Madras High Court
Avoor Muthiah Maistry Street vs The Government Of Tamil Nadu on 11 May, 2011
       

  

  

 
 
 IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED:       11.5.2011

CORAM:

THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAO
AND
THE HONOURABLE MR.JUSTICE M.VENUGOPAL

Writ Petitions No.11747 of 2002; 37081 of 2002; 41163 of 2002;
7444 of 2009 
and M.P.Nos.1 and 2 of 2009 in W.P.No.11747 of 2002

W.P.No.11747 of 2002:

Avoor Muthiah Maistry Street
Residents Welfare Association,
64/7, Avoor Muthiah Street,
Chennai-81, 
rep.by its President S.M.K.Swamy		... Petitioner 

Vs.

1.The Government of Tamil Nadu,
   rep.by the Chief Secretary to Government,
   Fort St.George,
   Madras-9.

2.The Chairman,
   Chennai Port Trust,
   Chennai.

3.The Director,
   Pollution Control Board,
   Guindy, Chennai.				... Respondents
W.P.No.37081 of 2002:

The Registrar (Administration),
High Court,
Madras.					... Petitioner 

Vs.

1.The State of Tamilnadu,
   rep.by Secretary to Government,
   Department of Environment and Forest,
   Fort St.George,  Chennai-600009.

2.The Chair Person,
   Tamil Nadu Pollution Control Board,
   76, Anna Salai, Guindy,
   Chennai-600032.

3.The Chairman,
   Port Trust, Madras.

4.The District Environment Engineer,
   Tamilnadu Pollution Control Board,
   Chennai District, Panagal Maligai,
   First Floor D Wing, No.1, Jennis Road,		
   Saidpet, Chennai-600015.

5.The Member Secretary,
   Tamil Nadu Electricity Board,
   Anna Salai, Chennai-600002.

(R.5 impleaded as per the order of the Court
  dated 26.9.2002)

6.M/s.T.C.P.Limited,
   T.C.P.Sapthagiri Bhavan,
   No.10, Karpagambal Nagar,
   Mylapore, Chennai-4.

7.M/s.South India Corporation Ltd.,
   "Rani Seethai Hall",
   6th Floor, No.603, Anna Salai,
   Chennai-6.

8.M/s.Seaport Logistics Limited,
   No.42, Moores Street,
   II Floor, Chennai-1.			... Respondents

(R.6 to R.8 impleaded as per the order of the 
  Court dated 3.10.2002)
(Though The Reserve Bank of India,
  rep.by its Regional Director (TN),
  No.16, Fort Glacis, Rajaji Salai,
  Chennai-1 was impleaded as R.9 as per the
  order of the Court dated 3.10.2002, subsequently,
  by the suo motu order of the Court dated 26.7.2007,
  this respondent was deleted from the array of parties)  	

W.P.No.41163 of 2002:

Royapuram Residents Welfare Association,
No.41, Mariadoss Street,
Royapuram, Chennai-13,
represented by its Vice President		... Petitioner 

Vs.

1.Tamil Nadu State Pollution Control Board,
   rep.by its Chairman,
   No.76, Anna Salai,
   Guindy, Chennai-600032.

2.The Central Pollution Control Board,
   Parivesh Bhavan,
   CBD cum Off Complex,
   East Arjun Nagar,
   New Delhi, 
   represented by its Chairman.

3.Chennai Port Trust,
   represented by its Chairman,
   Rajaji Salai,
   Chennai-600001.

4.Minerals and Metals Trading
   Corporation Ltd. (MMTC),
   represented by its Managing Director,
   Core I, SCOPE Complex,
   7 Institutional area,
   Lodhi Road,
   New Delhi-110003.		

5.MMTC Limited,
   'Chennai House',
   6, Esplanade,
   Chennai-600108.

6.M/s.National Mineral Development Corporation,
   Khanji Bhavan, 10-3-311/A,
   Castle Hills, Masab Tank,
   Hyderabad-500028.

7.MSPL Ltd.,
   Co-operative Colony, Hospet-583203.

8.Bellary Iron Ores Pvt.Ltd.,
   60/356-A, Hospet Road,
   Allipur, Bellary-583105.

9.M/s.Sesa Goa Ltd.,
   'SESA GHOR',
   20, EDC Complex,
   Patto, Panjim,
   Goa-403001.

10.Tungabhadra Special Products,
     Division of Tungabhadra Minerals Private Limited,
     Salgaocar Chambers,
     P.O.Box No.114, Margao,
     Goa-403601.

11.Hothur Traders,
     'HOTHUR TOWERS',
     No.153, Amar Jyothi Layout,
     Ring Road, Domlur,
     Bangalore-560071.			... Respondents 

(Respondents 5 to 11 impleaded as per the 
 order dated 4.4.2003)

W.P.No.7444 of 2009:
Madras High Court Practising Advocates Association,
rep.by its President
Elephant G.Rajendran,
Advocate, No.51/24, South Usman Road,
T.Nagar, Chennai-17.			... Petitioner 

Vs.

1.The Chairman,
   Madras Port Trust,
   Chennai-600001.


2.The Chairman,
   Pollution Control Board,
   Guindy,
   Chennai.

3.The Director,
   Archaeological Department,
   Egmore,
   Chennai-600008.

4.The Director of Medical Service,
   Teynampet,
   Chennai-600018.

5.Union of India,
   rep.by its Secretary,
   Shipping and Transports,
   New Delhi.

6.Ennore Port Trust Ltd.,
   rep.by its Chairman & Managing Director,
   No.23, Rajaji Salai,
   Chennai-600004.

7.Union of India,
   rep.by its Secretary,
   Ministry of Commerce and Industry,
   New Delhi.

(R.6 impleaded as per order dated 31.8.2009
 made in M.P.No.4/2009)

(R.7 impleaded as per the order dated 24.3.2010
made in M.P.No.1/2010 in W.P.No.7444/2009)	... Respondents 

* * *
	W.P.No.11747 of 2002 is a taken up Writ Petition by this Court on the letter addressed by the petitioner Association to the then Honourable The Chief Justice of this Court on 27.3.2002.  The prayer in this Writ Petition is to issue a Writ of Mandamus directing the respondents to grant immediate relief by passing necessary orders against the Chairman, Chennai Port Trust, to prevent the reckless and inhuman acts caused by unloading of reddish iron ore dust in Chennai Harbour and the consequential unbearable pollution in the New Wahsermanpet area.
	W.P.No.37081 of 2002 is also a taken up Writ Petition by this Court.  The prayer in this Writ Petition is to issue a Writ of Mandamus, directing the respondents, more particularly the 3rd respondent to immediately stop dumping and handling of dusty powdered coal and to take effective steps to prevent the pollution.
	W.P.No.41163 of 2002 has been filed as a probono publico under Article 226 of the Constitution of India, praying to issue a Writ of Mandamus, directing the first respondent to frame an appropriate scheme to eliminate the chronic air pollution caused due to the bulk handling of iron ore and coal at the Chennai Port and compensate residents affected by pollution on account of the third respondent's operation for damage to health and property.
	W.P.No.7444 of 2009 has been filed as a probono publico under Article 226 of the Constitution of India, praying to issue a Writ of Mandamus, to restrain the respondents the Madras Port Trust and respondent-5 namely Union of India, by its Secretary, Shipping and Transports, New Delhi from dumping the chemicals in the Madras Port Trust area and to shift the chemicals to Ennore Port immediately.

* * *

Appearance in W.P.No.11747/2002:
	For petitioner	: M/s.T.Mohan
	For R.1		: Mrs.Malarvizhi Udayakumar, Spl.G.P. (W)
	For R.2		: Mr.P.Wilson, S.C. and Addl.Advocate
			  General for M/s.P.Wilson Associates
	For R.3		: Mr.Ramanlal

Appearance in W.P.No.37081/2002:
	For petitioner 	: Mr.A.Jenasenan
	For R.1		: Mrs.Malarvizhi Udayakumar, Spl.G.P. (W)
	For R.2 & R.4	: Mr.Ramanlal
	For R.3		: Mr.P.Wilson, S.C. and Addl.Advocate
			  General for M/s.P.Wilson Associates
	For R.5		: Mr.M.Vaidyanathan
	For R.6 to R.8	: No appearance

Appearance in W.P.No.41163/2002:	
	For petitioner	: Mr.V.Achuthan
	For R.1		: Mr.Ramanlal
	For R.3		: Mr.P.Wilson, S.C. and Addl.Advocate
			  General for M/s.P.Wilson Associates
	For R.6		: Mr.S.A.Rajan
	For R.7,8 & 11	: Mr.V.Aravamudan
	Others		: No appearance

Appearance in W.P.No.7444/2009:
	
	For petitioner	: Mr.Elephant G.Rajendran
	For R.1		: Mr.P.Wilson, S.C. and Addl.Advocate
			  General for M/s.P.Wilson Associates
	For R.2		: Mr.Ramanlal
	For R.3 & R.4	: Mrs.Malarvizhi Udayakumar,Spl.G.P, (W)
	For R.5 & R.7	: Mr.M.Ravindran, 
			  Addl.Solicitor General of India

* * *
COMMON ORDER
ELIPE DHARMA RAO, J.

Right to life guaranteed under Article 21 of the Constitution, with its extended meaning by judicial pronouncements that it includes the right to have clean and healthy environment, is again the subject matter in all these matters.

2. The letter dated 27.3.2002, addressed by Avoor Muthiah Maistry Street Residents Welfare Association, 64/7, Avoor Muthiah Street, Chennai, signed by its President Mr.S.M.K.Swamy, to the then Honourable Chief Justice of this Court, thereby explaining their turmoil because of the iron ore unloaded in the Harbour being blown to their houses and causing unbearable pollution and requesting to provide respite for them by treating the said letter as a public interest litigation, has laid the foundation for initiation of these proceedings as the said letter has been ordered to be treated as a taken up Writ Petition. Accordingly, the said letter was treated as a writ petition and numbered as W.P.No.11747 of 2002. This writ petition was admitted on 25.4.2002.

3. While so, on 21.9.2002, the then Honourable Chief Justice along with the Honourable Judges of the Building Committee of this Court, during their inspection of the premises noticed coal dust on the walls and floor due to the handling of the loading and unloading of the coal in huge quantity by the Madras Port Trust. Hence, the Registrar (Administration) of this High Court was directed to immediately bring to the notice of the Pollution Control Board the state of affairs so as to take necessary remedial steps. Since it has been brought to the notice of the then Honourable Chief Justice that despite issuance of three notices dated 18.7.2001, 22.5.2002 and 14.8.2002 by the Pollution Control Board, there was no response from the Chennai Port Trust, the Honourable The Chief Justice has ordered to treat the said notices issued by the Pollution Control Board to the Chennai Port Trust as a taken up Writ Petition. Accordingly, W.P.No.37081 of 2002 has been numbered as a taken-up Writ Petition.

4. During pendency of these two taken up Writ Petitions, the Royapuram Residents Welfare Association, has filed a Public Interest Litigation in W.P.No.41163 of 2002, seeking compensation under the 'polluter pays' principle and for other remedial measures. Likewise, the Madras High Court Practising Advocates Association has also come forward to file W.P.No.7444 of 2009 as a public interest litigation. Since the issue involved is one and the same, all these matters are taken up for a common hearing and are being disposed of by this common order.

5. The City of Chennai, considered as the 'gateway to South Indian Culture' is the fourth Metropolis and situated in the North-East end of Tamil Nadu, along 26 kilometres of coastline on the Bay of Bengal.

6. Ennore Port, declared as a 'Major Port' under the Indian Ports Act, is created in the year 2001, at a distance of 20 kms. North of the Chennai Port. Chennai Port is situated in the close proximity of the power seat of Tamil Nadu/Fort St.George, the High Court, Reserve Bank of India, surrounded by the old settlements of Chennai i.e. Madras like Royapuram, Triplicane, Broadway, etc. with high density of population. As per a study conducted by the Environmental Information Systems (ENVIS) Centre, Department of Environment, Government of Tamil Nadu, in the year 2008, there are more than 10 million people living along the coast of Chennai city alone.

7. Chennai Port Trust is handling coal for various thermal power stations located in Tamilnadu under the Tamil Nadu Electricity Board since 1970 and the vessels carrying coal were accorded priority berthing at the Port as per the instructions of the Government of India. There is no doubt that the volume of coal traffic through this Port has steadily increased over the years.

8. The Tamil Nadu Electricity Board (TNEB) has established four thermal power stations namely North Chennai Thermal Power Station, Ennore Thermal Power Station, Mettur Thermal Power Station and Tuticorin Thermal Power Station, wherein coal is being used for the purpose of generation of power. The coal required by the Tamil Nadu Electricity Board is allotted every quarter by the Government of India's Standing Linkage Committee. This coal was allotted from Eastern Coal Fields of West Bengal and Mahanadhi Coal fields Limited from Orissa State. From these coal fields, the coal is moved by rail to the nearest Ports namely Haldia, Paradip and Vizag. Thereafter, they are transported to either Chennai Port or Tuticorin Port. From Chennai Port, the required coal for North Chennai Thermal Power Station, Ennore Thermal Power Station and Mettur Thermal Power Station are being transported by rail and from Tuticorin Port, the coal is being transported to Tuticorin Thermal Power Station by conveyor system.

9. The case of the petitioners in all these writ petitions is that the unabated pollution caused by the Chennai Port is the reason for many health hazards of the people living in the surrounding areas. It is also their case that the bulk handling of iron ore is handled by the channelising agencies namely Minerals and Metals Trading Corporation and that the Port and the channelising agencies are not taking the prescribed steps to control the dust pollution generated by their activities; that due to the chronic air pollution from the Chennai Port Trust, iron ore, which is stored for handling, settles on all building surfaces, transforming the entire area into a pink area. The situation is so drastic that the entire area is engulfed in fine red and black dust which has affected the health of the residents and the problem is further complicated by the sea breeze which pushes the dust towards the residential areas adjoining the Port. It has further been stated that the flying chemicals are defacing the buildings in the surrounding areas, including the High Court building, besides causing breathing problem, diseases related to lungs, cancer etc. On such and other such similar averments, the petitioners have prayed to shift the unloading and dumping of the imported coal and iron ore from Chennai Port Trust to Ennore Port. Since originally, Ennore Port Trust, which is a separate entity, was not a party to these proceedings, the petitioner in W.P.No.7444 of 2009 has filed a petition in M.P.No.4 of 2009, praying to implead Ennore Port Trust also as a party respondent to these proceedings. This petition having been allowed by this Court, Ennore Port Trust was also brought on record as party respondent to W.P.No.7444 of 2009.

10. The crux of objection by the Chennai Port Trust to the prayers of the petitioners is that this Port has been in the trade of import and export for more than 100 years and it is yielding huge revenue to the Government of India and if the handling of iron ore and coal is suddenly and forcibly shifted out of the Chennai Port Trust, it will adversely and severely affect the trade as well as revenue to the state exchequer and the traders are preferring to import coal and iron ore export through Chennai Port Trust because of the full-fledged facilities available in the Chennai Port Trust and the transport connectivity by road as well as rail, but, if it is forcibly shifted to Ennore Port, the traders may not prefer Chennai as a hub of import, export and they may go for other options. It has also been contended by them that the Chennai Port has been handling coal and iron ore based on the trade's requirement and the Government of India, considering the location of Chennai Port in the heart of the city decided to shift the dusty cargoes, such as coal and iron ore to nearby Ennore Port, which is readying its facilities for handling coal and iron ore there, but, in fact, the Chennai Port has no role in shifting of the coal and iron ore as it is the trade which is to take a decision to do so, once the alternate facilities at Ennore Port are ready; that the trade chooses a particular Port for its operations based on different parameters like the location of the Port, availability of expert operators and equipments, cost of operations in the Port etc. and only if all such parameters are suitable for handling the material in the Port, the trade will choose that Port and forcing the trade to use Ennore Port may not be practical as the trade has now other options like the nearby private Ports like Karaikal (Puducherry Union Territory) and Krishnapatnam (Andhra Pradesh) and any forceful unilateral decision to shift these cargoes to Ennore Port may become counter productive to the benefit of the above said Private Ports only. It has also been contended by them that leaning towards the prayers of the petitioners would result in dark days to the State as the TNEB would lose its supply of coal, a necessity for production of power through its Thermal Power Stations.

11. In the affidavit filed on behalf of the TNEB, it has been stated that they have programmed not to handle the TNEB coal from Chennai Port from October, 2002, except in exceptional cases or due to break down of conveyor system at Ennore Port, necessitating handling of coal at Chennai Port to maintain the continuous movement of coal to TNEB Thermal Power stations to avoid stoppage of generation of power and even in such emergency situations, it has been asserted on their behalf that they will take necessary measures to contain the pollution due to the coal handling within the norms prescribed by the State Government and the Pollution Control Board. Hence, they have stated that they are not the necessary parties to these proceedings.

12. Since it has been reported before this Court that certain firms are stacking coal adjacent to the railway track on the Secretariat building, which is leading to flying of the coal dust to the nearby residential localities, thus causing air pollution, and notices were also issued by the Chennai Port Trust to such firms, this Court ordered to implead such firms also as parties to the writ petitions and accordingly, they are impleaded as respondents 6 to 8 to W.P.No.37081 of 2002.

13. The impleaded 8th respondent is the handling agent of the 6th respondent for the coal imported by the 6th respondent, who has put up a Thermal Power Plant at Gummidipoondi, generating 63.75 MW power and requires coal as raw material. The respondents 6 and 8 have filed separate counter affidavits, wherein, besides adopting the counter affidavit filed by the Chennai Port, they have contended that to facilitate easy handling of imported coal and for quick despatch and transportation thereof by rail, the coal discharged from vessels calling at the Chennai Port were being stacked on the plots along side railway sidings. It has also been contended by them that the Thermal coal that was hitherto being imported mainly by the TNEB, being of high ash content, has caused considerable inconvenience both within and outside the Port premises due to the flying coal dust and ash and realizing the immediate need to control such flying coal dust and ash and to abate pollution, TNEB has been causing vessels carrying thermal coal cargo to berth at the Ennore Port and discharging coal cargo at Ennore Port for several months past and this thermal coal cargo constituted almost 80 per cent of the total coal that was being discharged from vessels calling at the Chennai Port. According to these respondents, now that the discharge of 80 per cent of the coal has been shifted from Chennai Port to Ennore Port, the cause for the alleged pollution has also come down to that extent and the coal that was being handled, discharged and transported within and without the Chennai Port premises may not have caused so much pollution as before since that coal does not contain so much dust content as thermal coal imported by TNEB and hence, the cause for pollution has also drastically been reduced. These respondents would contend that since TNEB has shifted their discharge operations to Ennore Port from July, 2001, these respondents were expecting the Port authorities to allot to them an alternate site within a part of the land that had hitherto been under the occupation and use of the TNEB. These respondents have endorsed the statement of the Chennai Port that they are taking all the steps necessary to combat the pollution. The averments of the counter affidavits of these respondents would show that they are bothered only with regard to the allotment of plots and berths at the Port and it is not at all their case that the shifting of coal and iron ore operations to Ennore Port would prove drastic to them, as has been wrongly tried to be impressed upon on the part of the Chennai Port.

14. The Ennore Port has filed a common affidavit on 24.11.2009, stating that it became operational in the year 2001 and is at present handling about 11.5 Million Tonnes of cargo per annum, which consists mostly of coal for TNEB Power plants and small quantities of iron ore; that the second stage expansion of Ennore Port comprises of, inter alia, a most modern Coal Import Terminal (8 MT) and iron ore export terminal (12 MT) and these facilities consist of fully mechanized unloading/loading systems at the berth, completely closed conveyors and vast stackyards with mechanized loading/receipt facilities; that the coal stackyard is 128.86 acres and iron ore stackyard is 168 acres; that the coal terminal including the stackyard facilities and equipments are being developed with pollution mitigating stipulations/conditions as approved by the Government of Tamil Nadu and Ministry of Environment and Forests, Government of India and the investment in coal terminal is Rs.399 crores and that of the iron ore is Rs.480 crores and both the projects are in advanced stage of construction and are scheduled to be completed by August, 2010; that the Ennore Port is also constructing and providing rail connectivity for coal and iron ore stackyards for aggregation/evacuation of cargoes from Athipattu Pudunagar stations at an investment of Rs.80 crores and the work was awarded in November 2008 and the same was in full swing and in the meanwhile, pending transfer of Salt Department land belonging to Department of Industrial Promotion and Policy, Ministry of Commerce and Industry, Government of India, the project's works have been held up and only after transfer of Salt Department land (35 acres) for which the proposal is under consideration with Government of India, it would be possible for Ennore Port to establish rail connectivity to the stackyards of coal and iron and without the rail connectivity, both the terminals which are under advanced stage of construction cannot be made operational as planned. Submitting so, the Ennore Port Limited has expressed its readiness and willingness to accept and follow any direction/order given by this Court.

15. It has been averred before this Court that the Ennore Port has elaborate plans of developing all the back up area with railway siding having connectivity upto Attipattu village, but is facing shortage of land for developing the complete railway loading, unloading yard and the Ministry of Commerce and Industry was requested to transfer 35 hectares of land which is owned by the Salt Commissioner. In view of this situation, the petitioner in W.P.No.7444 of 2009 has filed a petition in M.P.No.1 of 2010, praying to implead the Government of India, represented by the Secretary, Ministry of Commerce and Industry as a party respondent to the proceedings so as to issue a direction to transfer the requested land at an earliest possible time. This Miscellaneous Petition having been allowed, the Government of India, represented by the Secretary, Ministry of Commerce and Industry was brought on record as 7th respondent in W.P.No.7444 of 2009.

16. In the affidavit filed on 20.11.2009, the Director of the Ministry of Shipping, Government of India, has submitted that the Ennore Port Limited has already obtained environmental clearances from the statutory authorities and has plans to develop green belt to control pollution caused due to handling of iron ore and coal. Furnishing the details of coal traffic, it has been clearly stated that in addition to what has been stated therein, Chennai Port is also handling about 8 MT of iron ore and since Ennore Port is adding a capacity of 25 MT per annum with modern facilities and the transportation, the pollution levels are expected to be much lower as compared to the present type of handling at Chennai Port and the traffic which is handled at Chennai Port is likely to be shifted once all the facilities are developed at Ennore Port Limited.

17. While so, we were informed by the Ennore Port Limited, by filing a memo. on 4.8.2010 that the construction of coal terminal is at an advanced stage, the physical progress being about 91% and with regard to the iron ore terminal it was 92% and this terminal will be operational to full capacity by September, 2011. With regard to rail connectivity to stackyards, it has been submitted by them that the main part of land required for rail connectivity from Salt Department was physically handed over to Ennore Port Limited on 31.5.2010 and to provide the rail connectivity to the coal and iron ore stackyards in time, a quick single line rail connectivity is planned and it will be fully operational by September, 2011. This shows the fast phase manner in which the things are moving at Ennore Port Limited.

18. Reverting back to the point of pollution at Chennai Port, owing to the nature of lis, this Court, has issued several directions to the Chennai Port to maintain ecology and to combat pollution, like the one on 27.4.2007, but the compliance reports filed by the Chennai Port having been disputed by the petitioners, to find out the truth and to facilitate this Court to arrive at a just conclusion in the matters, this Court by the order dated 6.6.2007, has constituted a Committee to carryout inspection of the Chennai Port Trust premises and to make a report to this Court as to whether the conditions laid down by this Court have been complied with by the Port Trust, with the following members:

1. Mr.R.Swaminathan, Former Assistant Director, National    Environmental Engineering Research Institute (NEERI);
2. Mr.T.Mohan, Advocate for the petitioner and
3. The District Environmental Engineer, Tamil Nadu Pollution Control Board, Chennai.

19. But, the constitution of this Committee was objected to by the Chennai Port, on the ground that absence of their representative in the Committee would cause great prejudice to them. Considering the same, this Court, by the order dated 11.9.2008, has re-constituted the said Committee by including the name of Mr.R.Karthikeyan, learned standing counsel for the Chennai Port also as a member of the said Committee.

20. Thereafter, by the order dated 22.9.2009, this Court has directed a joint inspection team, comprising of the following members, to visit both the Chennai Port and Ennore Port and submit its report:

1.Mr.V.Vijayan, Registrar (Management), High Court, Madras

2.Mr.Srinivasa Naik, Director, Ministry of Shipping, Govt.of India

3.Mr.Prasad Raybala, General Manager, Ennore Port Limited,

4.Mr.Sanjay Kumar, General Manager, Ennore Port Limited,

5.Dr.K.Karthikeyan, District Environmental Engineer, TNPCB, Chennai-104,

6.Mr.V.Rohit Kumar, Assistant Engineer, TNPCB, Chennai-104.

21. The observations of this team, filed as a report, signed by the Registrar (Management) of this Court, are extracted hereunder:

"Ennore Port Limited has been planned well and built in a systematic way. Considering the facilities in both Ports, it is felt that Iron ore and coal should be stacked and transported only from Ennore Port to avoid pollution/congestion in Chennai Port Trust. Facilities available in Ennore Port are plenty viz., construction of berths in perpendicular direction, the vast area of 2080 hectares, railway track siding, nearness to Madras, not being a residential locality, etc., as detailed above. The Chennai Port Trust may be permitted to handle only other items of transport, which would not cause any pollution in the High Court, and nearby residential areas."

22. Thereafter, the Chennai Port Trust has come forward to file an affidavit, wherein they have stated various measures taken by them to combat the pollution like sprinkling of water on the heaps of iron ore, so as to arrest the free flowing of the particles into the air and their proposal to construct a bubble structure as a permanent measure to prevent air pollution. As the proceedings went on, the Chennai Port has also reported before us that one bubble structure has commissioned and is catering to the need of arresting the pollution. It has also been stated on the part of the Chennai Port that every attempt is being made on their part to arrest the pollution, including

(i)planting of saplings,

(ii)sprinklers operated at tipplers for moistening Ore before tippling;

(iii)additional sprinklers at conveyor transfer points and hoppers

(iv)water tanks and sprinkler lines provide at reclaimer and ship loader

(v)sprinkler near chutes being modified;

(vi)wind breakers are provided at coal yard at 10 m. height and 500 m along Eastern side, further 277 m. length to be added

(vii)maximum height of coal stack restricted to ten feet;

(viii)online pollution monitoring cum sprinkler system has been installed

(ix)during transport, cargo covered with tarpaulin to prevent flying/spillage and heaping of cargo above lorry body not allowed and the vehicles are subjected to automatic washing before exit;

(x)construction of bubble structures

23. To verify the veracity of various compliances, said to have been made on the part of the Chennai Port, by the order dated 23.6.2010, we have once again directed the Committee appointed by this Court, to inspect the Chennai Port Trust. For this purpose, we have also included the Registrar General of this Court as a member of the inspection team. But, considering the request of the Registrar General that owing to her hectic official duties, she finds it difficult to be a part of the Committee, we have substituted the Registrar General with Mr.S.Udayan, Registrar (Administration) of this Court, as a member of the Committee to inspect the Chennai Port. Accordingly, the Committee, including Mr.S.Udayan, Registrar (Administration) of this Court, has visited the Chennai Port on 16.3.2011 and has submitted its report. Though various reports of the experts brought to fore the lassitude exhibited on the part of the Chennai Port officials, about the inadequate measures they have taken all these years, the Chennai Port officials have maintained their stand that they are taking every possible and effective step to combat the pollution, which has been pooh-poohed by the Expert Committee appointed by this Court, by filing its detailed report, pinpointing the latches and derelictions committed on the part of the Chennai Port. The Committee in its report, after conducting inspection on 16.3.2011, has tabulated the manner in which the Chennai Port has failed to maintain the pollution free atmosphere and the apathy of conditions still prevailing in the Chennai Port, in spite of repeated observations and directions issued by this Court. For each and every compliance narrated by the Chennai Port, the Committee has observed complete failure and misrepresentation of the facts by the Chennai Port. Some of various observations of the Committee, which pooh-phooed the so-called compliances by the Chennai Port, are extracted hereunder:

"As in the past, we have overall found that the situation in the Port continues to be a matter of concern and that the Port is a far cry from being a clean Port. While there has been a decline in iron ore arrivals at the Port for loading onto ships due to reasons unconnected with the Port's operations, there has been no visible marked improvement in the overall conditions in and around the Port."

"It is noticed that for many months, no AAQ measurement has been done by the TNPCB."

"Even today, there are large gaps in the Bharathi Dock area, which the Port claims is to enable vehicular access, which access could well be provided by retractable or moveable gates. Even today, there are openings in the mesh especially on the northern side, which was noticed by the Committee even last year. Again there are gaps at ground level in the iron ore area and gaps where there are high mast lamps including on the western side. These gaps will create a tunnel effect and will result in dispersion of the iron ore. Though ore was not handled, the damaged wind screen was not replaced. In several places only the frame of the wind screen is seen with gaps and it was conspicuous as the nets were not replaced."

"It is noticed that coal storage is still happening outside the designated coal yard. On the date of inspection, we saw coal heaps aligned with the High Court minarets. There were no windscreens or barriers between these coal heaps and the High Court. The coal berth with mechanized arrangement is provided in JD VI and JD III. In spite of several inspections and interaction the Chennai Port Trust has not informed the Committee about the contract entered by it for handing over the Berth at JD V to a private operator and about his obligation to take all measures to minimize pollution during handling of coal through trucks. The purpose of mechanizing the JD VI and JD IV and providing the closed conveyor system was to minimize the truck movement and reduce the fugitive emissions arising from such movement. The loading of coal in unmechanised berth and conveying the same through trucks has offset (sic.upset) the purpose of providing a mechanized ore berth. The Committee has also observed that coal is stacked outside the yard in non-dedicated areas. The area is approximately 25000 square meters and the roofs of FCI godown and Fertiliser Godowns are demolished to facilitate storage of coal dumps in between remnant walls. Coal is conveyed to these areas by trucks mainly from JD V which is an unmechanised berth. Coal is also stored in JD VI berth along radial roads and in the Eastern side of the coal conveyor all these areas are not protected and there are no sprinklers. Such handling is resulting in generation of fugitive coal dust emission which is spreading out of the Port and it is affecting the High Court, Secretariat, George Town & Royapuram."

"Several panels in the bubble structure are damaged. The bubble structure is on only one plot and the Port is yet to replicate this experiment in other plots though it had undertaken to do so."

"Even today, a large stretch of the coal yard is unprotected by a wind barrier on the eastern side. Therefore as far as the eastern side of the coal yard is concerned, there is no improvement on ground since the last inspection. The wind screens and supporting frame work has not withstood the prevailing weather conditions. The screens have been frequently getting torn and poles and frame work are getting tilted and collapsed due to rusting. Hence it is essential to heap the coal in dedicated coal yard. The sprinkler system can be replaced with fogging mechanism comprising of fog cannons which can be replaced to cover the entire coal plot. Though tankers are provided the committee could observe many smoldering heaps. Unless the berths are mechanized unloading of coal in berth such as JD V and conveying it by trucks will continue to off set all the improvements made by the Port Trust. Though a sign board and details of coal plot allottees is displayed coal is continued to be handled in non-dedicated areas. The Port is yet to furnish tangible proposal for providing drainage system in the coal yard in relation to the topography and drainage pattern. Fogging system is yet to be installed."

"Mere providing of wind screen is not a solution. Handling of coal should be restricted only to dedicated area which is accessible to the closed conveyor system"

"There does not appear to be any attempt to properly analyse ambient air quality monitoring data or share the same with the public."

With such observations, the Committee has concluded as follows:

"The Committee reiterates the recommendations made in the previous report (extracted below) and regrets that there is no improvement warranting departure from the same:

"To conclude, the Committee while reiterating the recommendations made in its earlier reports for stoppage of iron ore and coal handling operations at the Chennai Port until demonstration of infrastructure, capability and operational environmental management system at the Chennai Port, finds that the Chennai Port Trust has not implemented measures to abate pollution in a proper manner and the situation on ground continues to deteriorate overall. Marginal improvements in some areas are to be reviewed for sustainability and consistency by the TNPCB. However, notwithstanding these marginal improvements, the marked slippage in other areas makes any possible improvement in the environmental condition overtaken and overshadowed by deterioration in the environment on account of these factors."

24. We have extracted some of the observations of the Committee appointed by this Court, as above, since the Committee has dealt with the compliances averred on the part of the Chennai Port in their endeavour to defend the prayers in these writ petitions, since it would prove the manner in which the things are dealt with so far by the Chennai Port with scant regard to the public health and security.

25. The photographs furnished both by the Chennai Port and the Committee appointed by this Court would show the haphazard manner in which the scrap has been stored; the coal dust removed from clogged drain finding place near a wall without being removed; the bubble structures with a torn roofing sheet; deposits of debris found adjacent to beach; removal of windscreens; formation of fugitive dust; iron ore stacked in non-dedicated areas; dilapidated FCI godowns being used for stacking coal; iron ore stack near High Court; haphazard storage of debris; improper wind nets; wind nets with torn portions; uncovered conveyor belts etc.

26. It was an usual scene along the road leading to Chennai Port with long queues of lorries for the transportation of coal/iron ore and most of the times the vehicles were not covered making the dust to flow freely along the lines the vehicle travels. The vehicle riders and the other road users in this stretch would find it very difficult to have a glimpse of the road in the dust clouds created by these passing vehicles. There is slight change in the conditions in the recent days - thanks to these taken up writ petitions by this Court.

27. The right to life protected under Article 21 is so sacrosanct and always on the high pedestal as the basic right of the citizens of this great country. The object of the fundamental right under Article 21 is to prevent deprivation of life and assures the citizens to live with all human dignity. Foremost among all the rights guaranteed under the Constitution is the right to life, from which flow other rights and freedoms. The right to life is not confined to mere physical or animal existence but includes the right to every limb or faculty through which life is enjoyed. It signifies the right to live with basic human dignity.

28. The Supreme Court, in its interpretation of Article 21, has facilitated the emergence of an environmental jurisprudence in India, while also strengthening human rights jurisprudence. There are numerous decisions wherein the right to a clean environment, drinking water, a pollution-free atmosphere etc. have been given the status of inalienable human rights and, therefore, fundamental rights of Indian citizens. These principles are evolved by a series of judgments delivered by the Honourable Apex Court. To quote a few are as follows:

29. In FRANCIES CORALIC vs. ADMINISTRATOR, UNION TERRITORY OF DELHI [AIR 1981 SC 746], the Honourable Apex Court has held as follows:

"But the question which arises is whether the right to life is limited only to protection of limb or faculty or does it go further and embrace something more. We think that the right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter over the head and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human being."

30. In BANDHUA MUKTI MORCHA vs. UNION OF INDIA [AIR 1984 SC 801], characterizing Article 21 as the heart of the Fundamental Rights, the Honourable Apex Court has rendered an expanded interpretation, in the following terms:

"... the minimum conditions which must exist in order to enable a person to live with human dignity. No Government can take action to deprive a person of enjoyment of these basic rights."

31. In SUBHASH KUMAR vs. STATE OF BIHAR [(1991) 1 SCC 598], the Honourable Apex Court Court observed that:

Right to live is a fundamental right under Article 21 of the Constitution and it includes the right of enjoyment of pollution-free water and air for full enjoyment of life. If anything endangers or impairs that quality of life in derogation of laws, a citizen has the right to have recourse to Article 32 of the Constitution.

32. In CHAMALI SINGH vs. STATE OF U.P. [AIR 1996 SC 1051], the Honourable Apex Court has observed that:

"In any organized society, right to live as a human being is not insured by meeting only the animal need of man, it is secured when he is assured of all facilities to develop himself and is freed from restrictions which enables his growth. All human right are designed to achieve this object. Right to live granted in any civilized society implies the right to food, water, decent environment, education and medical care and shelter. These are basic human right known to any civilized society."

33. In N.D.JAYAL vs. UNION OF INDIA [(2004) 9 SCC 362], the Honourable Apex Court has held:

"Right to health is a fundamental right under Article 21. Protection of this is inextricably linked with clean environment. Clean and healthy environment itself is a fundamental right. Therefore, the impact of the project on human health cannot be given a go-by."

34. In M.C.MEHTA vs. UNION OF INDIA [(2004) 6 SCC 588], the Honourable Apex Court has held as follows:

"Right to have a living atmosphere congenial to human existence is a part of right to life. The State has a duty in this behalf and to shed its extravagant unbridled sovereign power and to forge its policy to maintain the ecological balance and a hygienic environment."

35. In NOISE POLLUTION vs. IN RE. [(2005) 5 SCC 733], the Honourable Apex Court has held as follows:

"The right to life enshrined in Article 21 is not of mere survival or existence. It guarantees a right of persons to life with human dignity. Therein are included all the aspects of life which go to make a person's life meaningful, complete and worth living. Human life has its charm and there is no reason why life should not be enjoyed along with all permissible pleasures."

36. Nothing more need be added to explain the sovereign function of the State  to exercise its unbridled power to maintain the ecology and clean environment so as to protect the right to life of its citizens, guaranteed under the sacred document/the Constitution of India. The right to life guaranteed under Article 21 of the Constitution is second to none and it should be given preference over any of the other interests of the State. The material on record would glaringly exhibit the fact that the Chennai Port has always exhibited a callous attitude to combat the pollution, in spite of repeated directions and observations by this Court and also the Pollution Control Board and the so-called measures adopted by them are proved to be inadequate in the direction of addressing the pollution hazard and do not inspire any confidence in our minds that the Chennai Port will ever be able to combat this menace.

37. The Chennai Port has taken a stand that the shifting of the coal activities to the Ennore port would result in financial loss to the Port and they have even furnished the details of such loss in a tabular form by filing an affidavit dated 25.4.2011. Their averments in para No.5 of this affidavit are extracted hereunder for appreciation:

"... after privatization of Container Terminal viz. CCTPL, CITPL, the Port Trust directly takes care of Coal and Iron Ore handling alone. The Port has about 7846 employees on roll and paying pension to 14051 pensioners. On the other hand, the Ennore Port being a modern port has a manpower of around 86. Hence, these two operations are the major contributions to the revenue of Chennai Port Trust, without which it cannot support 7846 employees and 14051 pensioners. None of the employees of Chennai Port Trust have ever complained about any illness due to coal dust/iron dust, even though their employments are inside the Port area. Hence, stopping altogether the handling of Coal and Iron Ore has disastrous effect not only on the supply to Electricity Generating Units and Cement Plants, but also may lead to retrenchment of employees, besides, the net profit of the Port for the year 2009-10 of Rs.211.15 crores would have been changed to the Net loss of 29.58 crores. Closure is not the ultimate solution, when the problem of dust emission can be easily solved by advance scientific methods as could be seen in Foreign Port which handles coal and Iron Ore in similar manner."

38. We are at a complete loss to understand this strategy adopted on the part of the Chennai Port. The financial burdens or financial commitments of any State should never outweigh the sovereign duty of the State under Article 21, dealing with right to life, with its extended meaning of right to breath clean.

39. In the affidavit dated 18.4.2011 filed by the Union of India, it has been stated that 'the Ennore Port Limited was developed as a satellite port under the administrative and operational control of the Chennai Port, not only to relocate the handling of thermal coal that generates dust in its vicinity from Chennai to Ennore, but also to meet the increased demand for coal for the thermal power plants in North Chennai and its adjacent areas to meet the energy requirement of the state to accelerate industrialization. On commissioning of Ennore Port, the thermal coal for TNEB was shifted to Ennore. But the manpower recruited by the Chennai Port for development of Ennore Port which has to be taken over by Ennore Port along with the Ennore Coal Port Project, still remains with the Chennai Port. Considering the layout of the Chennai Port and the urbanization in and around it, it would have been prudent to distribute the cargoes between Ennore Port and Chennai Port, allotting clean cargoes viz. Container, car etc. to Chennai Port and the dusty cargoes viz. Coal and iron ore to Ennore Port. But , in order to encourage competition between the two Ports to bring efficiency and improve productivity which in turn will reduce the cost of handling and finally reduce the cost to the end user, Government has not distributed the cargoes between both the Ports and allowed the Ennore Port to handle container and cars for which the facility is under development.'

40. This shows that the Ennore Port has been developed under the administrative and operational control of the Chennai Port and the very object of its development is to relocate the handling of thermal coal that generates dust in its vicinity from Chennai to Ennore and also to meet the increased demand for coal for the thermal power plants in North Chennai and its adjacent areas to meet the energy requirement of the State to accelerate industrialization. But, as the time rolled on, things seem to have changed and the Government of India has concentrated only on encouraging the competition between the two ports, and not on its earlier commitment of shifting the dusty cargoes to Ennore Port. While this is the factual position that the Government of India itself has considered to shift the dusty cargos viz. Coal and iron ore to Ennore Port, which is the prayer of the petitioners also, owing to the unabated pollution in the urbanized locality, and when the material on record also support the public cause of shifting the dusty cargoes to Ennore Port from the urbanized area of Chennai Port, we see every justification in the prayer of the petitioners.

41. While considering the question, as to whether the protection of the environment or the economic interest of the State which shall prevail over the other, the Honourable Apex Court in M.C. MEHTA vs. UNION OF INDIA [(2004) 12 SCC 118], has held:

"48. Development and the protection of environment 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, 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, a series of orders have been passed by this Court in T.N. Godavarman case [1991 Supp (2) SCC 665] regulating the felling of trees in all the forests in the country. Principle 15 of the 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 postponing cost-effective measures to prevent environmental degradation, is also required to be kept in view. In such matters, many a times, the option to be adopted is not very easy or in a straitjacket. 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." (emphasis is ours)

42. As has already been noted by us supra, the study conducted by the Environmental Information Systems (ENVIS) Centre, Department of Environment, Government of Tamil Nadu, in the year 2008, showed that there are more than 10 million people living along the coast of Chennai city alone. We cannot ignore the welfare of these people living along the coast line of Chennai city, by giving preference to the economic interest of the Chennai Port and the interest of a smaller group of workers and pensioners of the Chennai Port, since we are destined to protect the interest of this smaller section of the society also by granting appropriate reliefs.

43. The Chennai Port has contended that their workers are regularly checked by the medical team of Chennai Port Trust for their health condition and also special care is taken in this regard. But, notably, the Committee appointed by this Court has pointed out that no records of such medical examinations are made available before it. Therefore, the other contention urged on the part of the Chennai Port Trust that so far no employee of theirs has ever complained of any health problem because of the dust created at the Chennai Port cannot be accepted in the absence of any records made available before this Court or before the Committee appointed by this Court.

44. The other argument advanced on the part of the Chennai Port is that in case of shifting the coal operations to Ennore Port, the trade may prefer Karaikal in Puducherry and Krishnapattinam in Andhra Pradesh. Chennai Port and Ennore Port are situated on the Northern end of Tamil Nadu and the Tuticorin Port in Tamil Nadu is nearly at the southern tip of the State, making it more favourably placed to cater to the traffic generated from/bound for the southern region. The Karaikal Port is situated in between these two ends of Tamil Nadu and it is around 320 kms. along the coast South of Chennai Port and around 360 km. along the coast North of Tuticorin. Krishnapatnam Port is situated 200 kms. North of Chennai and situated in Andhra Pradesh. But, the distance between Chennai Port and Ennore Port is hardly 20 kms. While this being the factual situation, the contentions urged on the part of the Chennai Port on the possible trend of trade shifting their business operations to either Karaikal Port or Krishnapatnam Port, if the handling of iron ore and coal is shifted out the Chennai Port Trust, on the ground that they are the other nearby ports, cannot be believed, taking into consideration the distance factor explained above. Further more, as has already been noted from the affidavit of the Union of India, dated 18.4.2011, Ennore Port Limited was developed as a wsatellite Port under the administrative and operational control of the Chennai Port, not only to relocate the handling of thermal coal that generates dust in its vicinity from Chennai to Ennore, but also to meet the increased demand for coal for the thermal power plants in North Chennai and its adjacent areas to meet the energy requirement of the State to accelerate industrialization. Therefore, we have no hesitation to hold that the Chennai Port has invented this ground, saying that there will be loss of exchequer to the State, only to subvert the issue of shifting handling of iron ore and coal to Ennore Port and to shield their business interest, giving go-by to the health of millions of people living in the area and the safety of the buildings, including the heritage buildings located in the surroundings of Chennai Port. This is nothing but a business tactic adopted on the part of the Chennai Port, ignoring the welfare of millions of people living in the surrounding areas of the Chennai Port.

45. The learned senior counsel appearing for the Chennai Port has argued that if there is any move to shift the iron ore and coal transmission to Ennore Port, there will be unrest and consequential problems with the labour working in the Chennai Port. The Chennai Port is worried about its financial burdens and the likelihood of labour unrest, ignoring the safety and security of the millions of people living in the surrounding areas. While on the part of the Chennai Port it has been, all along, maintained that the conditions in the Port are improved manifold, the ground reality is quite a different one and the article published in 'The Times of India, Chennai edition on 16.3.2011, under the caption 'Royapuram turns black, courtesy port coal yard  residents complain of respiratory problems' is just an additional information as we, as the Judges of this Chartered High Court situated in the proximity of Chennai Port, are the direct witnesses, rather victims, of this pollution along with residents of the entire stretch of Chennai Port. One cannot walk bare footed or touch the walls of this High Court, in spite of regular cleaning of the premises, as the iron ore/coal dust particles settling in the premises in high quantities every day would make hands and foot dirty in thick black colour. It, naturally sends shocking waves through the nerves and makes one to think as to what we are breathing in  oxygen or these black particles? The repeated observations and directions by this Court to the Chennai Port Trust to protect the environment by taking necessary steps to avoid dust particles flying, did not evince any fruitful result. Even though the Chennai Port has narrated, by their long affidavit, with the photographs annexed thereto, that they are sprinkling water on the iron ore and also set up nets to restrain the dust from flying, the report of the Committee appointed by this Court, the observations of which are extracted above, would show the half-baked manner in which such remedial measures are being conducted by the Chennai Port. It seems, the Chennai Port is very much worried about its business loss and are not willing to shift the iron ore/coal shifting to the Ennore Port only because of their business aspirations and nothing else. Had it been their real intention to act swiftly against such pollutants being mingled into the air, posing danger to the life of the millions of citizens living in the areas, in close proximity to the Chennai Port, they should have, by this times, shown 100% pollution free climate in the surroundings. But, it is not the case herein and the affidavits filed on the part of the Chennai Port have shown that all their activities are mere barren shells and the added factor is the lethargic attitude of the officials at the helm of affairs to arrest the pollution. This may even be because of the fact that whatever steps they are taking, they are turning to be inadequate and the pollution remains static and stagnate.

46. Industry has no right to destroy the ecology, degrade the environment and pose a health hazard.

47. In M.C.MEHTA vs. UNION OF INDIA [(1987) 4 SCC 463], the Honourable Apex Court has observed that 'the crucial question is not whether developing countries can afford measures for the control of environmental pollution but it is whether they can afford to neglect them. The importance of the latter is emphasised by the fact that in the absence of adequate measures for the prevention or control of pollution, a nation would eventually be confronted with far more onerous burdens....'

48. With this one can very easily understand that the people living in the surrounding areas of the Chennai Port are inhaling these particles, which would, definitely, have their impact in one's health conditions in due course of time. The Chennai Port has contended that they are frequently conducting Ambient Air Quality (AAQ) tests and all such reports show the pollutants within the permissible limits. But, the report of the Committee appointed by this Court shows that there is no frequent AAQ tests conducted by the Pollution Control Board and it is to be pointed out that in the absence of such tests conducted, particularly during the time when there is heavy handling of iron ore and coal in the Chennai Port, the said contention of the Chennai Port that the pollutants are in the permissible limits cannot be accepted.

49. All our discussions would lead us to arrive at the following conclusions:

(i) The Chennai Port Trust has not taken any appreciable step towards arresting the pollution. The so-called measures said to have been taken by the Chennai Port are inadequate to address the issue of pollution in the area and the various orders passed by this Court and the directions issued by the Tamil Nadu Pollution Control Board to the Chennai Port to arrest the pollution have not been cared by the Chennai Port Trust, exhibiting its callous attitude and scant regard to the public health and security.

(ii) The argument advanced on the part of the Chennai Port that in case of shifting its coal and iron ore operations to Ennore Port, it will lead to unrest among the employees and pensioners cannot be accepted, in view of the well established principle of law that the interest of major sections of the society shall always prevail over that of the small sections of the people. Furthermore, this Court cannot leave in lurch the employees and the pensioners of the Chennai Port also, since this Court is aware that the livelihood of the employees and pensioners of the Chennai Port cannot be ignored and sufficient safeguards have to be made while protecting the interest of the society at large.

(iii) The other argument advanced on the part of the Chennai Port that the traders would prefer other private ports, if the coal and iron ore operations are shifted to Ennore Port, also cannot be accepted taking into consideration the distance criterion, as explained above.

(iv) The point sought to be impressed upon by the Chennai Port that there will be loss to the exchequer if the prayer of the petitioners to shift the coal and iron ore operations to the Ennore Port cannot have any legs to stand before us, since it is the settled position of law that 'protection of environment would have precedence over the economic interest and precautionary principle requires anticipatory action to be taken to prevent harm and the harm can be prevented even on a reasonable suspicion and it is not always necessary that there should be direct evidence of harm to the environment' and in the case on hand, there is voluminous material on record, as has been discussed by us supra, standing as a direct evidence to the harm being caused to the environment by the Chennai Port.

(v) The Right to Life guaranteed under Article 21 of the Constitution, with its extended meaning of including the right to clean environment is so sacrosanct and always on the high pedestal as the basic right of the citizens of this great country, the object being to prevent deprivation of life and assuring the citizens to live with all human dignity. Foremost among all the rights guaranteed under the Constitution is the right to life, from which flow other rights and freedoms. The right to life is not confined to mere physical or animal existence but includes the right to every limb or faculty through which life is enjoyed. It signifies the right to live with basic human dignity. No industry has any right to destroy the ecology, degrade the environment and pose a health hazard.

(vi) The material on record has established the fact that Ennore Port has been planned well and built in a systematic way and the facilities available in Ennore Port are plenty viz., construction of berths in perpendicular direction, the vast area of 2080 hectares, railway track siding, nearness to Madras, not being a residential locality, etc.

(vii) Since there is no dispute with regard to the fact that TNEB has shifted its discharge operations to Ennore Port from July, 2001 onwards, TNEB is not a necessary party to these proceedings.

(viii) Though in W.P.No.41163 of 2002 it has been prayed that the residents affected by pollution on account of the operation of the Chennai Port be granted compensation, no arguments in this regard have been advanced before us and all that has been argued before us is only with regard to the shifting of the dusty cargoes like iron ore, coal from Chennai Port to Ennore Port, because of the enormous pollution being caused by the Chennai Port because of such operations. Therefore, we have not gone into the aspect of compensation and this part of the relief claimed on the part of the petitioner in W.P.No.41163 of 2002 stands dismissed.

(ix) When the Government of India itself has considered to allot dusty cargoes like Coal and iron ore to Ennore Port and clean cargoes viz. Container, car etc. to Chennai Port, taking into consideration the fact of urbanization of the area surrounding Chennai Port, their subsequent stand that they wanted to encourage competition between the two Ports does not seem to be in the interest of public health and public interest, as the Chennai Port is causing so much of pollution, detrimental to the interest, safety and security of the millions of people living in its surroundings.

(x) From the memo. dated 4.8.2010 filed by the Ennore Port Limited, it is clear that the construction of coal terminal is at an advanced stage, the physical progress being about 91% and with regard to the iron ore terminal it was 92% and this terminal will be operational to full capacity by September, 2011. With regard to rail connectivity to stackyards, it has been submitted by the Ennore Port that the main part of land required for rail connectivity from Salt Department was physically handed over to Ennore Port Limited on 31.5.2010 and to provide the rail connectivity to the coal and iron ore stackyards in time, a quick single line rail connectivity is planned and it will be fully operational by September, 2011.

In the result,

(a) All the writ petitions are allowed. However, the prayer in W.P.No.41163 of 2002, with regard to the compensation aspect stands dismissed.

(b) The Government of India, represented by its Secretary, Ministry of Shipping, New Delhi is directed to see distribution of cargoes between Ennore Port and Chennai Port, allotting clean cargoes viz. Container, car etc. to Chennai Port and the dusty cargoes like Coal, iron ore and all other dusty cargoes to Ennore Port.

(c) Since the coal terminal, iron ore terminal and the single line rail connectivity at Ennore Port are assured to be operational to their full capacity by September, 2011, the Government of India, represented by its Secretary, Ministry of Shipping, New Delhi and the Government of Tamil Nadu, represented by its Chief Secretary are directed to see that all the dusty cargoes like Coal, iron ore and all other dusty cargoes should move only to Ennore Port on and from 1.10.2011 and not to Chennai Port. The Chennai Port is also directed to render all its cooperation to the Government of India and the Government of Tamil Nadu in this direction.

(d) With regard to the employees and pensioners of the Chennai Port, the Government of India, the Government of Tamil Nadu, Chennai Port Trust and the Ennore Port Trust are directed to see that not even a single employee is retrenched or otherwise made to lose his livelihood because of the distribution of cargoes between Ennore Port and Chennai Port, as ordered above. For this purpose, since the dusty cargoes are going to be berthed and processed at Ennore Port on and from 1.10.2011, the Ennore Port may treat the employees of the Chennai Port connected to such activities as its employees, including the pensioners. In case of any difficulty, the Government of India, represented by its Secretary, Ministry of Shipping, New Delhi and the Chief Secretary to the Government of Tamil Nadu, shall divide the employees and pensioners, between the Chennai Port and the Ennore Port, proportionate to the income of both the Ports.

(e) With regard to the traders, like the impleaded respondents 6 to 8 also, both the Chennai Port and the Ennore Port are directed to protect their rights and interest, in accordance with law.

No costs. Consequently, connected Miscellaneous Petitions are closed.

Rao To

1.The Government of Tamil Nadu, rep.by the Chief Secretary to Government, Fort St.George, Madras-9.

2.The Chairman, Chennai Port Trust, Chennai.

3.The Director, Pollution Control Board, Guindy, Chennai.

4.The State of Tamilnadu, rep.by Secretary to Government, Department of Environment and Forest, Fort St.George, Chennai-600009.

5.The District Environment Engineer, Tamilnadu Pollution Control Board, Chennai District, Panagal Maligai, First Floor D Wing, No.1, Jennis Road, Saidpet, Chennai-600015.

6.The Member Secretary, Tamil Nadu Electricity Board, Anna Salai, Chennai-600002.

7.The Central Pollution Control Board, Parivesh Bhavan, CBD cum Off Complex, East Arjun Nagar, New Delhi, represented by its Chairman.

8.Minerals and Metals Trading Corporation Ltd. (MMTC), represented by its Managing Director, Core I, SCOPE Complex, 7 Institutional area, Lodhi Road, New Delhi-110003.

9.The Director, Archaeological Department, Egmore, Chennai-600008.

10.The Director of Medical Service, Teynampet, Chennai-600018.

11.Union of India, rep.by its Secretary, Shipping and Transports, New Delhi.

12.Ennore Port Trust Ltd., rep.by its Chairman & Managing Director, No.23, Rajaji Salai, Chennai-600004.

13.Union of India, rep.by its Secretary, Ministry of Commerce and Industry, New Delhi