Country
India
Sources
InforMEA
Tagging
Contract, Environmental Impact Assessments, Forests, Permits, Property, Jurisdiction, Standing, Constitutional, Human Rights, Administrative
Abstract
After many attempts for getting private investments for development of Pondicherry Port also involving the constitution of a committee of officials to look into the entire gamut of the privatization process, in 2004 various firms/companies made presentations before the Committee. The Government of Pondicherry. On January 21, 2006 the Government of Pondicherry entered into a Concession Agreement with SPML along with its consortium partners. On January 24, 2006 the Director of Ports, Government of Pondicherry issued an Office Memorandum in favour of M/s. SPML. By the said Memorandum all the existing moveable/immoveable assets of the Port were to be handed over to the developer as per the Concession Agreement. tThe Letter of Intent dated June 3, 2005, granted to SPML - Respondent No. 11 - as well as approval dated January 2, 2006 accorded by the Lt. Governor of Pondicherry to the Detailed Project Report dated November 16, 2005 submitted by respondent No. 11 on BOT basis and to the Concession Agreement to be entered into between the Government of Pondicherry and the respondent No. 11 as well as direction dated January 24, 2006 issued by the Director of Ports to the officers concerned to prepare list of all the existing moveable and immoveable assets of the Pondicherry Port for handing over the same to respondent No. 11 were challenged by the appellants by filing Writ Petition No. 3304 of 2006 and Writ Petition 12337 of 2006 before the Madras High Court on several grounds. The Madras High Court has rejected the two petitions giving rise to the instant appeals. According to the Supreme Court the argument that the project in question is cleared without examining the environmental aspects by the Union Territory of Pondicherry in total violation of the Precautionary and Trusteeship principles and is also prohibited under the Coastal Regulation Zone notification as the same is a real-estate activity in the garb of port development, has no substance. The record of the case indicates that concession agreement is already entered into between the Government of Pondicherry on one hand and the 11th and 12th respondents on the other, on January 21, 2006. Those respondents in terms of the concession agreement have incorporated a Special Purpose Vehicle (SPV) company known as Pondicherry Port Limited for implementation of the Port Development Project. An Assignment agreement to this effect in favour of Pondicherry Port Limited is executed by the Respondent Nos. 11 and 12 and confirmed by the Government of Pondicherry. In terms of the Concession agreement, the Government of Pondicherry has entered into Lease and Possession agreement with the Special Purpose Vehicle Company on February 4, 2006. The Lease-hold occupancy is given to the Pondicherry Port Limited subject to obtaining necessary clearance including environmental clearance from the Government of India. There is no manner of doubt that no one can be permitted to carry on construction activity which is prohibited by the CRZ. However, this being a project exceeding Rs.50 crores necessary environmental clearance has to be obtained from the Ministry of Environment and Forest Union of India. Before such consent is granted/obtained, a full Environmental Impact Assessment has to be done. During that exercise, public hearing would be conducted as a matter of rule and all the concerns expressed by the public will have to be taken due note of, by the authorities concerned. There is no manner of doubt that the Government has every power to stop the project if it violates environmental safeguards. The consideration of CRZ regulations would also be part of the said exercise. Further, the notification issued under the Environment Protection Act clearly requires a prior consent and provides for an appeal to be filed before the tribunal constituted for the said purpose by an aggrieved party. But the plea that the environmental clearance must precede the award of the project is wholly misconceived and is incorrect. The application form for obtaining environment clearance under the notification of 2006 makes it very clear that the application has to be made by the entity which has been entrusted with the project. Appeals are dismissed.