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Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL Nos. 2776-2783 OF 2013
(Arising out of SLP (C) Nos. 28116-28123 of 2010)
Sterlite Industries (India) Ltd. Etc. Etc. … Appellants
Versus
Union of India & Ors. Etc. Etc. … Respondents
J U D G M E N T
A. K. PATNAIK, J.
Leave granted.
FACTS:
2. The relevant facts very briefly are that
the appellant company applied and obtained ‘No Objection Certificate’ on 01.08.1994 from the Tamil Nadu Pollution Control Board (forPage 2 short ‘the TNPCB’) for setting up a copper smelter plant (for short ‘the plant’) in Melavittan village, Tuticorin.
On
16.01.1995, the Ministry of Environment and Forests,
Government of India, granted environmental clearance to
the setting up of the plant of the appellants at Tuticorin
subject to certain conditions including those laid down by the
TNPCB and the Government of Tamil Nadu.
On 17.05.1995,
the Government of Tamil Nadu granted clearance subject to
certain conditions and requested the TNPCB to issue consent
to the proposed plant of the appellants. Accordingly, on
22.05.1995, the TNPCB granted its consent under Section 21
of the Air (Prevention and Control of Pollution) Act, 1981 (for
short ‘the Air Act’) and under Section 25 of the Water
(Prevention and Control of Pollution) Act, 1974 (for short ‘the
Water Act’) to the appellants to establish the plant in the
SIPCOT Industrial Complex, Melavittan village, Tuticorin
Taluk.
3. The environmental clearance granted by the Ministry of
Environment and Forests, Government of India, and the
consent orders under the Air Act and the Water Act granted
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by the TNPCB were challenged before the Madras High Court
in W.P. Nos.15501, 15502 and 15503 of 1996 by the National
Trust for Clean Environment.
While these writ petitions were
pending, the appellants set up the plant and commenced
production on 01.01.1997. Writ Petition No.5769 of 1997
was then filed by V. Gopalsamy, General Secretary, MDMK
Political Party, Thayagam, praying for inter alia a direction to
the appellants to stop forthwith the operation of the plant.
Writ Petition No. 16861 of 1991 was also filed by Shri K.
Kanagaraj, Secretary, CITU District Committee, District
Thoothukudi, for directions to the State of Tamil Nadu,
TNPCB and the Union of India to take suitable action against
the appellant-company for its failure to take safety measures
due to which there were pollution and industrial accidents in
the plant. A Division Bench of the High Court heard Writ
Petition Nos. 15501 to 15503 of 1996, Writ Petition No.5769
of 1997 and Writ Petition No.16861 of 1998 and by the
common judgment dated 28.09.2010, allowed and disposed
of the writ petitions with the direction to the appellantcompany to close down its plant at Tuticorin. By the
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common judgment, the High Court also declared that the
employees of the appellant-company would be entitled to
compensation under Section 25FFF of the Industrial Disputes
Act, 1947 and directed the District Collector, Tuticorin, to
take all necessary and immediate steps for the reemployment of the workforce of the appellant-company in
some other companies/factories/organizations so as to
protect their livelihood and to the extent possible take into
consideration their educational and technical qualifications
and also the experience in the field. Aggrieved, the
appellant has filed these appeals against the common
judgment dated 28.09.2010 of the Division Bench of Madras
High Court and on 01.10.2010, this Court passed an interim
order staying the impugned judgment of the High Court.
CONTENTIONS ON BEHALF OF THE APPELLANTS:
4. Mr. C.A. Sundaram, learned senior counsel appearing
for the appellants, submitted that one of the grounds stated
in the impugned judgment of the High Court for directing
closure of the plant of the appellants was that the TNPCB
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had stipulated in the Consent Order dated 22.05.1995 that
the appellant-company has to ensure that the location of the
unit should be 25 kms. away from the ecologically sensitive
area and as per the report of NEERI (National Environmental
Engineering and Research Institute) of 1998 submitted to the
High Court, the plant is situated within 25 kms. from four of
the twenty one islands in the Gulf of Munnar, namely,
Vanthivu, Kasuwar, Karaichalli and Villanguchalli, which are
at distances of 6 k.m., 7 k.m. and 15 k.m. respectively from
Tuticorin where the plant is located. He submitted that there
is no notification issued by the Central Government under
Rule 5(1) of the Environment (Protection) Act, 1986
prohibiting or restricting the location of an industry in
Tuticorin area. He submitted that the Government of Tamil
Nadu, however, had issued a notification dated 10.09.1986
notifying its intention under Section 35(1) of the Wildlife
(Protection) Act, 1972 to declare the twenty one islands of
the Gulf of Munnar as a Marine National Park, but no
notification has yet been issued by the Government of Tamil
Nadu under Section 35(4) of the aforesaid Act declaring the
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twenty one islands of the Gulf of Munnar as a National Park.
He explained that prior to the Environment (Protection) Act,
1986 and the Environment (Protection) Rules, 1986, some
environmental guidelines had been issued by the Ministry of
Environment and Forests, Department of Environment,
Government of India, in August, 1985 and one of the
guidelines therein was that industries must be located at
least 25 kms. away from the ecologically sensitive areas and
it is on account of these guidelines that the TNPCB in its
Consent Order dated 22.05.1995 under the Water Act had
stipulated that the plant of the appellants should be situated
25 kms. away from ecologically sensitive areas. He
submitted that this stipulation was made in the Consent
Order under the Water Act because the plant was likely to
discharge effluent which could directly or indirectly affect
the ecological sensitive areas within 25 kms. of the industry,
but in the Consent Order issued on 14.10.1996 to operate
the industry, this stipulation was removed and instead it was
stipulated in clause (20) that the unit shall re-use the entire
quantity of treated effluent in the process and ensure that
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no treated effluent is discharged into inland surface water or
on land or sewer or sea as proposed by the unit. He
submitted that in any case the consent for establishment
issued under the Water Act by the TNPCB would show that
the appellant-company was given the consent to establish its
copper smelter project in SIPCOT Industrial Complex
irrespective of the distance at which the SIPCOT Industrial
Complex was located from any ecological sensitive area and
in the SIPCOT Industrial Complex, many other chemical
industries are located and the High Court appears to have
lost sight of this aspect of the consent given by the TNPCB to
establish the plant.
5. Mr. Sundaram submitted that the second ground given
by the High Court for directing closure of the plant of the
appellants was that this being a project exceeding Rs.50/-
crores, environmental clearance was required to be obtained
from the Ministry of Environment and Forests, Government
of India, after a public hearing which was a mandatory
requirement but no materials were produced before the High
Court to show that there was any such public hearing
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conducted before the commencement of the plant of the
appellant-company. He submitted that when the
environmental clearance was granted to the appellantcompany the Environmental Impact Assessment (for short
‘EIA’) notification dated 27.01.1994 was in force and this
notification did not make public hearing mandatory and only
stated that comments of the public may be solicited if so
recommended by the Impact Assessment Agency within 30
days of the receipt of the proposal. He submitted that the
High Court, therefore, was not correct in taking a view that a
public hearing was mandatory during EIA before
environmental clearance was given by the Ministry of
Environment and Forests, Government of India. He clarified
that by a subsequent notification dated 10.04.1997, a public
hearing was made compulsory but by the time this
notification came into force environmental clearance had
already been granted to the plant of the appellants on
16.01.1995.
6. Mr. Sundaram submitted that the High Court also took
the view in the impugned judgment on the basis of the
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report of the NEERI of 1998 that there was undue haste on
the part of the governmental authorities in granting
permissions and consents to the appellant-company. He
submitted that in an Explanatory Note to the EIA notification
dated 27.01.1994 the Central Government has clarified that
Rapid EIA could also be conducted for obtaining environment
clearance for any new project/activity and therefore the
State Government while granting No Objection Certificate by
its letter dated 01.08.1994 asked the appellants to conduct
Rapid EIA based on one season data and the appellants
carried out Rapid EIA study based on the data collected by
the M/s. Tata Consultancy Service (TCS). He relied on the
affidavit dated 01.12.1998 filed on behalf of the Ministry of
Environment and Forests, Government of India to submit
that Rapid EIA before granting clearance to the plant of the
appellant was conducted in accordance with the guidelines.
7. Mr. Sundaram submitted that the third ground on which
the High Court directed closure of the plant of the appellants
was that the TNPCB stipulated a condition in clause No.20 of
the No Objection Certificate that the appellants will develop
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a green belt of 250 meters width around the battery limit of
the industry as contemplated under the Environmental
Management Plan but subsequently the appellant-company
submitted a representation to TNPCB requesting TNPCB to
reduce the requirement of green belt from 250 meters to the
width of 10-15 meters as development of the green belt of
250 meters width requires a land of around 150 acres and
TNPCB in its meeting held on 18.08.1994 relaxed this
condition and stipulated that the appellant-company will
develop a green belt of minimum width of 25 meters. He
submitted that the land allocated by SIPCOT to the
appellants was not sufficient to provide a green belt of 250
meters width around the plant and hence this was an
impossible condition laid down in the No Objection
Certificate and for this reason the appellants approached the
TNPCB to modify this condition and the TNPCB reduced the
width of the green belt to 25 meters. He further submitted
that generally, the TNPCB and the Ministry of Environment
and Forests, Government of India, have been insisting on a
green belt of 25% of the plant area and the appellants could
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not be asked to provide a green belt of more than 25% of
the plant area.
8. Mr. Sundaram submitted that the last ground, on which
the High Court directed closure of the plant of the appellants
is that the plant of the appellants has caused severe
pollution in the area as has been recorded by NEERI in its
report of 2005 submitted to the High Court and the
groundwater samples taken from the area indicate that the
copper, chrome, lead cadmium and arsenic and the chloride
and fluoride content is too high when compared to Indian
drinking water standards. He referred to the reports of
NEERI of 1998, 1999, 2003 and 2005 submitted to the High
Court and the report of NEERI of 2011 and also the joint
inspection report of TNPCB and CPCB of September 2012
submitted to this Court, to show that the finding of the High
Court that the plant of the appellants had caused severe
pollution in the area was not correct. He vehemently
submitted that though there were no deficiencies in the
plant of the appellants, the TNPCB in its affidavit has
referred to its recommendations as if there were
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deficiencies. He submitted that the recommendations made
by the TNPCB were only to provide the best of checks in the
plant against environmental pollution with a view to ensure
that the plant of the appellants becomes a model plant from
the point of view of the environment, but that does not mean
that the plant of the appellants had deficiencies which need
to be corrected. He submitted that the reports of NEERI of
2005 and 2011 referred to accumulation of gypsum and
phospho gypsum, which come out from the plant of the
appellants as part of the slag but the opinion of CPCB in its
letter dated 17.11.2003 to the TNPCB is that such slag is
non-hazardous and can be used in cement industries, for
filling up lower level area and as building/road construction
material, etc. and has no adverse environmental effects.
9. Mr. Sundaram finally submitted that since none of the
grounds given by the High Court in the impugned judgment
for directing closure of the plant of the appellants are wellfounded, it is a fit case in which this Court should set aside
the impugned judgment of the High Court and allow the
appeals. He submitted that the plant of the appellants
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produces 2,02,000 metric tones of copper which constitute
39% of the total of 5,14,000 metric tones of copper produced
in India and that 50% of the copper produced by the plant of
the appellants is consumed in the domestic market and the
balance 50% is exported abroad. He also submitted that the
plant provides direct and indirect employment to about 3000
people and yields a huge revenue to both the Central and
State Governments. He submitted that closure of the plant
of the appellants, therefore, would also not be in the public
interest.
CONTENTIONS ON BEHALF OF THE WRIT PETITIONERSRESPONDENTS:
10. Mr. V. Gopalsamy, who was the writ petitioner in Writ
Petition No.5769 of 1997 before the High Court, appeared inperson and supported the impugned judgment of the High
Court. He submitted that the TNPCB in its No Objection
Certificate dated 01.08.1994 as well as in its Consent Order
dated 22.05.1995 under the Water Act clearly stipulated that
the appellant-company shall ensure that the location of its
unit should be 25 kms. away from ecological sensitive area
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and the Government of Tamil Nadu in their affidavit dated
27.10.2012 have stated that all the 21 islands including the
four near Tuticorin in the Gulf of Munnar Marine National
Park are ecologically sensitive areas. He submitted that
NEERI in its report of 1998 has observed that four out of
twenty one islands, namely, Vanthivu, Kasuwar, Karaichalli
and Villanguchalli, are at distances of 6 kms., 7 kms. and 15
kms. respectively from Tuticorin. He further submitted that
merely because a condition has been subsequently imposed
on the appellant-company by TNPCB not to discharge any
effluent to the sea, the restriction of minimum 25 kms.
distance from ecological sensitive area from location of the
unit of the appellants cannot be lifted particularly when the
Government of Tamil Nadu as well as the Central
Government are treating the Gulf of Munnar as a Marine
National Park and extending financial assistance for the
development of its ecology. He submitted that the proposal
for issuance of a declaration under Section 35(4) of the
Wildlife (Protection) Act, 1972 is pending for concurrence of
the Central Government and, therefore, the ecological
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balance in the area of Gulf of Munnar would be disturbed if
the plant of the appellants continues at Tuticorin and the
High Court was right in directing closure of the plant of the
appellants located at Tuticorin.
11. Mr. V. Gopalsamy submitted that the High Court was
similarly right in directing closure of the plant of the
appellants on the ground that the appellants did not develop
a green belt of 250 metres width around their plant as
stipulated in the No Objection Certificate dated 01.08.1994
of the TNPCB and instead represented to the TNPCB and got
the green belt reduced to only 25 metres width. He
submitted that considering the grave adverse impact on the
environment by the plant of the appellants, a 250 metres
width of green belt was absolutely a must but the TNPCB
very casually reduced the green belt from 250 metres width
to 25 metres. He submitted that it will be seen from the
joint report of TNPCB and CPCB filed pursuant to the order
dated 27.08.2012 of this Court that as a condition of the
renewal of the consent order, the appellant-company has
been asked to develop a green belt to an extent of 25% of
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the total area of 172.17 hectares which works out to 43.04
hectares and yet the TNPCB has found development of green
belt of 26 hectares as sufficient compliance. He submitted
that the appellants would, therefore, be required to develop
a green belt of 17.04 hectares more for compliance of the
condition for renewal of consent stipulated by the TNPCB.
12. Mr. V. Gopalsamy submitted that for their plant, the
appellants have been importing copper concentrate from
Australian mines which are highly radioactive and
contaminated and contain high levels of arsenic, uranium,
bismuth, fluorine and experts of environment like Mark
Chernaik have given a report on the adverse impacts of the
plant of the appellants at Tuticorin on the environment. In
this context, he also submitted that an American company,
namely, the Asarco producing copper had to be closed down
on account of such adverse environmental effects. He
submitted that the claim of the appellants that their plant
has no deficiencies and that it does not have any impact on
the environment is not correct and different reports of the
NEERI would show that the plant of the appellants is
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continuing to pollute the air and has also affected the ground
water of the area by discharging effluent and the High Court,
therefore, rightly directed the closure of the plant. He
submitted that the appellants had initially proposed to
establish the plant in Gujarat but this was opposed
vehemently and the appellants decided to shift the
establishment of the plant to Goa but because of opposition
the plant could not be established in Goa. He submitted that
the appellants thereafter intended to set up the plant at
Ratnagiri in Maharashtra and invested Rs.200 crores in
construction activities after obtaining environmental
clearance but because of the opposition of the farmers of
Ratnagiri, the Maharashtra Government had to revoke the
licence granted to the appellants. He submitted that the
appellants have been able to set up the plant at Tuticorin in
Tamil Nadu by somehow obtaining environmental clearance
from the Ministry of Environment and Forests, Government
of India, without a public hearing and the consents under the
Water Act and the Air Act from the TNPCB and the High
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Court rightly allowed the writ petitions and directed closure
of the plant of the appellants.
13. Mr. V. Prakash, learned senior counsel appearing for the
writ petitioner, National Trust For Clean Environment, in Writ
Petition Nos. 15501 to 15503 of 1996 before the High Court,
submitted that the appellants had made a false statement in
the synopsis at page (B) of the Special Leave Petition that it
has been consistently operating for more than a decade with
all necessary consents and approvals from all the statutory
authorities without any complaint. He submitted that
similarly in ground no. IV at page 45 of the Special Leave
Petitions the appellants have falsely stated that the High
Court has erred in not appreciating that the appellants had
got all the statutory approvals/consent orders from the
authorities concerned as also the Central Government and
the State Government. He submitted that the report of
NEERI of 2011 would show that the appellants did not have
valid consent during various periods including the period
when it filed the Special Leave Petitions. He submitted that
the appellants did not also inform this Court that when they
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moved this Court on 01.10.2010 to stay the operation of the
impugned order of the High Court, the plant of the
appellants had already stopped operation. He vehemently
argued that due to misrepresentation of the material facts
by the appellants in the Special Leave Petitions as well as
suppression of the material facts, this Court was persuaded
to pass the stay order dated 01.10.2010. He argued that on
this ground alone this Court should refuse to grant relief to
the appellants in exercise of its discretion under Article 136
of the Constitution. He relied on the decisions of this Court
in Hari Narain v. Badri Das [AIR 1963 SC 1558], G.
Narayanaswamy Reddy (dead) by LRs. & Anr. v. Government
of Karnataka & Anr. [(1991) 3 SCC 261] and Dalip Singh v.
State of Uttar Pradesh & Ors. [(2010) 2 SCC 114] and
Abhyudya Sanstha v. Union of India [(2011) 6 SCC 145] for
the proposition that this Court can refuse relief under Article
136 of the Constitution where the appellants have not
approached this Court with clean hands and have made
patently false statements in the special leave petition.
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14. Mr. Prakash next submitted that the main ground that
was taken in the writ petitions before the High Court by
National Trust For Clean Environment was that the Ministry
of Environment and Forests, Government of India, and the
TNPCB had not applied their mind to the nature of the
industry as well as the pollution fall out of the industry of the
appellants and the capacity of the unit of the appellants to
handle the waste without causing adverse impact on the
environment as well as on the people living in the vicinity of
the plant. He submitted that this Court has already held that
a right to clean environment is part of the right to life
guaranteed under Article 21 of the Constitution and has
explained the precautionary principle and the principle of
sustainable development in Vellore Citizens Welfare Forum
v. Union of India & Ors. [(1996) 5 SCC 647], Tirupur Dyeing
Factory Owners’ Association v. Noyyal River Ayacutdars
Protection Association [(2009) 9 SCC 737] and M.C. Mehta v.
Union of India Ors. [(2009) 6 SCC 142]. He submitted that
these principles, therefore, have to be borne in mind by the
authorities while granting environmental clearance and
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consent under the Water Act or the Air Act, but unfortunately
both the Ministry of Environment and Forests, Government
of India, and the TNPCB have ignored these principles and
have gone ahead and hastily granted environmental
clearance and the consent under the two Acts. He submitted
that, in the present case, the appellants have relied on the
Rapid EIA done by Tata Consultancy Service, but this Rapid
EIA was based on the data which is less than the month’s
particulars and is inadequate for making a proper EIA which
must address the issue of the nature of the manufacturing
process, the capacity of the manufacturing facility and the
quantum of production, the quantum and nature of
pollutants, air, liquid and solid and handling of the waste.
15. Mr. Prakash referred to the report of NEERI of 1998
submitted to the High Court to show that the inspection
team of NEERI collected waste water samples from the plant
of the appellants and an analysis of the waste water samples
indicate that the treatment plant of the appellants was
operating inefficiently as the levels of arsenic, selenium and
lead in the treated effluent as also the effluent stored in the
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surge ponds were higher than the standards stipulated by
the TNPCB. He also referred to the report of NEERI of
February 1999 in which NEERI has stated that the treated
effluent quality did not conform to the standards stipulated
by the TNPCB.
16. Mr. Prakash further submitted that the counter affidavit
of the Union of India filed on 01.12.1998 before the High
Court also does not disclose whether, apart from the Rapid
EIA of Tata Consultancy Services, there was any independent
evaluation of the Rapid EIA by the environmental impact
assessment authority, namely, the Ministry of Environment
and Forests. He submitted that the TNPCB in its No
Objection Certificate dated 01.08.1994 has stipulated in
Clause 18 that the appellants have to carry out Rapid EIA
(for one season other than monsoon) as per the EIA
notification dated 27.01.1994 issued by the Ministry of
Environment and Forests, Government of India, and furnish a
copy to the TNPCB and this clause itself would show that
TNPCB had not applied its mind as to whether there was a
sufficient rational analysis of the nature of the industry,
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nature of pollutants, quantum of fall out and the plan or
method for handling the waste. He submitted that since
there was no application of mind by either the Ministry of
Environment and Forests, Government of India, before
granting the environmental clearance or by the TNPCB
before granting the consents under the Water Act and the
Air Act, the environmental clearance and the consent orders
are liable to be quashed.
17. In support of his submissions, Mr. Prakash cited East
Coast Railway & Anr. v. Mahadev Appa Rao & Ors. [(2010) 7
SCC 678], for the proposition that for a valid order there has
to be application of mind by the authority, and in the
absence of such application of mind by the authority, the
order is arbitrary and is liable to be quashed. He cited the
decision of the Lords of the Judicial Committee of Privy
Council in Belize Alliance of Conservation Non-governmental
Organizations v. The Department of the Environment and
Belize Electric Company Limited [(2004) 64 WIR 68 para 69]
in which it has been observed that EIA is expected to be
comprehensive in treatment of the subject, objective in its
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approach and must meet the requirement that it alerts the
decision maker to the effect of the activity on the
environment and the consequences to the community. He
also relied on the judgment of the Supreme Court of
Judicature of Jamaica in The Northern Jamaica Conservation
Association v. The Natural Resources Conservation Authority
[Claim No. HCV 3022 of 2005] to argue that a public hearing
was a must for grant of environmental clearance and
submitted that as there was no public hearing in this case
and there was inadequate EIA before the grant of the
environmental clearance for the plant of the appellants, the
High Court has rightly directed closure of the plant of the
appellants.
18. Finally, Mr. Prakash submitted that the finding of the
High Court that the plant of the appellants continues to
pollute the environment has been substantiated by the
inspection report which has been filed in this Court by the
NEERI as well as the TNPCB from time to time. In particular,
he referred to the joint inspection report of the TNPCB and
CPCB to show that the directions issued by the TNPCB to
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improve solid waste disposal has not been complied with.
He submitted that one of the conditions of the consent order
of the TNPCB was that no slag was to be stored in the
premises of the plant but huge quantity of slag has been
stored in the premises of the plant and the direction to
dispose at least 50% more than the monthly generation
quantities of both slag and gypsum has not been complied
with. He vehemently argued that unless the plant is shut
down, the appellants will not be able to clear the huge
quantity of slag and gypsum lying in the plant premises. He
submitted that it is not correct as has been submitted on
behalf of the appellants that the slag is not a hazardous
waste containing arsenic and will certainly jeopardize the
environment. He argued that there was therefore no other
option for the High Court but to direct closure of the plant of
the appellants to ensure clean environment in the area.
CONTENTIONS ON BEHALF OF THE AUTHORITIES:
19. Mr. S. Guru Krishna Kumar, learned counsel appearing
for the TNPCB as well as the State of Tamil Nadu, relying on
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the affidavit filed on behalf of the State of Tamil Nadu on
29.10.2012 submitted that the Gulf of Munnar consisting of
21 islands in 4 groups was notified under Section 35(1) of
the Wildlife (Protection) Act, 1972 on 10th September 1986
as this group of islands consisted of territorial waters
between them and the proposal to declare Gulf of Munnar as
a Marine National Park under Section 35(4) of the said Act
was sent by the Chief Wild Life Warden to the State
Government for approval on 30.04.2003 but the declaration
under Section 35(4) of the said Act has not been finally
made. He further submitted that all the 21 islands including
the 4 islands in the Gulf of Munnar are therefore ecological
sensitive areas. He submitted that notwithstanding the fact
that four of the islands were near Tuticorin, the TNPCB gave
the consent under the Water Act to the appellants to set up
the plant at Tuticorin because the plant has a zero effluent
discharge. He also referred to the compliance affidavit of
the TNPCB filed on 08.10.2012 to show that the TNPCB is
monitoring the emissions from the plant of the appellants to
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ensure that the National Ambient Air Quality Standards are
maintained.
20. Mr. Vijay Panjwani, learned counsel appearing for CPCB,
made a reference to Sections 3, 16 and 18 of the Water Act
which relate to the CPCB and submitted that it was not for
the CPCB but for the TNPCB to issue No Objection Certificate
and consent in respect of the plant set up in the State of
Tamil Nadu. He submitted that under Rule 19 of the
Manufacture, Storage and Import of Hazardous Chemical
Rules, 1989, however, improvement notices can be issued
by the CPCB to any person to remedy the contravention of
the Rules.
CONTENTIONS ON BEHALF OF THE INTERVENER:
21. Mr. Raj Panjwani, learned counsel for the intervener,
submitted that a marine biosphere is an ecological sensitive
area and if in the consent order a condition was stipulated
that the plant of the appellants has to be situated beyond 25
kms. from ecological sensitive area, this condition has to be
complied with. He further submitted that in any case the
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appellants are liable to compensate for having damaged the
environment.
FINDINGS OF THE COURT:
22. Writ Petition No.15501 of 1996, Writ Petition No.15503
of 1996 and Writ Petition No.5769 of 1997 had been filed for
quashing the environmental clearances dated 16.01.1995
and 17.05.1995 granted by the Ministry of Environment and
Forests, Government of India, to the appellants for setting up
the plant at Tuticorin and by the impugned judgment, the
High Court has not quashed the environmental clearance but
has allowed the three writ petitions. Hence, the first
question which we will have to decide is whether the High
Court could have interfered with the environmental
clearances granted by the Ministry of Environment and
Forests, Government of India, and the Government of Tamil
Nadu, Department of Environment.
23. The environmental clearance for setting up the plant
was granted to the appellants under the Environment
(Protection) Act, 1986. Sub-section (1) of Section 3 of the
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Environment (Protection) Act, 1986 provides that subject to
the provisions of the Act, the Central Government shall have
the power to take all such measures as it deems necessary
or expedient for the purpose of protecting and improving the
quality of the environment and preventing, controlling and
abating environmental pollution. Sub-section (2) of Section
3 further provides that in particular, and without prejudice to
the generality of the provisions of sub-section (1), such
measures may include measures with respect to all or any of
the matters specified therein. One such matter specified in
clause (v) of sub-section (2) is restriction of areas in which
any industries, operations or processes or class of industries,
operations or processes shall not be carried out or shall be
carried out subject to certain safeguards. Rule 5(3) of the
Environment (Protection) Rules, 1986 accordingly empowers
the Central Government to impose prohibitions or
restrictions on the location of an industry or the carrying on
processes and operations in an area, by notification in the
Official Gazette. In exercise of these powers under Section
3(2)(v) of the Environment (Protection) Act, 1986 and Rule
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5(3) of the Environment (Protection) Rules, 1986, the Central
Government has issued a notification dated 27.01.1994
imposing restrictions and prohibitions on the expansion and
modernization of any activity or new projects being
undertaken in any part of India unless environmental
clearance has been accorded by the Central Government or
the State Government in accordance with the procedure
specified in the said notification.
24. Para 2 of the notification dated 27.01.1994 lays down
the requirements and procedure for seeking environmental
clearance of projects, and clause (c) of Para 2 provides that
the Impact Assessment Agency could solicit comments of the
public within thirty days of receipt of proposal, in public
hearings, arranged for the purpose, after giving thirty days
notice of such hearings in at least two newspapers, and after
completion of public hearing, where required, convey its
decision. The language of this notification did not lay down
that the public hearing was a must. The Impact Assessment
was done by Tata Consultancy Services as per the
requirements then existing and the Government of India has
30Page 31
granted the Environmental Clearance on 16.01.1995. The
notification dated 27.01.1994, however, was amended by
notification dated 10.04.1997 and it was provided in clause
(c) of Para 2 of the notification that the Impact Assessment
Agency shall conduct a public hearing and the procedure for
public hearing was detailed in Schedule IV to the notification
by the amendment notification dated 10.04.1997.
Admittedly, in this case, the environmental clearance was
granted by the Ministry of Environment, Government of
India, on 16.01.1995 in accordance with the procedure laid
down by notification dated 27.01.1994 well before the
notification dated 10.04.1997 providing for mandatory public
hearing in accordance with the procedure laid down in
Schedule IV. As there was no mandatory requirement in the
procedure laid down under the Environment (Protection) Act,
1986 and the Environment (Protection) Rules, 1986 and the
notifications dated 27.01.1994 as amended by notification
dated 04.05.1994 that a public hearing has to be conducted
before grant of environmental clearance, the High Court
could not have allowed the writ petitions challenging the
31Page 32
environmental clearances on the ground that no public
hearing was conducted before grant of the environmental
clearances.
25. An Explanatory Note regarding the EIA notification
dated 27.01.1994 was also issued by the Central
Government and Para 5 of the Explanatory Note clarified
that project proponents could furnish Rapid EIA report to the
Impact Assessment Agency based on one season data, for
examination of the project and Comprehensive EIA report
may be submitted later, if so asked for by the Impact
Assessment Agency and this was permitted where
Comprehensive EIA report would take at least one year for
its preparation. In Para 5 of the affidavit filed by the Union
of India before the High Court in Writ Petition Nos.15501 to
15503 of 1996, the allegation of the writ petitioner that the
Ministry of Environment and Forests have accorded
environmental clearance without applying its mind and
without making any analysis of the adverse impacts on the
marine ecological system has been denied and it has been
further stated that after detailed examination of Rapid
32Page 33
EIA/EMP, filled in Questionnaire for industrial projects, NOC
from State Pollution Control Board and Risk Analysis, the
project was examined as per the procedure laid down in the
EIA notification dated 27.01.1994 (as amended on
04.05.1994) and the project was accorded approval on
16.01.1995 subject to specific conditions. As the procedure
laid down under the Environment (Protection) Act, 1986 and
the Environment (Protection) Rules, 1986 and the
notifications dated 27.01.1994 as amended by notification
dated 04.05.1994 and as explained by the Explanatory Note
issued by the Government of India permitted Rapid EIA in
certain circumstances, the High Court could not have
allowed the writ petitions on the ground that environmental
clearance was issued to the appellant-company on the basis
of inadequate Rapid EIA, particularly when the Union of India
in its affidavit had clearly averred that the environmental
clearance was granted after detailed examination of Rapid
EIA/EMP, filled in Questionnaire for industrial projects, NOC
from State Pollution Control Board and Risk Analysis in
33Page 34
accordance with the procedure laid down in EIA notification
dated 27.01.1994 (as amended on 04.05.1994).
26. The High Court has noticed some decisions of this Court
on Sustainable Development, Precautionary and Polluter
Pays Principles and Public Trust Doctrine, but has failed to
appreciate that the decision of the Central Government to
grant environmental clearance to the plant of the appellants
could only be tested on the anvil of well recognized
principles of judicial review as has been held by a three
Judge Bench of this Court in Lafarge Umiam Mining (P) Ltd.
v. Union of India & Others [(2011) 7 SCC 338 at 380]. To
quote Environmental Law edited by David Woolley QC, John
Pugh-Smith, Richard Langham and William Upton, Oxford
University Press:
“The specific grounds upon which a public
authority can be challenged by way of judicial
review are the same for environmental law as for
any other branch of judicial review, namely on the
grounds of illegality, irrationality, and procedural
impropriety.”
Thus, if the environmental clearance granted by the
competent authority is clearly outside the powers given to it
34Page 35
by the Environment (Protection) Act, 1986, the Environment
(Protection) Rules, 1986 or the notifications issued
thereunder, the High Court could quash the environmental
clearance on the ground of illegality. If the environmental
clearance is based on a conclusion so unreasonable that no
reasonable authority could ever have come to the decision,
the environmental clearance would suffer from Wednesbury
unreasonableness and the High Court could interfere on the
ground of irrationality. And, if the environmental clearance
is granted in breach of proper procedure, the High Court
could review the decision of the authority on the ground of
procedural impropriety.
27. Where, however, the challenge to the environmental
clearance is on the ground of procedural impropriety, the
High Court could quash the environmental clearance only if
it is satisfied that the breach was of a mandatory
requirement in the procedure. As stated in Environmental
Law edited by David Woolley QC, John Pugh-Smith, Richard
Langham and William Upton, Oxford University Press:
35Page 36
“It will often not be enough to show that there
has been a procedural breach. Most of the
procedural requirements are found in the
regulations made under primary legislation.
There has been much debate in the courts about
whether a breach of regulations is mandatory or
directory, but in the end the crucial point which
has to be considered in any given case is what
the particular provision was designed to
achieve.”
As we have noticed, when the plant of the appellantcompany was granted environmental clearance, the
notification dated 27.01.1994 did not provide for mandatory
public hearing. The Explanatory Note issued by the Central
Government on the notification dated 27.01.1994 also made
it clear that the project proponents may furnish rapid EIA
report to the IAA based on one season data (other than
monsoon), for examination of the project Comprehensive EIA
report was not a must. In the absence of a mandatory
requirement in the procedure laid down under the scheme
under the Environment (Protection) Act, 1986 at the relevant
time requiring a mandatory public hearing and a mandatory
comprehensive EIA report, the High Court could not have
interfered with the decision of the Central Government
36Page 37
granting environmental clearance on the ground of
procedural impropriety.
28. Coming now to the ground of irrationality argued so
vehemently by Mr. V. Prakash, we find that no materials
have been produced before us to take a view that the
decision of the Central Government to grant the
environmental clearance to the plant of the appellants was
so unreasonable that no reasonable authority could ever
have taken the decision. As we have already noticed, in
Para 5 of the affidavit filed by the Union of India before the
High Court in Writ Petition Nos.15501 to 15503 of 1996, it
has been stated that the Ministry of Environment and Forests
have accorded environmental clearance after detailed
examination of rapid EIA/EMP, filled in Questionnaire for
industrial projects, NOC from State Pollution Control Board
and Risk Analysis, and that the project was examined as per
the procedure laid down in the EIA notification dated
27.01.1994 (as amended on 04.05.1994) and only thereafter
the project was accorded approval on 16.01.1995. No
material has been placed before us to show that the decision
37Page 38
of the Ministry of Environment and Forests to accord
environmental clearance to the plant of the appellants at
Tuticorin was wholly irrational and frustrated the very
purpose of EIA.
29. In Belize Alliance of Conservation Non-governmental
Organizations v. The Department of the Environment and
Belize Electric Company Limited (supra) cited by Mr.
Prakash, the Lords of the Judicial Committee of the Privy
Council have quoted with approval the following words of
Linden JA with reference to the Canadian legislation in Bow
Valley Naturalists Society v. Minister of Canadian Heritage
[2001] 2 FC 461 at 494:
“The Court must ensure that the steps in the Act
are followed, but it must defer to the responsible
authorities in their substantive determinations as
to the scope of the project, the extent of the
screening and the assessment of the cumulative
effects in the light of the mitigating factors
proposed. It is not for the judges to decide what
projects are to be authorized but, as long as they
follow the statutory process, it is for the
responsible authorities.”
The aforesaid passage will make it clear that it is for the
authorities under the Environment (Protection) Act, 1986,
38Page 39
the Environment (Protection) Rules, 1986 and the
notifications issued thereunder to determine the scope of the
project, the extent of the screening and the assessment of
the cumulative effects and so long as the statutory process
is followed and the EIA made by the authorities is not found
to be irrational so as to frustrate the very purpose of EIA, the
Court will not interfere with the decision of the authorities in
exercise of its powers of judicial review.
30. The next question that we have to decide is whether
the High Court was right in directing closure of the plant of
the appellants on the ground that the plant of the appellants
is located at Tuticorin within 25 kms. of four of the twenty
one islands in the Gulf of Munnar, namely, Vanthivu,
Kasuwar, Karaichalli and Villanguchalli. The reason given by
the High Court in coming to this conclusion is that the TNPCB
had stipulated in the Consent Order dated 22.05.1995 that
the appellant-company has to ensure that the location of the
unit should be 25 kms. away from ecologically sensitive area
and as per the report of NEERI, the plant of the appellants
was situated at a distance of 6 kms. of Vanthivu, 7 kms. of
39Page 40
Kasuwar and 15 kms. of Karaichalli and Villanguchalli and
these four villages are part of the twenty one islands in the
Gulf of Munnar. Hence, the High Court directed closure of
the plant because the appellant-company has violated the
condition of the Consent Order dated 22.05.1995 issued by
the TNPCB under the Water Act.
31. The Consent Order dated 22.05.1995 issued by the
TNPCB under Section 25 of the Water Act states as follows:
“Consent to establish or take steps to establish is
hereby granted under Section 25 of the Water
(Prevention and Control of Pollution) Act, 1974 as
amended in 1988) (hereinafter referred to as ‘The
Act’) and the rules and orders made thereunder to
The Chief Project Manager,
M/s Sterlite Industries (India) Limited
(Copper Smelter Project)
SIPCOT Industrial Complex,
Meelavittam Village, Tuticorin Taluk,
V.O. Chidambaraner District
(hereinafter referred to as ‘The applicant’)
authorizing him/her/them to establish or take
steps to establish the industry in the site
mentioned below:
SIPCOT Industrial Complex,
Meelavittam Village, Tuticorin Taluk,
V.O. Chidambaraner District.”
40Page 41
The aforesaid extract from the Consent Order dated
22.05.1995 of the TNPCB issued under the Water Act makes
it clear that the appellant-company was given consent to
establish its plant in the SIPCOT Industrial Complex,
Melavittan Village, Tuticorin Taluk. Along with the Consent
Order under the Water Act, special conditions were annexed
and clause 20 of the special conditions reads as follows:
“20. (i) 1 km away from the water resources
specified in G.O.Ms. No.213 E&P Dept Dt.
30.3.89
(i) 25 km away from ecological/sensitive
areas.
(ii) 500 metres away from high tide line.”
32. On the one hand, therefore, the appellants were given
consent to establish their plant in the SIPCOT Industrial
Complex, which as per the NEERI report is within 25 kms. of
four of the twenty one islands in the Gulf of Munnar. On the
other hand, a condition was stipulated in the consent order
that the appellants have to ensure that the location of the
unit is 25 kms. away from ecological sensitive area. It thus
41Page 42
appears that the TNPCB while granting the consent under
the Water Act for establishment of the plant of the
appellants in the SIPCOT Industrial Complex added the
above requirement without noting that the SIPCOT Industrial
Complex was within 25 kms. from ecological sensitive area.
Since, however, the Consent Order was granted to the
appellant-company to establish its plant in the SIPCOT
Industrial Complex and the plant has in fact been established
in the SIPCOT Industrial Complex, the High Court could not
have come to the conclusion that the appellant-company
had violated the Consent Order and directed closure of the
plant on this ground.
33. This is not to say that in case it becomes necessary for
preservation of ecology of the aforesaid four islands which
form part of the Gulf of Munnar, the plant of the appellants
cannot be directed to be shifted in future. We find from the
affidavit filed on behalf of the State of Tamil Nadu on
29.10.2012 that the Gulf of Munnar consisting of 21 islands
including the aforesaid four islands have been notified under
Section 35(1) of the Wildlife (Protection) Act, 1972 on 10th
42Page 43
September 1986 and a declaration may also be made under
Section 35(4) of the said Act declaring the Gulf of Munnar as
a Marine National Park. We have, therefore, no doubt that
the Gulf of Munnar is an ecological sensitive area and the
Central Government may in exercise of its powers under
clause (v) of sub-section (1) of Rule 5 of the Environment
(Protection) Rules, 1986 prohibit or restrict the location of
industries and carrying on processes and operations to
preserve the biological diversity of the Gulf of Munnar. As
and when the Central Government issues an order under
Rule 5 of the Environment (Protection) Rules, 1986
prohibiting or restricting the location of industries within and
around the Gulf of Munnar Marine National Park, then
appropriate steps may have to be taken by all concerned for
shifting the industry of the appellants from the SIPCOT
Industrial Complex depending upon the content of the order
or notification issued by the Central Government under the
aforesaid Rule 5 of the Environment (Protection) Rules,
1986, subject to the legal challenge by the industries.
43Page 44
34. The next question with which we have to deal is
whether the High Court could have directed the closure of
the plant of the appellants on the ground that though
originally the TNPCB stipulated a condition in the ‘No
Objection Certificate’ that the appellant-company has to
develop a green belt of 250 meters width around the battery
limit of the plant, the appellants made representation to the
TNPCB for reducing the width of the green belt and the
TNPCB in its meeting held on 18.08.1994 relaxed this
condition and required the appellants to develop the green
belt with a minimum width of 25 meters. We find on a
reading of the No Objection Certificate issued by the TNPCB
that various conditions have been imposed on the industry
of the appellants to ensure that air pollution control
measures are installed for the control of emission generated
from the plant and that the emission from the plant satisfies
the ambient area quality standards prescribed by the TNPCB
and development of green belt contemplated under the
environmental management plan around the battery limit of
the industry of the appellants was an additional condition
44Page 45
that was imposed by the TNPCB in the No Objection
Certificate. If the TNPCB after considering the
representation of the appellants has reduced the width of
the green belt from a minimum of 250 meters to a minimum
of 25 meters around the battery limit of the industry of the
appellants and it is not shown that this power which has
been exercised was vitiated by procedural breach or
irrationality, the High Court in exercise of its powers of
judicial review could not have interfered with the exercise of
such power by the State Pollution Control Board. The High
Court in the impugned judgment has not recorded any
finding that there has been any breach of the mandatory
provisions of the Air Act or the Rules thereunder by the
TNPCB by reducing the green belt to 25 meters. Nor has
the High Court recorded any finding that by reducing the
width of the green belt around the battery limit of the
industry of the appellants from 250 meters to 25 meters, it
will not be possible to mitigate the effects of fugitive
emissions from the plant. The High Court has merely held
that the TNPCB should not have taken such a generous
45Page 46
attitude and should not have in a casual way dealt with the
issue permitting the appellant-company to reduce the green
belt particularly when there have been ugly repercussions in
the area on account of the incidents which took place on
05.07.1997 onwards. It was for the TNPCB to take the
decision in that behalf and considering that the appellant’s
plant was within a pre-existing industrial estate, the
appellant could not have been singled out to require such a
huge green belt.
35. This takes us to the argument of Mr. Prakash that had
the Ministry of Environment and Forests, Government of
India, applied its mind fully before granting the environment
clearance and had the TNPCB applied its mind fully to the
consents under the Air Act and the Water Act and considered
all possible environmental repercussions that the plant
proposed to be set up by the appellants would have, the
environmental problems now created by the plant of the
appellants would have been prevented. As we have already
held, it is for the administrative and statutory authorities
empowered under the law to consider and grant
46Page 47
environmental clearance and the consents to the appellants
for setting up the plant and where no ground for interference
with the decisions of the authorities on well recognized
principles of judicial review is made out, the High Court could
not interfere with the decisions of the authorities to grant
the environmental clearance or the consents on the ground
that had the authorities made a proper environmental
assessment of the plant, the adverse environmental effects
of the industry could have been prevented. If, however,
after the environmental clearance under the Environment
(Protection) Act, 1986, and the Rules and the notifications
issued thereunder and after the consents granted under the
Air Act and the Water Act, the industry continues to pollute
the environment so as to effect the fundamental right to life
under Article 21 of the Constitution, the High Court could still
direct the closure of the industry by virtue of its powers
under Article 21 of the Constitution if it came to the
conclusion that there were no other remedial measures to
ensure that the industry maintains the standards of emission
and effluent as laid down by law for safe environment (see
47Page 48
M.C. Mehta v. Union of India and others [(1987) 4 SCC 463]
in which this Court directed closure of tanneries polluting the
waters of Ganga river).
36. We have, therefore, to examine whether there were
materials before the High Court to show that the plant of the
appellants did not maintain the standards of emission and
effluent as laid down by the TNPCB and whether there were
no remedial measures other than the closure of the industry
of the appellants to protect the environment. We find on a
reading of the impugned judgment of the High Court that it
has relied on the report of NEERI of 2005 to hold that the
plant site itself is severely polluted and the ground samples
level of arsenic justified classifying the whole site of the
plant of the appellant as hazardous waste. We extract
hereinbelow the relevant observations of NEERI in its report
of 2005 relating to air, water and soil environment in the
Executive Summary:
“Air Environment:
The emission factors of SO2 from sulphuric acid
plant – I (SAP-I) and sulphuric acid plant – II
48Page 49
(SAP-II) were 0.55 kg/MT of H2SO4
manufactured which is well within the TNPCB
stipulated limit of 2kg/MT of H2SO4
manufactured.
The acid mist concentration of SAP-I was 85
mg/Nm3, which exceeds the TNPCB limit of 50
mg/Nm3. The acid mist concentration from
SAP-II was 42 mg/Nm3, which is well within the
TNPCB limit. In view of the exceedance of
TNPCB limit for acid mist, it is recommended
that the performance of acid mist eliminators
may be intermittently checked. It is further
recommended to install a tail gas treatment
plant to take care of occasional upsets.
Out of the seven D.G. sets, one (6.3 MW) was
monitored for particulate matter (PM)
emissions. The level of PM was 115 mg/Nm3
(0.84 gm/kWh) which is within the TNPCB
stipulated limit of 150 mg/Nm3 for thermal
power plants of 200 MW and higher capacity
(165 mg/Nm3) but higher than that stipulated
for diesel engines / Gen sets up to 800 KW
capacity (0.3 gm/kWh). Therefore TNPCB may
decide whether the present PM emissions from
the DG sets of 6.3 MW capacity is within the
limit or otherwise.
The fugitive emissions were monitored at four
sites to assess the status of air quality with
respect of SO2, NO2 and SPM. The results of
analysis at all fugitive emission monitoring
sites indicate that the levels of gaseous
pollutants SO2 and NO2, were below the
respective NIOSH/OSHA standards for work
place environment. The levels of SPM were
also within the stipulated TNPCB standards for
industrial areas.
49Page 50
Impact of stack and fugitive emissions on
surrounding air quality was also assessed by
monitoring SO2, NO2 and SPM levels at five
monitoring locations. The levels of SPM, SO2
and NO2 at all the five sites were far below the
TNPCB standards of 120 μg/Nm3 for SO2 as
well as NO2 and 500 μg/Nm3 for SPM for
industrial zone.
Water Environment
Surface water samples were collected and
analyzed for physico-chemical, nutrient
demand parameters. The physico-chemical
characteristics and nutrient demand
parameters, i.e. with special reference to pH
(7.9-8.0), TDS (120-160 mg/L), COD (11-18
mg/L) and levels of heavy metals viz. Cd, Cr,
Cu, Pb, Fe, Mn, Zn and As in surface water,
were found within the prescribed limits of
drinking water standards (IS: 10500-1995).
Total eight groundwater samples were
collected (seven from hand pumps and one
from dug well) to assess the groundwater
quality in the study area. The analysis on
physico-chemical characteristics of
groundwater samples collected from various
locations showed high mineral contents in
terms of dissolved solids (395-3020mg/L),
alkalinity (63-210 mg/L), total hardness (225-
2434 mg/L), chloride (109-950 mg/L), sulphate
(29-1124 mg/L) and sodium (57-677 mg/L) as
compared to the drinking water standards
(IS:10500-1995). Thus, it could be concluded
that water in some of the wells investigated is
unfit for drinking. The concentrations of
nutrient demand parameters revealed that
phosphate was in the range 0.1-0.3 mg/L while
nitrate was in the range 1-7.5 mg/L at all
50Page 51
sampling locations which is within the limits
stipulated under drinking water standards
(IS:10500-1995). Levels of Chromium, Copper
and lead were found to be higher in
comparison to the parameters stipulated
under drinking water standards (IS:10500-
1995), other heady metal concentrations, viz.
iron, manganese, zinc and arsenic were found
in the range 0.01-0.05 mg/L, ND-0.01 mg/L
and ND-0.08 mg/L respectively which are
within the drinking water standards (IS:10500-
1995).
To assess the impact on groundwater quality
due to secured and fill sites and other waste
disposal facilities, five samples were collected
from monitoring wells (shallow bore wells
located around the waste disposal sites). The
Physico-Chemical characteristics of well water
around secured land fill site and gypsum pond
showed mineral contents higher then the
levels stipulated in IS: 10500-1995 in terms of
dissolved solids (400-3245 mg/L), alkalinity
(57-137 mg/L), hardness (290-1280 mg/L),
chloride (46-1390 mg/L), sulphate (177-649
mg/L) and sodium (9-271 mg/L). The results of
nutrient demand parameters showed
phosphate in the range 0.1-0.5 mg/L while
nitrate was in the range 0.8-11.7 mg/L at all
sampling locations, which are within the levels
stipulated in IS:10500-1995, whereas level of
arsenic was found in the range of ND-0.08
mg/L as against the stipulated limit of 0.05
mg/L under drinking water standards
(IS:10500-1995). Levels of cadmium,
chromium, copper and lead were also found to
exceed the drinking water standards in some
of the wells.
51Page 52
The hourly composite wastewater samples
were collected at six locations. During the
sample collection, flow monitoring was also
carried out at the inlet and final outlet of the
effluent treatment plant (ETP). The
concentrations of total dissolved solid (TDS)
and sulphate exceed the limit stipulated by the
TNPCB for treated effluent. All the other
parameters are within the consent conditions
prescribed by TNPCB. The treated effluent is
being recycled back in the process to achieve
zero discharge.
Soil Environment
Soil samples were also analyzed for level of
heavy metals. The soil samples at the plant
site showed presence of As (132.5 to 163.0
mg/kg), Cu (8.6 to 163.5 mg/kg), Mn (283 to
521.0 mg/kg) and Fe (929.6 to 1764.6 mg/kg).
Though there is no prescribed limit for heavy
metal contents in soil, the occurrence of these
heavy metals in the soil may be attributed to
fugitive emission, solid waste dumps, etc.”
It will be clear from the extracts from the Executive
Summary of NEERI in its report of 2005, that while some of
the emissions from the plant of the appellants were within
the limits stipulated by the TNPCB, some of the emissions
did not conform to the standards stipulated by TNPCB. It will
also be clear from the extracts from the Executive Summary
52Page 53
relating to water environment that the surface water
samples were found to be within the prescribed limits of
drinking water (IS:10500-1995) whereas ground water
samples showed high mineral contents in terms of dissolved
solids as compared to the drinking water standards, but
concentrations of nutrient demand parameters revealed that
the phosphate and nitrate contents were within the limits
stipulated under drinking water standards and levels of
chromium, copper and lead were found to be higher in
comparison to the parameters stipulated under drinking
water standards, whereas the heavy metal concentrations,
namely, iron, manganese, zinc and arsenic were within the
drinking water standards. Soil samples also revealed heavy
metals. Regarding the solid waste out of slag in the plant
site, the CPCB has taken a view in its communication dated
17.11.2003 to TNPCB that the slag is non-hazardous. Thus,
the NEERI report of 2005 did show that the emission and
effluent discharge affected the environment but the report
read as whole does not warrant a conclusion that the plant
of the appellants could not possibly take remedial steps to
53Page 54
improve the environment and that the only remedy to
protect the environment was to direct closure of the plant of
the appellants.
37. In fact, this Court passed orders on 25.02.2011
directing a joint inspection by NEERI (National Engineering
and Research Institute) with the officials of the Central
Pollution Control Board (for short ‘the CPCB’) as well as the
TNPCB. Accordingly, an inspection was carried out during 6th
April to 8th April, 2011 and 19th April to 22nd April, 2011 and a
report was submitted by NEERI to this Court. On
18.07.2011, this Court directed the Tamil Nadu Government
and the TNPCB to submit their comments with reference to
the NEERI report. On 25.08.2011, this Court directed TNPCB
to file a synopsis specifying the deficiencies with reference
to the NEERI report and suggest control measures that
should be taken by the appellants so that this Court can
consider the direction to be issued for remedial measures
which can be monitored by the TNPCB. Accordingly, the
TNPCB filed an affidavit dated 30.08.2011 along with the
chart of deficiencies and measures to be implemented by
54Page 55
the appellants and on 11.10.2011, this Court directed the
TNPCB to issue directions, in exercise of its powers under the
Air Act and the Water Act to the appellants to carry out the
measures and remove the deficiencies indicated in the chart.
Pursuant to the order dated 11.10.2011, the TNPCB issued
directions to the appellants and on 17.01.2012, the
appellants claimed before the Court that they have removed
the deficiencies pointed out by the TNPCB and on
27.08.2012, this Court directed that a joint inspection be
carried out by TNPCB and CPCB and completed by 14th
September, 2012 and a joint report be submitted to this
Court.
38. The conclusion in the joint inspection report of CPCB and
TNPCB is extracted hereinbelow:
“Out of the 30 Directions issued by the Tamil
Nadu Pollution Control Board, the industry
has complied with 29 Directions. The
remaining Direction No.1(3) under the Air Act
on installation of bag filter to converter is at
the final stage of erection, which will require
further 15 working days to fully comply as
per the industry’s revised schedule.”
55Page 56
From the aforesaid conclusion of the joint inspection report,
it is clear that out of the 30 directions issued by the TNPCB,
the appellant-company has complied with 29 directions and
only one more direction under the Air Act was to be complied
with. As the deficiencies in the plant of the appellants which
affected the environment as pointed out by NEERI have now
been removed, the impugned order of the High Court
directing closure of the plant of the appellants is liable to be
set aside.
39. We may now consider the contention on behalf of the
interveners that the appellants were liable to pay
compensation for the damage caused by the plant to the
environment. The NEERI reports of 1998, 1999, 2003 and
2005 show that the plant of the appellant did pollute the
environment through emissions which did not conform to the
standards laid down by the TNPCB under the Air Act and
through discharge of effluent which did not conform to the
standards laid down by the TNPCB under the Water Act. As
pointed out by Mr. V. Gopalsamy and Mr. Prakash, on
account of some of these deficiencies, TNPCB also did not
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renew the consent to operate for some periods and yet the
appellants continued to operate its plant without such
renewal. This is evident from the following extracts from the
NEERI report of 2011:
“Further, renewal of the Consent to Operate was
issued vide the following Proceedings Nos. and
validity period:
TNPCB Proceeding Validity
Upto
No.T7/TNPCB/F.22276/RL/TTN/W/2007
dated 07.05.2007
No.T7/TNPCB/F.22276/RL/TTN/A/2006
dated 07.05.2007
30-09-2007
No.T7/TNPCB/F.22276/URL/TTN/W/20
08 dated 19.01.2009
No.T7/TNPCB/F.22276/URL/TTN/A/200
8 dated 19.01.2009
31-03-2009
No.T7/TNPCB/F.22276/URL/TTN/W/20
09 dated 14.08.2009
No.T7/TNPCB/F.22276/URL/TTN/A/200
9 dated 14.08.2009
31-12-2009
Thereafter, the TNPCB did not renew the Consents
due to non-compliance of the following conditions:
Under Water Act, 1974
i. The unit shall take expedite action to achieve the
time bound target for disposal of slag, submitted
to the Board, including BIS clearance before
arriving at disposal to cement industries, marine
impact study before arriving at disposal for landfill
in abandoned quarries.
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ii. The unit shall take expedite action to dispose the
entire stock of the solid waste of gypsum.
Under Air Act, 1981
i. The unit shall improve the fugitive control
measure to ensure that no secondary fugitive
emission is discharged at any stage, including at
the points of material handing and vehicle
movement area.”
For such damages caused to the environment from 1997 to
2012 and for operating the plant without a valid renewal for
a fairly long period, the appellant-company obviously is
liable to compensate by paying damages. In M.C. Mehta and
Another vs. Union of India and Others [(1987) 1 SCC 395], a
Constitution Bench of this Court held:
“The enterprise must be held to be
under an obligation to provide that the
hazardous or inherently dangerous
activity in which it is engaged must be
conducted with the highest standards of
safety and if any harm results on
account of such activity, the enterprise
must be absolutely liable to compensate
for such harm and it should be no
answer to the enterprise to say that it
had taken all reasonable care and that
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the harm occurred without any
negligence on its part.”
The Constitution Bench in the aforesaid case further
observed that the quantum of compensation must be corelated to the magnitude and capacity of the enterprise
because such compensation must have a deterrent effect
and the larger and more prosperous the enterprise, the
greater must be the amount of compensation payable by it.
In the Annual Report 2011 of the appellant-company, at
pages 20 and 21, the performance of its copper project is
given. We extract hereinbelow the paragraph titled Financial
Performance:
“PBDIT for the financial year 2010-11
was Rs.1,043 Crore, 40% higher than
the PBDIT of Rs.744 Crore for the
financial year 2009-10. This was
primarily due to higher LME prices and
lower unit costs at Copper India and with
the improved by-product realization.”
Considering the magnitude, capacity and prosperity of the
appellant-company, we are of the view that the appellant company should be held liable for a compensation of Rs. 100
crores for having polluted the environment in the vicinity of
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its plant and for having operated the plant without a renewal
of the consents by the TNPCB for a fairly long period and
according to us, any less amount, would not have the
desired deterrent effect on the appellant-company. The
aforesaid amount will be deposited with the Collector of
Thoothukudi District, who will invest it in a Fixed Deposit
with a Nationalized Bank for a period of five years. The
interest therefrom will be spent for improving the
environment, including water and soil, of the vicinity of the
plant after consultation with TNPCB and approval of the
Secretary, Environment, Government of Tamil Nadu.
40. We now come to the submission of Mr. Prakash that
we
should not grant relief to the appellants because of
misrepresentation and suppression of material facts made in
the special leave petition that the appellants have always
been running their plant with statutory consents and
approvals and misrepresentation and suppression of
material facts made in the special leave petition that the
plant was closed at the time the special leave petition was
moved and a stay order was obtained from this Court on
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01.10.2010.
There is no doubt that there has been
misrepresentation and suppression of material facts made in
the special leave petition but to decline relief to the
appellants in this case would mean closure of the plant of
the appellants.
The plant of the appellants contributes
substantially to the copper production in India and copper is
used in defence, electricity, automobile, construction and
infrastructure etc.
The plant of the appellants has about
1300 employees and it also provides employment to large
number of people through contractors. A number of
ancillary industries are also dependent on the plant.
Through its various transactions, the plant generates a huge
revenue to Central and State Governments in terms of
excise, custom duties, income tax and VAT.
It also
contributes to 10% of the total cargo volume of Tuticorin
port.
For these considerations of public interest,
we do not
think it will be a proper exercise of our discretion under
Article 136 of the Constitution to refuse relief on the grounds
of misrepresentation and suppression of material facts in the
special leave petition.
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41. Before we part with this case, we would like to put on
record our appreciation for the writ petitioners before the
High Court and the intervener before this Court for having
taken up the cause of the environment both before the High
Court and this Court and for having assisted this Court on all
dates of hearing with utmost sincerity and hard work.
In
Indian Council for Enviro-Legal Action and Others vs. Union
of India and Others [(1996) 3 SCC 211],
this Court observed
that voluntary bodies deserve encouragement wherever
their actions are found to be in furtherance of public interest.
Very few would venture to litigate for the cause of
environment, particularly against the mighty and the
resourceful, but the writ petitioners before the High Court
and the intervener before this Court not only ventured but
also put in their best for the cause of the general public.
42. In the result, the appeals are allowed and the impugned
common judgment of the High Court is set aside. The
appellants, however, are directed to deposit within three
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months from today a compensation of Rs.100 crores with the
Collector of Thoothukudi District, which will be kept in a fixed
deposit in a Nationalized Bank for a minimum of five years,
renewable as and when it expires, and the interest
therefrom will be spent on suitable measures for
improvement of the environment, including water and soil, of
the vicinity of the plant of the appellants after consultation
with TNPCB and approval of the Secretary, Environment,
Government of Tamil Nadu.
In case the Collector of
Thoothukudi District, after consultation with TNPCB, finds the
interest amount inadequate, he may also utilize the principal
amount or part thereof for the aforesaid purpose after
approval from the Secretary, Environment, Government of
Tamil Nadu.
By this judgment, we have only set aside the
directions of the High Court in the impugned common
judgment and we make it clear that this judgment will not
stand in the way of the TNPCB issuing directions to the
appellant-company, including a direction for closure of the
plant, for the protection of environment in accordance with
law.
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43. We also make it clear that the award of damages
of Rs. 100 Crores by this judgment against the appellant Company for the period from 1997 to 2012 will not stand in the way of any claim for damages for the aforesaid period or any other period in a civil court or any other forum in accordance with law.
.……………………….J.
(A. K. Patnaik)
………………………..J.
(H. L. Gokhale)
New Delhi,
April 2, 2013.
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