T. Antony vs Union of India (UOI) and Others

J. Chelameswar, C.J.—Aggrieved by an order dated 25.03.2011 in I.A. No. 4091 of 2011 in W.P.(C) No. 1946 of 2011, the unsuccessful applicant/writ Petitioner preferred the instant appeal.

The writ petition is filed challenging the permission granted for setting up of an ''Ice Plant'' by the 3rd Respondent. The 2nd Respondent, the Kerala Coastal Zone Management Authority, by an order dated 01.03.2011, decided to give clearance for the establishment of an Ice Plant in the Kadinamkulam Grama Panchayat. It was this decision of the 2nd Respondent by which the Appellant herein is aggrieved.

Along with the writ petition, the Appellant herein moved an Interlocutory Application, in substance, seeking an injunction against the construction of the Ice Plant. By the order under appeal, a learned Judge of this Court declined to grant the interim order as sought for. Hence the appeal.

The learned Judge opined that as per the existing notifications, the area wherein the disputed ice plant is coming up, is located within CRZ-III. The learned Judge further opined that so long as the area is within CRZ-III, the activity such as the one done by the 3rd Respondent is a permissible activity. On the other hand, the learned Counsel for the Appellant, Sri.P.B. Sahasranaman argued that there is an impending revision of the CRZ Notifications and in the said revision there is a chance of the area in question being shifted to some other zone where the impugned activity would be impermissible and therefore the order under appeal is not sustainable.

We regret our inability to agree with the learned Counsel for the Appellant. Admittedly, as of now, the impugned activity is not objectionable. The possibility of the impugned activity becoming legally objectionable at a future date, in our view, should not normally be allowed, to defeat the legal rights of the 3rd Respondent who is setting up the ice plant, unless the Appellant establishes that permitting the 3rd Respondent to proceed with the work would result in irreparable damage to the environment.

The learned Counsel for the Appellant placed reliance on a judgment of the Supreme Court reported in M.C. Mehta Vs. Union of India (UOI) and Others, , particularly paragraph 48 of the said judgment, which reads as follows:

The development and the protection of environments are not enemies. If without degrading the environment or minimising adverse effects thereupon by applying stringent safeguards, it is possible to carry on development activity applying the principles of sustainable development, in that eventuality, the development has to go on because one cannot lose sight of the need for development of industries, irrigation resources and power projects etc. including the need to improve employment opportunities and the generation of revenue. A balance has to be struck. We may note that to stall fast the depletion of forest, series of orders have been passed by this Court in T.N. Godavarman''s case regulating the felling of trees in all the forests in the country. Principle 15 of Rio Conference of 1992 relating to the applicability of precautionary principle which stipulates that where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for proposing effective measures to prevent environmental degradation is also required to be kept in view. In such matters, may a times, the option to be adopted is not very easy or in a strait-jacket. If an activity is allowed to go ahead, there may be irreparable damage to the environment and if it is stopped, there may be irreparable damage to economic interest. In case of doubt, however, protection of environment would have precedence over the economic interest. Precautionary principle requires anticipatory action to be taken to prevent harm. The harm can be prevented even on a reasonable suspicion. It is not always necessary that there should be direct evidence of harm to the environment.

It can be seen from the said judgment that the Supreme Court emphasised the need for an ''irreparable damage'' to the environment. As of now, no such damage is brought to our notice.

In the circumstances, we do not see any merit in the writ appeal. Accordingly, the Writ Appeal is dismissed.