The Tata Hydro-Electric Power … vs Principal Secretary, Energy And … on 28 April, 1999

ORDER

B.N. Srikrishna, J.

1. The writ petitioners in this case challenge the setting up of a Cryogenic Liquefied Petroleum Gas (L.P.G.) storage and handling facility in close vicinity of their establishments, on several grounds including ground of mala fides on the part of the statutory authorities in granting the requisite licence and clearances and also on the ground that the said facility is hazardous environmentally and violative of the Coastal Region Zone Regulations (C.R.Z.).

2. The petitioners are companies registered under the Companies Act, 1956, belonging to the Tata Group of Companies and doing the business of generation, transmission and bulk distribution of electricity in their area of supply in Greater Mumbai under licence granted by the State Government under the provisions of the Indian Electricity Act, 1910.

3. Respondent No. 1 is the State of Maharashtra; respondent No. 2 is the Bombay Municipal Corporation; respondent Nos. 3 to 7 are different statutory authorities exercising statutory functions. Respondent No. 8 is a Company incorporated under the provisions of the Companies Act, 1956 which carries on the business of storage and handling of various chemicals. Respondent No. 9 is an Associated Company of respondent No. 8 which under a licence from respondent No. 8 has got up a Liquid Petroleum Gas (LPG) storage facility on a plot of land belonging to respondent No. 8 immediately adjoining the petitioners’ Trombay Thermal Power Station.

4. Respondent No. 8 has been operating an existing factory dealing in petroleum and petro-chemical products at the site. In January 1994, respondent No. 9 proposed to set up a cryogenic low pressure facility for the storage and distribution of Liquefied Petroleum Gas (hereinafter referred to as “LPG”), a pollution free domestic and industrial gas, on the premises of respondent No. 8’s existing factory which was and is being used for storage of petroleum products. In the proposed cryogenic facility LPG was to be liquefied by freezing/cooling it very much below its boiling point and transferred and stored at atmospheric/normal pressures.

5. On 5th March 1994, respondent Nos. 8 and 9 applied to respondent No. 3 (Maharashtra Pollution Control Board) for clearance. The Board referred the matter to the Chairman of its Technical Committee, who after studying the proposal and being satisfied that the proposed cryogenic low pressure facility of storage and handling of L.P.G. was not likely to result in any environmental pollution, recommended the grant of a No Objection Certificate (N.O.C.).

6. The application made to the respondent No. 3 Board by respondent Nos. 8 and 9 was scrutinized by respondent No. 3 Board’s Technical Cell and referred to the State Environmental Appraisal Committee which, inter alia, included:

(a) Director, National Environmental Engineering and Research Institute (N.E.R.T.);

(b) Member Secretary, Maharashtra Pollution Control Board;

(c) The Director of Industrial Safety and Health (DISH), who was formally known as Chief Inspector of Factories; and

(d) The Hydrographer, Government of Maharashtra.

It was only after careful appraisal by this Committee that the NOC was given to respondent Nos. 8 and 9 as the respondent No. 3 Board was satisfied that the proposed facility generated neither trade effluents, nor pollutants, nor hazardous waste.

7. Sometime in August 1994, respondent No. 8 executed a sub-lease of a portion of its factory land in favour of respondent No. 8 for setting up a cryogenic L.P.G. storage facility. Since respondent Nos. 8 and 9 are Associate Companies, though the L.P.G. facility was set up by respondent No. 9 by agreement between them the responsibility of obtaining all required clearances, providing supervisors, manpower, maintenance, ensuring the safety and control effective operations of the L.P.G. terminal and all related services was entrusted to respondent No. 8.

8. The Eastern boundary of respondent No. 9’s plot abuts in 20 mtrs. wide drainage channel. This drainage channel has been used for considerable length of time by the factories of Bharat Petroleum Corporation Limited (B.P.C.L.), Hindustan Petroleum Corporation Limited (H.P.C.L.) and Indian Oil Blending (a subsidiary of Indian Oil Corporation), and Mumbai Port Trust for conveying storm water to the Thane creek. The petitioners, Power Station known as “Trombay Thermal Power Station” is situated on the eastern side of the said drainage channel. The petitioners have built a 3 mtrs. high wall on the eastern bank of the drainage channel to sufficiently demarcate their property. The three generating units of the petitioners are located at substantial distances further East of the demarcating wall. Units 7, 6 and 5 are situated at a distance of 80 mtrs. 170 mtrs. and 300 mtrs. respectively East of the demarcation wall. The respondent No. 9 has constructed two L.P.G. storage tanks which are situated respectively at distances of 35 mtrs. and 44 mtrs. to the West of the said demarcating wall. The effective distances between the L.P.G. tanks and the three Powers Stations (Units 7, 6 and 5) range between 115 mtrs. to 344 mtrs.

9. The Southern boundary of the facility of respondent Nos. 8 and 9 is situated at a distance of 680 mtrs. from the boundary on the Northern bank of Thane creek. The Western boundary of the plot is situated more than 500 mtrs. from the High Tide Line Bund. Under the sanctioned Development Plan (1931-2001) for the area, the bunds located on the Northern bank of Thane creek have been marked as High Tide Lines and the Hyderographer. Maharashtra Maritime Board had also certified that the said bunds mark the High Tide Lines.

10. On 16th February 1985, after scrutiny by the Technical Cell and consideration by the Environmental State Appraisal Committee, the respondent No. 1 granted environmental clearance to the proposed L.P.G. facility.

11. Sometime in March 1995, the petitioner themselves consented to supplying power for the respondent No. 9’s csyogenic low pressure L.P.G. facility.

12. The construction of respondent No. 8’s facility commenced sometime in June 1995 with technical know-how and engineering data supplied by M/ s. Tractebel Gas Engineering Gmbh of Germany, a world renewed Gas Engineering Company. The facility is equipped with latest safety devices and systems. The storage facility comprises two large double-walled storage vessels for cryogenic storage of L.P.G. at normal atmospheric pressure built in accordance with B.S. 7777 (British Standards). The L.P.G. is transferred from ships carrying L.P.G. from the jetty under low pressure and cryogenically through pipes with six inches of insulation. The pipelines supplying the L.P.G. follow the route of the existing pipelines by which L.P.G. under high pressure is being transferred to the Refineries of H.P.C.L. and B.P.C.L. The unloading system of the cryogenic pipes are equipped with automatic shutoff devices based on constant nitrogen pressure operation arrangement.

13. Sometime in July 1995, at the petitioners’ instance, one of its associate companies. M/s. Tata Consulting Engineers, conducted a hazard assessment regarding potential risk to the petitioners’ Power Station from the proposed cryogenic L.P.G. storage facility of respondent Nos. 8 and 9. M/s. Tata Consulting Engineers, hereinafter referred to as “TCE” were particularly requested to ascertain if “safe distance” as stipulated by the United States National Fire Prevention Association (U.S. N.F.P.A. 58/59) were maintained. T.C.E. is an expert on Refrigerated Liquified Gas Handling and the first Indian Engineering Consultancy firm to receive the Certificate of Approval from Lloyda Register of Quality Assurance, U.K. under I.S.O. 9001: 1994.

14. After a detailed study, site visit and inspection of the respondent Nos.

8 and 9 L.P.G. facility, T.C.E. made a report dated 15th April 1998 concluding
that the cryogenic L.P.G. facility of respondent Nos. 8 and 9 provides “a degree of safety which Tatas should find satisfactory” and further that “T.E.C.

(Tata Electricity Company) do not have a case for complaint against the location
of Aegis ( respondent No. 8) L.P. G. tank on grounds that it violates requirements
of N.F.P.A 58 or A.P.I. 2510″.

15. On 17th June 1996, the petitioners wrote to respondent No. 9 thanking them for freely providing information to M/s. Tata Consulting Engineers and requesting them to provide two additional safety measures as specified in their letter. Respondent Nos. 8 and 9 readily acceded to this request and incorporated the two additional safety measures in the plans and/or designs of the facility sometime in July 1996.

16. On 13th July 1996, respondent No. 8 applied to the Director of Industrial Safety and Health ( respondent No. 6 hereinafter referred to as “DISH.”) for approval of their lay out plan for erection of two additional storage tanks for storage of Butane and Propane at their existing factory/site under the provisions of the Factories Act. Copies of the requisite lay outs were annexed and by a further letter of 23rd August 1996, additional information and documents were furnished.

17. On 21st September 1996, the Joint Director of DISH declined to consider the application as a consequences analysis form worst case scenario had not been forwarded and other information/drawings had not been furnished.

18. In October 1996, respondent No. 9 arranged for the Atomic Energy Regulatory Board ( Direcotrate of Regulatory Inspection and Enforcement, industrial and Radiation Safety Division, hereinafter referred to as “A.E.R.B. to undertake a detailed “consequences analysis” of the L.P.G. facility.

19. The A.E.R.B. first considered whether there was any possibility of a catastrophic accident occurring to the storage tanks or the pipeline having regard to the design of the plant (double walled cryogenic low pressure facility, built and installed as per B.S. 7777) and the safety systems installed. The A.E.R.B. concluded that the probability of a catastrophic rupture of the L.P.G. tanks once in one billion years or a catastrophic rupture of the pipeline (1.5 X 10E-8 or once in 70 million years) was so negligible that it could not be considered a credible scenario. The A.E.R.B. considered that, in comparison, serious damage being caused to the petitioners plant from a lightening strike (one x 10 e or once in 10 million years) or from release from a Nuclear Power Station (1 x 10e-7 or once in 10 million years) from a falling aircraft (2 x 10e-8 or once in 50 billion years) was far more probable.

20. Even though in its estimation the probability of the “Worst Case Scenario” (occurrence of a catastrophic accident and total loss of containment) was negligibly low, the A.E.R.B. nonetheless proceeded to examine the “Worst Case Scenario” and even then concluded that in such a situation the damage would be restricted to the plant boundaries.

21. The A.E.R.B. also took into account the probability of such a catastrophic rupture of both walls of the tank being in the region of 10 e-9 (i.e. once in a 1000 millions years) should not be considered a credible scenario. It also pointed out that, significantly, to date world wide there had not been even a single catastrophic rupture of a cryogenic double wall L.P.G. tank. To sum up, the A.E.R.B. did not apprehend any danger to the petitioners’ Thermal Power Station from the cryogenic storage facilities of respondent Nos. 8 and 9.

22. On 14th November 1996, the respondent Nos. 8 and 9 filed a formal application with DISH containing the requisite information called for and enclosed the A.E.R.B. report.

23. Sometime in November 1996, the petitioners had commissioned Independent Engineering Service Limited., U.K. hereinafter referred to as “I.E.S. to make an evaluation of the consequences of the situation of the cryogenic L.P.G. terminal of respondent Nos. 8 and 9 in close vicinity and forward their Risk Engineering report. During November 1996 and December 1998, as requested by the petitioners, respondent No. 8 furnished the required data regarding their L.P.G. terminal to I.E.S. In January 1997, I.E.S. submitted their Risk Engineering report to the petitioners. Interestingly, the Risk Engineering analysis appears to have been made by I.E.S. without actual inspection of respondent No. 9’s L.P.G. facility. The only inspection appeared to be that the representative of I.E.S. saw the L.P.G. termination, “from the petitioners Power Plant which affords a birds eye view of the same”, as contended in the affidavit in Rejoinder of the petitioners. The I.E.S. Risk Engineering report in terms states that it does not make any judgment with respect to the efficacy of the systems and procedures installed in the L.P.G. facility to minimise the probability of an occurrence. It also does not indicate whether a catastrophic accident of the magnitude contemplated by the petitioners in a credible/possible scenario keeping in mind the design of the L.P.G. plant and the safety systems installed therein. Without evaluating the probability of a catastrophic accident occurring, the I.E.S. concludes that there is a possibility of damage to the Power Station in the event of (i) a rupture of the L.P.G. pipeline which could lead to a vapour cloud which could ignite over the installation of the petitioners and (ii) cause a running fire in the drainage channel. Significantly, however, the I.E.S. report concludes that other occurrences would not cause any significant damage to the Power Station of the petitioners.

24. Sometime in January 1997, respondent Nos. 8 and 9 requested M/s. Chemconsult to conduct a detailed hazard assessment of the said cryogenic L.P.G. termination. After conducting such a hazard assessment, M/s. Chemconsult made a report in which they detailed the process equipment utilized, the safety/emergency systems installed at the terminal and at the jetty and gave their hazard evaluation thereof. M/s Chemconsult also considered that the following equipment complied with the applicable International safety/fire standards as under:

(a) Refrigerated Storage Tanks- BS 7777

(b) Piping – I.S.O.N/A.N.S.T.

(c) Pressure Vessels – A.S.M.E.

(d) Heat Exchanger- T.E.M.A. C

(e) Safety Distances- NFPA 58

(f) Fire protection- T.A.C. Guidelines. M/s.

M/s. Chemconsult came to the following conclusions:

(i) The process installation is of a good engineering design and is built
according to the latest views on L.P.G. Engineering and design
standards.

(ii) That the safety distances as per N.F.P.A. 58 were met except for the
location of the Control Room.

((iv) Process control and safety devices are adequate and sufficient for the
safe operation of the terminal.

(v) Attention was required to be paid to the quantum stored in the
pressurised surge vessels in view of the effects of a B.L.E.V.E.

(vi) A pipeline rupture within the terminal boundaries did not present a
serious environmental hazard.

(vii) Pipeline rupture along the B.P.T Road could lead to a pool fire with
high heat radiation levels locally.

(viii) Failure of one of the double walls of the storage tanks did not present
a serious environmental hazard.

(ix) Failure of both the walls of a tank would have severe effects but was
not a credible scenario ( probability 4 x 10e-11).

25. Sometime in January/February 1997, respondent No. 9 forwarded M/ s. Chemconsult’s report to DISH. The I.E.S. reports were forwarded by respondent No. 9 to A.E.R.B. and M/s. Chemconsult in February 1997 for their comments. In their review of the I.E.S. report, A.E.R.B. and M/s. Chemconsult opined that the I.E.S. report was fundamentally flawed for several reasons stated in their review.

26. Respondent No. 9 by letters dated 6th February 1997 and 20th February 1997 requested the petitioners for a meeting to obtain some clarifications on the data input on the basis of which I.E.S. had reached its conclusions. Though the petitioners assured that such a meeting would be arranged, in fact, no such meeting took place.

27. On 4th February 1997, the petitioners forwarded a summary of the I.E.S. report to respondent Nos. 1 to 6.

28. On 7th February 1996, respondent Nos. 8 and 9 gave a copy of the report of M/s. Chemconsult to DISH.

29. On 14th February 1997, though the statutory stipulated period of three months from 14th November 1996 had come to an end, respondent No. 9 received no reply from DISH, but later received a letter dated 14th February 1997 (which appears to have been posted on 24th February 1997) stating that respondent No. 9’s application could not be considered for approval.

30. Sometime in February 1997, the petitioners’ representation was examined by respondent No. 1 and the Pollution Control Board and it was concluded by them that no action was required to be taken.

31. On 24th February 1997, by way of abundant caution, respondent Nos. 8 and 9 addressed a representation to the Secretary of Labour, Government of Maharashtra seeking confirmation/ express approval of the L.P.G. facility. In their letter, respondent No. 9 listed all permissions they had obtained till date and the steps they had taken in the matter over the previous three years. They also pointed out the advantages of cryogenic storage of L.P.G. as against the existing system of pressurised LPG storage facility. The copies of A.E.R.B. and M/s. Chemconsult reports were also forwarded and it was pointed out that the cryogenic low pressure facility posed no safety threats to the petitioners.

32. As a result of the conflicting reports of A.E.R.B. and 1ES, sometime in February/March 1997 respondent No. 6 appointed an independent expert, R.K. Garg, to assist and advise in the matter. The said R.K. Garg is an M.Sc. (Tech.) and was Director of the Bhabha Atomic Research Centre (Chemical Engineering Group) from 1956 to 1958, Chairman of the Environmental Safety Committee appointed by the Maharashtra Pollution Control Board and was also appointed by the Supreme Court of India to assist in matters relating to industrial safety and environmental issues in some of the cases before it. The said expert, R.K. Garg, met with the petitioners and respondent Nos. 8 and 9 and inspected the L.P.G. facility on 12th April 1997.

33. On 10th April 1997, respondent No. 9 received a communication from N.F.P.A., U.S.A confirming that the distances from the two L.P.G. tanks of respondent No. 8’s facility to the petitioners’ 3 mtrs, high wall at a distance of 35 mtrs, and more, complied with the requirements of N.F.P.A. 59, irrespective of who owned the drainage channel “so long as no building is built over the drainage channel/culvert”.

34. On 12th May 1997, the said R.K. Garg addressed a letter to DISH giving his independent hazard assessment arrived at after studying the hazard assessment reports of M/s. Chemconsult, A.E.R.B., T.E.S. and his own inspection and analysis of information given to him by respondent No. 8. In his report, the said expert R.K. Garg, indicated his assessment of the hazards and the steps to be taken by which such contemplated hazards could be eliminated or minimised to acceptable levels. The conclusions reached by R.K. Garg broadly were to the following :

(a) The construction was as per standard Codes and adequate safety devices had been incorporated.

(b) The cryogenic storage was much safer than pressurised storage and that the probability of loss of containment from the double walled tanks was very low.

(c) The pressurised surge banks posed a hazard to the petitioners’ Power Station and the “two recommendations made in the Hazard Assessment Reports of limiting the quantity of liquid in each tank to 2.5 tonnes” should be followed.

(d) To meet with any failure of the pipeline during unloading, the 8th respondent had confirmed that the ship pumping system had an automatic shut off arrangement.

(e) That the location of the storage tanks complied with N.E.P.A 59 if the drainage channel could not be built upon.

(f) That, although it could be argued that larger safety distances should have been provided, as the safety distances complied with N.E.P.A 58 the rejection of the Terminal at that stage could not be justified.

(g) That the control room should be shifted away from the tanks “as pointed out in the hazard assessment reports”.

(h) That it should be verified that Respondent Nos. 8 and 9 had obtained
all clearances.

(i) That confirmation should be sought regarding safety organisation and
training skill of operational staff.

(j) Before commissioning a certificate should be obtained from M/s. TGE,
the Design Consultants, that all systems had been treated and found
to be operational.

35. On 14th May 1997, respondent Nos. 8 and 9 submitted to respondent No. 6 particulars of information requested in the Factories Rules, 1963 and an “On site Emergency Plan” as required under the Manufacture Storage and Import of Hazardous Chemicals Rules. They also indicated that they proposed to start the LPG facility in May 1997. A similar notice was also given by respondent No. 8 to the Maharashtra Pollution Control Board.

36. In May 1997, respondent Nos. 8 and 9 had a meeting with DISH during which he raised queries regarding operational training of staff, presence of the foreign consultants/experts during the commissioning of the L.P.G. facility and the safety training. These issues were taken note of by respondent No. 8 for compliance.

37. On 14th May 1997, respondent No. 8 addressed a letter to respondent No. 6 confirming (i) that all training requirements had been fully met at Antwerp Gas Terminal at Brussels, Belgium; (ii) that a team from the process consultants (TGE.) would be present during commissioning and till stabilisation; (iii) that operating team personnel had also received L.P.G. Specific Fire safety training by RISC Netherlands; (iv) that in-house training was imparted by Dr. S.K. Biswas who was the erstwhile Corporate Safety and Environment Manager at I.C.I and was a reputed Specialist in the field; (v) that TGE would jointly with respondent No. 8 check and commission the plant and safety systems as per the detailed pre-commissioning and commissioning procedures stipulated by TGE.

38. On 16th May 1997, DISH wrote to respondent Nos. 8 and 9 asking for further details regarding the arrangements made for compliance with checks for commissioning plant and training and safety related supervisory programme before the application of respondent No. 8 could be considered for grant of approval. DISH also called upon respondent No. 8 to submit an undertaking to reduce the capacity of the surge vessels to 2.5 tonnes.

39. All requisite information and the undertaking called for were duly furnished by respondent No. 8 on the next day under cover of their letter dated 17th May 1997. Thereafter, DISH held a meeting with the representatives of respondent No. 8 during the course of which they were informed that permission would be granted subject to conditions along the lines stipulated in their letter dated 7th October 1997. DISH particularly emphasised (a) that all safety systems should be tested and certified by TGE, (b) that all pre-commissioning/ commissioning checks should be carried out in the presence of TGE and certified by TGE, (iii) that the surge vessel inventory would be restricted to 2.5 tonnes and (iv) that the approval would be valid as long as the drainage channel was not built upon. Respondent No. 9 pointed out that all those pre-conditions had already been satisfied, and also drew attention to NFPA’s letter dated 10th April 1997 indicating compliance with the NFPA 59 safety standards.

40. Though by 20th May 1997 the order of DISH was actually expected to be received, it was not yet received in hand by respondent Nos. 8 and 9. Since the plant was ready for commissioning, and no refusal had been communicated within three months, respondent No. 9 commissioned the plant and the first consignment of L.P.G. was received for storage therein. All safety systems were tested, pre-commissioning checks done and commissioning of the plant was carried out in the presence of the team of experts from TGE. Initially, one storage tank was commissioned and the second was made operational a few months later on.

41. On 1st July 1997, this writ petition came to be filed. Broadly speaking, the stand of the petitioners in the writ petition is that their Power Station is surrounded by hazardous industries, HPCL and BPCL, but they had no objection to the said facilities as they had strictly complied with all important safety standards. The petitioners, however, complain in the writ petition that the L.P.G. termination of respondent Nos. 8 and 9 has been set up in contravention of:

(a) The CRZ Regulations under the Environment (Protection) Act, 1988 as
the plot was located on reclaimed land adjoining the sea and was
therefore in the C.R.Z..

(b) The safe distance requirements of the Static and Mobile Pressure Vessels Rules, 1981.

(c) Section 41(b) of the Factories Act, 1948 which required disclosure of
information and submission of an on site emergency plan.

(d) The safety distances prescribed by NFPA 58.

(e) Rule 7 read with Schedule 7 of the Manufacture, Storage and Import of
Hazardous Chemical Rules, 1989 issued under the Environment
(Protection) Act, 1986.

(f) The requirement of the Development Control Rules as to obtaining of
the approval of the Chief Fire Officer.

42. The writ petition came up for admission for the first time on 7th July 1997 and was adjourned from time to time to enable the parties to file detailed affidavits in reply and rejoinder.

43. The petitioners decided to do away with the surge vessels in order to avoid hazard from a pressurised facility. Before they could implement this decision, they wished to consult their Design Consultant M/s. TGE whether it would have any adverse effects on the operation of the L.P.G. plant.

44. On 15th September 1997, respondent Nos. 8 and 9 addressed a letter to M/s. TGE seeking their approval for discontinuation/decommissioning of the surge vessel. By a Fax message dated 23rd September 1997, M/s. TGE confirmed that they had examined the note on disconnection/ decommissioning of the surge vessels and found the same to be in order. Pursuant to this advice and approval, respondent No. 8 immediately decommissioned and disconnected the pressurised surge vessels.

45. On 7th October 1997, DISH issued formal permission which incorporates conditions as already indicated.

46. On 8th October 1997, respondent No. 8 informed DISH that the two surge vessels had been decommissioned in compliance with the stipulation to reduce the quantum 2.5 tonnes to eliminate hazard in the surge vessels. It was also pointed out that the Control Room would be relocated shortly and that all other conditions apart from Condition No. 15 had been complied with and that ancillary building plans would be shortly submitted for approval.

47. On 15th October, 1997, respondent No. 8 forwarded details of plans of Utility Building, Sub-station, D.G. House, Fire Fighting Facility and Water Pump House to DISH.

48. On 15th January, 1998, this Court admitted the petition. DISH was directed to ensure compliance with all conditions of the permission letter dated 7th October 1997 except Condition No. 15 pertaining to approval of plans and utility building.

49. On 27th January 1998, DISH approved plans forwarded for ancillary structures.

50. By its letter dated 30th January 1998 addressed to DISH, respondent No. 8 confirmed that all conditions stipulated in the approval letter dated 7th October, 1997 had been complied with, that Control Room had already been shifted to new location as shown in the approved plan complying with NFPA 59 and stability certificates from competent persons had been already obtained and forwarded.

51. Pursuant to the directions of this Court, DISH inspected the LPG plant on 30th January 1998, 18th February 1998 and 10th March 1998 and ensured that all conditions stipulated in the permission letter dated 7th October 1997 had been met with. A remark to that effect was also recorded by DISH.

52. On 11th March, 1998, respondent No. 8 addressed a letter to DISH undertaking (a) that the 80 tonne surge tanks which were originally meant to receive pressurised LPG had already been decommissioned and would not be used in future in connection with storage or process of LPG in their site, and (b) that it had been ensured and would be ensured in future that L.P.G. would not be unloaded unless automatic shut off arrangement is provided in the pipeline of the ship.

53. On 17th April 1998, the writ petition was amended to impugn the order dated 7th October, 1997 issued by respondent No. 6 DISH.

54. After hearing the learned Counsel for parties on all other contentions, on 18th June 1998 the Hydrographer, Maharashtra Maritime Board, Mumbai was directed by the order of this Court to make a report to this Court as to whether the High Tide Line envisaged under the Coastal Zone Management Plan and the concerned C.R.Z. Notifications of the Government of India connected with the Bunds placed on the Western and Southern sides of respondent No. 8’s facility, after taking measurements on the day and time when the maximum high tide occurs. Accordingly, the Hydrographer, Maharashtra Maritime Board, Mumbai, forwarded a report on 24th July 1998.

CONTENTIONS

55. The petitioners impugn the permission granted to respondent Nos. 8 and 9 to run the L.P.G. storage and handling facility on several grounds which can be broadly subsumed under the following three heads :

(A) that the permission granted is contrary to several statutory provisions;

(B) that the concerned Officers, namely respondent Nos. 1 to 7, have abdicated their statutory duties in granting such permissions; and

(C) that in any event the running of the L.P.G. facility to close proximity of the petitioners Power Station is an extreme hazard not only to the petitioners’ Power Plant but also to several other facilities handling hazardous chemicals in the vicinity, resulting in compounded hazard to the public at large in the city of Mumbai.

The petitioners urge that the permission granted to respondent Nos. 8 and 9 for running of the L.P.G. storage facility be cancelled and by a Writ of Mandamus respondent Nos. 8 and 9 be directed to forthwith cease and desist from running the said L.P.G. facility.

56. Apart from the contentions as to violation of statutory provisions, we
have carefully considered the risk factor which was heavily weighing on our
minds, irrespective of whether the statutory Rules were complied with or
not. Upon careful consideration, we are fully satisfied that not only are legal
provisions complied with, but that the risk factor is very much within the
limits of tolerance accepted by International standards. We are also not satisfied that the L.P.G. facility of respondent Nos. 8 and 9 would have any
deleterious affect on the environment or result in depredation of the Coastal
Zone. Hence, in our view, the challenge to the action taken by the authorities in permitting the instant L.P.G. facility must fail for reasons which we
shall enumerate in extenso.

JURISDICTIONAL MATRIX

57. Before we take up for consideration the various factual and legal issues thrown up by this writ petition, it is necessary to formulate the legal matrix within which the Court can appraise those issues.

58. Indubitably, judicial review is an essential and basic feature of our constitution. The power to issue high prerogative rights vested in the High Court under Article 226, and in the Supreme Court under Article 132 of the Constitution of India, knows no bounds except self-imposed ones in the interest of better administration of justice. In matters involving public interest, where a citizen or group of citizens impugns a decision taken by the Government or State authorities as being adverse to public interest, particularly raising issues which require consideration of policies or technical matters, the Superior Courts have always bridled their awesome powers in writ jurisdiction and deferred to experts on technical matters and the executive on policy considerations. Examining the scope and amplitude of judicial review in such matters, the Supreme Court, in Vincent Panikurlangara v. Union of India and others, observed that in matters of public interest, where in view of the magnitude, complexity and technical nature of the enquiry involved in the matter, a judicial proceeding of the nature of writ petition would not be an appropriate one for determination of such matters, since technical aspects which arise for consideration cannot be effectively handled by a Court. It was also pointed out that questions of policy involved in such matters would also be for the Government-keeping the best interest of citizens in view- to decide, and no final say in regard to such aspects could come under the purview of the Court.

59. In Dahanu Taluka Environment Protection Group and another v. Bombay Suburban Electricity Supply Company Ltd. and others, 1991(2) S.C.C. 538, the Supreme Court observed with respect to judicial review,
“The limitations, or more appropriately, the self-imposed restrictions of a Court in considering such an issue as this have been set out by the Court in Rural Litigations & Entitlement Kendra v. State of U.P., 1986 Supp. S.C.C. 517 and Sachidanand Pandey v. State of W.B., . The observations in those decisions need not be reiterated here. It is sufficient to observe that it is primarily for the Governments concerned to consider the importance of public projects for the betterment of the conditions of living of the people on the one hand and the necessity for preservation of social and ecological balances, avoidance of deforestation and maintenance of purity of the atmosphere and water free from pollution on the other in the light of various factual, technical and other aspects that may be brought to its notice by various bodies of laymen, experts and public workers and strike a just balance between these two conflicting objectives. The Court’s role is restricted to examine whether the Government has taken into account all relevant aspects and has neither ignored nor overlooked any material considerations nor been influenced by extraneous or immaterial considerations in arriving at its final decisions.”

60. In a recent Judgment in Tata Iron & Steel Co. Ltd. v. Union of India and another, , these principles were reiterated by the Supreme Court in the following words :

“At this juncture, we think it fit to make a few conservations about our general approach to the entire case . This is a case of the type where legal issues are intertwined with those involving determination of policy and a plethora of technical issues. In such a situation, courts of law have to be very wary and must exercise their jurisdiction with circumspection for they must not transgress into the realm of policy-making, unless the policy is inconsistent with the Constitution and the law…..”

61. This shall be our approach and with this matrix of Judicial review we shall consider the contending issues presented to us.

62. A) Contravention of Statutory Provisions

(a) Factories Act, 1948.

The Factories Act, 1948 is an Act intended for the regulation of the conditions of labour in factories, particularly with regard to their health, welfare and amenities. In order to ensure the health of the factory workers, the Act makes stringent provisions with regard to establishment of factories, issuing of licence to factories, conditions subject to which different type of machineries could be installed in factories and different types of hazardous materials could be handled therein. An officer of the State Government by name Chief Inspector of Factories is constituted under section 8 of the Factories Act, 1948 for overseeing the proper implementation of the detailed provisions made under the Factories Act as well as the several Rules prescribed thereunder. The office of the Chief Inspector of Factories is now styled as the Directorate of Industrial Safety and Health and the Chief Inspector of Factories is now called Director of Industrial Safety and Health (DISH).

63. The petitioners contend that the proposal of respondent No. 9 for establishing a L.P.G. handling and storage facility within the factory premises of respondent No. 8 was processed contrary to the provisions of the Factories Act and that permission thereunder was issued in flagrant breach of the provisions of the Factories Act, 1948 and the applicable Rules. It is contended that, though respondent No. 8 (DISH) had specifically refused permission on more than one occasion, on account of pressure being brought upon him by respondent No. 1 at the instance of respondent Nos. 8 and 9, respondent No. 6 made an about turn and granted permission for the LPG storage facility by his order dated 7th October 1997.

64. Some recapitulation of facts is necessary to appreciate this contention. At the time when respondent Nos. 8 and 9 proposed to set up their cryogenic low pressure facility for storage and distribution of L.P.G. this technology was absolutely new to India and there were neither Indian standards, nor Indian experts available for assessing the possible hazards of establishing such a facility. Inasmuch as there was no trade effluent, air emission or hazardous waste generated by such facility, respondent No. 3, Maharashtra Pollution Control Board, straightaway granted a N.O.C.

65. When respondent Nos. 8 and 9 applied for the first time to the DISH on 13th July 1996 for approval of the lay out plan for erection of two additional storage tanks for Butane and Propane in the existing factory, the DISH was unable to consider it favourably, since the proposal did not give information on several factors. Apparently, this being a first time exercise in the country, no one was sure as to what exactly was the material required to be considered. Respondent No. 8 had forwarded along with its application the N.O.C. issued by respondent No. 3 (Maharashtra Pollution Control Board), a clearance issued by the Environmental Department of the Government of Maharashtra by their letter dated 16th February 1995, a clearance issued by the Department of Explosive vide their letter dated 28th March 1995 and the clearance issued by the Municipal Corporation of Greater Bombay on 11th September 1995. By its letter dated 24th July 1996, DISH declined to grant approval to the proposal on the ground of deficiency of information on several aspects and, in particular, as, (a) consequence analysis for worst scenario was not submitted (b) HAZOP Study report was not submitted and (c) details regarding bringing in Propane /Butane and its despatches were not given vis-a-vis impact on transport related infrastructure. By its letter of 23rd August 1998, respondent No. 8 supplied the information called for and requested for grant of approval. At Appendix I to the said letter, the findings of HAZOP Study and consequence analysis were also enclosed.

66. The proposal was once again declined approval by the DISH by the letter dated 21st September 1996. The reasons given this time for not approving the proposal were :(a) Consequences analysis for worst care scenario not submitted in respect of cryogenic storage and surge vessels; (b) Criteria for selecting clearances around cryogenic storages and their inter-distances not mentioned; (c) the impact of risk level changes due to increase in inventory and road transport was not furnished; (d) Status of releases from P.R.V. was not clear and (e) Drawings, documents lack the information about surrounding areas.

67. All information called for except consequences analysis for worst case scenario was supplied by respondent No. 8 vide letter dated 11th October 1996. Respondent No. 8 also stated that study of consequences of worst case scenario was carried out and report would be submitted shortly. Information about Trombay area plan and location of respondent No. 8’s storage facility giving details of nearby Industries and surroundings was also promised shortly.

68. Under cover of its letter dated 22nd October 1998, respondent No. 8 gave the Trombay area plan and location and under cover of its letter dated 14th November 1996, it forwarded the report containing :(i) Consequences Analysis for worst case scenario; (ii) impact of risk level changes as well as road transportation and (iii) the status of release of the PRVs.

69. In the meanwhile, the petitioners had raised objections with DISH for grant of approval to the storage of L.P.G. at the respondent No. 8’s site. By its letter dated 14th February 1997, while acknowledging the enclosed report.

DISH declined to consider the drawings submitted for approval on the ground after going through the report. It is observed that a threat exists to the neighbouring plant and machinery of the Thermal Power Station of Tata Power Company, in worst case scenarios, origins because of rupture of import pipeline surge vessels and cryogenic storages. The Tata Power Company has also raised objection to the storage of L.P.G. at the site”. Another reason given was that the application was not affixed with Court Fee Stamp of Rs. 2.50.

70. By this time, the petitioners had themselves carried out risk analysis through their Insurance Consultant, Independent Engineering Services Limited, U.K., (hereinafter referred to as “IES”) and IES made a report on “External Risks Study of the Trombay Generating Station”. A copy of the Report of IES was given to respondent No. 8 by the petitioners presumably to impress upon it that there was danger to the Power Station from the proposed L.P.G. facility. Respondent No. 8 in turn forwarded a copy of the IES Report to Atomic Energy Regulatory Board (“AERB”) as well as M/s. Chemconsult, Netherland, for their comments. Having received their detailed comments, respondent No. 8 addressed letters dated 26th February 1997 to the Secretary of Department of Labour, Government of Maharashtra putting the full case on record and justifying grant of approval with a copy to DISH forwarding the said detailed comments and justification of proposal’s approval and also enclosing Rs. 2.50. Court fee stamp.

71. In view of the conflicting views taken by the report of the three expert agencies on the consequences analysist regarding cryogenic L.P.G. storage facility, each coming up with a different conflicting “worst case scenario”, DISH felt it necessary to obtain the opinion of an independent expert. R.K. Garg, who was considered an independent expert in the field of safety and environment, was consulted for his opinion in the matter. R.K. Garg made a site visit on 12th April 1997 and indicated his opinion in his letter dated 12th May 1997 addressed to DISH. Even after receipt of the said letter, DISH raised certain queries with regard to: (i) details of checks for commissioning the plant in save manner: (ii) the arrangement to ensure checks; (iii) details of training programme, their schedules, conditions, etc. ; (iv) details of safety related supervisory control and (v) undertaking regarding reducing the capacity of surge vessels to 2.5 tonnes. Respondent No. 8 was informed that the proposal would be considered only after the above information was furnished. The information and the undertaking called for were supplied by respondent No. 8’s letter dated 17th May 1997. In the meeting held sometime in May 1997, DISH indicated that permission was likely to be granted subject to conditions indicated by him. Acting on this information, respondent No. 8 commissioned its plant on 28th May 1997. Even before the actual order of approval was to be received by respondent No. 8, the present petition came to be filed on 1st July 1997 and was adjourned on several occasions for filing of affidavits by different parties. While the writ petition was still pending, the approval came to be granted by DISH on 7th October 1997. These are the circumstances under which DISH gave permission/approval.

72. Section 6 of the Factories Act, 1948 empowers the State Government to make Rules for implementing the provisions of the Act. The State Government has prescribed the Maharashtra Factories Rules, 1983 (hereinafter called as “Factories Rules”) containing detailed provisions as to the setting up and extension of factories, installation of machinery, storage, equipment, provisions for safety and welfare of workers and so on. Rule 3 requires an application for permission for construction of extension of a factory. This application has to be made to DISH in Form I and must contain several particulars as prescribed in Rule 3. The Rule also requires full disclosure of details of the hazardous or toxic material handled by the factory. The proviso to Rule 3(1)(c) requires that if any inflammable material is to be handled or used in any manner, the application must be accompanied by a no objection certificate from the local authority concerned. After ensuring that full disclosure has been made with regard to hazardous material handled or stored’-in the factory and the details with regard to the safety as indicated in the Rules, a licence must be granted by DISH under Rule 6. DISH is empowered to reject the licence if such details are not fully disclosed.

73. Form I under Rule 3 of the Factories Rules prescribes the details to be furnished for permission to construct, extend or take into use any building as a factory. Respondent Nos. 8 and 9 had already obtained a N.O.C. from the Maharashtra Pollution Control Board, also from the Environment Department subject to no objection by DISH, permission from the Chief Controller of Explosives, Government of India and upon fulfilment of the conditions imposed by the Maharashtra Pollution Control Board in their letter dated 5th March 1994. The State Government also reserved its right to impose any additional conditions from time to time for control of pollution, if necessary.

74. When the first application was made by respondent No. 8 to the DISH , respondent No. 8 it had clearance from the Controller of Explosives, the Maharashtra Pollution Control Board and the Environment Department. The first application was not acted upon by DISH on the ground the information supplied was incomplete.

75. Between 13th July 1996 to 14th February 1997, respondent No. 8 corresponded with the DISH. The DISH was faced with the peculiar situation of
dealing for the first time with an application for installation of a cryogenic
inflammable gas storage facility licence. The DISH had before it conflicting
technical assessment reports. While the IES report indicated that there was
danger to the adjoining facility of the petitioners, respondent No. 8 had relied on the “Consequence analysis for cryogenic terminal facility” carried
out by the Atomic Energy Regulatory Board (AERB) which suggested that there
was no such danger as apprehended. At this juncture, the petitioners also
raised an objection with the DISH about the apprehended danger to their
Thermal Power facility. Faced with those difficulties, the DISH was, perhaps, unsure as to how to handle the situation and by its order dated 14th
February 1997 communicated that the drawings submitted by respondent
No. 8 “cannot” be considered for approval”. The principal reason given in the
said letter of DISH dated 14th February 1997 is that a threat existed to the
neighbouring plant and machinery of the petitioner’s company “in worst case
scenarios, origin (sic) because of rupture of import pipe line surge vessel and
cryogenic storages”.

76. Faced with this impasse, respondent No. 8 addressed a letter dated 26th February, 1997 to the Government of Maharashtra pleading its case that its facility did not entail such dangers as projected by the petitioners which seemed to have impressed the DISH. The State Government, after a review of the material made available to it, decided to appoint R.K. Garg as an independent expert to visit the site and gave his comments on the level of safety in the intended L.P.G. facility of respondent No. 8. Garg made his report by his letter dated 12th May, 1997 suggesting some more precautions be taken. He identified the source of major hazard and indicated that the major hazard arose from the two surge tanks and suggested the manner of limiting the hazard. He also highlighted the worst case scenario of failure of the import pipeline of 300 mmdia, from the jetty to the terminal tanks and recommended an automatic shut-off arrangement in case of rupture of the line. He also suggested provisions for a remotely operated water curtain near the storage tanks along with the boundary towards petitioners Power Station. He opined that storage under refrigerated condition was a much safer practice as compared to the pressurised storage of low boiling chemicals like L.P.G. and, considering that the storage was in double walled tanks, the probability of loss of containment was very low. Respondent No. 8 complied with all suggestions and recommendations for improving safety as made by the report of Garg. After being satisfied that such recommendations and suggestions had been implemented, DISH issued the permission to respondent No. 8.

77. It is contended for the petitioners that there is no provision in the Factories Act or the Rules made thereunder for appointment of an outsider as an expert to assess the safety features of a factory before granting permission. This contention cannot be accepted. In fact, section 9 of the Factory Act, in terms, provides that an Inspector of Factories may enter a factory with his assistants, being persons in the service of the Government or any local or other public authority “or with an expert, as he thinks fit” for the purposes of examining the premises, plant, machinery, article or substance handled therein with a view to assess its potential for hazards and for other purposes. In our view, obviously, in a situation which is beyond his technical competence, DISH can very well avail of independent expert opinion. The present case was eminently one in which DISH should have referred the matter to an outside independent expert. There were two conflicting reports-one by IES and the other by AERB- with regard to the hazardous nature of respondent No. 8’s facility. The facility of cryogenic storage being the first one proposed to be installed in India, the DISH did not have either the technical expertise or previous experience of handling such a case. In these circumstances, that R.K. Garg, an expert whose credentials appears to be above board, was appointed by DISH to give an independent opinion does not in any way militate against the provisions of the Factories Act, 1948. In our judgment, the action of DISH was very much in accordance with the provisions of the Factories Act, 1948.

(b) The Environment (Protection) Act. 1986

78. This Act is intended to provide for the protection and improvement of environment and for matters connected therewith. The main object of the Act, as indicated in the preamble, is to implement the resolutions of the United Nation Conference on Human Environment held at Stockholm in June, 1972, in which India is a participatory country and to take appropriate steps for protection and improvement of human environment.

79. Section 2(e) of this Act defines “hazardous substance” to mean any substance or preparation liable to cause harm to human beings, other living creatures, plants, micro-organism, property or the environment, L.P.G. would be a ‘hazardous substance’ within the meaning of section 2(e) of this Act. Section 7 prohibits the carrying on of any industry which causes the discharge of any environmental pollutants in excess of the prescribed standards. Section 8 prohibits any person from handling or causing to handle any hazardous substance except in accordance with such procedure and after complying with such safeguards as may be prescribed. Detailed Rules have been made under the Act for dealing with industries with different types of emission or hazard potentials. In particular, attention was invited to the Manufacture, Storage and Import of Hazardous Chemical Rules, 1989 made under section 6 read with sections 8 and 25 of the Act. L.P.G. is a “hazardous chemical” within the meaning of Rule 2(e)(i), since it is flammable gas within; the meaning of Part I of Schedule I and is listed at Item No. 43 of Column 2 of Part II of the Schedule 2 of the Schedule. On site storage or on site transport of L.P.G. or its isolated storage or its transmissions by pipeline would be an industrial activity within the meaning of Rule 2(h) of the said Rules. Rules 6 and 7 require that the occupier of a factory shall not undertake any industrial activity unless he has submitted a written report to the concerned authority containing the particulars specified in Schedule 7, at least three months before commencing that activity, or before such shorter time as the concerned authority may agree. Rule 10 requires the preparation of safety reports containing specific information being submitted to the concerned authority. Rule 13 requires the preparation of on-site emergency plans by the occupier. Schedule 5 to the Rules appoints the Chief Inspector of Factories appointed under the Factories Act (now DISH) as the authority for implementation of directions and procedures in the Rules in respect of industrial installations and isolated storages dealing with hazardous chemicals and pipelines including inter state pipelines with regard to Notifications as per Rules 7 to 9, Safety reports as per Rules 10 to 12 and preparation of onsite emergency plans as per Rule 13. Finally, Chief Controller of Explosives, appointed under the Indian Explosives Act and Rules, 1983 is to be incharge of the enforcement of directions and procedures as per the provisions, of the Indian Explosives Act and Rules made thereunder.

80. The Maharashtra Pollution Control Board is basically concerned with trade effluents or waste discharged to the atmosphere or water or land which might have polluting effect. The Maharashtra Pollution Control Board has, after examination of all aspects of the Industrial activities undertaken by respondent Nos. 8 and 9, cleared the project and granted a no objection certificate. We see no reason to take a different view of the matter, nor do we see any contravention of law on the part of respondent No. 3 Maharashtra Pollution Control Board, in granting the no objection certificate.

81. The affidavit of Lalit Kumar Srivastav, Deputy Chief Controller of Explosive (Government of India), makes it clear that the provisions of the Static and Mobile Pressure Vessels ( Un-fired) Rules, 1981 ( hereinafter referred to as “SMPV Rules”) are not applicable to the case of respondent No. 8 since a ‘pressure vessel’ is defined under the said Rules as a closed container containing compressed gas exercising an internal pressure exceeding 2 atm.g at the maximum working temperature. It is pointed out in the affidavit that only two of the 2 x 120 M-3 L.P.G. storage vessels and connected facilities like tank trunk loading arrangement fall within the Rules administered by his Department. As far as cryogenic storage of L.P.G. or L.P.G. pipeline from the jetty to the storage installations were concerned the said officer was rightly of the view that they fell outside the jurisdiction of his Department.

His Department issued the licence only for two 2 x 120 M-3 L.P.G. storage vessels and connected facilities. It is pointed out in the said affidavit that under Rule 22 of the SMPV Rules, a storage vessel should observe 30 mtrs, safe distance from any building or adjoining property line that can be built upon. According to him, a clearance of 30 mtrs. is observed from the boundary fencing of respondent No. 8’s installation and the adjoining property line on the other side of the storm water drawn is much further away. Similarly, the utility building inside the said installation is more than 30 mtrs. away from the storage vessel. The Rules do not provide for any specific distance between storage facilities and the cryogenic storage tank which is double walled. The observance of 18 mtrs. clearance between the two does not contravene the SMPV Rules. The distance between the two vessels was found to be 2 mtrs., as prescribed in Rule 22 of the SMPV Rules. As per condition 5 of the licence From III, a safety clearance of 9 mtrs. is required to be observed around the tank truck loading area. The actual distance between the centre of the truck loading platform and the vessel is 31 mtrs. and the distance between the nearest vessel and the reliquification plant shed is also more than 30 mtrs. In the premises, the Deputy Chief Controller of Explosives was of the view that there is no breach of the SMPV Rules, 1981.

82. As far as the storage of hazardous chemicals and storage of explosives are concerned, the DISH and Chief Controller of Explosives, after detailed examinations, granted their no objection certificates to the industrial activity of respondent No. 8 and respondent No. 9 and it is not our function to sit in appeal over their judgments, nor we have been shown that the approvals given by them contravene any of the provisions of any law. In fact, respondent No. 4 (Chief Controller of Explosives) is no longer concerned with the situation because respondent No. 8 has totally disconnected the two surge vessels which were the only hazards with which respondent No. 4 was concerned.

(c) Bombay Municipal Corporation Act, 1888 :

83. As required by Rule 6 of the Factories Rules, 1983, respondent No. 8 had applied to the Bombay Municipal Corporation, a local authority, (hereinafter referred to as “B.M.C.”), for a no objection certificate as required under Rule 3(1) proviso, in view of its handling inflammable material. Respondent No. 8 had already obtained a licence from the B.M.C. for storage of chemicals sometime in the year 1983. On or about 11th December, 1991, respondent No. 8 applied for supplementary storage licence for additional storage capacity of combustible liquid (Ethylene Dicholoride) in M.S. Tank No. 121. On 14th June 1993 and 30th June 1994 respondent No. 8 had made applications for storage of combustible liquids in Tank Nos. T-122 to T-126. These licences, after complying with the procedure, were issued on 9th June 1993 and 8th March 1995. The B.M.C. has scrutinised these applications for permissions under sections 390 and 179 of the B.M.C. Act after calling for necessary documents including the factory licence and a no objection certificate from the Building and Factory Department and after calling upon respondent No. 8 to submit relevant building plans including that of the structure in which the concerned business was carried out. Before granting such licence, the B.M.C. also obtained the opinion of the Chief Fire Officer, Mumbai, as to the adequacy of the fire fighting equipment provided in the factory. The Chief Fire Officer also granted no objection in the storage of petroleum products of 25000 Kilo-litres in Tank Nos. T-122 to T-126 in addition to the combustible liquids stored under the previous licence. Dr. Chandrachud, learned Counsel for respondent Nos. 2 and 7, made available for our perusal the relevant file of the B.M.C. indicating the correspondence which took place between respondent No. 8 and B.M.C. as well as the steps taken by B.M.C. to ensure compliance with the provisions of law. We find no violation of any law in the licences granted by respondent No. 2 to respondent No. 8 for storage of combustible liquids.

84. Mr. Diwan, learned Counsel for the petitioners, urged that the B.M.C. authorities have acted contrary to law in granting permission for installation of the L.P.G. storage tanks within close proximity of the high tension power transmission lines. In our view, this contention has no substance. We have perused the file of the B.M.C. authorities made available to us dealing with the application of respondent No. 8 for construction of the storage facility. The application was made sometimes in March, 1995 for permission to construct the storage facility. Such permission was granted and TOD was issued on 11th September, 1995 after scrutiny of the following documents :

(a) No Objection Certificate from the Chief Fire Officer.

(b) No Objection Certificate from Deputy Chief Controller of Explosives.

(c) Detailed plans.

(d) No Objection Certificate from Maharashtra Pollution Control Board.

(e) No Objection Certificate from the Department of Environment, Government of Maharashtra.

(f) No Objection Certificate from Director of Industries.

A commencement certificate was issued on 12th September, 1995 after ensuring that the requisitions made by the concerned Department of B.M.C. had been complied with.

85. The Executive Engineer took notice of the fact that the immediate distance between high tension transmission lines and the nearest combustible liquid container was 40 mtrs., which was more than adequate, particularly taking into view the no objection certificate granted by the Chief Fire Officer and the Controller of Explosives. It was based on these considerations that the TOD was issued on 11th September, 1995. The concerned Engineer scrutinised in detail the application of respondent No. 8 for compliance with conditions imposed by TOD. At that time, it was specifically noted that the proposed tanks were below the transmission lines and were 40 mtrs. away from the high tension transmission lines. In view of this position, Condition No. 12 imposed in the TOD that there should be a no objection certificate from the petitioners appears to have been waived. The commencement Certificate was issued on 12th September, 1995.

86. On 18th October, 1995, there was a complaint made by the Bombay Environmental Action Group contending : (a) that respondent No. 8 was carrying out illegal reclamation of land from Thane creek East of its property; and (b) that the reclaimed portion would be used for building of storage tanks of 10000 MT capacity each for storing combustible liquid at 41 degrees Celsius directly under or very near the high tension wires of the petitioners. The Bombay Environmental Action Group in fact protested that no risk analysis had been carried out and that the precluciation was contrary to the provisions of the Coastal Regulation Zone Notification dated 19th February, 1991 issued by the Ministry of Environment and Forests, Government of India. A similar complaint dated 16th Ortober, 1995 was made to the Government of Maharashtra in the Department of Environment. The said complaint was forwarded to the B.M.C. for appropriate action by the Government. After investigation, the B.M.C. was of the view that the excavation work carried out was CIS 474 (PL) of Mahul Village, Chembur, for construction of the storage tanks. The land of respondent No. 8 situated in a Special Industrial Zone (93) and did not fall within the 500 mtrs. from the high tide level. The Deputy Chief Engineer, Building Proposals (Eastern Suburbs), by his letter dated 11th January, 1996 pointed out that the proposed storage tanks were away from the high tension lines and at a distance permissible as per the Development Control Rules and that the construction did not violate the Coastal Regulation Zone since it was 500 mtrs., away from the high tide line.

87. On 3rd June, 1997, respondent No. 8 sought Occupation Certificate and enclosed the necessary No Objection Certificates obtained from various authorities. The Occupation Certificate was refused on 9th June, 1997 as a No Objection Certificate from Chief Controller of Explosives for occupation and commissioning of the plant had not been submitted. Respondent No. 8 thereafter forwarded the No Objection Certificate of the Chief Controller of Explosives, after consideration of which a decision was taken on 1st August, 1997 to grant sanction for processing of the issue of Occupation Certificate. In the meanwhile, the petitioners had raised objections to the grant of Occupation Certificate and considering the nature of contentions urged by the petitioners, the file was reserved for the orders of the Municipal Commissioner. After detailed scrutiny of the file, the Municipal Commissioner directed issue of Occupation Certificate on 23rd September, 1997 subject to the following conditions:

(a) that the Certificate under section 270-A of the B.M.C. Act is subtitled within three months;

(b) Non-agricultural permission and S.W.D. remarks from the Executive Engineer (SWD) shall be obtained within three months;

(c) that all conditions mentioned in N.O.C.’s from the Chief Fire Officer, Maharashtra Pollution Control Board and Environmental Department and the conditions mentioned in the letter of the Chief Controller of Explosives shall be strictly complied with and maintained strictly.

88. The Executive Engineer of the Sewerage and Water Department examined the situation of the two nullahs affecting the property where the construction was to be carried out. He also opined that both the nullahs were having sidepitching only, since they were general nullahs and untrained, that no flooding had been reported in the area even when the heaviest downpour occurred on 22nd August 1992, and suggested that the nullahs had to be trained with concrete masonry retaining walls maintaining the existing water drain.

89. Dr. Chandrachud, learned Counsel for the B.M.C., invited our attention to Regulation 29 and Table 12 annexed thereto of the Development Control Regulations for Greater Bombay, 1991. These indicate the minimum distance required to be maintained between the proposed construction and high voltage lines. The B.M.C. authorities appear to have calculated the minimum distance to be 40 mtrs. on the basis of the voltage in the transmission lines and were satisfied that the distance of the structure from the High Tension Line was more that 40 mtrs. We have not been shown anything to the contrary and, therefore, there is no reason to take the view that the structure was permitted contrary to the provisions of the Bombay Municipal Corporation Act or the Development Control Regulation for Greater Bombay, 1991.

(d) Coastal Regulation Zone (C.R.Z.) Rules

90. It is strenuously urged by the petitioners that the construction of the L.P.G. storage facility of respondent Nos. 8 and 9 is contrary to the Coastal Regulation Zone (C.R.Z.) Rules inasmuch as it is a prohibited activity within the meaning of paragraph 2(ii) since the industrial activity comprises storage of hazardous substance within the meaning of the said clause, and is situated within a distance of 500 mtrs. from the High Tide Line on the landward side.

91. By a Notification dated 19th February, 1991 issued in exercise of its powers under Rule 5(3)(d) of the Environment (Protection) Rules, 1986, the Central Government has declared the Coastal Stretches of seas, bays, estuaries, creeks, rivers and backwaters which are influenced by tidal action (in the landward side) upto 500 meters from the High Tide Line (HTL) and the land between the Low Tide Line (LTL) and the HTL as Coastal Regulation Zone. The Notification also imposes several restrictions on setting up and expansions of industries, operations and processing in the Coastal Regulation Zone (C.R.Z.). For the purposes of the Notification, High Tide Line is defined as the line upto which the highest high tide reaches during spring tides.

92. Under paragraph 2(ii) of the said Notification, manufacturer or handling or storage or disposal of hazardous substances is an activity prohibited within the Coastal Regulation Zone. It is not in dispute that L.P.G. is a hazardous substance within the meaning of clause (ii) of paragraph 2 of the Notification.

93. Paragraph 6 of the Notification deals with classification of Coastal Regulation Zone for the purposes of development. C.R.Z. is divided into Four categories, namely. Category I (C.R.Z.-I), Category II (C.R.Z.-II), Category III (C.R.Z.-III) and Category IV (C.R.Z.-IV) as under : Category I (C.R.Z.-I) :

(i) Areas that are ecologically sensitive and important, such as national parks/marine parks, sanctuaries, reserve forests, wildlife habitats, mangroves, corals/coral reefs areas close to breeding and spawning grounds of fish and other marine life, areas of outstanding natural beauty/historical/heritage areas, areas rich in genetic diversity, areas likely to be inundated due to rising sea level consequent upon global warming and such other areas as may be declared by the Central Government or the concerned authorities at the State/Union Territory level from time to time.

(ii) Area between Low Tide Line and the High Tide Line.

Category II (C.R.Z.-II) :

The areas that have already been developed upto or close to the shoreline. For this purpose, ‘developed area’ is referred to as that area within the municipal limits or in other legally designated urban areas which is already substantially built up and which has been provided with drainage and approach roads and other infra-structural facilities such as water supply and sewerage mains.

Category III (C.R.Z.-III)_ :

Areas that are relatively undisturbed and those which do not belong to either Category I or II. These include coastal zones in the rural areas (developed and undeveloped) and also areas within municipal limits or in other legal designated urban areas which are not substantially built up.

Category IV (C.R.Z) :

Coastal stretches in the Andaman & Nicobar, Lakshadweep and small islands except those designated as CRZ-1, CRZ-11 or CRZ- 111.

94. Paragraph 6(2) of the Notification prescribes, the norms for Regulation of Activities and provides that the development or construction activities in different categories of C.R.Z. areas shall be regulated by the concerned authorities at the State/Union Territory level in accordance with the prescribed norms. It further provides that no new construction shall be permitted within 500 metres of the High Tide Line. As far as the development or construction activities in C.R.Z.-II is concerned, the prescribed norms are : C.R.Z.-II

(i) Buildings shall be permitted neither on seaward side of the existing road (or roads proposed in the approved Coastal Zone Management Plan of the area) nor on seaward side of existing authorised structures. Buildings permitted on the landward side of the existing and proposed roads/existing authorised structures shall be subject to the existing local Town and Country Planning Regulations including the existing norms of FSI/FAR.

(ii) Reconstruction of the authorised buildings to be permitted subject to the existing FST/FAR norms and without change in the existing use.

(iii) The design and construction of buildings shall be consistent with the surrounding landscape and local architectural style.

95. Considering that the area around the site of respondent No. 8’s factory is substantially built up to or close to the shore line by several factories, that area would fall within C.R.Z.-II.

96. The definition of “High Tide Line” was amended by a subsequent Notification dated 18th August, 1994, and it is now provided that High Tide Line “means the line on the land upto which the highest water line reaches during the spring tide and shall be demarcated uniformly in all parts of the country by the demarcating authority so authorised by he Central Government in consultation with the Surveyor General of India”. The Note in the said Notification, further provides. “The distance from the High Tide Line shall apply to” both sides in the case of rivers, creeks, and back waters and may be modified on a case by case basis for reasons to be recorded while preparing the Coastal Zone Management Plans. However, this distance shall not be less than 50 metres or the width of the creek, river or back-water whichever is less. The distance upto which development along rivers, creeks and back-waters is to be regulated shall be governed by the distance upto which the tidal effect of sea is experienced in rivers, creeks or back-waters, as the case may be, and should be clearly identified in the Coastal Zone Management Plans. It is common position that till today the prescribed authority has not yet demarcated the High Tide Line all over the coastal area in the country.

97. In order to satisfy themselves that there was no contravention of the provisions of the C.R.Z. Regulations, the petitioners had addressed a letter dated 8th July, 1997 to the Maharashtra Maritime Board to inspect its site for the proposed L.P.G. facility and give its opinion. The Hydrographer, Maharashtra Maritime Board, made such a visit on 17th July, 1997 and opined that the distance from the southern boundary of the storage terminal is 680 mtrs. from the High Tide Line (Bund) of the Northern bank of Thane creek in Mumbai Harbour as shown on Municipal Corporation of Greater Bombay, Development Plain, “M” Ward, Sheet No. E/37. The Municipal Plan of the concerned area indicates certain Bunds which are physically present on the coastal line and have been considered as indicating the High Tide Line. In issuing his Certificate dated 23rd July, 1997, the Hydrographer, Maharashtra Maritime Board, Mumbai proceeded on the footing that the Bund was the High Tide line and that the proposed facility was at a distance of 680 metres therefrom.

98. Two contentions were urged on behalf of the petitioners. First, that the assumption of the Hydrographer, Maharashtra Maritime Board, that the Municipal Bund coincided with the High Tide Line was wholly baseless and erroneous. In the absence of a demarcation made by the prescribed authority under the C.R.Z. Notification, the petitioners were by themselves unable to indicate the High Tide Line or the actual distance of the respondent No. 8’s facility from the High Tide Line. The second contention is that, even if the Municipal Bund were to be taken as correctly representing the High Tide Line towards the South, the storage tanks of respondent No. 8 were less than 600 metres from the High Tide Line towards the Eastern Side.

99. In order to appreciate this contention, we made an order on 18th June, 1998 directing the Hydrographer, Maharashtra Maritime Board, to carry out actual physical measurements during high tide and report to us as to whether the High Tide Line (as envisaged under the Coastal Zone Management Plan and the concerned Notifications of the Government of India) really coincides with the Municipal Bunds placed on the Western and Southern sides of the respondents No. 8’s facility. He was directed to fix an appointment on the day and time of maximum High Tide and make an inspection after previous notice to all concerns. He was also directed to measure distance from High Tide Line as determined by him to the two cryogenic storage tank installed in respondent No. 8’s facility and opine whether the mass of water on the Western and Southern sides of respondent No. 8’s storage facility is a creek, backwater estuary, bay or sea within the meaning of the Note contained in the Notification dated 18th August 1994 and the Coastal Zone Management Plan.

100. The Hydrographer and Chief Ports Officer, Maharashtra Maritime Board carried out the “Inspection, verification and measurements as directed and made his report dated 21st July, 1998 which is placed on the record of this Court. This work was carried out in the presence of the representatives of all concerned parties after notice to them. The Hydrographer has referred to the Bombay Municipality Approved Development Plan for the area concerned “M” Ward, Sheet No. E-37, showing the entire area and the outer Bund. He has also referred to the Maharashtra Maritime Board Chart No. E-37 indicating High Water Line as marked in the outer Bund to the Southern side of respondent No. 8’s facility. The Hydrographer and his team arrived on the Southern side of respondent No. 8’s facility and observed the entire area from an elevated point by climbing on the top of the tank close to the Southern limit. After a visual survey, the Hydrographer noted the following:-

1) Three partially submerged bunds were observed. The bunds appeared to have broken in few places which could not be observed clearly because of the high tide water.

2) Large quantity of water was being discharged from M/s. Tata Hydro-Electric Power Supply Co. plant through this area. On Inquiry from M/s. Tata Hydro-Electric Power Supply Co. it came to light that approximately 1,50,000 cubic metres per hour of cooling water was continuously discharged into this area. A copy of the joint Note signed by the parties, Aegis Chemical Industries and Tata Hydro-Electric Power Supply Co. is placed as Appendix-I to this Note.

3) Considering the large quantity of water being discharged into this restricted area which may affect the high-tide line it was decided to have a closer look during the low tide time and record various distances. Accordingly a team was deputed on 15th July, 1998 during the low-tide time 0928 hours.”

101. The second visit was paid to the site on 15th July, 1988 during Low Tide time 0929 hours and Hydrographer made the following observations: –

“(1) Hot water is being discharged between the western boundary of Tata Hydro- Electric Power Supply Co. and the southern boundary or the Aegis Chemical Industries. To establish the existence of this hot water in this restricted area, temperature measurement was carried out from the outlet point along the bund towards the outer edge. It was observed that the temperature at the outlet was 43 degree Centigrade and at the outer edge (as far as the Survey Team could walk) it was 42.5 degree Centigrade. Simultaneously the temperature was also recorded at the water intake point of the Tata Hydro-Electric Power Supply Co. at the Pier Pau jetty approximately 1.5 km. away from the site where the temperature recorded was 29 degrees Centigrade. The Survey Team thereafter measured various distances which are shown in the chart enclosed as Appendix II.

(2) The high tide line observed on the southern limit of Tata Power Company’s boundary is along the boundary wall which is indicated in red colour.

(3) The high-tide line on the western boundary of the Tata Power Plant, Southern boundary of Aegis Chemical and along the bunds as indicated in Blue colour could not be established due to the presence of very large quantity of hot water caused by heavy discharge of cooling water from the Tata Power Plant which was considered to be affecting the high-tide level. Accordingly, M/s Tata Power Company’s representative, Mr. V.S. Doral, Sr. General Manager and Mr. S.M. Khanolkar, Asst. General Manager were invited to Maharashtra Maritime Board on 10th July, 1998 and were explained the situation with the help of chart. The problem was explained in determining the High Tide Line (H.T.L.) because of the discharge of large quantity of hot water and were requested to stop the same at least for 8 hours on 10th August, 1998 when the high tide was to occur again. The Tata Power Company’s representative desired to discuss the matter further with their management and take necessary action.

(5) The area is very small and forms a part of the Thane Creek.”

102. The Hydrographer in his report has enclosed a map prepared by him after physical verification. The map indicates the temperature of the water as observed along the Bund, the temperature of 29 degree Celsius approximately 1.5 kms. away from observation site, the confirmed High Tide Line and the line along which he was unable to observe the High Tide Line due to heavy discharge of hot water from the petitioners’ facility. The Hydrographer is of the opinion that, on account of continuous discharge of hot water from the petitioners facility, the area remains flooded even during tow tide. Consequently, during high tide, the level of water would move further landwards. In these circumstances, the Hydrographer was unable to establish whether the High Tide Line coincided with the Municipal Bunds on account of very large quantity of hot water amounting to approximately 1,50,000 cubit meters per hour being discharged by the petitioners in the area. He also pointed out that in order to exactly observe the High Tide Line, he had requested the petitioners Company to stop the discharge of hot water on the date of the visit, but the petitioners declined to do so on the ground that it would entail shutting down of their Power Plant.

103. Turning to the first contention, we are not satisfied that respondent No. 8’s storage tank in any way contravenes the C.R.Z. Notification. The Municipal Bunds were indicative of the High Tide Line level as originally recorded even on the chart of the Maharashtra Maritime Board. The fact that there is very heavy discharge of hot water, to the extent of 1,50,000 cubic meters per hour from the petitioners’ Power Plaint, causes flooding in the close vicinity of the Bunds. Consequently, water continues to accumulate landwards from the Bunds. Hence, it would be inappropriate and erroneous to take the high water mark as equivalent to High Tide Line, for the high water mark does not represent tidal action, but is the result of continuous discharge of water into the sea at the material place. In these circumstances, we are of the view that the Municipal Bunds, which were originally fixed to indicate the High water level, must be taken to be the High Tide Line. It is not in dispute that, measured in the direction South/North therefrom, the respondent No. 8’s a facility is not within 500 metres of the said High Tide Line. Hence, the first contention based on contravention of Coastal Regulation Zone must be rejected.

104. The contention that the L.P.G. storage facility of respondent No. 8 is situated at a distance of 500 metres from the High Tide Line measured along the East-West direction and, therefore, contravenes the terms of the C.R.Z. Notification, is also without substance. It is not in dispute that immediately towards the cryogenic L.P.G. storage tanks, there are other factory structures of respondent No. 8 beyond which is situated the sea. Thus, other existing authorised structures interpose between the concerned cryogenic storage facility and the High Tide Line. The area in question would fall within Category-II ( C.R.Z.-II) since it is already developed up to or close to shore line, which is a developed area within Municipal limits. The prohibition against new construction within 500 metres of the High Tide Line in C.R.Z. II areas in the Notification dated 19th February 1991 is that “Buildings shall be permitted neither on the seaward side of the existing road ( or roads proposed in the approved Coastal Zone Management Plan of the area) nor on seaward side of existing authorised structures. Building permitted on the landward side of the existing and proposed roads/existing authorised structures shall be subject to the existing local Town and Country Planning Regulations including the existing norms of F.S.I/F.A.R. It is obvious that the prohibition is against buildings being constructed towards the seaward side of the existing authorised structures. In the instant case, respondent No. 8’s factory structure is the existing authorised structure. The installed cryogenic L.P.G. storage facility is not on the seaward side therefrom, but further on the landward side of the existing authorised structure. Thus, in our view, there is no contravention of the C.R.Z. Regulations on this count also.

c) Development Control Regulations For Greater Bombay, 1991.

105. The petitioners contend that Regulation 5(5)(ii) of the Development Control Regulations for Greater Bombay, 1991 ( hereinafter referred to as “D.C. Regulations”) has been contravened. It is urged that, under this Rule, permission for development of special buildings can be granted only after clearance of the Chief Fire Officer and that no such clearance has been obtained by respondent Nos. 8 and 9 and, therefore, the L.P.G. storage facility was permitted to be in violation of the aforesaid D.C. Regulations.

106. Regulation 5 of the D.C. Regulations has been prescribed in exercise of the powers of the Government of Maharashtra under section 31 (1) of the Maharashtra Regional and Town Planning Act, 1966 and applies to all building activity and development work in areas falling in the entire jurisdiction of the Municipal Corporation of Greater Bombay. Under Regulation 5, every person who intends to carry out a development or redevelopment or to erect or re-erect a building shall give a notice in writing to the Commissioner of the Bombay Municipal Corporation and fulfil certain other requirements prescribed under the D.C. Regulations. Regulation 5(5)(ii) provides that plans for all multi-storied, high rise and special buildings shall also be subject to the scrutiny of the Chief Fire Officer and development permission shall be given by the Commissioner only after clearance by the Chief Fire Officer. The contention of the petitioners is that the permission for construction of the L.P.G. storage facility was given without such clearance. Factually, this contention does not appear to be correct. An N.O.C. No. P.B.L./S./496/503 dated 27th January, 1997 had been issued for the installation of the L.P.G. storage tank. After the construction of the storage tanks, the office of the Chief Fire Officer, Mumbai Fire Brigade, once again inspected the said L.P.G. storage tanks and issued two No Objection Certificates bearing No. F.B.L./ S/497/87 dated 27th May, 1997 and No. F.B.L./S/497/87 dated 30th May, 1997. These No Objection Certificates point out that the Chief Fire Officer’s Department had inspected the site and found that the seven over-ground M.S. tanks had been provided hydrant system all around the tanks and water monitors and complied with all the requirements stipulated by the No Objection Certificate issued earlier on 10th February, 1991 for construction thereof. These two No Objection Certificates were, in fact, given by the Chief Fire Officer to occupy and use seven overground M.S. Tanks for storage of petroleum products. We find, therefore, no substance in the contention that there was breach of Regulation 5 of the 1991 Regulation.

107. A reference to the definition of the expression “drain” used in Regulation 2(25) of the D.C. Regulations read with the provisions under sections 220, 221, 229-A, 240, 312 and 314 of the Bombay Municipal Corporation Act read together with Regulation 16 of the D.C. Regulations, suggests that the nullah which lies between the L.P.G. facility of respondent No. 8 and the petitioners is not capable of being developed or built upon, even though the land on which the nullah flows may actually belong to the petitioners. This is apart from the fact that the nullah has been used for long, by the petitioners, respondent Nos. 8 and 9 as well as the other adjoining factory owners for discharging effluents. In these circumstances, it is not possible to accept the contention of the petitioners that the land on which the nullah flows can be developed or that the property line of the petitioners extends further to the West of the demarcating wall so as to fall within the prohibited distance under N.F.P.A. 58. This is precisely what the TEC report dated 15th April, 1996 concludes.

B) Abdication of Discretion by Authorities

108. Mr. Diwan, learned Counsel for the petitioners, contended that where a statute invests a public authority with descretion, it is expected that the said public authority exercise its discretion in good faith and take appropriate decision without abdicating his discretion in favour of the judgment of others. He relied on a passage from De Smith on Judicial Review of Administrative Action (Fifth Edition, page 373); under the caption “Acting under Dictation” as under:

“An authority entrusted with a discretion must not, in the purported exercise of its discretion, act under the dictation of another body or person. In at least two modern Commonwealth cases licensing bodies were found to have taken decisions on the instructions of the heads of Government who were promoted to show that a decision which ought to have been based on the exercise of independent judgment was dictated by those not entrusted with the power to decide, although it remains a question of fact whether the repository of discretion abdicated it in the face of external pressure. And it is immaterial that the external authority has not sought to impose its policy. For instance, where a local authority, in assessing compensation for loss of office, erroneously made certain deductions because it thought it was obliged to do so having regard to the practice follows in such cases by the Treasury (to which an appeal lay from its decisions), mandamus issued to compel it to determine, the claim according to law. Where a Minister entertaining a planning appeal dismissed the appeal purely on the strength of policy objections entered by another Minister, it was held that his decision had to be quashed because he had. in effect, surrendered his discretion to the other Minister. Authorities directly entrusted with statutory discretion be they executive officers or members of distinct tribunals, are usually entitled and are often obliged to take into account considerations of public policy, and in some contexts the policy of a Minister or of the Government as a whole may be a relevant factor in weighing those considerations; but this will not absolve them from their duty to exercise their personal judgment in individual cases, unless explicit statutory provision has been made for them to be given binding instructions by a superior, or (possibly) unless the cumulative effect of the subject-matter and their hierarchical subordinate (in the case of civil servants and local Government officers) make it clear that it is constitutionally proper for them to receive and obey instructions conveyed in the proper manner and form.

Needless to say, a duty not to comply, with executive instructions to decide individual cases in a particular way is cast upon courts stricto sensu”.

109. The contention of Mr. Diwan in that DISH was obliged to apply its mind to the facts before it and then decide as to whether the licence for constructing the cryogenic L.P.G. storage tanks should be granted or not. Instead of doing so, DISH relied on the opinion of Dr. S.K. Ghosh and, thereby, he not only abdicated his discretion, but also acted under the dictation of another. Mr. Diwan cited in support the judgment of the Supreme Court of Canada in (Frank Boncarelli v. The Honourable Maurice Duplennis), 1959 S.C.R. 121 (Canada) (at pages 133, 140, 141, 153 and 156).

110. Mr. Chidambaram, learned Counsel for respondent No. 8 rightly drew our attention to the fact that V.G. Bukkawar the concerned Officer in the DISH at the material time, is himself an expert on Hazard Assessment Techniques. A book written jointly by V.G. Bukkawar and P.R. Mande “Preparing for Emergencies (Technological and Non Technological), Golden Jubilee Publication, was made available for our perusal. It does appear that said V.G. Bukkawar was a highly qualified technical person with competence to write a book on the subject which includes a special chapter as to ‘Emergency Planning and Hazard Assessment Technique. The said V.G. Bukkawar has filed an affidavit-in-reply dated 7th October, 1997. He says that when respondent No. 8 applied under Rule 4(1) of the Maharashtra Factories Rules, 1963, for approval of the plans for the cryogenic storage of L.P.G., DISH rejected the plans vide letter of 13th July, 1996, for three reasons, namely (a) Consequences analysis for worst-case scenario was not submitted in respect of cryogenic storage and surge vessels of L.P.G. (b) Criteria for selecting clearances around cryogenic storage and their inter-distances was not clear and (c) Status of release from P.R.V. (Pressure Relieving Valve) was not clear. He also refers to the ‘three mutually contradictory hazard assessment reports of equally competent technical bodies forwarded to DISH and states that in our country there is no criteria presently fixed for risk acceptability, though in technically advanced countries, where such criteria exist, a risk probability of 10e-5 years’ is considered to be acceptable. The last such refusal to grant approval on the part of DISH was on 14th February, 1997. Respondent No. 8 then moved the Government of Maharashtra for a review of the decision of DISH. Bukkawar states that at this juncture it was felt that it would be advisable to obtain an independent expert’s opinion before final decision was taken in the matter. It was for this reason that R.K. Garg, who had been entrusted with such responsibility in the past, was requested to give his opinion in the matter. The said R.K. Garg studied the documents and reports, visited the site, held discussions with the Officers of respondent No. 8 and petitioners and forwarded his report which was received on 12th May, 1997 by DISH. It was only under these circumstances, and after consideration of the recommendations made by R.K. Garg that the proposal of respondent No. 8 was approved, subject to several conditions imposed in the Approval Order dated 7th October, 1997.

111. We have already referred to section 9 of the Factories Act, 1948, which enables the Inspector of Factories to take the help of an expert. As this was the first time that a cryogenic L.P.G. storage facility was being installed in the country, there being no previous experience in handling such facilities and the fact that the technical reports of three expert bodies forwarded to Bukkawar were mutually conflicting, Bukkawar would have been fully justified in seeking independent expert opinion before taking a decision in the matter. However, he chose the line of least resistance by rejecting the application. It was open to respondent No. 8 to move the State Government by way of a formal appeal under section 7. Irrespective of whether the application of respondent No. 8 dated 26th February, 1997 to the Secretary of Government of Maharashtra, Labour Department, could be treated as formal appeal under section 7, it is clear that the State Government under section 7 of the Factories Act does possess the power to confirm, modify or reverse the order of DISH. The State Government did not, by itself, do so, but sought the technical opinion of a central independent international expert ( Dr. Garg) and then decided to grant permission. In these circumstances, it is not possible to accept the contention of Mr. Diwan that there was any abdication or subjugation of discretion on the part of DISH.

112. Mr. Diwan relied on the judgment of the Supreme Court in Anirudhsingh Karansinghi Jadeja and another v. State of Gujrat, . This was a case under the Terrorist and Disruptive Activities (Prevention) Act, 1987. Section 20A of that Act bars a Court from taking cognizance of any offence under the Act without the previous sanction of Inspector General of Police or the Commissioner of Police and also provides that no information about the commission of an offence under the Act shall be recorded by the police without the prior approval of the District Superintendent of Police. In the said case, the District Superintendent of Police had not given prior approval and failed to exercise the jurisdiction vested in him under section 20 A(1). He abdicated his jurisdiction and referred the matter to the Additional Chief Secretary, Home Department, seeking permission to invoke the provisions of sections 3 and 5 of TADA by making a report. The Supreme Court held that it was a clear case of exercise of statutory power on the basis of external dictation and the fact that the dictation came on the prayer of D.S.P. would not make any difference to the principle since the D.S.P. did not exercise the jurisdiction vested in him by statute and did not grant approval of recording of information under TADA in exercise of his discretion. In our view, this judgment is clearly distinguishable. First, there appears to be no provision in TADA under which the discretionary order of the D.S.P. is appealable to the State Government or that the State Government has power to modify, vary or confirm such an order. Second, the exercise of discretion by D.S.P. was not a technical matter which would have required the opinion of an independent technical expert. In the petitioners’ case, neither the DISH, nor the Secretary of respondent No. 1 could have assumed technical experience which was not possessed. While the DISH took the easy way out by rejecting the approval, the State Government, on review of the situation and after seeking the expert opinion of R.K. Garg, granted approval to respondent No. 8’s application. Hence, the judgment is of no avail to the petitioners.

113. The judgment of the Supreme Court in Barjum Chemicals Ltd. and another v. Company Law Board and others, , relied upon by Mr. Diwan also does not advance the petitioner’s case. This was a case in which the Supreme Court pointed out that even an administrative order made by the Government in exercise of discretion substantially possessed by it, could be challenged if the reasons given in support are extraneous and not germane, founded on alien and irrelevant grounds as to be outside the authority conferred on the Government or beyond the limits within which such authority is required by the legislation to act or such that no one could reasonably arrive at the opinion or satisfaction requisite under the legislation. The Supreme Court pointed out that, in any one of these circumstances, it could be said that the authority did not honestly form its opinion or in forming it did not apply its mind to the relevant facts. We are unable to accept the contention of Mr. Diwan that the action of DISH or respondent No. 1 in any way falls foul of the principles enumerated in this judgment. In fact, as we shall see later, what was done, by respondent No. 1 was eminently prudent and reasonable in the circumstances of the case. For the same reasons, we are of the opinion that the judgment of the Supreme Court in M/s. Hindustan Steels Ltd., Rourkela v. A.K. Roy and others, 1989(3) S.C.C. 613 (at paragraph 16) relied upon by the petitioners has any application to the present case. It is not possible for us to hold that any of the respondent authorities have exercised their jurisdiction mechanically or without weighing the circumstances of the case so as to amount to no exercise of discretion.

114. The reliance on the judgment of this Court in Bombay Environmental Action Group v. The Bombay Municipal Corporation and others, is hardly of assistance, since in that case the Court clearly came to the conclusion that the sanction granted by the Bombay Municipal Corporation was contrary to the provisions of the applicable Development Control Rules and in total disregard thereof. We are unable to discern any such fault here.

115. Mr. Diwan highlighted the observations made in the first two paragraphs of the judgment of this Court in Bayer (India) Limited and others v. The State of Maharashtra andothers, . While we agree with the views of the Division Bench stated therein, we are unable to hold that the present is a case where anything has been done contrary to the view indicated by this Court. In Bayer’s (supra). In fact, paragraph 5 of the judgment in Bayer (supra) says, “There can be no absolute standards with regard to what constitutes a safe distance, as of necessity, one is required to go by expert advice and past experience. The Court is also required to evaluate the possible damage in the event of an adverse happening and balance it, on the other hand, with the pressures that exist in areas where there is a shortage of accommodation”. This is precisely the principle we propose to follow while evaluating the dangers, if any, inherent in the cryogenic L.P.G. storage facility of respondent No. 8.

C) Is there inherent danger ?

116. Where different statute have invested the discretion of granting sanctions to different authorities and the authorities have exercised that discretion in a manner not falling foul of the limits imposed by the concerned statutes, nor of the well known principles of Administrative Law, the Court could hardly sit in judgment over the exercise of such discretion. As often reiterated, judicial review of administrative decision is only concerned with the decision making process and not the correctness of the decision, as long as it is not perverse. Normally, this should have really brought us to the end of the judgment. With the able assistance of Counsel on both sides, we have bravely attempted to wade through the voluminous technical literature produced before us to satisfy our judicial conscience that, all said and done, there is no inherent and imminent danger from the respondent No. 8’s facility as made out by the petitioners.

117. Even at the end of this arduous task, we are not satisfied that there is any such imminent and inherent danger to the petitioners’ Power Plant from the installation of cryogenic L.P.C. storage facility as would require the intervention of this Court in writ jurisdiction to cancel the permissions granted and to mandamus the statutory authorities to dismantle and pull down the facility in question.

118. The technical literature placed on record consists of the following documents:

(a) Report dated 15th April, 1998 of M/s. Tata Consulting Engineers (T.C.E.) an associate concern of the petitioners.

(b) Report dated 8th August, 1998 from M/s. Independent Engineering Services Limited (I.E.S.) of United Kingdom.

(c) Report of the study carried out by the Atomic Energy Regulatory Board (A.E.R.B.)

(d) Report of Dr. R.K. Garg.

(e) Report of Chemconsult.

119. The gas equation, compounded from Boyle’s Law and Charle’s Law, postulates that the product of pressure and volume of a gas is directly proportional to the temperature of a gas. (P x V = R x T where P is Pressure, V is Volume, T is Temperature and R is the gas Constant). If the volume of the gas is constant, then pressure would be directly proportional to temperature. In other words, the higher the temperature the higher the pressure and the lower the temperature, the lower the pressure. Beyond a particular critical pressure and temperature, there is a phase change of gas as a result of which certain gases turn into liquids. These principles are utilized in the construction of storage facilities of combustible gases i.e. gases of which the temperature at which the phase change occurs is low and the temperature at which ignition occurs is not high. The traditional method of storage of such gases was by subjecting them to high pressures equivalent to several atmospheric pressures. This was the system in vogue till the development of technology of storage of combustible liquids at extremely low temperature known as ‘cryogenic storage’. Cryogenic storage eliminates several of the hazards faced in industrial handling of gases compressed at high pressures, such as rupture of storage vessels, leaks and so on. This technology is of comparatively recent origin. In cryogenic storage of combustible gases the temperature of the gas is reduced well below zero degree centigrade as a result of which the gas liquifies and is conveniently handled. Since maintenance of low temperatures requires insulation against the atmospheric ambient temperature, specialised double walled storage facilities are designed to carry out this function efficiently. The technology for cryogenic storage of combustible gases had not been tried out in India and it appears that respondent No. 8’s facility was first ever such facility being installed in India. The gas in liquified form is carried in special cryogenic containers aboard ships and then transferred from special pumps installed at the jetty and plied along special pipes to the cryogenic container installed in the storage facility. There are distinct advantages to using the cryogenic technique for storage, transport and handling of combustible gases such as L.P.G.

T.C.F. REPORT

120. Sometime in June, 1995, when respondent No. 8 started leveling and preparation of site for construction of its storage plant, the petitioners who are the owners of the Thermal Plant which is separated from the respondent No. 8’s facility only by a nullah 60 mtrs. wide, came to learn of the intention of respondent No. 8 to install a storage and handling facility for liquified L.P.G. They immediately sought the assistance of their associate company, M/s. Tarn Consulting Engineers (T.C.E.), and requested T.C.E. to conduct a hazard assessment to evaluate the potential risk of a hazard to the petitioners’ Power Plant from the proposed cryogenic L.P.G. facility. In particular, T.C.E. was requested to give its opinion as to whether the storage facility had not maintained the “safe minimum distance” of 31 mtrs. as stipulated by US NFPA – 58/59. In United States of America, stringent safety measures are adopted according to the standards evolved by the National Fire Prevention Association and Rules 58 and 59 are the Rules which require the maintenance of a minimum distance of 31 mtrs. from the property line of the neighbouring property. T.C.E. is a firm of Consulting Engineers who are experts on Refrigerated Liquified Gas Handling. T.C.E. was the first Indian Engineering Consultancy firm to receive the Certificate of Approval from Lloyds Register of Quality Assurance, UK, under I.S.O. 9001 : 1994. T.C.E. conducted detailed study, held numerous discussions with the Officers and staff of respondent No. 8 and also physically inspected the proposed L.P.G. facility. After their evaluation T.C.E. forwarded their report on 15th April, 1996. The report is at Exhibit ‘3’ to the affidavit of S.E. Hazra dated 21st April, 1998. T.C.E. pointed out that presently there are no regulations promulgated in India governing construction and location of Refrigerated Liquified Gas storage tanks. However, all such new tanks should be designed as per BS 7777 (1993) (British Standards) and that they had been assured that the tanks conformed to this requirement. BS 7777 made no reference to safe separation distance of such tanks from any adjoining facilities. They had also learnt that the Chief Controller of Explosives had no jurisdiction over the L.P.G. containers, since they were not a pressurised vessels, but in any event be had no objection to the facility. Finally, the T.C.E. concluded that T.E.C. (Tata Electric Company) did not have a case for complaint against the location of Aegis (respondent No. 8) L.P.G. tank on grounds that it violates requirements of N.F.P.A. 58 or A.P.I. 2510.

121. Pursuant to the evaluation of hazards by M/s. Tata Consulting Engineers, the petitioners initially did not pursue their objection to the installation of the Plant of respondent No. 8. However, by their letter dated 17th June, 1996 (Exhibit 4 to Hazra’s affidavit dated 21st April, 1998) petitioners pointed out that respondent No. 8’s L.P.G. tank was only 24.5 metres from the Tata Electric Company property line, i.e. less than 31 metres as specified in N.F.P.A.-59. The petitioners, therefore, requested for provision of a fire-wall equal to the height of the tank as an additional safety measure and for construction of a dyke around the tank with drainage facility so as to contain the spillage, should an emergency occur on the storage tanks. It is interesting to notice that at this stage the petitioners did not really oppose the installation of respondent Nos. 8 and 9’s storage facility, but only suggested implementation of additional safety measures. Incidentally, it may be pointed out that these measures were promptly adopted by respondent Nos. 8 and 9.

122. On 12th June, 1996, the petitioners addressed a letter to respondent No. 6 (DISH.) alleging that the L.P.G. storage tank were being set up in violation of the safe distance requirements of N.F.P.A.-50. They also alleged that this would have a disastrous consequences for their Power Station and for the whole of city of Mumbai.

123. As far as T.C.E. report was concerned, the T.C.E. report does not in any way postulate that the installation of the respondent No. 8’s cryogenic storage tanks would have the disastrous consequences which the petitioners apprehend. On the other hand, T.C.E. bluntly stated that the petitioners do not have a case to complain against the location of L.P.G. storage tank on the ground of violation of N.E.P.A.-58 or A.P.I. 2510.

124. Strangely, the attitude of the petitioners, which was initially conciliatory, hardened and the petitioners directly addressed a letter dated 12th July, 1996 to respondent No. 6 DISH alleging that there was danger to the Power Plants.

IES REPORT

125. At the instance of the petitioners, M/s. Independent Engineering Services Limited, of U.K. (I.E.S.) carried out a survey pertaining to assurance risk engineering review of the petitioners’ plant. It was this report which indicated that there was risk to the Power Station from the respondent No. 8’s cryogenic storage facility. It was at this stage that the petitioners issued a legal notice to respondent No. 8.

126. The report of I.E.S. starts by stating that the L.P.G. installation does not comply with the separation requirement between the refrigerated L.P.G. tanks and property lines as stipulated in N.F.P.A. 59, because respondent No. 8 had chosen to measure the distance from the petitioners’ site wall rather than the petitioners’ property line. They further stated that mere compliance with the Code would not in itself guarantee that there could be no harmful consequences to neighbouring plant should there be major incident on the L.P.G. facility.

127. N.E.P.A.-59 provides for a minimum safe distance so as to avoid a fire
hazard. It states, “Refrigerated L.P.G. Gas container having a capacity of
70,000 gal (265 M-3) or less shall be installed in accordance with label 3.3.2.

Refrigerated gas containers of 70,000 gal (265 M-3) or more shall be located
100 ft. (31 mtrs.) or more from any occupied building, storage containers for
flammable or combustible liquids and from a property line that can be built
upon.

128. As already pointed out, the petitioners’ Power Plant is separated from
respondent No. 8’s facility by a 60 mtrs. wide drainage nullah. It is not in
dispute that the refrigerated gas containers are of more than 265 cubic metres
capacity and, therefore, they had to be situated at a distance exceeding 31
mtrs. from the petitioners’ property line that could be built upon. The petitioners’ Power Plant has a peripheral wall on the Eastern bank of the drainage
nullah. In paragraph 1.2, I.E.S. report stated its overall conclusions as under:

“1.2 OVERALL CONCLUSION

The capability for incidents at the Aegis Chemical Industries Limited Liquefied Petroleum Gas facility to cause significant damage is well understood. In this report, it is demonstrated that :

Rupture of one of the 300 mm pipelines feeding from the marine off- loading terminal to the storage tanks is capable of producing an extensive vapour cloud which could under prevailing wind conditions drift over the Tata Installation. After entry into buildings and after ignition, confined explosions would cause serious damage to the installations.

Leakage from a moderately (75 mm effective diameter) release from the pipeline would also cause a vapour cloud, which under the circumstances above, cause serious damage to a significant part of the Tata facilities.

Failure of the outlet pipework on the L.P.G. surge vessels would be unlikely to cause damage to the Tata facilities.

A “BLEVE” (Boiling Liquid Expanding Vapour Explosion) and subsequent fireball could cause second degree burns to uncovered skin areas of people in the open on the Tata site, but minimal physical damage to the facilities.

Thermal radiation from a fire limited to the roof of an L.P.G. storage tank would cause minimal physical damage on the present configuration of the Tata facilities.

Thermal radiation from a fire in the bunds around the L.P.G. tanks would cause serious damage to the Fly Ash Aggregate plant, with some damage to power lines and pylous at the north-west corner of the site. Otherwise no significant damage on the present configuration of the Tata facilities.

Thermal radiation from a running fire in the drainage channel would be likely to cause severe damage to the Combined Cycle Power Plant, the Fly Ash Aggregate Plant, and the pylous and power lines at the north-west corner of the site.

A vapour cloud explosion in the area of the Boil-Off Compression and Refrigeration unit would cause significant damage to cladding, stacks and windows on approximately 40% of the Tata site, including Units 6 and 7 generation, and the FAA plant, but no serious destruction of plant on the present configuration of the Tata site.

The serious physical damage which could potentially occur in the case of a failure of the L.P.G. line from the marine terminal would severely restrict the operation of this strategically important facility for a consideration time.

The location of the Propane tanks, with Code distances taken from the Tata wall to the east of the drainage channel effectively sterilises from the development a strip within Tata property. The Aegis assertion that the Code refers to a property line “which may be built on” appears to anticipate the future motives of TTPC. The drainage channel is not an insurmountable implement to development. It is possible that Tata could culvert the channel if it were required to make use of this area.”

In paragraph 1.3 the report indicated several items of the petitioners’ plant which would be “at risk” on account of various contingencies which might happen, such as :

1) Full Bore Release from L.P.G. Import Pipeline, Pump Not Limiting, 960 Te/hr.

2) Full Bore Release from L.P.G. Import Pipeline, Limited to 400 Te/hr.

3) Full Bore Release from L.P.G. Import Pipeline, Limited to 250 Te/hr.

4) 75 mm diameter puncture in L.P.G. Import Pipeline.

5) 50 mm diameter puncture in L.P.G. Import Pipeline.

6) Failure in 75 mm outlet to Surge Vessel.

7) Bund Fire in LPGT 102 bund.

8) Running Fire in Drainage Channel.

9) Vapour Cloud Explosion in Boil-off Compression and Refrigeration Unit.

129. In Chapter 2, the TRS report analyses the loss of containment scenarios which could contribute to safety hazards in the event of each contingency. Chapter 3 of the report, gives the Consequence Analysis by using the “PHAST Professional” units of consequence analysis computer models for material Propane for all release rate and vapour dispersion consequence analysis.

130. In Chapter 4, the report makes property damage assessment under the following heads :

4.1 Gas, Dispersion and Flash Fire.

4.2 Boiling Liquid Exploding Vapour Explosion.

4.3 Fire Thermal Radiation.

4.4 Vapour Cloud and Confined Explosion.

131. Respondent Nos. 8 and 9 criticised the report of I.E.S. by pointing out that the entire report was made without even a single visit to or inspection of the respondent No. 8’s facility. The affidavit-in-rejoinder filed by the petitioners suggests that the representative of I.E.S. saw the L.P.G. terminal from the petitioners’ Power Plant “which affords a bird’s eye view of the same”. Respondent No. 8 contends that this is hardly a scientific way of carrying out inspection. The significant feature of I.E.S.’s report is that, without taking into account the probability of any such catastrophic accident, the report concludes that there was a possibility of damage to the petitioners’ Power Station in the event of (a) rupture of the L.P.G. Import Line which could lead to a vapour cloud which could ignite petitioners’ other installation and (b) a running fire in the drainage channel. However, the IES report concluded that other occurrences would not cause any significant damage to the petitioner’s plant.

AERB REPORT

132. No doubt, the scenario of hazard presented by the report of I.E.S. was quite frightening. The only technical body in India which appears to have technical expertise in analysis of hazard is the Atomic Energy Regulatory Board which handles safety hazards of high risk storage facilities. Respondent No. 8 and respondent No. 9, therefore, sought advise from AERB and requested them to undertake a detailed “Consequences Analysis” of their L.P.G. facility. The AERB was also supplied with a copy of the I.E.S. report. AERB conducted a detailed inspection of the respondent No, 8’s L.P.G. facility.

133. Taking into account that the respondent No. 8’s storage facility was a double walled cryogenic low pressure facility built and installed as per BS 7777 Standards and had several inbuilt safety systems, the first question that AERB addressed itself to was the probability of catastrophic accidents occurring to the storage tanks or the pipeline. AERB concluded that the probability of a catastrophic rupture of the L.P.G. tanks was 10e-9/ years (once in one billion years) and a probability of catastrophic rupture of the pipeline was 1,5 x 10e-8 per year (once in 70 million years). The AERB, therefore, came to the conclusion that the probability of these contingencies occurring was so negligible that it could “not be considered credible”. In fact, AERB pointed out that, in comparison to these extremely unlikely and improbable events, serious damage being caused to the petitioner plant from a lightening strike was much higher at 10e-7 per year (once in a ten million years) or from an accident at the nearby nuclear power station could be 10e-7 per year (once in ten million years) or from a falling aircraft would be 2 x 10e-8 per year (once in 50 million years), the probabilities of these events occurring being much more than those highlighted in the I.E.S. report.

134. Even after coming to the conclusion that the probabilities as of occurrence the contingencies contemplated in the I.E.S. report were so negligibly low as not to be considered credible, AERB goes a step ahead and considers the “Worst Case Scenario” such as rupture of the double walled tanks or rupture of the cryogenic pipelines and total loss of containment and concludes that the resultant damage to the petitioners’ facility in such unlikely event was not as disastrous as made out.

135. A catastrophic failure of the storage tanks would result in pool fire of 61 metres and a heat flux of 25 Kws per sq. mtrs. ( capable of ignition heat/ cellulose) would be felt upto 21 metres form the edge of the pool i.e. to a maximum distance of about 86 mtrs. This would in no way affect the petitioners’ Power Station as the nearest unit of the power station was located at a distance of 139 mtrs, from the storage tanks.

136. The AERB also points out that a heat flux of 5 Kw/m 2 capable of causing first degree burns to human, but not adequate to ignite heat or cellulose, would be felt upto a maximum distance of 106 mtrs. from the edge of the pool. Here again, the AERB enters a caveat that the scenario of rupture of both inner and outer walls of the cryogenic L.P.G. tank could not be considered as a credible scenarios as its probability was 1 X 10e-9 per year (once in a thousand million years).

137. According to the AERB report, in the academic worst case scenario of catastrophic rupture of both walls of the double waited storage tanks and the occurrence of a vapour cloud explosion, there could be major equipment damage upto a distance of 58/89 mtrs. and repairable damage upto 267 mtrs. The power units are all situated at a distance of more than 130 mtrs. from the storage tanks. Here again, the report say that such a catastrophic rupture of both walls of tank had a probability of 10e-9 per year (once in a thousand million years) and, therefore, it could not be considered as a credible scenario.

138. We may incidentally notice here that the technical literature produced does not indicate till date that there has been even a single catastrophic rupture of cryogenic double walled L.P.G. tank resulting in fire hazard.

Criticism of I.E.S. Report.

139. Respondent Nos. 8 and 9 criticised the I.E.S. report as basically flawed for the following reasons:

(a) The Report does not distinguish between the consequences of leakage from a high pressure L.P.G. plant/pipeline which contains L.P.G. at ambient temperatures ( 30 to 40 C. ) and high pressure, and leakage from a cryogenic L.P.G. plant/pipeline containing L.P.G. at cryogenic temperatures (-42 C) and low-near atmospheric pressures.

(b) The I.E.S. Report takes the view that damage is likely to be caused by-rupture of the pipelines leading to formation of large vapour cloud. In doing no, the Report fails to note that flash evaporation and formation of a large vapour cloud is only possible in ruptures and leaks from pressurised L.P.G. facilities having regard to the enthalpy/heat possessed by the escaping L.P.G. which would be 60 to 70 degrees above its boiling/vaporisation point. While leakage from a high pressure facility results in large quantity of L.P.G. gushing out accompanied by entrainment of an equal quantity in the form of droplets of L.P.G. leakage from a cryogenic facility could only result in a pool fire and negligible amount of vapour formation. The Report docs not notice or refer to the said significant difference between the pressurised and cryogenic L.P.G. plants.

(c) The I.E.S. Report does not even suggest; that, even in a cryogenic plant, when L.P.G. is pumped from the shop to the L.P.G. terminal, the scenario contemplated by I.E.S. is likely to occur, fn the case of a cryogenic L.P.G. pipeline, though the L.P.G. is under a degree of pressure for the purpose of pumping from the ship to the storage lank, it is at a temperature below the boiling point. Consequently, if there is leakage from a cryogenic L.P.G. pipeline, there is neither flash evaporation nor formation of vapour cloud.

(d) The pressure in the case of cryogenic pipeline created by pumps for the purpose of transfer is normally 12 to 44 pounds per square inch, the maximum pressure being about 7 bar=100 pounds per square inch. In a pressurised non-cryogenic pipeline, the L.P.G. would be at a much higher pressure i.e. 155 to 196 pounds per square inch for liquifaction plus 12 to 100 per square inch for pumping i.e. an aggregate pressure ranging from 167 to 298 pounds per square inch. The scenario in the case of cryogenic pipeline is therefore dramatically different.

(e) The I.E.S. Report fails to differentiate between the consequences that may occur in the case of pressurised plant and a cryogenic L.P.G. plant. This is clear from the fact that the I.E.S. report refers only to incidents involving pressurised L.P.G. plant and does not refer to any cryogenic low pressure L.P.G. plants.

(f) The conclusions of I.E.S, that large vapour cloud capable of causing damage upto 800 mtrs. suggest that I.E.S. has erroneously proceeded on the footing that the mass rate of vapour in the case of rupture of respondent No. 9’s cryogenic low pressure pipelines is equivalent to the discharge rate of L.P.G. In other words, it has assumed that all the escaping L.P.G. will flash vapourise. This assumption is erroneous in the case of a cryogenic plant. Given this erroneous assumption, the figures worked out by I.E.S. Report are flawed.

(g) Despite repeated requests of respondent No. 9, the petitioners failed to furnish the pressure, temperature data, vapour rates and other inputs used by I.E.S. in their computer simulation (using the PHAST Programme) which would have demonstrated that the I.E.S. had reached patently incorrect conclusions by failing to notice the difference between the consequences of leakage from a pressurised facility and a cryogenic facility. By asupprossing such crucial data, the conclusions arrived at by I.E.S. became doubtful.

(h) The I.E.S. Report proceeds on the basis of uncontrolled discharge rate of 960 te/hr. in case of a rupture of the pipeline. This is impossible as the maximum design capacity of the pipeline is 400 te/hr and its normal operating capacity is 250 te/hr. The scenario to envisaged by I.E.S. on this discharge rate is obviously incorrect.

(i) Even the scenario of a running fire in the drainage chance is erroneous. The distances for thermal radiation damage arc based on a pool fire of diameter 60 mts, and a thermal emmisivity of 160 KW/m2. As a matter of fact, the drainage channel is only 25 mts. wide and a pool fire in the drainage channel could, therefore, never be of 60 mtrs. diameter. Further, 160 KW/m2 could be the emmisivity for L.N.G. which burn clean and not for L.P.G. for which the emlssivity of large L.P.G. fire is around 40-50 KW/m2. Consequently, the thermal effect distances need to be sealed down about l/3rd to 14/th as envisaged in the I.E.S. Report.

140. With these criticisms in mind, respondent No. 9 requested M/s.

Chemconsult to conduct a detailed hazard assessment of the cryogenic L.P.G.

terminal. M/s. Chemconsult inspected the safety/emergency systems installed at the terminal and at the jetty and thereafter made a detailed report. M/s. Chemconsult noted that the installation of the terminal complied with various safety Codes and standards, such as BS 7777, Piping DIN/ANSI, Pressure Vessels (ASME section VIII), Heat Exchanger (TEMA C), Safety Distances (NFPA 58) and Fire Protection (TAC Guidelines). M/s. Chernconsult, therefore, came to the following conclusions:

(i) The process installation is of good engineering design and is built
according to the latest views on L.P.G. Engineering & design standards.

(ii) That the safety distances as per NFPA 58 were met except for the
location of the Control Room.

(iii) Process Control & safety devices are adequate and sufficient for the
safe operation of the terminal.

(iv) Attention was required to be paid to the quantum stored in the
pressurised surge vessels in view of the effects of a BLEVE.

(v) A pipeline rupture within the terminal boundaries did not present a
serious environmental hazard.

(vi) Pipeline rupture along the BPT Road could lead to a pool fire with high
heat radiation levels locally.

(vii) Failure of one of the double, walls of the storage tanks did not present
a serious environmental hazard.

(viii) Failure of both the walls of a tank would have severe effects but was
not a credible scenario (probability 4 x 10e- 11).

141. It is because of this wide divergence in the views expressed by I.E.S. and M/s. Chemconsult that the matter came to be examined by AERB.

142. At this stage, we may usefully refer to a publication in the magazine of T.C.E. (a sister concern of the petitioners herein) by name “TCE NEWS”, Vol. XV No. 61, September-March 1995, on the subject of “Refrigerated Liquefied Gas Handling”. In the article by S.P. Bagli, titled “Siting A Terminal For RLG”, the following observations are to be found :

“Gas liquefied under pressure at ambient temperature possesses a far higher enthalpy (hear content) than the same gas in the liquid state at atmospheric pressure but at far lower temperatures. In the event of loss of containment resulting in spillage of the pressurised liquefied gas into the open, this extra enthalpy will manifest as latent heat causing an appreciable proportion of the spill material to “flash” evaporate until the temperature of the residual liquid drops to a value corresponding to its boiling point at atmospheric pressure; for the gases, under discussion this value is well below Oc. In the case of gas liquefied by refrigeration, the enthalpy, is already virtually equal to that at atmospheric pressure and therefore, the amount of “flash” evaporation in case of loss of containment is negligible. From the safety point too, transportation and storage of such gases as refrigerated liquids at near atmospheric pressure is the preferred system.

The boiling points, pressures for liquefaction at ambient temperature, critical pressure and specific gravities of liquefied gas for some of the commonly transported and stored gases, are given in Table 1.”

143. It appears to us that even a technical expert like TCE, a sister concern of the petitioners, was aware of the fact that the cryogenic facility of
the respondent No. 9 did not pose such fire hazards as sought to be made out
by the petitioners. Hence the TCE says in its letter dated 15th April, 1996 to
the effect that the petitioners “do not have a case for complaint against the
location of the Aegis L.P.G. tank on grounds that it violates requirements of NFPA
58 or APT 2510”.

144. It is contended by the learned Counsel for the petitioners that, even if it is assumed that safety standards have been complied with in the setting up of respondent No. 9’s facility, there could be catastrophic failure of all the safety equipments and such catastrophic failure could arise on account of natural calamity, like fire, flood, earthquake or artificial calamity like bombing by enemy aeroplane, falling of aeroplanes, etc. It is contended that the design of the facility should be so foolproof that it should take into account such calamities and ensure safety of the neighbouring factory even if they occur.

145. With regard to the catastrophic total failures, we may point out that the technical literature suggests a probability of occurrence is 10e-9 i.e. once in a thousand million years. That is why the AERB Report does not consider such catastrophic rupture of storage tanks as a credible possible scenario. In our view, the stand taken by respondent Nos. 8 and 9 appears to be justified. Since foresight of all future events is impossible, technology proceeds by forecasting future events for practical purposes on the basis of probabilities. Theotrically, everything in life is fraught with risk. Plying by aeroplane or travelling by cars or automobiles has an inherent risk, but that cannot deter normal human activity in these areas. Similarly, the establishment of any factory is fraught with some amount of risk and, particularly so, if it is a factory dealing with hazardous material. There are always conflicting claims between absolute safety and needs of development. One scientific way of resolving this conflict is to estimate the probability of a hazardous event occurring and determination of the probability level which would be acceptable contemporary human standards. Science and technology have striven to do this and ensured that the probability of hazards is kept as low as possible. The technical literature produced before us suggests that Internationally a probability of 10e-5 to 10e-6 is considered as an acceptable level of risk. In other words, the probability of an accident occurring once in a million years is considered acceptable risk. As far as respondent No. 8’s facility is concerned, the probability of risk appears to be 10 which is far safer than the acceptable safety standards.

146. We are, therefore, of the considered view that the technical literature produced on record does not shock our judicial conscience. Nor does it persuade us to the conclusion that respondent Nos. 8 and 9’s facility possesses hazard potential higher than that acceptable by International standards. Hence, we are unable to agree with the petitioners that the facility of respondent Nos. 8 and 9 has an inherently high hazard level both from the point of view of the petitioners’ factory or otherwise.

147. Before concluding, we place on record two facts. First, at our instance, Mr. Chidambaram, learned Counsel for respondent No. 9 has undertaken on behalf of his clients that gas detectors with suitable siren system as filled within the terminal shall be installed along the entire length of the pipeline conveying the liquid L.P.G. from the Pirpau Jetty to the terminal at suitable locations. Second, the suggestion of respondent Nos. 8 and 9 that the petitioners are motivated, not so much by concern for safety, as by apprehension of economic competition, does not appear to be wholly unjustified. In the In-House journal of the petitioners “Transmission Lines”, there is a news item suggesting that the petitioners themselves were intending to establish a cryogenic Liquefied Natural Gas (L.N.G) terminal, storage facility and re-gasification facility at their Trombay Plant site. Perhaps, this explains the sudden hardening of attitude on the part of the petitioners and their hostility to the respondent Nos. 8 and 9’s facility.

148. Considered from the point of view of the legal principles which must be adopted by the Court in dealing with litigation in such matters, to which a reference has already been made hereinbefore, we are not persuaded that the authorities who granted permission/licence for respondent No. 8’s facility have erred in law or that the facility has such an inherently high probability of hazard that it would be dangerous to permit its operation. Looked at from any angle, we are not satisfied that there is any case made out for interference with the functioning of the respondent No. 8’s facility either in law, or on the ground of imminent public hazard. In our considered judgment, the writ petition is “full of sound and fury, signifying nothing” and is liable to be dismissed.

149. In the premises, the writ petition is dismissed. Rule discharged. No order as to costs.

150. Before parting with the judgment, we express our gratitude to the learned Counsel who ably canvassed their respective contentions, illuminating the myrind legal and technical facets of the case before us, enabling us to do justice and assuage the judicial conscience.

151. Petition dismissed.