was issued on 25.7.2012.The first respondent has also stated that in the Special Leave Petition filed by the appellant against KNPP Units 1 and 2, the Supreme Court has specifically found that the KKNPP Units 1 and 2 have not violated 1991 CRZ Notification. The Supreme Court has also observed that the establishment of desalination plant would not require any fresh EC, as the same has not been included in Schedule I of EIA Notification dated 27.1.1994 and the subsequent Notification dated 14.9.2006. The Supreme Court has also specifically found that the contention of the appellant that the rise in temperature of receiving water due to rise in temperature of CCW would affect the marine eco-system as unsustainable. It is also denied that comprehensive EIA does not adequately consider the sub-lethal effects of CCW discharge at 7 degree Celsius. It is specifically stated that while appraising the CRZ Clearance for units 3 to 6 the EAC considered the marine impact assessment, thermal dispersion modelling studies conducted for CCW discharge considering the said discharge from all the six units viz., KKNPP units 1 to 6. The study revealed that there is no impact on water quality due to the proposed discharge.

The second respondent Tamil Nadu State Coastal Zone Management Authority, in the affidavit dated 30.8.2016, while denying the allegations raised by the appellant, has stated that the District Environmental Engineer, Tamil Nadu Pollution Control Board (Board) , Tirunelveli has forwarded a proposal for the expansion of Nuclear Power Plant units 3 to 6 of capacity 4 x 1000 MW at Koodankulam proposed by KKNPP for clearance under CRZ Notification, 1991 based on the approval of the District Coastal Zone Management Authority, Tiruvnelveli District. It is stated that in respect of the proposed expansion of KKNPP Units 3 to 6 of capacity 4 x 1000 MW, the MoEF has granted EC under EIA Notification, 2006 on 23.9.2008 and 31.12.2009 subject to the condition that the unit shall obtain necessary prior clearance under the provisions of CRZ Notification, 1991. The KKNPP in the proposal has informed that cooling water requirement is above 2,78,88,000 KLD and the process water will be 48,000 KLD and hence the total requirement is 2,79,36,000 KLD and the said water requirement is to be met through the desalination plant. The sea water from the Gulf of Mannar is the water source for the power plant and the water is drawn at a depth of about 10 m and discharge of water will be at a temperature differential of 7 degree Celsius. The project proponent has stated that the intake water is drawn from a closed dyke and hence there is no chance of sea erosion in the intake area.

It is stated by the second respondent that the Marine EIA study has been conducted by the Institute of Ocean Management and the HTL demarcation survey has been conducted by the Centre for Earth Science Studies, Thiruvananthapuram. It is the case of the second respondent that the project relates to Department of Atomic Energy and therefore it is a permissible activity under the CRZ Notification, 1991. However, the activity requires clearance from the MoEF, Government of India. The District Coastal Zone Management Authority has recommended the project for clearance on 15.12.2010. The proposal was placed before the 62nd meeting of the TNCZMA on 30.12.2010 and it was resolved to recommend the proposal to the MoEF, Government of India. The recommendation of the TNCZMA in the meeting held on 30.12.2010 was forwarded to the Government of India through the Government of Tamil Nadu on 19.1.2011 wherein it was indicated that excepting for CRZ procedural issues, there are no guidelines for evaluating the project and therefore it is the responsibility of KKNPP to adhere to the Nuclear Safety Regulations of AERB of Government of India. It is further stated by the second respondent that the proposal was forwarded to the Government of India, subject to the condition that the greenbelt shall be developed by planting large number of native species undertaken in consultation with the Forest Department, Government of Tamil Nadu. Further, the project proponent shall fulfil all Corporate Social Responsibilities (CSR) within a reasonable time frame by providing sufficient financial allocation. The community confidence building measures shall be taken adequately to the local community to remove any apprehension regarding the functioning of Atomic Power Station in Koodankulam by taking Kalpakkam Automic Power Plant as a model and that all activities should be in conformity with the provision of CRZ Notification, 1991. It is further stated that accordingly the MoEF have issued CRZ Clearance to the project proponent on 25.7.2012.

The fourth respondent Tamil Nadu Pollution Control Board in its reply dated 14.2.2013 has stated that it has granted ''Consent to Establish'' for KKNPP units 1 and 2 on 25.2.2004 both under Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981 and the ''Consent to Establish'' was valid for a period of two years. Subsequently, ''Consent to Operate'' was granted on 28.8.2012 by imposing special and general conditions. The writ petitions challenging the said project in respect of units 1 and 2 have been disposed of on 31.8.2012 by the High Court of Madras, as against which S.L.P.No.27813 of 2012 was preferred by the Fishermen Care Registered Association and when the Hon'ble Supreme Court has reserved for orders, the present appeal has been filed by the appellant against the CRZ Clearance granted by the first respondent. Even though there is no relief claimed against the fourth respondent, it is stated that the power plant is not dependant on the ground water and it is only sea water which is to be used for the entire operation. The Board has also established Survey Laboratory, specially intended to monitor the water quality of the land, sea, air quality as well as radio activity. The laboratory has been periodically monitoring parameters and 34 samples of sea water were collected along the shore from Kaniyakumari to Uvery every year at the frequency of three samples every month. In addition to that two fish samples are analysed every month. The EIA study has been carried out by NEERI and ultimately CRZ clearance was granted by the MoEF on 25.7.2012.

The third respondent - project proponent in the reply dated 23.7.2016 has stated that the NPCIL is a Government Company incorporated in September 1987, wholly owned by the Government of India and is under the administrative control of Department of Atomic Energy, Government of India and it was incorporated with the object of operating the atomic power stations and implementing the atomic power projects for the generation of electricity pursuant to the scheme and programme of the Governement of India under the Atomic Energy Act, 1962. The KKNPP is a Indo-Russian joint venture for establishing a nuclear power station of 1000 MW. Pressurized Water Reactors of VVER design at Kudankulam in Tamil Nadu as one of the seven projects. The power station which is proposed is covered by International Atomic Energy Agency (IAEA). The project site required clearance from AERB and various statutory authorities. The KKNPP is a 3+ generation Nuclear Power Plant which converts energy released from the nucleus of an atom via nuclear fission that takes place in a nuclear reactor. The heat is removed from the reactor core by a cooling system that uses the heat to generates team, which drives a steam turbine connected to a generator producing electricity.

It is the case of the third respondent while meeting various grounds raised by the appellant that the desalinated water is to be used for KKNPP units 1 to 6. For the above said purpose, the sea water is to be drawn and processed in the desalination plant to make it potable and use for domestic water requirement and make up to process water requirement. After such use, the water will be sent back to sea along with the large quantity of water drawn for condenser cooling purposes. The sea water drawn for desalination is only of small quantity when compared to the sea water circulated for condenser cooling purpose. It is the case of the third respondent that setting up of a desalination plant will not result in any additional pollution load and there is no adverse effect on environment. It is stated that KKNPP units 1 and 2 have already a desalination plant in operation for few years catering to the needs of the said units.

For the proposed KKNPP units 3 to 6 separate desalination plants of capacity 12388 Cum per day will be set up afresh in the project site. The fresh water requirement of the proposed project KKNPP 3 to 6 will be met from the desalination plant which will be under operation at the time of commissioning of the new project units. It is stated that amendment dated 22.12.1998 was issued to amend the Environment (Protection) Rules, 1986. Sl. No. 84 in Schedule - I of the Environment (Protection) Rules, 1986 dealing with the temperature limit for discharge of CCW from the Thermal Power Plant was amended providing water temperature at the final discharge point so that the resultant rise in the temperature of receiving water does not exceed 7 degree Celsius over and above the ambient temperature of the receiving water bodies. Even though the said rule is dealing with the thermal power plant, the limit prescribed equally applies to nuclear power plants as the technology for the condenser cooling in both thermal as well as nuclear power plants are the same. In both the plants the condenser is cooled by using water and therefore the limit on temperature of discharge water will have to be the same. It is further stated that various marine impact studies have been carried out by the third respondent regarding the effect of cooling water to the marine life. Such study includes the one conducted by the Institute of Ocean Management, Anna University and another by Engineers India Ltd., as well as Central Marine Fisheries Research Institute (CMFRI). The studies deal with the units 1 to 6 and the same have been submitted to the MoEF. The environmental impact on the marine eco-system due to +7 degree Celsius has been analysed by the said institutes in the said reports concluding that there will be no impact on the marine eco-system. In addition to that the Government of India has appointed 15 member Expert Group to analyse and explain the above said position to clear the apprehensions of a section of local people. The said group has submitted three reports stating that there will be no harm to the marine life due to the +7 degree CCW return of waster originating from KKNPP.

In respect of the KKNPP proposed units 3 to 6, the third respondent has received CRZ clearance from MoEF after following the norms prescribed. The said clearance was granted as per CRZ Notification, 2011. Before that, the updation of terrestrial EIA has been carried out by M/s. Engineers India Ltd (EIL) and marine EIA has been carried out by M/s. EIL along with Central Marine Fisheries Research Institute, Kochi. CRZ mapping has been carried out by M/s. Centre for Earth Science Studies, Trivandrum which is an authorised Institute by the MoEF. In addition to that, various other reports relating to safety, grade elevation analysis, mathematical modelling etc., required by EAC of MoEF has been submitted from time to time. The said application for CRZ clearance was first considered by the District Coastal Zone Management Authority (DCZMA), Tirunelveli on 15.12.2010 and recommended to the TNCZMA by its letter dated 15.12.2010. The TNCZMA considered the matter in its 62nd meeting held on 30.12.2010 and recommended to the National Coastal Zone Management Authority (NCZMA) on 9.3.2011. The EAC (CRZ) of MoEF considered the proposal in May, 2011 and reviewed the same in the EAC meetings in great detail taking one long year and after due consideration and recommendation of EAC (CRZ) of MoEF, the MoEF has granted CRZ clearance to KKNPP units 3 to 6 on 25.7.2012. As soon as the CRZ clearance was received, the said document was uploaded in the website of the third respondent. Since the third respondent is wholly owned Government of India company with the administrative control of DAE, Government of India, incorporated with the objective of operating the atomic power stations and implementing the atomic power projects for the generation of electricity, KKNPP units 1 to 6 projects are the projects of DAE and therefore exemption granted as per the CRZ Notification will be applicable to KKNPP units 1 to 6. It is the further case of the third respondent that EC for units 3 and 4 as well as 5 and 6 was granted by the MoEF on 23.9.2008 and 31.12.2009 respectively. After following all the procedures laid down under the EIA Notification, 2006, comprehensive EIA was carried out by NEERI, Nagpur and rapid marine EIA carried out by Institute of Ocean Management, Anna University, Chennai. The EIA for the expansion of KKNPP viz., for setting up of units 3 to 6 include the assessment of the environmental impact on account of units 1 and 2 and the cumulative effect of all the six units. It is further stated that EIA of units 3 to 6 includes the impact of units 1 and 2 as a baseline for computing the additional impact of units 3 to 6.

It is stated by the third respondent that the Division Bench of the Madras High Court in the order dated 31.8.2012, while disposing of the writ petitions W.P.(C)No.24770 of 2011 etc., batch has stated that the third respondent is a Government Company and not a commercial agency. The said view of the High Court was confirmed by the Hon'ble Supreme Court in S.L.P filed before the Hon'ble Supreme Court against the judgment of the Division Bench of the High Court the appellant has raised issue regarding exemption to KKNPP under CRZ Notification, commissioning of desalination plant, coolant water discharge of 7 degrees Celsius. In the judgment dated 6.5.2013 the Hon'ble Supreme Court has dealt with all the above said issues and upheld that NPCIL is a wholly owned Government of India Undertaking which functions under the administrative control of DAE and that KKNPP units 1 and 2 have not violated 1991 CRZ Notification. The Hon'ble Supreme Court has also held that establishment of desalination plant would not require any fresh EC, as the same has not been included in Schedule I of EIA Notification 27.1.1994. which was superseded by the EIA Notification, 2006 etc. The Supreme Court has also found that the contention raised by the appellant that the rise in temperature in receiving water due to rise in temperature of condenser cooling water would affect marine eco-system as not sustained. Therefore, according to the third respondent, the KKNPP units 1 to 6 has taken all mandatory licences and clearances from the requisite statutory authorities and the same has been considered by the Hon'ble Supreme Court in the order dated 6.5.2013 and therefore it is not open to the appellant to raise the same issue again in this appeal.

While replying the legal grounds raised by the appellant, it is stated by the third respondent that the points which are raised by the appellant herein have been elaborately discussed by the Hon'ble Supreme Court. That apart, it is the case of the third respondent that it has taken all mandatory licences and clearances from the statutory authorities in respect of KKNPP units 3 to 6 and all environmental related concerns have been taken into account while seeking clearance from the concerned authority. The third respondent has denied all other legal grounds raised by the appellant as unsustainable.

Even though many points have been raised by the appellant in the grounds of appeal, the learned counsel appearing for the appellant Mr. Radhakrihnan has principally raised the following three questions:

(1) As per the Office Memorandum issued by the MoEF dated 2.12.2009, the Government of India has taken a decision in respect of the accreditation of EIA Consultants with Quality Council of India (QCI)/National Accreditation Board of Education and Training (NABET). Accordingly the Government of India has taken a decision that all Consultant/Public Sector Undertakings (PSU) working in the area of Environmental Impact Assessment would be required to get themselves registered under the scheme of Accreditation and Registration of the NABET/QCI and such Consultants would be confined to the accredited sectors and parameters for bringing in more specificity in the EIA document. In the list of accredited EIA Consultant Organisations prepared by NABET as on 5.12.2012, M/s, Engineers India, Gurgaon is not accredited Consultant in respect of the nuclear power project. According to the learned counsel, it is the admitted position that the agency which has prepared EIA in respect of KKNPP units 3 to 6 is M/s. Engineers India Ltd., Gurgaon,. The said Consultant is not the proper accredited agent as per the Office Memorandum of the Government of India dated 2.12.2009 and therefore the EIA carried out by the said unaccredited agency for CRZ clearance is unauthorised, unqualified and therefore the Clearance based on such EIA study should be held invalid. That was also the view taken by this Tribunal in ARANMULA AIRPORT CASE (Application Nos.172 of 2013 etc., dated 28.5.2014.

(2) There is a patent contradiction in the stand taken by the third respondent in respect of setting up of desalination plant. In the EAC meeting of MoEF dated 10 and 11th May, 2012 while considering the CRZ clearance for KKNPP units 3 to 6 and recommending the same to the MoEF, there is a specific finding that the total fresh water requirement for the proposed KKNPP units 3 to 6 will be 12388 Cum and it will be met from the desalination plant already under operations at the project site. However, in the reply filed by the third respondent dated 23.7.2016 it is stated that for the proposed KNPP units 3 to 6 separate desalination plant of capacity 12,388 Cum per day will be set up afresh in the project site. In the light of the said contradictory stand taken by the project proponent, it is the case of the learned counsel for the appellant that the EAC's recommendation for granting CRZ clearance is factually on the wrong notion and therefore CRZ clearance granted based on such recommendation should be set aside.

(3) As per the CRZ Notification issued by the MoEF dated 6.1.2011, under Rule 4.2 while prescribing the procedure for clearance of permissible activity, Clause I (c) contemplates the submission of comprehensive EIA with cumulative study for projects in the stretches classified as low and medium eroding by MoEF based on scientific study and in consultation with the State Government and Union Territory Administration. This procedure has not been followed in respect of KKNPP units 3 to 6. Therefore CRZ clearance granted is in violation of CRZ Notification.

Per contra, it is the contention of Mr. Krishna Srinivasan, learned counsel appearing for the third respondent - project proponent that the CRZ clearance for units 3 to 6 was granted on 25.7.2012 and the Division Bench of the High Court of Madras has rendered judgment in relation to KKNPP units 1 and 2 on 31.8.2012. It was against the said judgment, the appellant filed SLP before the Hon'ble Supreme Court on 23.10.2012 and the judgment was rendered by the Supreme Court on 6.5.2013 confirming the judgment of the Division Bench as reported in G. SUNDARRAJAN V. UNION OF INDIA (2013) 6 SCC 620 According to the learned counsel, the issue relating to the subject matter of the present appeal was not only discussed and considered by the Division Bench but the Hon'ble Supreme Court has ultimately found that comprehensive EIA study has been done and CRZ clearance was granted correctly as per the Notification 2011. According to the learned counsel, all these points raised by the appellant have been raised before the Hon'be Supreme Court in respect of KKNPP units 1 and 2 and the Hon'ble Apex Court, after hearing both parties has given a finding applicable in respect of KKNPP units 3 to 6 and therefore it is not open to the appellant to raise the same issue one again. He has also submitted that it was clearly found by the Apex Court that KKNPP cannot be taken as a commercial agent and that there is no violation of CRZ Notification. He has also taken us to various paragraphs of the judgment of the Division Bench of the High Court as well as the ultimate decision of the Hon'ble Supreme Court reported as stated above. According to the learned counsel, none of the issues raised by the appellant are res integra having been concluded between the parties in the earlier proceedings and therefore this Tribunal cannot be directed to reopen the decision rendered by the Apex Court not only on the binding precedent but also the principles of judicial propriety.

To meet this point, Mr. Radhakrishnan, the learned counsel appearing for the appellant would submit that in as much as in the original writ petition filed before the High Court of Madras, the issue was only relating to the validity of the EC granted in respect of KKNPP units 1 and 2 and therefore neither the High Court nor the Supreme Court can expand the relief in respect of units 3 to 6. According to the learned counsel, any such reference made in respect of units 3 to 6 by the Supreme Court which was not the subject matter before the High Court can only be an ''obiter'' and is only a passing reference and cannot be a binding decision between the parties. He also submitted that the EAC meeting dated 10th and 11th May, 2012 of CRZ clearance of MoEF and the minutes of the said meeting was never produced before the Division Bench of the High Court or the Supreme Court. He submitted that when the Office Memorandum of MoEF dated 2.12.2009 prescribes all mandatory procedures to be followed, unless the accredited agency prescribes its status and thereby guided itself authorised as per the mandatory requirement of the Government of India, there is no option other than setting aside the CRZ Notification.

We have heard the learned counsel appearing for the appellant as well as the respondents, particularly the project proponent at length, referred to the pleadings and documents filed by the parties, including the judgments of the Division Bench as well as Hon'ble Supreme Court reported in (2013) 6 SCC 620 and given out careful thought to the issue involved in this case.

In the light of the decision of the Hon'ble Apex Court reported in (2013) 6 SCC 620, it is to be decided (1) as to whether the relief claimed by the appellant in this appeal can be pursued or granted by this Tribunal? And (2) if so, to what extent?

DISCUSSION AND CONCLUSION: 24. In this appeal, the appellant has chosen to question the CRZ clearance granted to KKNPP units 3 to 6 carried out by NPCIL, the third respondent dated 25.7.2012. In so far as it relates to units 1 and 2 which was the subject matter of dispute raised by the appellant himself in the writ petitions filed in the High Court of Madras, decided by the Division Bench in which one of us (Mr.Justice Dr.P. Jyothimani) was a party which is reported in G. SUNDARRAJAN VS. THE UNION OF INDIA (2012) 6 MLJ 529), as confirmed by the Hon'ble Supreme Court in the judgment reported in G. SUNDARRAJAN VS. THE UNION OF INDIA (2013) 6 SCC 620, the MoEF has issued EC on 9.5.1989. It is seen that all the units viz., 1 to 6 of KKNPP are situated in the same area. Regarding the CRZ clearance for unit 1 and 2, the same was unable to be considered under CRZ Notification, 1991 which came in to force on 19.2.1991 while the proposal for units 1 and 2 was much before 1991 and the EC itself, as stated above, was granted by MoEF before the CRZ notification. However, the issue relating to the location of units 1 and 2 within 500 M from CRZ area was in fact considered as per the then existing norm prior to 1991 and an exemption was granted by the then Prime Minister of India to the said units 1 and 2 by a communication dated 19.4.1989. In fact, the said issue relating to the exemption and cumulative effect was considered by the Hon'ble Supreme Court in the decision rendered in G. SUNDARRAJAN VS. THE UNION OF INDIA (2013) 6 SCC 620, particularly in paragraphs 149, 150 and 151 of the judgment wherein the Supreme Court has ultimately held that units 1 and 2 of KKNPP have not violated 1991 CRZ notification. The said finding rendered in the said judgment is as follows:

''149. India is a gifted country which has coastal seas, bays, estuaries, creeks, rivers, backwaters. Critical importance of sea coast in a country like India need not be over emphasized, the protection of the same calls for scientific care and diligence and following Tsunami, Cyclone, earthquake etc., the protection of the sea coast has assumed added importance.

MoEF in exercise of powers conferred under Section 3(i) and 3(2)(v) of the Environmental (Protection) Act, 1986 and Rule 5(3)(d) of the Environmental (Protection ) Rules, 1986 issued a Notification dated 19.2.1991 declaring coastal stretches as Coastal stretches of seas, backwaters, creeks, rivers and backwaters which are influenced by tidal action (in the landward side) upto 500 Mtrs. from the HTL and the land between the low tide line (LTL) and the HTL are called coastal regulation zone and regulating activities in the CRZ, both prohibited and permitted activities. However, it did not prohibit the project already in operation and granted clearance prior to the date of the issue of notification. Later by an amendment dated 12.4.2001 S.O.329(C) amended paragraph 2 on "prohibited activities" and the notification dated 19.2.1991 by substituting clause (1) to the following effect "setting up of new industries and expansion of existing industries except (a) those directly related to water front or directly needing foreshore facilities (b) projects of Department of Atomic Energy".

We find with regard to the location of KKNPP within the prescribed 500 mtr. within the CRZ an exemption had already granted as per the then existing norms even prior to 1991 by the then Prime Minister of India by the communication dated 19.4.1989. Over and above, paragraph 2(1) of 1991 CRZ Notification as amended by Notification dated 12.4.2011, exempted projects of Department of Atomic Energy. A cumulative reading of the permission dated 19.04.1989 accorded by the then existing norms read with paragraph 2(1) of 1991 Notification, as amended by Notification dated 12.4.2011, we are of the view the KKNPP Units 1 and 2 have not violated the 1991 CRZ Notification.''

It is true that the writ petition filed by the appellant herein before the High Court and other connected writ petitions taken together, were all relating to the commissioning of units 1 and 2 of KKNPP. But at the same time it has to be taken note of that even when the matter relating to units 1 and 2 was pending and heard by the Division Bench of High Court of Madras, in the pleadings filed by the respondents therein, they have made frequent reference about units 3 to 6 of KKNPP. This may be because those writ petitions are of the year 2011 and 2012 and by the time the writ petitions were filed, the MoEF has already granted EC for units 3 and 4 on 23.9.2008 and for units 5 and 6 EC has been granted on 31.12.2009, both under EIA Notification, 2006. It is useful to refer to some of the stand taken by the respondents in the pleadings before the High Court when the commissioning of units 1 and 2 was under challenge.

The Union of India, DAE which was the first respondent in the writ petition in the counter affidavit has stated that a comprehensive EIA and EMP for KKNPP units 3 to 6 were prepared as per EIA Notification, 2006 and the said units are similar to units 1 and 2. The said contents of the counter as extracted by the Division Bench in the judgment in paragraph 14.3 are as follows:

''It is stated that Comprehensive Environmental Impact Assessment and Environmental Management Plan for KKNPP unit III to VI were prepared as per the Environment Impact Assessment Notification, 2006 and the said units, which are similar in design to that of units 1 and II, had obtained environmental clearance from the MoEF in 2008 and 2009.''

Further, the MoEF in the counter affidavit filed before the High Court has also referred to the units 3 and 4 apart from units 1 and 2 which has been referred in paragraph 15.2 and 15.3 of the judgment of the Division Bench as follows:

''15.2. It is stated that the Environment Impact Assessment Notification under the Environment (Protection) Act, 1986 requiring prior environmental clearance came into existence for the first time only on 27.1.1994, long after the clearance was granted by the MoEF for KKNPP Units 1 and 2, and the provisions relating to public hearing in the environmental clearance process was introduced only on 100.4.1997 and in the case of KKNPP, the environmental clearance has been granted before the Environment Impact Assessment Notification of 1994 and therefore, there is no necessity to have any public hearing before grant of clearance in respect of Units I and II.

15.3. It is stated that the MoEF has recognized thermal pollution due to proposed power plant as one of the potential areas of environmental concern and accordingly, while granting environmental clearance to Units III and IV, the MoEF had stipulated the following condition: "On-line continuous monitoring of the temperature of the discharged cooling water shall be carried out at the discharge point. It shall be ensured that the temperature differential of the discharged water w.r.t. the receiving water does not exceed 7oC at any given point of time."

The AERB which was the third respondent in the writ petition, has stated that a Project Report was prepared on a detailed study made by expert organization submitted to AERB which has made further review for site clearance for units 1 and 2 and thereafter units 3 to 6. The said stand of the AERB has been elicited in the judgment of the Division Bench in paragraph 16.4 as follows:

''16.4 It is stated that it was after the in principle approval granted by the Government, including the obtaining of environmental clearance from the MoEF and site clearance from the AERB, the NPCIL prepared a detailed project report based on the detailed studies comprising Geo-technical examination, Seismo-tectonic, Safe grade level, meteorological and other studies through expert organizations and the site evaluation report was submitted to the AERB, who made further review and accorded site clearance for KKNPP Units I and II and thereafter to Units III to VI.''

In the judgment, the Division Bench has also recorded the order of MoEF dated 25.7.2012 granting CRZ clearance for units 3 to 6 of KKNPP and that is referred in paragraph 87 of the Division Bench judgment which is as follows:

''87. We are also informed that the Government of India, MoEF, in the order dated 25.7.2012, has issued CRZ clearance for KKNPP Units 3 to 6 after thoroughly studying the entire reports. The contents of the said order are as follows:

"2. It is inter alia, noted that the proposal involves setting up of additional reactors as KKNPP units-3 to 6 (KKNPP # 3 to 6 each of 1000 MWe). The proposed units are similar in design as in Kudankulam Nuclear Power Plant Units 1 and 2 and also to be located adjacent to KKNPP 1 and 2 which is in commissioning stage. Each unit consists of four Primary Coolant System (PCS) loops transferring the heat energy from the reactor to the Steam Generators (SG). The steam produced in the shell side of SG is fed to the Turbine Generator to generate electricity. For condenser cooling, sea water is drawn at a depth of 10 Mtr from closed dykes which also house a unique fish protection system. The fish protection system separates the fishes from the cooling water and ensures that the fishes are diverted back in sea and water alone is taken to condenser. As water is drawn from closed dykes, sea erosion is not there. The fresh water requirement of the plant is met through desalination plant.

The plant is having the most advanced safety features and is termed as "first of its kind" in the safety aspect. Active safety systems are having a backup of passive safety systems. To increase redundancy, each active safety systems are supplied from four independent and physically separated channels. The plant elevation is designed for Tsunami and flooding with sufficient conservatism. The plant system, structures and components are designed for earthquake, explosions and other natural calamities. The Reactor building is designed to take care of an aircraft crash of Cessna type aircraft. 1053 Ha Land is already acquired during phase 1 (KKNPP 1&2) construction. No additional land will be required for present expansion.

Comprehensive Environmental Impact Assessment Study for the expansion has been carried out through NEERI, Nagpur and it brought out Environmental Management Plan. As per the EIA, EMP, No National Park, Sanctuary, Biosphere, Mangrove, Monuments, Reserve Forest in the zone of 15 km. The reserve forest of Thadakmalai, Poigaimalai and Mahendragiri lies within 15 to 30 km of the site. The biodiversity rich area of Gulf of Mannar Bio Reserve (GOMBRE) in 150 km from the site. The total fresh water requirement for the proposed KKNPP 3 to 6 units will be 12388 cum/day and it will be met from desalination plants already under operation at the project site. In addition, for condenser cooling, seawater will be taken from the sea and will be discharged back to sea. Major source of wastewater discharge is from condenser cooling system. The cooling system has been designed as once through condenser cooling system wherein water from the Sea would be drawn and discharged back in to the Sea and the temperatures rise of the reject water is limited to +6.6oC.

Mathematical Model studies for thermal dispersion of cooling water discharge has been done to locate the outfall point. The Radioactive Liquid waste will be concentrated to reduce volume and concentrated residue will be solidified through cementation and stored in solid waste depositary as per the norms of Atomic Energy Regulatory Board (AERB). The remaining liquid wastes confirming to the norms of AERB will be discharged in to Sea.

Environmental clearance under ERA notification 2006 has been obtained from MoEF in September, 2008 for KKNPP 3 &4 and in December 2009 for KKNPP 5&6. Tamil Nadu State Coastal Zone Management authority has recommended to MoEF for granting CRZ clearance to KKNPP3-6 in December 2010. MoEF considered the proposal in 99th meeting and recommended for additional studies to be undertaken. The terrestrial and marine EIA updation and the mathematical modeling of CCW discharge has been carried out by M/s.Engineers India Limited, Gurgaon. The CRZ mapping in 1:4000 scale with project layout superimposed has been carried out by M/s. CESS Trivandrum. Comprehensive EMP has been prepared keeping in view all possible strategies oriented towards impact minimization both during construction and operation phases. along with general and special conditions. Insofar as it relates to Units 1 and 2, as we have observed earlier, inasmuch as the project has come into effect even in the year 1988 and such clearance was given earlier by the MoEF, there is no necessity for any fresh clearance.

As against the judgment of the Division Bench, upholding the commissioning of units 1 and 2, the appellant who was the writ petitioner, moved the Hon'ble Supreme Court which was heard in Civil Appeal No.4440 of 2013 etc batch and decided on 6.5.2013, confirming the judgment of the Division Bench and also issuing additional directions. In the judgment reported, as stated above, the Supreme Court has referred to the stand taken by the NPCIL , MoEF in various places which relate to not only units 1 and 2 but also units 3 to 6. In paragraphs 130 and 131 of the judgment, the Hon'ble Apex Court has pointed out the stand of NPCIL relating to not only units 1 and 2 but also units 3 to 6 stating that the said units are on the same design as that of units 1 and 2 and that CRZ clearance has been granted for units 3 to 6 on 25.7.2012 after the EAC considered the Marine Impact Assessment. The said paragraphs are as follows:

''130. Further, it was pointed out that the environmental clearance dated 9.5.1989 stipulated that temperature of the Coolant Water should not exceed 5°C, however, in the light of paragraph 5 of the clearance dated 9.5.1989 and the amendment of Rule 84 of the Environmental (Protection) Rules, 1986 and Notification dated 22.12.1988 stipulation of 5°C contained in the clearance can be varied. Further, it was stated that since the discharge from Units 3 to 6 is essentially in the same area, the temperature of discharge from Units 1 and 2 can also be limited to 7°C, which according to NPCIL, will have no impact on marine life.

NPCIL, further pointed out that the report of the studies conducted by the Institute of Ocean Management (IOM), Anna University, would indicate that there would be no impact on marine ecosystem due to such discharge and opined that the temperature differential of the discharged water with respect to the receiving water should not exceed 7°C. The environmental clearance was accorded to Units 3 to 6 on the same design as Units 1 and 2 which stipulated the Condenser Cooling Water Discharge limit as 7°C. Further it was also pointed out that during the appraisal of CRZ clearance for Units 3 to 6 before the grant of CRZ clearance on 25.7.2012 the Expert Appraisal Committee (EAC) considered the marine impact assessment and opined that there would be no impact on water qualities due to the proposed discharge. Further, the TNPCB has also accorded consent to operate on 28.8.2012 for Units 1 and 2 stipulating the condenser cooling water discharge limit as 7°C. NPCIL, also submitted that the EIA of units 3 to 6 includes the impact of units 1 and 2 as a baseline for computing the additional impact of units 3 to 6. The concern of the public, it was submitted, regarding safety, livelihood, radiation etc. have been adequately addressed during the public hearings on units 3-4 and 5-6 which was granted on 23.09.2008 and 31.12.2009 respectively. Procedure required to be followed under the EIA notification, 2006 had also been strictly followed.

Further, it was also pointed out that no environmental clearance is required for establishing the desalination plant since the same has not been included in the schedule to either 1994 notification or 2006 notification and there is no prohibition in establishing the plant in the CRZ area.''

While referring to the stand of MoEF before the Supreme Court, wherein MoEF has stated that for setting up of units 3 to 6 Environmental Impact was studied on account of units 1 and 2 by following due procedure, the Hon'ble Apex Court has elicited the said stand in paragraphs 134, 135 and 136 which are as follows:

''134. MoEF took up the stand that 1994 notification would not apply qua Units 1 & 2 in view of the fact that the environmental clearance was already granted in the year 1989. Further, it was also submitted that subsequently while granting the environmental clearance for Units 3 to 6, public hearing was conducted as per EIA Notification, 2006. Consequently, it was submitted that the EIA for the expansion of KKNPP i.e. for setting up of Units 3 to 6 included the environmental impact on account of Units 1 & 2. Environmental clearance, it was pointed out, for the Units 3-4 and 5- 6 was granted on 23.09.2008 and 31.12.2012 respectively after following due procedures required under EIA Notification, 2006.

MoEF also maintained the stand that prior environmental clearance is required only for those activities which are listed in Schedule to the EIA Notification dated 27.01.1994 or the subsequent Notification dated 14.09.2006, which superseded the notification dated 27.01.1994. Desalination plant, it was submitted, did not find a place in the above mentioned notifications, hence prior environmental clearance for establishment of a desalination plant was not required. Further, it was pointed out that the same would not preclude MoEF from considering the issue of desalination plant from the CRZ point of view. Referring to CRZ amended notification dated 19.02.1991, it was submitted that the desalination plant could be established within CRZ area except CRZ-I(i)-i.e. eco-sensitive areas viz. mangroves, sand dunes reserve forests etc. Reference was also made to CRZ notification dated 06.01.2011, which superseded the CRZ Notification dated 19.02.1991. MoEF therefore, maintained the stand that in view of the legal position desalination plant could be established within the CRZ area. However, it was pointed out that even though the desalination plant is a permissible activity within the CRZ area, MoEF would again take into account the establishment of the desalination plant from the CRZ point of view and ensure that it would continue to function to the full satisfaction of MoEF.

MoEF has also in the affidavit dealt with the issue of change in the temperature limit of condenser cooling water discharge and its impact on marine environment. It was pointed out that at the time of grant of environmental clearance on 09.05.1989, the standard temperature difference between the inlet and outlet of condensed cooling water for discharge for temperature was fixed at 5oC. However, vide notification dated 22.12.1998, Environment (Protection) Rules, 1986 were amended. Rule 84 dealing with the thermal power plant, the limit prescribed therein would equally apply to NPPs as the technology for condenser cooling in both thermal as well as NPPs are the same. The environmental impact on the marine ecosystem due to +7oC Condenser Cooling Water (CCW) has been considered by MoEF through the EAC before giving the environmental clearances for the units 3-4 and 5-6 by stipulating that the temperature differential of the discharged water with respect to the receiving water would not exceed 7oC. MoEF therefore concluded that during the appraisal of the CRZ clearance for units 3-6 of KKNPP before grant of CRZ clearance on 25.07.2012, the EAC considered the marine impact assessment, thermal dispersion modelling studies conducted for condenser cooling water discharge considering the CCW discharge from all the 6 units i.e.

KKNPP 1-6. Further, it was also pointed out that TNPCB has also accorded consent to operate on 28.08.2012 for KKNPP units 1 & 2 by stipulating the CCW discharge limit as 7oC as per the amended Environmental Protection Rules. MoEF also maintained the stand that it will continue to monitor the environmental standards of KKNPP and periodically inspect as to examine whether KKNPP units conform to the safety of environment set by MoEF.''

The finding of the Hon'ble Supreme Court in respect of CRZ clearance for units 1 and 2 in paragraphs 149, 150 and 151 has already been elicited by us. That apart, the Supreme Court has extensively dealt with the EC for KKNPP units 3 to 6 in paragraphs 175 to 183 which includes the impact study made not only for units 1 and 2 but also units 3 to 6 as specifically stated in paragraph 182.

The contention raised by the learned counsel appearing for the appellant about the EIA study made by M/s. Engineers India Ltd., Gurgaon has also been considered specifically in paragraph 183 of the judgment and held that the CRZ clearance granted for units 3 to 6 of KKNPP by MoEF on 25.7.2012 is after following the procedure laid down in CRZ Notification, 2011. For better understanding of the said aspect, it is useful to refer to the said paragraphs of the judgment of the Hon'ble Supreme Court .which are as follows:

''175. NPCIL consent letter dated 18.2.2007, for grant of environmental clearance for expansion of the then existing Nuclear Project (2 x 1000 MW, by adding 2x1000 MW Units 3 & 4), pointed out that the land acquired for locating the proposed units was already available within the NPP Complex and no additional land would be required for expansion of the project. Further it was stated that water for condenser cooling system would be drawn from the sea and sweet water requirement would be met from the desalination plant. Further it was pointed out that no forest land was involved in the project. The Gulf of Mannar Marine National Park is about 87 KM from the site, though the Gulf of Mannar Biosphere Reserve Boundary is at a distance of about 20-50 m. Further it was pointed out that no displacement of population was envisaged. Project, it was stated, was to be located in the CRZ-III and that exemption from 500 m norm in respect of CRZ for Units 1 and 2 was obtained from the Government of India as far as back in 1989. Further it was also stated that public consultation was held on 2.6.2007 and that the total cost of the project would be Rs.14,000 crores which included 307.50 crore for environmental protection measures.

MoEF considered the above-mentioned proposal in accordance with paragraph 12 of the EIA Notification 2006 read with paragraph 2.2 sub- clause 2.2.1 (i)(a) of Circular dated 13.10.2006 and MoEF accorded clearance vide communication dated 23.09.2008 under the provisions of EIA Notification of 2006 subject to the implementation of several conditions, which read as follows:

i) Online continuous monitoring of the temperature of the discharged cooling water shall be carried out at the discharged point. It shall be ensured that the temperature differential of the discharged water w.r.t. the receiving water does not exceed 7°C at any given point of time.

ii) Necessary prior clearance under the provisions of CRZ Notification, 1991 for the activities to be located in CRZ shall be obtained from the Competent Authority.

iii) No additional land shall be acquired for any activity/facility of project.

iv) AERB clearance for the site shall be obtained before starting any construction work and a copy of the same shall be provided to the Ministry of Environment & Forests.

v) A scheme for rain water harvesting shall be prepared in consultation with an expert agency/State Ground Water Board and details furnished within 3 months of the issue of the environment clearance letter.

vi) Greenbelt shall be developed all around the project boundary covering an area of 180 ha preferably with local species.

vii) Noise levels shall be limited to 75dBA. For people working in the high noise area, requisite personal protective equipment like earplugs/ear muffs etc. shall be provided.

viii) Regular monitoring of conventional gaseous pollutants, radioactive pollutants in the air as well in the discharged water shall be monitored regularly as per AERB standards.

ix) Regular monitoring of ambient air quality shall be carried out in and around the power plant and records maintained. The location of the monitoring stations and frequency of monitoring shall be decided in consultation with SPCB. Periodic reports shall be submitted to the Regional Office of this Ministry. Besides air quality, water, food samples and soil shall also be monitored regularly for radioactive levels in the surrounding areas and records maintained.

x) A Disaster Management Plan and Emergency Preparedness Plan shall be prepared and put in place as per the norms of AERB. Regular mock drills shall be undertaken and based on the same, any modification required, if any, shall also be incorporated.

xi) The radioactive waste shall be managed as per the norms prescribed by AERB.

xii) The non-radioactive waste water generated from the plant premises will be suitably treated in STP and the treated effluents shall be recycled and reused within the plant premises for greenbelt etc.

xiii) The radioactive liquid waste emanating from the plant will be treated and managed as per the guidelines of AERB/ICRD in this regard.

xiv) Provision shall be made for the housing of construction labour within the site with all necessary infrastructure and facilities such as fuel for cooking, mobile toilets, mobile STP, safe drinking water, medical health care, crèche etc. The housing may be in the form of temporary structures to be removed after the completion of the project.

xv) The project proponent shall advertise in at least two local newspapers widely circulated in the region around the project, one of which shall be in the vernacular language of the locality concerned within seven days from the date of this clearance letter, informing that the project has been accorded environmental clearance and copies of clearance letter are available with the State Pollution Control Board/Committee and may also be seen at Website of the Ministry of Environment and Forest at http://envfor.nic.in

xvi) A separate environment management cell with qualified staff shall be set up for implementation of the stipulated environment safeguards.

xvii) Half yearly report on the status of implementation of the stipulated conditions and environmental safeguards shall be submitted to this Ministry/Regional Office/CPCB/SPCB.

xviii) Regional Office of the Ministry of Environment & Forests located at Bangalore will monitor the implementation of the stipulated conditions. A complete set of documents including Environmental Impact Assessment Report and Environment Management Plan along with the additional information submitted from time to time shall be forwarded to the Regional Office for their use during monitoring.

xix) Separate funds shall be allocated for implementation of environmental protection measures along with item-wise break-up. These cost shall be included as part of the project cost.

xx) Full cooperation shall be extended to the Scientists/Officers from the Ministry /Regional Office of the Ministry at Chandigarh/the CPCB/ the SPCB who would be monitoring the compliance of environmental status."

The notification also stated that the environmental clearance would be valid for a period of five years to start the operation of the power plant and that in case of any deviation or alteration in the project proposed and already submitted to the MoEF for clearance, a fresh reference should be made to the MoEF to assess the adequacy of the conditions imposed and to add additional protection measures required, if any. Further it was also pointed out that the above stipulations would be in force amongst others under the Water Act, 1974, The Air Act, 1981 and the Environment (Protection) Act, 1986 and the Rules thereunder, Hazardous Wastes (Management and Handling) Rules, 1989 and its Rules, the Public Liability Insurance Act, 1991 and its amendment.

NPCIL submitted yet another application dated 19.11.2009 for environmental clearance for KKNPP expansion Units 5 & 6 (2 x 1000MW). Environmental clearance was granted by the MoEF vide its communication dated 31.12.2009 incorporating all the conditions which were stipulated in respect of Units 3 and 4 in the Notification dated 23.9.2008 and also with additional conditions which reads as under:

i. "Environmental clearance is subject to obtaining prior clearance from wildlife angle as applicable due to proximity of Gulf of Mannar Biosphere Reserve.

ii. The grant of environmental clearance does not necessarily implies that wildlife clearance shall be granted to the project and that their proposal for wildlife clearance will be considered by the respective authorities on their merits and decision taken. The investment made in the project, if any, based on environmental clearance so granted, in anticipation of the clearance from wildlife angle shall be entirely at the cost and risk of the project proponent and Ministry of Environment and Forests shall not be responsible in this regard in any manner.

iii. Environmental clearance is subject to final order of the Hon'ble Supreme Court of India in the matter of Goa Foundation v. Union of India in Writ Petition (Civil) No.460 of 2004, as may be applicable to this project.

iv. First aid and sanitation arrangements shall be made for the drivers and the contract workers during construction phase.

v. A sewage treatment plant shall be provided and the treated sewage conforming to the prescribed standards shall be used for raising green belt/plantation.

vi. The proponent shall upload the status of compliance of the stipulated EC conditions, including results of monitored data on their website and shall update the same periodically. It shall simultaneously be sent to the Regional Office of MoEF, the respective Zonal Office of CPCB and the SPCB. The criteria pollutant levels (stack and ambient levels) indicated for the project shall be monitored and displayed at a convenient location near the main gate of the company in the public domain.

vii. The project proponent shall also submit six monthly reports on the status of compliance of the stipulated EC conditions including results of monitored data (both in hard copies as well by e-mail) to the respective Regional Office of MoEF, the respective Zonal Office of CPCB and the SPCB.

viii. A copy of the clearance letter shall be sent by the proponent to concerned Panchayat, Zila Parishad/Municipal Corporation, urban local Body and the Local NGO, if any, from whom suggestions/representations, if any, were received while processing the proposal. The clearance letter shall also be put on the website of the Company by the proponent.

ix. The Environment statement for each financial year ending 31st March in Form-V as is mandated to be submitted by the project proponent to the concerned State Pollution Control Board as prescribed under the Environment (Protection) Rules, 1986, as amended subsequently, shall also be put on the website of the company along with the status of compliance of EC conditions and shall also be sent to the respective Regional Offices of MoEF by e-mail.

This issues with the approval of the Competent Authority."

As provided under EIA 2006 Notification, before applying for environmental clearance for Units 3 to 6 a comprehensive EIA study was conducted for Units 3 to 6 which included the impact of Units 1 and 2 aspect as a base-line for computing additional impacts of Units 3 to 6. Concern of the public regarding safety, livelihood, radiation etc. had been addressed during the public hearing on units 3 to 6 held on 2.6.2007. Issues raised in the public hearing were:

Use of water from Pachi Pari Dam

Effect of temperature of discharge water on marine life

Radiation emission

Solid waste and fuel management

Welfare activities of the nearby villagers

Compliance with MoEF, IEA and AERB guidelines

Environmental impact and monitoring and

Site location criteria.

It was discussed in the meeting that sea water intake structure would be located at a depth of 10 m from the Main Sea Level (MSL ) and at a distance of 1.2 Kms. off shore from the shore line. The temperature differential of cooling water at the discharge point would be limited to 7°C with respect to the ambient temperature. Discharge of all units, including the existing two units will be let off into a common discharge channel parallel to the shore bound and release at the two extreme ends of the channel. Gates will be provided on East and West side of the channel, which will be operated depending upon the ocean current direction in different season. The modelling was done for all the units of 1000MW each taking into consideration the futuristic plan of expansion at the proposed site. The impact zone was shown to be 5 km.

The Environmental Appraisal Committee (EAC) after holding the public meeting on 02.06.2007 again met on 22.8.2008 and made its recommendations for environmental clearance for Units 3 and 4 subject to their obtaining CRZ clearance. We have already indicated that the proposal of EAC was approved by the MoEF on 23.9.2008 with respect to Units 3 and 4. Later after getting the administrative approval from the Competent Authority for Units 5 and 6, the same was also reported by NPCIL to the MoEF and MoEF vide its letter accorded clearance on 31.12.2009 for Units 5 and 6 as well.

The appellants, therefore, cannot contend that the procedure laid down under the 1994 and 2006 Notifications had not been followed. In our view, the EIA for the expansion of KKNPP i.e. for setting up Units 3 to 6 included the environment impact on Units 1 and 2 and the cumulative effect of all the six units definitely formed the base line for the clearance granted by the MoEF on 23.9.2008 and 31.12.2009. The concern of the public regarding safety, livelihood, radiation, impact on marine life, rehabilitation, impact on the sea shore etc. were also considered and following that necessary clearance was granted.

KKNPP 3 to 6, after having got environmental clearance from MoEF in September 2008 and December 2009 entrusted the task of updation of EIA study to M/s Engineers India Ltd. (EIL), Gurgaon (a Govt. of India Undertaking). EIL, accordingly carried out the study along with the Central Marine Fisheries Research Institute (CHFRI) for the expansion of projects on air, water, land, noise, biological and socio-economic aspects within a radius of 10 km from the proposed location. Detailed study was conducted on the Reactor system of KKNPP 3 to 6, impact on environment existing environmental status, its prediction and on environmental management plan report was submitted in August 2011. The report has also analysed the environmental impact on the marine ecosystem due to +7oC Condenser Cooling Water (CCW) and concluded that it will have no impact on the marine ecosystem. EIA was considered EAC, while granting CRZ clearance for the additional reactors 3 to 6 at KKNPP along with sea water intake and outfall facilities for cooling purpose. CRZ clearance was granted by MoEF on 25.07.2012 after following the procedure laid down in the CRZ notification of 2011. TNPCB, as already indicated, has also accorded consent to operate vide proceeding dated 28.08.2012 incorporating stringent standard of 7oC over and above the ambient temperature of sea for the discharge of effluents, through the cooling water and trade effluent and included permission for discharge of effluents from desalination plant.''

(Emphasis supplied)

Ultimately, in the concluding paragraph, the Hon'ble Apex Court has held as follows:

''211. KKNPP has, therefore been set up as part of India's National Policy so as to develop, control and use of atomic energy for the welfare of the people of India. Policy makers consider nuclear energy as an important element in India's energy mix for sustaining economic growth of natural and domestic use. For setting up the project, the project proponent has taken all safety requirements in site and off site and has followed the code of practices laid down by AERB, based on nationally and internationally recognized safety methods. Safeguarding the nuclear plants, radioactive materials and ensuring its physical security have become a central part of Nuclear Law. Adequate measures have, therefore, to be taken for storage of NSF at site, and also for the physical safety of stored NSF. Of the seventeen suggested safety measures, by AERB, LWR, twelve have already been implemented and the rest, in a phased manner have to be implemented which the experts say, are meant for extra security. DMP is already in place, so also the emergency preparedness plan, off site and on site and all programmes under CSR are progressing in the right direction with the co- operation and assistance of the District Administration.

NPCIL, has also received necessary environmental clearance from MoEF, TNPCB, etc for Units 1 to 6. No violation of CRZ is also noticed. Desalination Plant is also established after following rules and regulations and there is no violation of CRZ. Experts say that there will be no impact on the marine eco-system due to discharge of +7ºC, CCW over and above the ambient temperature of the sea. Radiation impact on the eco- system is also within the standard set by AERB, MoEF, EAC, Pollution Control Board etc., so opined by the Experts. In other words, all the expert teams are unanimous in their opinion of the safety and security of the KKNPP both to life and property of the people and the environment which includes marine life. Court has to respect national nuclear policy of the country reflected in the Atomic Energy Act and the same has to be given effect to for the welfare of the people and the country's economic growth and it is with these objectives in mind KKNPP has been set up.''

It is in the light of the above said finding of the Hon'ble Apex Court that CRZ clearance granted for KKNPP units 3 to 6 is after following CRZ Notification and upholding the same not only by taking note of the EIA study made by M/s. Engineers India Ltd., Gurgaon and also about the common desalination plant which was established for units 1 and 2 and also the plant to be installed for units 3 to 6, we have to decide as to whether this Tribunal can, inspite of the above said finding, give a contra decision or attempt to explain such decision of the Apex Court on the ground that it is only a passing reference on ''obiter''. The crux of the issue is, when it is admitted that the writ petition filed originally in the High Court was relating to units 1 and 2, but when the matter was taken up to the Apex Court, the Apex Court has not only dealt with the commissioning of units 1 and 2 but also about the CRZ clearance in respect of units 3 to 6, it is still open to the parties to say that such findings are not binding.

The contention of the learned counsel appearing fort the appellant Mr. Radhakrishnan is that the Apex Court cannot expand the scope of relief by referring to units 3 to 6 which was not the subject matter of issue before the High Court. First of all, it is to be noted that the finding given by the Hon'ble Apex Court in respect of units 3 to 6 have become final and factually the appellant has not filed any review before the Apex Court to the effect that the judgment must be restricted to units 1 and 2. The judgment of the Hon'ble Supreme Court having become final, which is also in respect of units 3 to 6, we are of the considered view that it is certainly not open to this Tribunal to either explain the judgment of the Apex Court or give its own view by presuming that the finding given by the Supreme Court regarding units 3 to 6 is only passing reference and not binding upon the parties. Such a decision, in our considered view, will be ante thesis not only to the principles of precedent but also judicial propriety. The detailed manner in which the Hon'ble Supreme Court has dealt with units 3 to 6 can never be termed either as a "passing reference" or ''obiter dicta''.

Article 141 of the Constitution of India makes it clear that law declared by the Supreme Court shall be binding on all courts in India, thereby prescribing an authoritative precedent on the finding of the Supreme Court on all courts in India. Article 141 of the Constitution of India is as follows:

''141. Law declared by Supreme Court to be binding on all courts. -The law declared by the Supreme Court shall be binding on all courts within the territory of India.''

The authority of judicial decision as precedent are incorporated in the principles of ''stare decisis'' . The principle which is embodied in the Latin Maxim - ''Stare decisis et non quieta movere'', which means to abide by the precedents and not to disturb settled points, When a point of law has been once solemnly and necessarily settled by the decision of a competent court, it will no longer be considered open to examination, or to a new ruling, by the same Tribunal or those which are bound to follow its adjudications.

Chancellor Kent has stated the reasons underlining the rule as follows:

''A solemn decision upon a point of law, arising in any given case, becomes an authority in a like case, because it is the highest evidence which we can have of the law applicable to the subject, and the judges are bound to follow that decision so long as it stands unreversed, unless it can be shown that the law was misunderstood or misapplied in that particular case. If a decision has been made upon solemn argument and mature deliberation, the presumption is in favour of its correctness; and the community have a right to regard it as a just declaration or exposition of the law, and to regulate their actions and contracts by it. It would, therefore, be extremely inconvenient to the public, if precedents were not duly regarded and implicitly followed It is by the notoriety and stability of such rules that professional men can give safe advice to those who consult them and people in general can venture with confidence to buy and trust, and to deal with each other. If judicial decisions were to be lightly disregarded, we should disturb and unsettle the great landmarks of property. When a rule has been once deliberately adopted and declared, it ought not to be disturbed, unless by a court of appeal or review, and never by the same court, except for very cogent reasons, and upon a clear manifestation of error; and if the practice were otherwise, it would be leaving us in a state of perplexing uncertainty as to the law.'' (American Law Register - December, 1886)

Considering the relevance of the principle of stare decisis, in Bank of Pennsylvania v. Commonwealth (19 Penn. St. 151) Judge Black has referred to the principle of stare decisis as ''that great principle which is the sheet-anchor of our jurisprudence''

It was in WAMAN RAO VS. UNION OF INDIA (1981) 2 SCC 362 the principle of stare decisis which is firmly rooted in American Jurisprudence came to be explained by the Supreme Court stating that it is sufficient for invoking the rule of stare decisis that a certain decision was arrived at on a question which arose or was argued, no matter on what reason the decision rests or what is the basis of the decision. The Supreme Court has analysed the jurisprudence in this regard as follows:

''37. The principle of stare decisis is also firmly rooted in American Jurisprudence. It is regarded as a rule of policy which promotes predictability, certainty, uniformity and stability. The legal system, it is said, should furnish a clear guide for conduct so that people may plan their affairs with assurance against surprise. It is important to further fair and expeditious adjudication by eliminating the need to relitigate every proposition in every case When the weight of the volume of the decisions on a point of general public importance is heavy enough, courts are inclined to abide by the rule of stare decisis, leaving it to the legislature to change long-standing precedents if it so thinks it expedient or necessary. In Burnet v. Coronado Oil & Gas Co. 285 U.S. 393, 406, Justice Brandeis stated that 'stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than it be settled right'.

While dealing with the subject of stare decisis, Shri H.M. Seervai in his book on 'Constitutional Law of India has pointed out how important it is for judges to conform to a certain measure of discipline so that decisions of old standing are not overruled for the reason merely that another view of the matter could also be taken. The learned author has cited an Australian case in which it was said that though the court has the power to reconsider its own decisions, that should not be done upon a mere suggestion that some or all of the members of the later court may arrive at a different conclusion if the matter were res integra The learned author then refers to two cases of our Supreme Court in which the importance of adherence to precedents was stressed. Jagannadhadas J. said in the Bengal Immunity Case that the finality of the decisions of the Supreme Court, which is the Court of last resort, will be greatly weakened and much mischief done if we treat our own judgments, even though recent, as open to reconsideration. B.P. Sinha J. said in the same case that if the Supreme Court were to review its own previous decisions simply on the ground that another view was possible, the litigant public may be encouraged to think that it is always worthwhile taking a chance with the highest Court of the land. In I.T.O. Tuticorin v. T.S.D. Nadar , Hegde J. said in his dissenting Judgment that the Supreme Court should not overrule its decisions except under compelling circumstances. It is only when the Court is fully convinced that public interest of a substantial character would be jeopardised by a previous decision, that the Court should overrule that decision. Reconsideration of the earlier decisions, according to the learned Judge, should be confined to questions of great public importance. Legal problems should not be treated as mere subjects for mental exercise. An earlier decision may therefore be overruled only if the Court comes to the conclusion that it is manifestly wrong, not upon a mere suggestion that if the matter were res Integra, the members of the later court may arrive at a different conclusion.

These decisions and texts are of high authority and cannot be overlooked. In fact, these decisions are themselves precedents on the binding nature of precedents.

It is also true to say that for the application of the rule of stare decisis, it is not necessary that the earlier decision or decisions of long standing should have considered and either accepted or rejected the particular argument which is advanced in the case on hand. Were it so, the previous decisions could more easily be treated as binding by applying the law of precedent and it will be unnecessary to take resort to the principle of stare decisis. It is, therefore, sufficient for invoking the rule of stare decisis that a certain decision was arrived at on a question which arose or was argued, no matter on what reason the decision rests or what is the basis of the decision. In other words, for the purpose of applying the rule of stare decisis, it is unnecessary to enquire or determine as to what was the rationale of the earlier decision which is said to operate as stare decisis. Therefore, the reason why Article 31A was upheld in the earlier decisions, if indeed it was, are not germane for the purpose of deciding whether this is a fit and proper case in which to apply that rule.'' (Emphasis supplied)

The said principle was again reiterated by the Supreme Court in KRISHNA KUMAR VS. UNION OF INDIA (1990) 4 SCC 207 as follows:

''33. Stare decisis et non guieta movere. To adhere to precedent and not to unsettle things which are settled. But it applies to litigated facts and necessarily decided questions. Apart from Art. 141 of the Constitution of India, the policy of courts is to stand by precedent and not to disturb settled point. When court has once laid down a principle of law as applicable to certain state of facts, it will adhere to that principle, and apply it to all future cases where facts are substantially the same. A deliberate and solemn decision of court made after argument on question of law fairly arising in the case, and necessary to its determination, is an authority, or binding precedent in the same court, or in other courts of equal or lower rank in subsequent cases where the very point is again in controversy unless there are occasions when departure is rendered necessary to vindicate plain, obvious principles of law and remedy continued injustice. It should be invariably applied and should not ordinarily be departed from where decision is of long standing and rights have been acquired under it, unless considerations of public policy demand it. But in Nakara it was never required to be decided that all the retirees formed a class and no further classification was permissible.''

Holding that predictability and certainty is an important hallmark of judicial jurisprudence developed in this country, the Supreme Court has reiterated the principles of basics of judicial discipline in the following judgment laid down by the larger Bench. It was in OFFICIAL LIQUIDATOR VS. DAYANAND (2008) 10 SCC 1 the Supreme Court has observed as follows:

''90. We are distressed to note that despite several pronouncements on the subject, there is substantial increase in the number of cases involving violation of the basics of judicial discipline. The learned Single Judges and Benches of the High Courts refuse to follow and accept the verdict and law laid down by coordinate and even larger Benches by citing minor difference in the facts as the ground for doing so. Therefore, it has become necessary to reiterate that disrespect to constitutional ethos and breach of discipline have grave impact on the credibility of judicial institution and encourages chance litigation. It must be remembered that predictability and certainty is an important hallmark of judicial jurisprudence developed in this country in last six decades and increase in the frequency of conflicting judgments of the superior judiciary will do incalculable harm to the system inasmuch as the courts at the grass root will not be able to decide as to which of the judgment lay down the correct law and which one should be followed.

We may add that in our constitutional set up every citizen is under a duty to abide by the Constitution and respect its ideals and institutions. Those who have been entrusted with the task of administering the system and operating various constituents of the State and who take oath to act in accordance with the Constitution and uphold the same, have to set an example by exhibiting total commitment to the Constitutional ideals. This principle is required to be observed with greater rigour by the members of judicial fraternity who have been bestowed with the power to adjudicate upon important constitutional and legal issues and protect and preserve rights of the individuals and society as a whole. Discipline is sine qua non for effective and efficient functioning of the judicial system. If the Courts command others to act in accordance with the provisions of the Constitution and rule of law, it is not possible to countenance violation of the constitutional principle by those who are required to lay down the law.''

Under Article 136 of the Constitution of India when the Supreme Court entertains an appeal by the grant of Special Leave, the scope and power of the Supreme Court which is distinguishable from ordinary Appellate Power, was termed to be an Extraordinary Power. It was held in A. SUBASH BABU VS. STATE OF ANDHRA PRADESH (2011) 7 SCC 616 that the Supreme Court can suo motu mould the relief to meet the exigent situation. It was held as follows:

''61. In Chandrakant Patil Vs. State (1998) 3SCC 38, even in absence of an appeal by Government specifically for that purpose and in absence of revisional power as is available to High Court and Sessions Court, under Criminal Procedure Code, this Court held that the Supreme Court has power under Article 142 read with Section 19 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 to enhance the sentence for doing complete justice in the matter that in Reportable the circumstances of the case appeared to it, to be too inadequate. In the said case it was contended that the Supreme Court has no power to enhance sentence in the absence of an appeal by the Government presented specifically for that purpose more so because Supreme Court has no revisional powers which the High Court and Court of Sessions are conferred with by the Criminal Procedure Code. While negativating the said contention this Court has firmly ruled that powers of the Supreme Court in appeals filed under Article 136 of the Constitution are not restricted by the appellate provisions enumerated under the Code of Criminal Procedure or any other statute. What is held as firm proposition of law is that when exercising appellate jurisdiction the Supreme Court has power to pass any order. The power under Article 136 is meant to supplement the existing legal frame work. It is conceived to meet situations which cannot be effectively and appropriately tackled by the existing provisions of law.''

On the facts of the said case, the Supreme Court has referred to Article 141 of the Constitution of India and held that this provision compels all courts to follow a decision rendered by the Apex Court as follows:

''57. This Court does not find any substance in the above mentioned argument of the learned Counsel for the appellant. The law declared by this Court in case of Reema Aggarwal (Supra) was binding on all Court including the learned Single Judge of High Court of A.P. who decided the present case in view of salutary provisions of Article 141 of the Constitution. The learned Single Judge of the High Court could not have afforded to ignore the law declared by this Court in Reema Aggarwal (Supra) while considering the question whether proceedings initiated by the respondent no. 2 for commission of offence punishable under Section 498A Reportable of IPC should be quashed or not. The High Court has completely misdirected itself in quashing the proceedings for the offence punishable under Section 498A of IPC. There is no manner of doubt that the finding recorded by the High Court that the respondent no. 2 is not the wife within the meaning of Section 498A of the Indian Penal Code runs contrary to law declared by this Court in case of Reema Aggarwal (Supra)''

In view of the constitutional position regarding the binding nature of the decision rendered by the Hon'ble Supreme Court by applying the said salutary principle to the facts of the present case, we are of the considered view that the relief claimed by the appellant in this appeal cannot be granted by this Tribunal.

Accordingly, the appeal fails and the same is dismissed, however, without any order as to cost.