187.It is reiterated that the impugned Government Order is not a policy decision. Even assuming it was a policy, it does not refer to any antecedents. The events till 2013 are of no relevance to render a finding that Page http://www.judis.nic.in 231 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 as on date, the petitioner is not a polluting industry and the events till 2013 may be relevant only when this Court proceeds to decide the relief to be granted in the writ petitions. Thus, it is the contention of the learned Senior Counsel that whatever happened before 2013 is a closed chapter and cannot be raised now and the respondents are barred by principles of res judicata. The 2013 judgment of the Hon'ble Supreme Court is res judicata qua the events occurred prior to 2013.
188.By referring to paragraph 50 of the 2013 judgment, it is submitted that closure can only be in accordance with law and therefore, it can only be for any other new reasons. The principles of res judicata will apply to all parties, the Government and the TNPCB. Before the Hon'ble Supreme Court, the respondents stated that the petitioner has complied with 29 out of the 30 conditions. However, now they are taking a different stand, which is impermissible. It is further submitted that principles of constructive res judicata is equivalent to the principles of res judicata. Page http://www.judis.nic.in 232 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019
189.The learned Senior Counsel by referring to a tabulated statement, submitted that all issues raised by the private respondents were raised by them as part of their pleadings before the Hon'ble Supreme Court in 2013. In this regard, the learned counsel referred to the various paragraphs of the pleadings before the Hon'ble Supreme Court and this Court by Mr.Vaiko, Ms.Fatima, Ms.Swetha Narayanan, Mr.K.S.Arjunan, National Trust for Clean Environment, Mr.Raju and the oral submissions made by their respective counsels. Therefore, it is submitted that the respondents cannot make a prayer for overruling the orders passed by the Hon'ble Supreme Court in the 2013 judgment.
190.It is submitted that there was certain adverse observation by NEERI in 1998, which showed pollution. The 1992 and 2003 NEERI reports did not allege any pollution. In the 2005 NEERI report, certain suggestions were made. Thus, taking note all these factors into consideration and that the Page http://www.judis.nic.in 233 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 petitioner was operating without consent till 2012, the Hon'ble Supreme Court imposed a fine of Rs.100 Crores. Thus, the petitioner has already been sentenced for the said violation, the Hon'ble Supreme Court considered the period between 2005 and 2013 and having found no pollution, issued directions for permitting operations of the petitioner unit. The 2013 judgment of the Hon'ble Supreme Court has rendered findings on facts and the respondents cannot now reassess the same facts and state that the industry has to be closed especially when, the petitioner has already been punished. It is submitted that the principles of constructive res judicata will equally apply to principles of res judicata and it will apply to public interest litigants, apply to individuals, who are not parties to the earlier litigation. In this regard, the learned Senior Counsel referred to the decisions of the Hon'ble Supreme Court in Asgar vs. Mohan Varma [2019 (2) Scale 530]; State of Karnataka & Anr. vs. All India Manufacturers Organisation & Ors. [(2006) 4 SCC 683]; Joydeep Mukharjee vs. State of West Bengal & Ors. [(2011) 2 SCC 706]; Page http://www.judis.nic.in 234 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 Daryao & Ors. vs. State of U.P. & Ors. [AIR 1961 SC 1457]; and Amalgamated Coalfields Ltd. vs. Janapada Sabha Cjjomdwara [AIR 1964 SC 1013].
191.Mr.G.Masilamani, learned Senior Counsel appearing for the petitioner, while questioning the validity of the impugned Government Order, submitted that the powers conferred on TNPCB cannot be exercised by the Government and if done, it will be a scramble for power resulting in chaos. If the field of legislation is occupied, the State and TNPCB can exercise the power conferred under the Act and in the instant case, the State is trying to usurp the power of the TNPCB. If law mandates a thing to be done in a particular manner, it shall be done only in that manner. By passing a consequential order dated 28.05.2018, TNPCB has abdicated its power. It is submitted that Section 28 of the Water Act provides for appeal remedy and in terms of sub-Section (1) of Section 28, appeal lies against orders of the State Page http://www.judis.nic.in 235 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 Board under Sections 25, 26 and 27 whereas, no appeal is provided against the order of the State Government, because the State Government cannot pass an order directly affecting an individual. Therefore, the State Government can give a general direction/guideline of something like a policy. The respondent- State does not trace its power to Section 29 of the Act and if it does so, then the procedure under the proviso to Section 29(1) has to be followed, which provides for “reasonable opportunity to be afforded to the affected”.
192.Referring to Section 106 of the Indian Evidence Act, 1872, it is submitted that the burden is on the State to show that they have power to pass the impugned order and if the order is not under Section 29, then it is void ab initio. If the State would accept that the order is under Section 29 of the Water Act, then the petitioner can file an appeal against such order before the NGT. It is further submitted that all materials were available with the TNPCB and they thought fit not to renew the consent to operate, which would mean that it Page http://www.judis.nic.in 236 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 can be renewed upon compliance of the directions. The TNPCB did not deem fit to seal the unit and nowhere in the provisions of the Water Act, this word is found or used. The power conferred on TNPCB to prohibit is only for a new industry and not in respect of an industry which is functioning. Further, the words “permanent closure” are not found in the Water Act or the Air Act. Assuming power exists for closure, then such power can only be at the hands of the TNPCB and not with that of the Government.
193.It is further submitted that the Hon'ble Supreme Court has held that the impugned order is an administrative order and not an executive order, as it has not gone through the trajectory to term it as a policy. The State Government was not reasonable in imposing the punishment of permanent closure. The exercise of power is draconian and whimsical. There was absolutely no need to seal the premises, as no secret operation was done by the petitioner. The petitioner is entitled to maintain the property and, the interest Page http://www.judis.nic.in 237 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 of its shareholders, financiers, banks should not be affected. The sealing of the petitioner industry is in direct violation of Article 300A of the Constitution of India. It is a direct infraction of the right to property and, for the past 1½ years, the industry has been closed and it is an indirect way of driving the petitioner out. The classification of the industry as red, orange, green and white is not based on the size of the industry, but on the pollution index and, if the TNPCB or the State Government was to classify the industry, a thorough study is required.
194.Further, it is submitted that copper slag is not leachable, the phosphogypsum is being stored by the petitioner as per the TNPCB norms, hazardous waste is disposed as per the rules and, no pollution has been caused by the petitioner and the respondents are proceeding solely based on doubt. It is further submitted that during 2007, the petitioner achieved full capacity and there has been no increase thereafter. The AAQ could not have been affected Page http://www.judis.nic.in 238 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 on account of the petitioner's operation, as several new industries have been established after 2007, including seven power plants and four more such power plants are in the pipeline. On the above submissions, the learned Senior Counsel submitted that it is for the Government to establish their source of power to sustain the impugned orders.
195.It is submitted that the impugned order has to stand on its own terms, which will be the first aspect of the matter and the second aspect is whether the petitioner unit is a polluting industry or not; is it violating Article 21 of the Constitution. The justification on the first aspect cannot be made applicable for the second aspect.
196.It is reiterated that the Hon'ble Supreme Court in its 2013 judgment, considered all issues up to 2013 and after taking note of the NEERI report of 2005, it was held that if such report is read as a whole, remedial Page http://www.judis.nic.in 239 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 measures can be taken and, closure was not justified, if remedial measure was possible. Further, it is submitted that review petition was filed before the Hon'ble Supreme Court raising all points which have been urged before this Court by the intervenors and the review petition was rejected. Therefore, 2013 is a “full stop” for anything that had happened prior to the said date.
197.The learned Senior Counsel referred to the May, 2011 NEERI report and submitted that such report was prepared pursuant to orders passed by the Hon'ble Supreme Court dated 25.02.2011, by which an independent assessment of the situation and condition prevailing with the petitioner and its factories with reference to the environmental pollution, was directed to be conducted after a joint inspection with the officials of CPCB and TNPCB and the PIL petitioners. In addition to the officials of the CPCB and TNPCB and the PIL petitioner, Bhabha Atomic Research Centre (BARC), Mumbai was engaged for assessment of radon concentration at the industry site, as the issue Page http://www.judis.nic.in 240 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 of monitoring radon was raised by one of the PIL petitioners, who alleged that the petitioner uses uranium tainted copper concentrate and, two members from st nd BARC conducted the monitoring during 21 - 22 April, 2011.
198.It is submitted that the petitioner seeks to rely upon the report to demonstrate before this Court that all factors were considered in the presence of all concern including the PIL petitioners. It is submitted that though the petitioner wanted to clear the slag, the respondents did not allow and, TNPCB did nothing for close to 1½ years and while so, to order permanent closure of the plant is a motivated action because if the petitioner industry was such a highly polluting industry and continuing to pollute, nothing prevented the respondents from initiating action earlier. Further, it is submitted that the May, 2011 NEERI report states that the assessment of UF and RO system indicates that the permeate (treated water) from RO system means stipulated limit of TNPCB concerned for all the parameters monitored; there is no Page http://www.judis.nic.in 241 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 allegation that the petitioner did not maintain the zero discharge plant; there was no allegation that the RO plant was not working.
199.Further, it is submitted that in the said NEERI report, there is a reference to a chemical industry – Kilburn Chemical Limited, which is also located adjacent to a water body engaged in the manufacture of titanium dioxide, ferrous sulphate, hydrochloric oxide and that they were storing acidic effluent in unlined underground tanks with possibility of ground water contamination. It is submitted that though such is the finding in the report, TNPCB took no action against Kilburn, nor the public interest litigant did anything against Kilburn and the petitioner alone is being targeted.
200.Further, by referring to the report, it is submitted that there is a specific finding that the ground water characteristics from bore wells and dugwells located in villages around the petitioner do not indicate the presence Page http://www.judis.nic.in 242 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 of marker pollutant, viz., arsenic, zinc, fluoride in concentration exceeding the IS Drinking Water Standards (2005). Further, the learned counsel referred to the findings in the report with regard to the surrounding area outside the industry premises and in particular, with regard to the fluoride and toxic metals and it was observed that randomly high concentration of PM10 and PM2.5 at specific locations inside the industry premises may be due to implant fugitive emissions, raw materials storage and handling activities.
201.The report noted that in all the locations outside the industry premises (surrounding areas), the concentration of PM10 and PM2.5 were within the stipulated norms. In the light of the said observations, recommendations were made, likewise, the report stated that the emission of particulate matter from waste heat recovery boiler was found to be more than the stipulated regulatory limit. Immediately, the petitioner changed the system adopted by them.
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202.The learned counsel also referred to the findings in the report pertaining to the status of the waste generation and their management, granulated slag. Further, the report stated that as per the HWM Rules, copper slag generated from copper smelter has been categorized as non-hazardous waste and has been de-listed from hazardous waste category and it does not require disposal in SLF and also no specified type of time for the storage of the slag is delineated in the Rules.
203.Reference was also made to the findings regarding phosphogypsum and the parameters in Toxicity Characteristic Leaching Procedure (TCLP) and water leachate of phosphogypsum was found to be within the prescribed regulatory norms. It is submitted that though the CPCB granted time for constructing the pond as per the new design, it cannot be alleged that the petitioner has not complied with the same well before the expiry of the time limit especially when, the petitioner's existing pond has Page http://www.judis.nic.in 244 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 better facilities than other industries, who are storing phosphogypsum, who do not have any such facility. In this regard, the learned counsel submitted that M/s.SPIC has been granted extension of time to construct the new type of gypsum pond as per the specifications of CPCB.
204.The learned counsel has drawn the attention of this Court to the conclusions, which have been drawn in the report in paragraph 12.0 and the recommendations made by the Committee in paragraph 13.0 of its report.
205.It is submitted that the TNPCB by proceedings dated 24.10.2011, issued directions under Section 31A of the Air Act, referring to the deficiency chart, which was taken note of by the Hon'ble Supreme Court while issuing directions, vide order dated 11.10.2011. Similarly, directions were issued under Section 33A of the Water Act and the directions have been complied with. Therefore, all issues cannot be re-visited once over again. Page http://www.judis.nic.in 245 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 Further, the reference to the liberty granted by the Hon'ble Supreme Court in its 2013 judgment is to take fresh action and not to re-open an old issue. Further, it is submitted that though the major SO2 emission is done by the thermal power plants, TNPCB has not taken any action against those plants. In this regard, reference was made to Notification No.SO 3305 (E), dated 07.12.2015, which notified the new emission of water standards for thermal power plants. In the light of the said notification, the averments made in the counter filed by the TNPCB qua power plants have to be rejected as false.
206.So far as the development of green belt is concerned, it is submitted that directions were issued under Section 31A of the Air Act, dated 24.10.2011, to improve the green belt development. However, when order of consent was issued in 2016/2017, there is no condition with regard to the green belt, which presupposes that the earlier conditions/recommendations have been complied with. It is further reiterated that copper slag has been Page http://www.judis.nic.in 246 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 removed from the Schedule of Hazardous Material, which is not toxic and in spite of all these, TNPCB cannot argue that still it would be hazardous under the provisions of the Water/Air Act. If copper slag has been removed/deleted from the schedule, it would mean that it is non-hazardous and it is not an exemption from the provisions of the Act.
207.The learned Senior Counsel had referred to a tabulated statement containing the compliance status to the consent conditions and voluntary commitments by the petitioner with regard to the copper slag and phosphogypsum. One of the conditions in the consent order dated 19.04.2005, is that the slag shall be stored in an impervious platform before disposal and the unit shall furnish proposal for final disposal of slag in SLF or through export without accumulation on the premises. It is submitted that the petitioner had complied with the disposal of the slag in terms of Special Condition No.23 in the consent to establish dated 22.05.1995 wherein, Page http://www.judis.nic.in 247 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 disposal was permissible for consent blasting to land filling and road laying, etc. The purchaser of the slag has stored it from 2010 and when samples were drawn in 2017, there was no leachate.
208.It is submitted that TNPCB had referred to a report submitted by M/s.SGS dated 12.10.2018, which is said to have been prepared six months after the petitioner had closed down. However, the methodology adopted is not the TCLP, and in the Manual of Sampling, Analysis and Characterisation of Hazardous Wastes, published by the CPCB, it is stated that the TCLP method is applicable to the determination of mobility of metals, semi-volatile organic compound in solids. Further, it is submitted that the compliance status will clearly show that the petitioner did not violate any of the consent conditions, the TCLP test results showed that it was within parameters, slag was deleted from the schedule of hazardous material and the regime for disposal of copper slag was mentioned in the NEERI report, which was Page http://www.judis.nic.in 248 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 noticed by the Hon'ble Supreme Court and this was followed by an inspection by TNPCB and there is nothing to say that the slag is hazardous and hence, ordering closure on the said ground is not sustainable.
209.It is submitted that an information was obtained under the Right to Information Act (RTI Act) from the Gujarat Pollution Control Board seeking details regarding the consent and HW authorisation granted to M/s.Hindalco Industries Limited and in the consent order, granulated slag and phosphogypsum have been shown as by-products. It is submitted that NEERI had classified slag to be non-hazardous and the Hon'ble Apex Court accepted the said submission and now the TNPCB cannot say it is hazardous.
210.It is submitted that Rule 3(17) of the HWM Rules, 2016 defines “hazardous waste” to mean “any waste” which by reason of characteristics such as physical, chemical, biological, reactive, toxic, flammable, explosive or Page http://www.judis.nic.in 249 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 corrosive, causes danger or is likely to cause danger to health or environment, whether alone or in contact with other wastes or substances and shall include waste specified in Part-A of Schedule-III in respect of import or export of such wastes or the wastes not specified in Part-A, but exhibit hazardous characteristics specified in Part-C of Schedule-III. It is submitted that Part-A of Schedule-III is applicable for import and export of hazardous wastes. In Part-B, Basel No.B2040 includes slag from copper production, that is, to process copper slag. However, Part-B is not included in Rule 3(17)(iii), which defines “hazardous wastes”.
211.It is further submitted that Part-C of Schedule-III to the HWM Rules gives the “list of hazardous characteristics” and in Code No.H13, hazardous characteristic or material capable, by any means, after disposal, of yielding another material, example leachate, which possesses any of the characteristics listed in Code Nos.H1 to H12.
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212.It is submitted that the National Metallurgical Laboratory (NML) in 2006 was engaged to carry out toxicity characteristic leachate procedure on the copper slag and it observed that slag is extremely stable with respect to the leachability of the inorganic elements present in the slag and poses absolutely no risk in terms of toxicity for storage, disposal, landfill and its use as a constitute of cement or bituminous pavement. The results of the study indicate poor leachability of the heavy metals and assures long term stability and it recommended that slag is safe to be considered for use in Portland cement, building materials and bituminous pavement constructions and slag samples are non-toxic and pose no environmental hazard from the view point of leachability of heavy metals. Thus, it is submitted that the petitioner has not violated the terms of the HWM Rules.
213.It is submitted that the TNPCB relied upon a research paper submitted in the Stanford University and the process, which was examined in Page http://www.judis.nic.in 251 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 the report, where units had smelters which were very old and operating without permits, metal smelting technologies. Furthermore, the unit was also a mining location and wastes generated were from both mines and smelting process and there were no documented evidences of solid wastes or water management. In terms of technology, there has been lot of advancement and the technology adopted by the petitioner is the most efficient metal smelting technology as on today.
214.Though certain observations were made by the learned Senior Counsel by contending that Mr.Michael Parsons was only a student at Stanford and the report does not deserve to be looked into etc., are not taken into consideration and those submissions would stand eschewed, as it is not germane to the issue argued before us.
215.It is further submitted that the allegations against the petitioner would boil down to three viz. SLF is not proper; phosphogypsum is leachable, Page http://www.judis.nic.in 252 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 polluting the land and green water; and copper slag is leachable, hard metals are getting into the earth. Had the TNPCB conducted a source apportionment study as directed by the NGT to be done, all these allegations cannot be made against the petitioner, because the question is whether the petitioner is polluting and not that the water quality is alleged to be bad. Thus, in the absence of any colossal action between the petitioner and the alleged pollution, order of closure could not have been passed.
216.It is further submitted that the respondents would contend that TDS and sulphates must be included as marker pollutants and there is a big fallacy in the said submission, as if there is no increase in arsenic, zinc and fluoride, then there can be no increase in TDS and sulphates. The respondents do not dispute that the petitioner is a zero discharge unit whereas, there are several industries in the SIPCOT Industrial Complex discharging effluent 3 apart from 11 lakh cm sea water drawn per day by the thermal power plant. Page http://www.judis.nic.in 253 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019
217.The learned counsel referred to the report on the impact of the thermal effluents on the CV belt at Thoothukudi Bay. It is submitted that the petitioner has a thermal power plant within the factory premises, which is also a zero discharge plant whereas, the other three plants, which were existing in Thoothukudi, are discharging into the sea.
218.The learned Senior Counsel, referring to a paper presented on impact of thermal effluents on seaweed bed of Thoothukudi Bay, submitted that the study shows that thermal (heat) is one of the seven major categories of environmental pollution and thermal power plant contributes significantly to environmental pollution. The thermal pollution due to cooling water, waste water and fly ash slurry discharge are bound to have detrimental effects on the hydrography of the receiving waters. It is submitted that the study states that hot water effluent generated by the cooling condenser in thermal power plants with particular reference to the Thoothukudi Thermal Power Station (TTPS) is Page http://www.judis.nic.in 254 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 pumped directly into the Bay and in addition, there is waste water outlet also located one kilometre westward of the hot water outlet.
219.It is further submitted that the pollution from TTPS over the years had created a barren intertidal area almost devoid of seaweeds and seagrass beds and also changed the once blue clear waters of Thoothukudi Bay into an area with high turbidity and non productive bottom muddy area. It is submitted that the study reveals that dumping of thermal and waste water effluents and fly ash into Thoothukudi Bay has caused extensive damage to this fragile system whereas, the petitioner's captive thermal plant is zero discharge plant whereas, the other three thermal power plants in Thoothukudi discharge into the sea.
220.It is submitted that the argument of the petitioner is not that the thermal power plants are violating their consent conditions, but the argument Page http://www.judis.nic.in 255 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 is that they are causing pollution and this is precisely the reason as to why the petitioner insists upon a source apportionment study.
221.It is submitted that the respondent relied upon a report on impact of other industries on ground water contamination and according to TNPCB, this is an apportionment study. However, the TNPCB does not give any remarks in respect of solar evaporator plants and no checks have been made on the panels, nor any study on the TDS contribution of seafood processing plant. This argument is put forth to state that the report relied on by the TNPCB cannot be construed as a source apportionment study.
222.The learned Senior Counsel referred to a sample scope document to demonstrate as to how source apportionment study for an area has to be conducted and without doing so, the petitioner has been victimised, that too, without any scientific analysis. It is reiterated that M/s.Greenstar Page http://www.judis.nic.in 256 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 Fertilizers Limited has been granted extension of time for constructing the gypsum storage pond beyond the time limit prescribed by CPCB, which came to an end in September, 2019. It is further submitted that TNPCB argued that the SLF is not proper. However, no show cause notice was issued to the petitioner in this regard, nor there was any allegation about improper maintenance of the SLF and the fact that consent was granted to the petitioner will show that such argument before this Court is not tenable. The SLF Cell-I was inspected by the authorities of Anna University and reported to confirm to all requirements. Therefore, if according to TNPCB, there is anything new to be done, then the petitioner has to be directed to do so and the same cannot be a reason for closure of the unit. Compared to the other copper smelting plants in the Country such as Hindustan Copper, Birla Copper, etc., the petitioner has the latest state of art technology in the country and there is no justification for closure of the petitioner's unit.
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223.It is submitted that though the order passed by the NGT was set aside by the Hon'ble Apex Court on the ground of lack of jurisdiction, the report submitted by the fact finding committee has evidentiary value. The 2013 incident is not attributable to the petitioner and even assuming it had happened, the same cannot be a ground to close down the industry for an alleged past incident. This is more so because, there is no allegation made by TNPCB of any recurrence of such incident.
224.Further, reiterating his earlier submissions, the learned Senior Counsel would state that the impugned Government Order, ordering permanent closure, is an administrative decision and, not a policy decision. Further, Article 48A of the Constitution cannot be pressed into service, when closure is under the Water Act and if there is a challenge to a statutory enactment, Article 48A can be pressed into service to sustain the enactment and in other circumstances, when the field is occupied by legislation, Article 48A cannot be brought in.
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225.It is further submitted that Article 37 of the Constitution will be applied while making laws, and directive principles of state policy cannot be applied while exercising an executive power under the Water Act. Reference was made to Rule 10(1)(a)(ii) of the Transaction of Business Rules to submit that the impugned Government Order cannot be treated as a policy decision. In this regard, it is submitted that the decision in the case M.P.Oil Extraction relied on by the respondents is distinguishable. To emphasis his submissions, reliance was placed on the decision in the case of Balco Employees' Union, where there was a policy of disinvestment and the decision of the Government to a policy of disinvestment was subject matter of challenge and hence, the Apex Court held it cannot interfere with a policy decision. Thus, by applying the tests in paragraph 57 of the Balco Employees' Union's case, it will be clear that there is no policy decision while passing the impugned Government Order.
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226.It is further submitted that if according to the Government, the original decision taken in 1994 to permit the petitioner to establish the unit was a policy decision, then without a policy decision, the petitioner cannot be closed down. With regard to a single person legislation, the learned Senior Counsel referred to the decision in S.P.Mittal. In the said decision, several considerations were taken note of, Auroville was treated as a class apart. Therefore, it is submitted that there are no special circumstances brought out by the respondents to treat the petitioner differently and if so, there should be material and there should be application of mind of such material. The statute does not create a separate classification within the red category industries and the respondents cannot create any sub-classification under the said category. That apart, the classification of the industries into various categories such as red, orange, etc., has already been done by CPCB and there can be no further sub-classification, that too, without consultation with CPCB. Therefore, it is clear that the action against the petitioner is clearly discriminatory. Page http://www.judis.nic.in 260 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019
227.It is submitted that the decision in the case of Prof.M.V.Nayudu, which was referred to by the respondent, was a case where the decision was based on scientific uncertainty whereas, in the petitioner's case, there is no such uncertainty, as all authorities have submitted reports and there is sufficient scientific data available in favour of the petitioner and therefore, the decision in Prof.M.V.Nayudu would support the case of the petitioner.
228.With regard to the allegation regarding the calibration done by the petitioner during midnight, the petitioner has given a detailed explanation and the equipment, which was used earlier in SAP-I, needed calibration once a month and as of now, the equipment has been changed. The learned Senior Counsel also referred to the rejoinder submissions in this regard.
229.Mr.P.S.Raman, learned Senior Counsel appearing for the petitioner submitted that the first issue he would address is on the value of Page http://www.judis.nic.in 261 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 evidences and the onus of proof. It is submitted that the reports of various statutory authorities and other technical bodies merit acceptance and these reports would supersede all raw data given by the respondents/intervenors. It is submitted that the principle 'anti inter mortem' stands on much higher pedestal, that is, the evidence just before the dispute had arisen. It is submitted that there was an inspection by TNPCB on 27.02.2018 and further inspection on 28.02.2018 for authorisation under the HWM Rules. The last date on which air samples were drawn was on 30.03.2018 and water sample on 30.04.2018 and all these test reports do not suggest anything against the petitioner. Therefore, any subsequent data cannot be given any weightage. Further, by referring to the information secured under RIT Act, it is submitted that the AAQ monitoring prior to the closure of the petitioner and after closure of the petitioner has remained unchanged except particulate matter which has increased. In this regard, the learned counsel referred to the submissions in the sur-rejoinder filed by the petitioner to the rejoinder filed by the respondents. Page http://www.judis.nic.in 262 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 The fact that there has been increase in the particulate matter after the closure of the petitioner unit would show that the petitioner is not the attributer. The learned counsel referred to the National Air Quality Index and submitted that Thoothukudi is safer than Chennai. Thus, it is submitted that other than the shooting incidence, there was no change of circumstances for closure or for permanent closure.
230.Nextly, addressing on the issue as to the provocation and circumstances leading to the impugned order, it is submitted that there is not even simmering discontent between 2013 and 2018. On 14.11.2016, the petitioner informed the National Stock Exchange about the grant of consent for expansion and only after the petitioner started the expansion work, during December 2016, protests started. During February, 2018, the petitioner applied for renewal of consent of the existing unit for which, an inspection was conducted on 27.02.2018 by the TNPCB. On 21.03.2018, the protesters Page http://www.judis.nic.in 263 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 convened a meeting in Thoothukudi and objected to the very running of the plant, though the initial protest during February, 2018 was only against expansion. As a consequence, on 09.04.2018, TNPCB rejected the application for renewal of consent challenging which, an appeal was filed before the Appellate Tribunal in which, TNPCB filed counter raising only five grounds which were mentioned in the order dated 09.04.2018. The case was adjourned to enable the respondents to make submissions and it was directed to be listed on 24.05.2018 and unfortunately on 22.05.2018, shooting took place. It is submitted that there is no earlier precedent of such order of permanent closure.
231.It is submitted that the question would be as to whether merely because of public outcry, the State can take a knee jerk reaction, it is submitted that it cannot be done so and to support such submission, reliance was placed on the decision of the High Court of Kerala in the case of Harrisons Malayalam Limited. Arguing on the proportionality of the decision to close Page http://www.judis.nic.in 264 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 down, reference was made to the decision in Lafarge Umiam Mining (P) Ltd. vs. UoI [(2011) 7 SCC 338] and Hanuman Laxman Aroskar, wherein doctrine of proportionality was applied. When the petitioner addressed the respondents requesting them to permit them to maintain the plant, they were informed to dismantle the machinery and leave the State and this will clearly show the mental state in which the decision was taken.
232.With regard to the allegation that there was a misrepresentation on the land holding, it is submitted that the public interest litigant Ms.Swetha Narayanan has specifically raised the issue before the Hon'ble Supreme Court, which was not dealt with and therefore, deemed to have been rejected. However, the petitioner has answered and can demonstrate that there was no misrepresentation. By referring to the extent of land, which was allotted to the petitioner when they started the plant and when they informed about the extent of 68 Ha of land, which is in the process of being allotted, it is submitted that it would be used for future expansion, green belt and SLF. Page http://www.judis.nic.in 265 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019
233.The learned counsel referred to the communications sent by the petitioner to MoEF and submitted that there is no misrepresentation with regard to the land holding. With regard to the classification of the land, it is submitted that there is no notification issued under Section 28 of the Town and Country Planning Act and therefore, there is no Master Plan for Thoothukudi. With regard to the green belt requirement, it is submitted that this issue was also raised by Ms.Swetha Narayanan and Mr.Vaiko and all these were considered by the Hon'ble Supreme Court, an inspection was ordered by the committee consisting of officials of CPCB and TNPCB and the Hon'ble Supreme Court accepted the report as to the existence of the green belt. Thus, the petitioner having established the existence of the green belt, the subsequent orders of consent do not make any reference to the same, as the issue has been done and dusted.
234.With regard to the stack height, the learned counsel referred to the report of NEERI, the physical characteristics of the stacks in SAP-I and Page http://www.judis.nic.in 266 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 SAP-II and also submitted that it is the TNPCB which has to prescribe the stack height in terms of Section 21(5)(iv) of the Air Act. Therefore, it is submitted that the respondent cannot now say that the stack height should have been higher by combining both the plants. With regard to the issue pertaining to material balance and copper concentrate, the learned Senior Counsel submitted that there will be three issues, which need to be taken note of, viz.,
(i) the quantum; (ii) air quality; and (iii) the process adopted. In this regard, the learned counsel referred to the documents on copper concentrate and copper manufacturing – global scenario and also explained with regard to the quality of the copper concentrate used by the petitioner. Referring to a writer on air pollution control measures, it is submitted that the petitioner employs best in class technologies across its plant in Thoothukudi and referred to the Isa Smelt technology adopted by the petitioner as well as the global scenario.
235.The learned Senior Counsel made an elaborate reference to the note on various parameters in particular, regarding mercury fixation, bag Page http://www.judis.nic.in 267 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 house operation, CO emission, secondary case scrubbers, etc. While on this issue, the learned Senior Counsel also referred to the note on stack height calculation and submitted that as per the calculations to be adopted based on the formula, the stack height is to be 55.1m (basic emission norms) and 44.75m (basic actual emission), which are lower than the actual height of 60.38m available with the petitioner, which was prescribed by TNPCB. With regard to the allegation that the health of the people has been affected, more particularly, with regard to the incidence of cancer, reference was made to the cancer register to state that Thoothukudi has less than the State average of cancer cases. The study average is 80.2% per one lakh population and in Thoothukudi, it is 63.5 % and in the Human Health Index, Thoothukudi ranks number three in the State of Tamil Nadu. In this regard, reference was made to the affidavit filed by the District Collector, Thoothukudi before the Hon'ble Supreme Court and nothing alarming was reported. The Doctor, who was nominated by the petitioner, had undertaken a very thorough exercise and he Page http://www.judis.nic.in 268 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 had gone to each village and a register has been maintained and therefore, the allegation made by the intervenors alleging that the petitioner is the reason for deterioration of the health of the people of Thoothukudi is unsubstantiated.
236.With regard to the issue relating to sustainability of the petitioner's unit, the learned counsel referred to the various copper smelting plants in the world and in particular, a plant in Germany, which is located in the heart of the city. It is submitted that the petitioner adopted best practices even before TNPCB imposing any condition and after the petitioner had adopted such practices, it was imposed as the consent condition. In this regard, the environment improvements and the best practices adopted by the petitioner were referred to including the steps taken for energy conservation. It is submitted that these best practices, which have been implemented by the petitioner have not been done by any other plants in South-East Asia. That apart, with regard to the air quality improvement, the petitioner had voluntarily Page http://www.judis.nic.in 269 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 undertaken several steps without even the same being imposed as one of the conditions in the order of consent. To substantiate the contention that the plant is maintained well, the learned counsel referred to various photographs to show that there were several migratory birds, which would prove that there is no water contamination. Further, it is submitted that the petitioner had proposed a desalination plant so that water is not drawn from the river, Thamirabarani and this was under active consideration before closure.
237.Mr.A.Yogeshwaran, learned counsel appearing for th Ms.B.Poongkhulali, learned counsel for the 9 respondent submitted that the foremost submission made by the learned Senior Counsel for the petitioner is on the ground of res judicata that events which had occurred prior to the 2013 judgment of the Hon'ble Supreme Court cannot be looked into. It is submitted that in order to ascertain the correctness of this submission, it would be necessary to take note of the pleadings and the findings rendered by this Court. Page http://www.judis.nic.in 270 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 Referring to a tabulated statement in the common additional rejoinder to the counter affidavit filed by the petitioner, it is submitted that the arguments of Mr.Vaiko with regard to the location of the industry is not the contention, th which has been raised by the 9 respondent. In this regard, the learned th counsel referred to paragraph 10 of the counter affidavit filed by the 9 respondent (Ms.Fatima) wherein, it has been submitted that Thoothukudi Master Plan – land uses schedule shows that Meelavittan Village, where the petitioner's industry is located, does not have any survey number, which has been classified as “special industrial use zone” and it is only “general industrial use zone”. In G.O.Ms.No.1730, the Government has clearly indicated the nature of activities that can be permitted in designated zone and the petitioner industry could not have been permitted to establish and operate its industry at the present site. As per the land use map of Thoothukudi, the industry has been located on lands classified as “general industrial use zone and agriculture use zone”. However, in the consent application, it has been Page http://www.judis.nic.in 271 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 claimed that the site is classified as “institutional use zone”. Further, as per the RTI reply dated 19.09.2018, the villages of Swaminatham and Palayakayal have alone be classified as “special industrial and hazardous use zone”.
238.It is submitted that the petitioner has not controverted these submissions, but their contention is that SIPCOT leased the land in the industrial complex and there is no illegality. It is submitted that SIPCOT is not the planning authority, but a company established by the Government for the purpose of setting up of industrial complexes, SIPCOT cannot violate the town planning laws and it cannot replace, nor take on the responsibility of the local authority in any District, which is solely incharge of zoning and planning. Further, it is submitted that in the counter affidavit filed in W.P.No.16005 of 2018 by the Pollution Control Board and the State of Tamil Nadu, it has been admitted that the industry is located in a non-confirming area, but have stated that action needs to be initiated by the Department of Town and Country Planning.
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239.To emphasis the importance of the Master Plan, strict adherence to the zonal classification, impermissibility of reclassification, etc., reliance was placed on the decision in the case of R.K.Mittal & Ors. vs. State of U.P. & Ors. [Manu/SC/1471/2011]; M.C.Mehtha vs. UoI & Ors. [Manu/SC/04788/2004]; Palani Hills Conservation Council vs. State of Tamil Nadu & Ors. [Manu/TN/0991/1995]; Lal Bahadur; Besant Nagar Residents vs. MMDA & Ors. [(1990) 1 MLJ 445]; Sushanta Tagore & Ors. vs. UoI & Ors. [Manu/SC/0176/2005], the decision of the High Court of South Africa (Western Cap High Court, Cap Town) In Intercape Ferreira Mainliner (Pty) Ltd., and Ors. vs. Ministry of Home Affairs and Ors., Case No.20952/2008; and Bitou Local Municipal vs. Timber Two Processors CC, Case No.9221 of 2007; and the decision of the Supreme Court of US in State of Georgia McClure vs. Davidson, 258 Ga.706 Ga (1988). Thus, it is submitted that the Master Plan has the force of a statute, the petitioner industry is sited in violation of the Master Plan and activity not confirming to the Page http://www.judis.nic.in 273 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 zoning and town planning regulations cannot be permitted, as it would lead to disastrous consequences.
240.It is submitted that in the common additional rejoinder filed by the petitioner, the contentions regarding green belt were raised before the Hon'ble Supreme Court by Ms.Swetha Narayanan and Mr.Vaiko. Referring to the affidavit filed by Ms.Swetha Narayanan before the Hon'ble Supreme Court wherein, there is a reference to the May, 2011 NEERI report, it was stated that the total green belt at the time when NEERI inspected and submitted report, was only 7.76% of the total industrial lands as against stipulated 25% and after referring to the NEERI report, it was stated that it clearly shows non- compliance of the EC conditions stipulated by MoEF apart from stating that the May, 2011 NEERI report glosses over the fact that the petitioner's compliance was to even adjudge and as per the stipulation of the August, 2007 EC/stipulations, 43 Ha out of 172.17 Ha (and not 26 Ha out of 102.5 Ha) Page http://www.judis.nic.in 274 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 th should be greened. However, the contention of the 9 respondent before this Court is that the petitioner does not possess adequate land for maintaining green belt as mandated by TNPCB. Initially, the TNPCB by order dated 01.08.1994, mandated development of 250m wide green belt. This was arbitrarily reduced to 25m by order dated 22.05.1995 on a request made by the petitioner. The November, 1998 report of NEERI shows that the petitioner failed to develop even the reduced extent of green belt. Before the Hon'ble Supreme Court, the consideration was only with regard to the correctness of the reduction of the size of the green belt to 25m and the Hon'ble Supreme Court did not go into the issue of presence or absence of green belt, as there is no finding rendered in the 2013 judgment.
241.The petitioner has further contended that the contention raised th by the 9 respondent in the notes on submission is similar to the contentions raised by the National Trust for Clean Environment in W.P.Nos.15501 to Page http://www.judis.nic.in 275 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 15503 of 1996 before this Court and this submission is incorrect and in this regard, the learned counsel referred to paragraph 7 of the affidavit filed in the said writ petitions. The learned counsel also referred to the affidavit filed by Ms.Swetha Narayanan before the Hon'ble Supreme Court in I.A.Nos.33-
th 44/2012 and submitted that the contention raised by Ms.Fatima, the 9 respondent is that the unit should have adequate space for development of green belt for minimum width of 25m under the battery limit of the industry, which is lacking. In this regard, the learned counsel has drawn the attention of th this Court to paragraph 51 of the counter affidavit filed by the 9 respondent, which contains a tabulated statement giving the extract of the consent orders qua the green belt requirements and among other things, it is submitted that there is no 20m green belt around the gypsum pond, slag storage yard, landfill, etc., which hugs the periphery of the petitioner's factory.
242.Further, it is stated that the lack of green belt is established by the google earth satellite images, which clearly indicate that there has never Page http://www.judis.nic.in 276 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 been any green belt, which has the width of 25m as claimed by the petitioner. If the green belt had been maintained as alleged, the growth would have been substantial and the trees would survive without any maintenance. Further, the absence of green belt has allowed toxic dust and fugitive emission, including re-suspended dust from the movement of heavy vehicles to be carried out by the winds to the residential areas nearby. To impress upon the need to provide such green belt for buffer areas, reliance was placed on the decision of the Supreme Court of Victoria at Melbourne in Casey City Council vs. Seventh Day Adventist Church, in Case No.366 of 2010, the decision of the European Court of Human Rights in FADEYEVA vs. Russia, 45 EHRR (2007) 10, th Application No.55723/2000, 9 June, 2005 and M.C.Mehtha vs. Union of India & Ors. [AIR 2004 SC 4016].
243.Further, the learned counsel submitted that the petitioner has been illegally operating out of 102.3 Ha of land in violation of the clearance Page http://www.judis.nic.in 277 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 dated 09.08.2007 requiring 172.17 Ha, thus, played fraud on the authorities. After referring to the land details as mentioned in paragraph 24 of the counter th affidavit of the 9 respondent, it is submitted that the petitioner operated Copper Smelter Plant-I out of 102.3 Ha. They did not acquire the land for the existing Plant-I as undertaken by them, but only acquired the land for Plant-II and attempted to pass off the same as lands specified for Plant-I. The total extent acquired by the petitioner after issuance of the clearance dated 09.08.2000 is 131.3 Ha, which has been utilised for its Plant-II, according to the clearance obtained and not for Plant-I. It is further submitted that a thorough comparison of the survey numbers of the parcels of land listed by the petitioner industry towards Plant-I and II clearly demonstrates the fraud committed by the petitioner by repeating the same parcels of land as being available for both. Further, it is submitted that the petitioner in their letter dated 25.06.2012, addressed to MoEF have stated that “In 1200 TPD EC – the existing land usage area may be taken as 102.31 + 30 = 132.31 Ha in which, Page http://www.judis.nic.in 278 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 green belt of 43 Ha has been completed considering 33% area coverage. The same area to be noted in place of 172 Ha”. Thus, the petitioner has attempted to amend the terms of the clearance by mere letter correspondence with MoEF and confusing the authorities regarding the land availability.
244.It is further submitted that it is only in the inspection report of TNPCB dated 27.02.2018, it has been revealed that the land available for Plant-I was only 102.3 Ha and not 172.12 Ha. It is submitted that need to comply the requirements to obtain the environmental clearance are non- negotiable and they are mandatory. In support of such contention, reliance was placed on the decision in Pondicherry Environment Protection Association vs. UoI [W.P.No.11189 of 2017, dated 13.01.2017]; order of the NGT – Western Zone Bench in Shri.Arvind V.Aswal & Ors. vs. Arihant Realtors & Ors. [Misc.Application No.607 of 2013 in Appeal No.77 of 2013, dated 13.01.2014] and in Common Cause & Ors. vs. UoI [W.P.(C) Nos.114 & 194 of 2014, dated 02.08.2017].
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245.The learned counsel submitted that the industry is operating in less than mandated area of land and referred to the averments in paragraphs 36 th to 45 of the counter affidavit of the 9 respondent. Thus, it is submitted that if an order has been obtained by playing fraud, then it is a nullity and to buttress the said submission, reliance was placed on A.V.Papayya Sastry & Ors. vs. Government of A.P. & Ors [(2007) 4 SCC 221].
246.The learned counsel next moved on to submit regarding the mercury content in the copper concentrate. It is submitted that it is not disputed, but admitted that copper concentrate contains 2.25 PPM of mercury. Insofar as the petitioner is concerned, it is an extreme case of under-reporting.
th The petitioner had filed a one page note for the sur-rejoinder filed by the 9 respondent on 18.12.2019 wherein, it is stated that the gas cleaning session is sufficient to remove mercury. The learned counsel referred to the research paper on mercury emission from industrial sources in India and its effects in Page http://www.judis.nic.in 280 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 the environment wherein, it has been stated that the petitioner uses Australian Copper Concentrate containing 5.0 kg mercury per kg.
th
247.Referring to the documents filed by the 9 respondent, it is submitted that the minimum mercury emission is 5.81mg and the maximum is th 15mg and therefore, reporting 2.25 PPM, is gross under reporting. The 9 respondent had obtained an analysis report of the copper concentrate from CPR Labs Private Limited, which shows that the content of mercury is 28.0mg/kg. The learned Senior Counsel for the petitioner raised serious objection to rely upon the test report and that it should be discarded, as it has no sanctity. So far as the plant in Germany is concerned, it is submitted that mercury removal tower was installed in the year 1998 itself. It is submitted that elemental mercury will escape all traditional gas cleaning systems. Further, it is submitted that in the annual return filed by the petitioner under the HWM Rules for the period from April, 2014 to March, 2015, the quantity Page http://www.judis.nic.in 281 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 of mercury recovered has not been mentioned, though the petitioner admits that traces of mercury are found. The learned counsel further submitted that based upon the quantity of mercury that would have been generated from the operations conducted by the petitioner from 2004 to 2008, they should have recovered 28.91 tonnes of metric, if the quantum of mercury is taken at the minimum of 5.0 PPM and maximum is taken as 15 PPM, they should have recovered 66.17 tonnes of mercury. Therefore, the petitioner is a polluter and the contention that there is no pollution is absolutely wrong.
248.Further, it is submitted that the petitioner is guilty of inflating the amount of annual production. Imported cathode, anode cannot be taken to consider the gross anode, gross imported anode, which will not generate slag and therefore, the quantum of anode has to be taken as 3,28,076 MT and not 3,92,544 MT. Further, the arsenic concentrate is higher, that is, 569 PPM and not 514 PPM. Further, with regard to the material balance constitute, it is Page http://www.judis.nic.in 282 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 submitted that inconsistent stand was taken as to whether it was dry MT or wet MT. In this regard, reference was made to the reply affidavit filed by the th petitioner to the counter affidavit of the 9 respondent and it is submitted that the statement regarding material balance furnished by the petitioner cannot be trusted. It is further submitted that the petitioner functioned without valid authorisation under the HWM Rules, 2016 as well as under the earlier rules of 1989 and 2008. The authorisation under the 2008 Rules was issued on 10.07.2008 and expired on 09.07.2018 and the petitioner continued to operate without the mandatory authorisation.
249.To emphasis the dangers surrounding the hazardous waste, reliance was placed on the decision of the Hon'ble Supreme Court in Research Foundation for Science Department and Industrial Resources Policy vs. UoI & Anr. [(2005) 13 SCC 186]. It is submitted that in the said decision, the Hon'ble Apex Court directed closure of all units that do not have authorisation. Page http://www.judis.nic.in 283 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 The petitioner is liable to be closed on the ground that they were operating without authorisation from 2013 onwards. It is further submitted that as per the 2008 authorisation, permission was granted for nine categories of hazardous wastes that would be generated by the industry and the manner of disposal was also mentioned. The petitioner has not been accounted for its wastes and mass balance for its operations having indicated gross violation, with huge quantity of arsenic unaccounted in support of such situation, TNPCB failed to take any action. After referring to the various other details, it is submitted that the petitioner has been generating and disposing of huge quantity of extremely hazardous waste without any permission in law and without following any of the safeguards inbuilt in the Rules.
250.It is submitted that following the Basel Convention, the HWM Rules has incorporated a robust system to monitor hazardous waste from cradle to grave. In the case of the petitioner, due to failure of TNPCB to perform its functions and due to illegal and high handed functioning of the Page http://www.judis.nic.in 284 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 petitioner industry, the entire system has been broken and compromised putting people at risk. In this regard, the learned counsel referred to Rule 19, which mandates different colour manifest, each corresponding to a different stage in the waste disposal process. The petitioner would state that upon analysis of the petitioner's document in 2016-2017, they illegally disposed of 1503.93 tonnes of arsenic bearing scrubber cake containing at least 600 kg of arsenic (40 PPM). Between April, 2014 and March, 2017, the petitioner illegally disposed of 3489.53 tonnes of toxic ETO waste containing between 7 and 26 tonnes of arsenic including an unauthorised agent, viz., M/s.Suhan Chemicals. It is submitted that the said entity is an unauthorised facility because they are authorised only to spent anode containing nickel to an extent of 610 MT/A according to Maharashtra Pollution Control Board. Further, there is also discrepancy in the quantity of production as between the annual report of the parent company of the petitioner and the annual return to be filed under the HWM Rules.
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251.The next contention advanced by the learned counsel is with regard to the air pollution. The first of the submissions being on the inadequate stack height. Referring to the total production, the learned counsel seeks to establish before this Court about the inadequacy in the stack height. It is submitted that earlier emission norms have nothing to do with the stack height, which has to be established in accordance with the provisions of the EP Rules. It is further submitted that the readings shown in the existing CAAQ monitors connected to TNPCB are false. The learned counsel referred to the readings and submitted that the value remains constant and therefore, the data has to be rejected as unreliable. It is further submitted that the petitioner is responsible for maintaining the monitors and the data produced is untrustworthy. The response now sought to be given by the petitioner for the static data cannot be countenanced. Thus, it is submitted that all these averments of gross under-design and fraudulent monitoring have escaped the Page http://www.judis.nic.in 286 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 notice of TNPCB is suspicious and vindicate long standing complaints of the public about the insufferable air pollution. It is submitted that the laxity of TNPCB cannot be used in favour of the petitioner industry, an offender especially when, innocent lives have been harmed by toxic pollution.
252.The next submission of the learned counsel is with regard to the particulate matter, which is formed through chemical reaction when SO2 reacts with atmosphere/moisture, silicates are formed, which are particulate matter. The learned counsel explained the industry pollutant auction ratio. With regard to the 2013 incident, the learned counsel sought to demonstrate that the explanation offered by the petitioner cannot be accepted. It is false to state that what was done by the petitioner was in calibration exercise. Merely because there has not been any incident after 2013, is no ground to show any leniency to the petitioner. The report of the TNPCB with regard to the piezometric borewells was referred to, to show that sea water has nothing to Page http://www.judis.nic.in 287 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 do with the high chloride levels and the increase attributable to the petitioner and not the sea water, as the sea is 10 km away from the petitioner's unit.
253.With regard to the plea of constructive res judicata raised by the learned Senior Counsel for the petitioner, it is submitted that there can be no res judicata in a public interest litigation, nor the principles of constructive res judicata could be applied in public interest litigation. In this regard, reliance was placed on the decision in V.Purushothaman vs. UoI [(2001) 10 SCC 305]. Thus, it is submitted that the petitioner has been given a long rope and TNPCB has shown laxity in their approach and nothing more is required to be extended in favour of the petitioner and the orders impugned may be affirmed.
254.Mr.T.Mohan, learned counsel appearing for Mr.A.Suresh Sakthi Murugan, learned counsel referred to the rapid EIA report of the year 1994, 1998 NEERI report, NEERI report dated 19.02.1999, NEERI report of the Page http://www.judis.nic.in 288 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 year 2011 and referred to the various observations contained in those reports and pointed out the areas where deficiencies were found, as to how RO system is operated at suboptimal capacity, etc. It is submitted that when a defect in the meter was pointed out, the petitioner took a stand, it amounts to a capital expenditure and they took eight months to rectify the same when such meters were easily available in the market. Further, the learned counsel referred to convenience set Part-A (page nos.241, 242 and 243) wherein, observations have been made such as ETP-I was choked, no flow meter in ETP-I, no logbook, pin hole leakage, Zero Liquid Discharge (ZLD) not properly maintained, etc. The learned counsel also referred to a research article, which is a study conducted by Mr.Rangarajan. It is further submitted that the spikes, which had occurred, cannot be ignored and every single incident is a matter of concern.
255.Mr.C.S.Vaidyanathan, learned Senior Counsel appearing for the TNPCB submitted that TNPCB has become like a drum receiving beating on Page http://www.judis.nic.in 289 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 both sides, as a regulator it has to bear with this. The onus to show that the order is valid, is not on TNPCB, but it is for the petitioner to show that it is not valid. This is so because, the petitioner is required to take consent to operate and on its own, should prevent pollution and the onus is on them to show that there is no pollution. After referring to the relevant paragraphs of the 2013 judgment of the Hon'ble Supreme Court, the Court interfered with the order because, it was not an order of closure passed by a regulator, viz., the TNPCB or the Government. Thus, the subject matter before the Hon'ble Supreme Court was not an order of closure by TNPCB. It is submitted that there was an argument on behalf of the petitioner that drinking water standards cannot be taken into consideration. However, the Hon'ble Supreme Court took note of the drinking water standards and therefore, the methodology adopted is correct. The Hon'ble Supreme Court found that there was pollution caused by the petitioner and the environment was affected. The thirty directions issued by TNPCB were based on report/inspection and is a continuing direction and Page http://www.judis.nic.in 290 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 if the petitioner continues to pollute, the past conduct can be taken into consideration.
256.With regard to the contention regarding the plea of res judicata, reliance was placed on the decision in T.N.Godavarman Thirumulpad. Further, it is reiterated that in the 2013 judgment of the Hon'ble Supreme Court, what was considered is how a Court should test a public interest litigation and not as to how a regulator like TNPCB should act. In these cases, before this Court, it is a holistic exercise, though one is in the nature of appellate power and another, exercise of jurisdiction under Article 226 of the Constitution.
257.It is further submitted that even though the petitioner stated that they are a zero discharge unit, yet the Hon'ble Supreme Court found that they were polluting industry, hence, now to state that they are zero discharge and Page http://www.judis.nic.in 291 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 therefore, there is no pollution, is an incorrect statement. Referring to the physico-chemical characteristics of ground water samples, it is submitted that the parameters were found to be not complying with drinking water standards. The baseline, which has been referred to by the petitioner is of no relevance, as the Hon'ble Supreme Court tested the parameters as against drinking water standards and therefore, the petitioner cannot rely on the baseline data, nor they can make an argument that drinking water standards cannot be taken. Referring to a charge contained in page 2 of Volume-R2 filed by TNPCB, it is submitted that there is no improvement between 2011 and till date, and 2013 till date. In fact, figures show that the position has worsened. Therefore, any remedial measure will not yield results and the only solution is to close down the plant permanently. The details in the chart show that all parameters are above the drinking water standards even after 2011-2013.
258.It is further submitted that on an average, the petitioner has made seven times profit over the investment made by them by operating all Page http://www.judis.nic.in 292 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 these years. Post closure of the plant, a technical committee is to be constituted to assess the damage caused by the petitioner and suggest remedial measures for which, the petitioner has to pay. The decision in the case of 63 Moons Technologies Ltd. (Formerly known as Financial Technologies India Ltd.) & Ors. vs. UoI & Ors. [(2019) SCC OnLine SC 624] is clearly distinguishable on facts. In the said case, in terms of Section 396(4) of the Companies Act, 1956, a draft order has to be sent to the affected parties whereas, there is no such requirement in the instant case. The case on hand is a case relating to an environmental issue arising under the Air Act and Water Act and all other cases are one time orders including the decision in Mohinder Singh Gill vs. Chief Election Commissioner, [(1978) 1 SCC 405]. The Hon'ble Supreme Court in 63 Moons Technologies Ltd., has not overruled, but explained Mohinder Singh Gill. The principle has not been watered down and hence, additional grounds can be looked into and subsequent materials can be taken note of. Reliance was placed on the decision in Indian Handicrafts Page http://www.judis.nic.in 293 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 Emporium & Ors. vs. UoI & Ors. [(2003) 7 SCC 589] and the decision in State of Madhya Pradesh & Ors. vs. Uday Singh & Ors. [(2019) SCC OnLine SC 420]. Thus, there is a duty cast upon the petitioner to comply with all norms.
259.With regard to the disposal of slag, the learned Senior Counsel commented upon the suspicious nature of the document, viz., the letter sent to Mr.A.Paul, as this document was not produced till November, 2013. The petitioner cannot divest its responsibility over the slag and they are to be held responsible at all times. Further, continuing his submissions, it is stated that the petitioner's case cannot be compared to earlier cases such as Vellore Citizens Forum etc., because the violation committed by the petitioner is not capable of being remedied, hence the decision for closure is correct. The order passed by the NGT having been set aside, no part of the order can be looked into even the report of the Committee submitted before the NGT. The report Page http://www.judis.nic.in 294 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 submitted by M/s.SGS shows that the soil in and around the area is contaminated. It is submitted that up to 2013, the matter was before the Courts in various stages and even after that when TNPCB took action, it was interfered by NGT. Therefore, it cannot be stated that TNPCB was glossing over the deficiencies.
260.Mr.K.V.Viswanathan, learned Senior Counsel submitted that the Government Order, ordering permanent closure is an exercise of statutory powers under Section 18(1)(b) of the Water Act. In terms of the Transaction of Business Rules and in particular, Rules 6 and 7, the matter has to be dealt with by the Department in-charge and need not go to the Cabinet, as it is not a subject under Schedule-II of the Rules. Further, the impugned Government Order passed under Section 18(1)(b) of the Water Act is to give effect to the policy of the Water Act. The Transaction of Business Rules, more particularly, Rule 10 is not attracted, since the respondent is exercising its Page http://www.judis.nic.in 295 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 statutory power and when the statute gives authorisation to pass an order of closure, the Finance Committee of the Government cannot say that it cannot be done.
261.Mr.C.A.Sundaram, learned Senior Counsel for the petitioner submitted that in the counter affidavit filed by the official respondents, it has been stated that the decision to close down the petitioner permanently is a policy decision of the State Government. If that be so, then the respondents should show that the provisions of the Tamil Nadu Transaction of Business Rules were followed to term it as a “policy decision”. In this regard, the learned Senior Counsel referred to the decision in the case of Gulf Goans Hotels Co. Ltd., and Delhi International Airport Ltd. During the course of argument, it has been accepted by the respondent-State that the impugned order is not a policy, though the learned Advocate General had brought out as to the various Department Heads, who were part of the decision-making Page http://www.judis.nic.in 296 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 process and ultimately, the decision being taken by the Hon'ble Chief Minister, yet it was contended that it is not a policy decision in the sense it is being projected. Taking note of the said submission, Mr.C.A.Sundaram, learned Senior Counsel submitted that the if the respondent-Government state that the impugned Government Order is in exercise of a statutory power, then his arguments based on the Transaction of Business Rules will not apply and such argument goes and all that has to be seen is whether there was existence of power and whether such power could have been exercised.
262.Referring to the decision of the Hon'ble Supreme Court in Air India Cabin Crew Assn., & Ors. vs. Yeshaswinee Merchant & Ors. [(2003) 6 SCC 277], it is submitted that if the legislator has authorised the Government, only the concerned Department of the Government should take action. The object of the Air and Water Acts is to abate pollution. The Hon'ble Supreme Court in its 2013 judgment interfered because the Court ordered closure and Page http://www.judis.nic.in 297 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 not the regulator, viz., TNPCB and therefore, there is no question of principles of res judicata to be applied. With regard to the prayer made by a third party stating that he is a shareholder of the company and needs to be impleaded is liable to be rejected. This prayer has been made after the arguments were th concluded on 7 of August, 2019 wherein, a specific argument was made that petitioner company is not a citizen and cannot seek protection under Article 19(1)(g) of the Constitution.
263.Mr.Vijay Narayan, learned Advocate General submitted that the power of closure is traceable to Section 33A of the Water Act and it is one of the functions of the Board under the Act. It was mentioned that in 2018, the State Government has filed its counter in the writ petition before the Madurai Bench in W.P.(MD) No.16005 of 2018.
264.Mr.Balan Haridas, learned counsel appearing for Mr.Jimraj th Milton, learned counsel for the 10 respondent submitted that disposal of Page http://www.judis.nic.in 298 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 copper slag is a condition in the consent order, TNPCB did not verify whether this was disposed according to the directions, yet granted renewal of consent. There has been no verification done by TNPCB before granting renewal. Though the petitioner had violated condition nos.10, 11 and 12 of the consent order (Vol.R2; page 266 and 268), no action was taken and there was continued pollution. It is further submitted that renewal of consent was granted by order dated 13.04.2016. Within three months thereafter, on 14.07.2016, the District Collector addressed the petitioner to remove the slag, which was dumped. No action was taken by the authorities to enforce the order which would clearly show that the District Administration was in connivance with the petitioner. On 24.09.2016, a review meeting was called for by the District Collector and the officials of the petitioner participated, yet no action was taken and show cause notice was issued only on 14.03.2017 for which, reply was given by the petitioner and once again directions were issued. However, no action was taken and the petitioner is habitual polluter. Page http://www.judis.nic.in 299 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019
265.As the authorities though issued show cause notice, issued directions, they failed to exercise their statutory power, which is a clear case of malice in law. The order under Section 133 Cr.P.C., was issued to Smt.Leelavathy and not to Mr.A.Paul. The said Smt.Leelavathy requested for measuring her property, which was measured on 31.10.2017 and Smt.Leelavathy accepted the measurement. Once again on 07.05.2018, Smt.Leelavathy sends a letter seeking measurement of her property. This was with a view to circumvent the letter given to her on 06.11.2017 to remove the slag within one week. Thereafter, Smt.Leelavathy agrees to construct a wall. Further, it is submitted that TNPCB should have suspended the petitioner's operations on account of non-renewal of HWM Rules. This would show that the officials acted hand in glove with the petitioner. The petitioner being a habitual pollutant, who has disregarded rules, cannot speak about corporate social responsibilities. The report of the Collector/PWD filed before the Page http://www.judis.nic.in 300 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 Hon'ble Supreme Court (R10 Volume-IV page 6, 66 and 70) shows that a fresh water tank has been fully polluted. Epidemiological study of water shows that it is unfit for drinking purposes. The people of the area have suffered enough due to the greed of the petitioner and therefore, the petitioner should be permanently closed and shutdown.
266.By way of concluding remarks, Mr.C.A.Sundaram, learned Senior Counsel submitted that what are required to be seen are with regard to
(i) existence of power; (ii) exercise of power; (iii) procedure followed in the decision-making; and (iv) whether the procedure was directory or mandatory. Referring to Section 17(1)(l) of the Water Act, it is submitted that there is no power to close the industry, as Section 17 is an exhaustive provision and not inclusive and that Section 17 is subject to if there is any other provision in the Act, the same would apply.
Page http://www.judis.nic.in 301 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019
267.It is further submitted that Chapter-IV of the Water Act deals with 'powers and functions of the Boards'; powers and functions are synonymous. Section 18 also falls in Chapter IV and Section 18(1) deals with 'performance of its functions' under the Act, which are enumerated in Section
17. Further, it is submitted that consent is granted by the Board in terms of Section 25 of the Act, which finds place in Chapter V of the Act and it is not a function of the Board. Further, it is reiterated that on account of the closure of the petitioner industry, there is relinquishment of revenue to the State and therefore, Rule 10(2)(a) of the Transaction of Business Rules is to be mandatorily followed and the file ought to have been placed before the Finance Committee and this procedural error goes to the root of the matter. With the above submissions, the learned Senior Counsel prayed for setting aside the impugned orders.
Page http://www.judis.nic.in 302 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019
268.We have elaborately heard the learned Senior Counsels for the parties and have given our anxious consideration to the grounds canvassed and also perused the voluminous materials placed on either side in the form of various paper books. The major issues which are to be decided are enumerated below apart from other issues and questions which shall be considered and decided as we proceed. The issues have been culled out from the elaborate and erudite submissions made on either side :-
268.1. Whether the TNPCB has power to order closure under Section 17 of the Water Act; whether the functions of the TNPCB/State Board as enumerated in Section 17 of the Water Act empower the Board to order closure of the petitioner’s unit; whether the Government has power to issue direction under Section 18 of the Water Act to direct closure and permanently sealing the petitioner’s unit?
Page http://www.judis.nic.in 303 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 268.2. Whether there was pollution caused by the petitioner’s unit warranting its sealing and permanent closure?
268.3. Whether the judgment of the Hon’ble Supreme Court in the petitioner’s case reported in (2013) 4 SCC 575 (02.04.2013) operates as res judicata in respect of issues and incidents prior to the date of judgment, could the theory of “washing off” be applied?
268.4.  Whether the “spike” incident as projected by the respondent is correct or the explanation offered by the petitioner that their unit was in Page http://www.judis.nic.in 304 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 testing mode, is an acceptable explanation and whether the action initiated by TNPCB in this regard was right?
268.6. Whether copper slag is hazardous and whether the petitioner would be right in contending that copper slag having been removed from Schedule-I of the HWM Rules, 2016 and consequently, to be treated as non- hazardous?
268.7. What are the duties and responsibilities cast on the petitioner in respect of the slag generated in the manufacturing process and after disposal of the same to authorized purchasers?
268.8. Whether the TNPCB/District Administration were slack in their approach, did not initiate timely action against the petitioner while causing pollution?
Page http://www.judis.nic.in 305 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 268.9. Whether the Ambient Air Quality Monitoring Equipment was effective; whether the data collected by TNPCB from those equipment was analysed; what was done with the data, which is stated to have been generated and what is required to be done by TNPCB in this regard?
268.10. Whether TNPCB was really a watch dog of the petitioner industry; did the TNPCB possess requisite infrastructure in terms of staff, equipment, etc., to monitor the petitioner industry, and were there any inadequacies in the procedures?
268.11. What is the effect of non-renewal of the HWM authorisation; what should have been done by TNPCB; and whether non- renewal of HWM authorisation for other red industries in the State can be cited by the petitioner to justify its continued operation; was there any plausible reason as to why the HWM authorisation was not renewed for the Page http://www.judis.nic.in 306 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 petitioner; and whether there is any provision for deemed renewal of such authorisation and if the answer to the said question is in the negative, what should have been done by TNPCB and other statutory authorities?
268.12. Whether the petitioner industry was justified in continuing to operate their unit after grant of an order of stay of closure by the Tribunal/Court without obtaining renewal of consent to operate from TNPCB?
268.13. What are the powers of the Chairman of TNPCB? 268.14. What are the effects of the reports submitted pursuant to the orders passed by NGT; can they be relied on by the petitioner, after the orders of NGT were set aside by the Hon’ble Supreme Court ?
268.15. Whether there was any mis-representation with regard to the extent of land available with the petitioner while securing environmental clearance from MoEF?
Page http://www.judis.nic.in 307 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 268.16. Whether the location of the petitioner industry is correct; and whether they can be permitted to function in the said industrial complex; and whether there was a Master Plan in place for Thoothukudi District and if so, whether there was any violation of the Master Plan?
268.17. Whether there was violation of height of the stack established by the petitioner?
268.18. Whether there was failure on the part of TNPCB and State/District Administration in not taking timely action on the huge stock of slag dumped in private land, near a water course affecting its free flow and resulting in flooding of the entire town?
268.19. Whether the petitioner has complied with the norms of storage of gypsum; whether they had fulfilled the conditions imposed by Page http://www.judis.nic.in 308 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 CPCB with regard to the design of the gypsum pond; and whether the petitioner would be entitled to refer to certain other industries for whom, extension of time had been granted for constructing the gypsum pond as per the approved design of CPCB?
268.20. Whether the petitioner is right in contending that thirty conditions imposed on the petitioner having been complied with, it cannot revisited and if so, what is the effect of the conditions imposed in the consent order from time to time, and whether the petitioner can challenge or interpret a condition in the order of consent ?
268.21. Whether the petitioner has fulfilled the green belt norm as prescribed by TNPCB and the importance in strict compliance?
268.22. Whether the petitioner should be exonerated on the ground that no source apportionment study was conducted by TNPCB with regard to presence of heavy and toxic metals in the ground water? Page http://www.judis.nic.in 309 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 268.23. Whether there is any reasonable explanation as regards the presence of heavy metal as pointed out in the reports of NEERI; and whether the same is attributable to the petitioner alone?
268.24. Whether the TNPCB was right in granting consent to establish Plant No.II of the petitioner on 14.11.2016, when the consent to operate Plant No.I was not renewed from 2013-2014 and renewed only on 13.04.2016 till 31.03.2017?
268.25. What is the effect of the directions issued by TNPCB pursuant to inspection; and what is the obligation cast upon the petitioner on such directions?
268.26. Was the State Government right in interpreting or understanding the order passed by the Madurai Bench of this Court in Page http://www.judis.nic.in 310 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 W.P.(MD) No.11190 of 2018 filed by the petitioner; and was there any direction to the State to promulgate an order under Section 144 Cr.P.C.?
268. 27. Whether the State can prohibit public from protesting on the ground that the functioning of the petitioner industry is detrimental to their life and liberty?
268.28. Bearing in mind the various principles propounded by the Hon’ble Supreme Court such as Precautionary Principle, Sustainable- Development Principle, Polluter Pays Principle, etc., what should be the approach of TNPCB and the State Government?
268.29. If orders of consent issued by TNPCB to operate the unit are time bound, what are the consequences of non-renewal of consent; and what is required of a regulator like TNPCB to do in such contingencies? Page http://www.judis.nic.in 311 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 268.30. Whether the petitioner is right in contending that there is scientific uncertainty as to the role of the petitioner in causing pollution and in the absence of source apportionment study, can liability be fastened on the petitioner?
268.31. Whether the grounds mentioned in the order dated 09.04.2018, rejecting renewal of consent are separable; and whether the Court exercising its power as an appellate authority can modify the order passed by the regulator, the TNPCB and whether this Court exercising power as an appellate authority over orders of the TNPCB can examine all issues?
268.32. Whether the petitioner is entitled to seek protection under Article 19(1)(g) of the Constitution of India; and whether a shareholder could be permitted to implead herself as one of the writ petitioners along with the petitioner industry at this stage of proceeding? Page http://www.judis.nic.in 312 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 268.33. Whether in the given facts and circumstances, the principle of inter-generational equity could be applied or not?
268.34. Whether the State and Central government were justified in objecting the 1998 NEERI report which was adverse to the petitioner ?
268.35. Whether the contention of the petitioner that the alleged inadequacies pointed out in the impugned order was remediable and whether the petitioner should be given an opportunity to remedy the breach ?
268.36. Whether there was any misrepresentation by the petitioner in their land holding?
268.37. Whether the private respondent is right in alleging that the petitioner had inflated their production values? Page http://www.judis.nic.in 313 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 268.38. Issues relating to Ground water, hazardous waste rd management, ambient air quality, phosophogypsum, incident of 23 March 2013 – emission of Sulphur dioxide and health of the public.
269.We proceed to consider the above issues cumulatively as they are interlinked and inextricably intertwined, we will be also considering other issues though not specifically listed out above, which in our opinion are the main issues.
270.Before the Court proceeds to consider as to whether the orders of closure passed by the TNPCB and the Government suffer from a vice of lack of jurisdiction, it would be necessary to first take up the question as to what would be the effect of the judgment of the Hon’ble Supreme Court dated 02.04.2013. This question assumes importance and requires precedence for the reason that the petitioner pleads that events and incidents, which have Page http://www.judis.nic.in 314 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 taken place prior to the decision of the Hon’ble Apex Court dated 02.04.2013, cannot be looked into and cannot be referred to by the TNPCB or for that matter the Court. The petitioner pleads that if the respondents are permitted to do so, it will be clearly hit by the principles of res judicata. Thus, the argument of the petitioner appears to be that after the decision of the Hon’ble Supreme Court dated 02.04.2013, by which the judgment of the Division Bench of this Court directing closure of the petitioner was set aside and the petitioner was permitted to resume production, directed to pay a sum of Rs.100 Crores as compensation for the damage caused by them to the environment, none of the incidents or events which occurred prior to 02.04.2013 can be referred to, to pass an order sealing and permanently closing the petitioner’s unit. Therefore, before considering the correctness of the orders impugned in these writ petitions, we need to steer clear as to whether the events, which took place prior to 02.04.2013, are still be germane; whether the TNPCB/Government are entitled to refer to and take note of the Page http://www.judis.nic.in 315 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 events which took place prior to the said date. To find an answer to this question, we need to take note of the nature of reliefs sought for in those cases, which ultimately were dealt with by the Hon’ble Apex Court in the judgment dated 02.04.2013. Several writ petitions were filed before the Division Bench of this Court and the earliest of which being, a writ petition filed in the year 1996. These writ petitions were filed challenging the environmental clearance granted by MoEF and, the consent orders issued under the Air Act and the Water Act by TNPCB. The 1996 writ petitioner was a voluntary body. The other writ petitions were also Public Interest Litigations with varied prayers and all of them essentially wanted the petitioner-industry to be closed once for all. The Division Bench, by common judgment and order dated 28.09.2010, allowed the same with a direction to the petitioner to close down its plant. It further declared that the employees of the petitioner would be entitled to compensation under Section 25FFF of the Industrial Disputes Act, 1947 and directed the District Collector, Thoothukudi, to take all necessary and Page http://www.judis.nic.in 316 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 immediate steps for the re-employment of the workforce of the petitioner in some other company/factory/organisation so as to protect their livelihood and to the extent possible, take into consideration their educational and technical qualification and also experience in the field.
271.Aggrieved by such order, the petitioner filed appeals before the Hon’ble Supreme Court in which, an order of interim stay was granted on 01.10.2010. Consequently, the petitioner started operating the unit. The Division Bench while allowing the writ petitions and directing closure of the petitioner unit, was primarily convinced that the industry is situated within the prohibited distance of 25kms from an ecologically sensitive area, as it is within 25kms from 4 of the 21 Islands in the Gulf of Mannar. That no public hearing was conducted before grant of environmental clearance by the MoEF. The Division Bench held that there was undue haste on the part of the Governmental authority in granting permission and consent to the petitioner Page http://www.judis.nic.in 317 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 more particularly, that the petitioner was permitted to conduct a rapid Environmental Impact Assessment instead of a regular assessment.
272.Further, the Division Bench held that though TNPCB imposed a condition on the petitioner to develop a green belt of 250m width around the battery limit of the industry, which was contemplated under the environmental management plan, but subsequently based on a representation given by the petitioner to TNPCB, the green belt requirement was reduced to a minimum width of 25m, was not tenable.
273.Further, with regard to the pollution caused in the area, the Division Bench took note of the report of NEERI, 2005 wherein, it was recorded that the ground water samples taken from the area indicate that the copper, chromium, lead, cadmium and arsenic and the chloride and fluoride contents were too high when compared to Indian Drinking Water Standards. Page http://www.judis.nic.in 318 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019
274.The petitioner, in their appeals before the Hon’ble Supreme Court contended that they, being a zero-discharge plant, do not discharge any effluent and consequently, there will be no effect on any of the area stated to be ecologically sensitive within 25kms of the industry. Further, it was contended that no notification was issued by the Government of Tamil Nadu under Section 35(4) of the Wildlife (Protection) Act, 1972 declaring the 21 Islands of Gulf of Mannar as a National Park.
275.With regard to the aspect of conduct of public hearing prior to the grant of environmental clearance, it is submitted that in terms of EIA notification dated 27.01.1994, the same is not mandatory. Relying upon the very same notification, it was contended that rapid EIA was permissible to be conducted and therefore, the same cannot be a ground for ordering closure. With regard to the reduction of the green belt area from 250m to 25m, it was Page http://www.judis.nic.in 319 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 contended that normally 25% of the land area alone is insisted as green belt and nothing more, and TNPCB rightly modified the condition.
276.With regard to the report of NEERI that there was severe pollution, it was contended that the same was factually incorrect and, in this regard, the reports of NEERI submitted during 1998, 1999, 2003, 2005 and 2011 were referred to as well as the joint inspection report of TNPCB and CPCB of September, 2012.
277.Further, with regard to the accumulation of gypsum and phosphogypsum, which come out from the petitioner’s plant as part of the slag, non-hazardous, as per the opinion of CPCB, the same can be used in cement industry, for filling up low lying area, building/road construction material, etc., and has no adverse environmental effect. Page http://www.judis.nic.in 320 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019
278.The original writ petitioners sought to sustain the order of the Division Bench directing closure of the petitioner industry reiterating that the unit is situated within the prohibited distance from ecologically sensitive area more particularly, when the Government of Tamil Nadu and Central Government have been treating the Gulf of Mannar as a Marine National Park and extending financial assistance for development of its ecology. Further, it was submitted that proposal for issuance of declaration under Section 35(4) of the Wild Life Act is pending concurrence of the Central Government, therefore, the area would be disturbed, if the plant continues at Thoothukudi and should not have been permitted in the present location.
279.With regard to the reduction in the green belt width, it was contended that TNPCB very casually reduced the green belt width, without noting the consequences thereof. It was further submitted that the petitioner initially proposed to establish the plant in Gujarat State, which was opposed Page http://www.judis.nic.in 321 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 vehemently, decided to shift the plant to Goa wherein also, there was opposition and thereafter, intended to set up the plant in Maharashtra and invested Rs.200 Crores in construction after obtaining environmental clearance. However, on account of the opposition by the farmers, the Government of Maharashtra had revoked the licence granted to the petitioner. However, the petitioner somehow obtained environmental clearance from MoEF without public hearing, and the consent under the Water Act and Air Act from TNPCB, for their unit at Thoothukudi.
280.Further, it was contended that the petitioner has been operating for more than a decade without consents and approval from the statutory authority, which fact is clear from the report of NEERI, 2011. Further, it was contended that the petitioner mis-represented material facts in the Special Leave Petition and also when they moved for grant of an order of stay. Further, the MoEF and TNPCB had not applied their mind to the nature of the Page http://www.judis.nic.in 322 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 industry as well as pollution fall out of the industry and the capacity of the unit to handle the waste without causing adverse impact on the environment as well as on the people living in the vicinity of the plant. Further, it was contended that in Vellore Citizens Welfare Forum case, it was held that a right to clean environment is part of a right to life guaranteed under Article 21 of the Constitution of India.
281.Various reports of NEERI were referred to, to state that the waste water sample upon testing showed that the petitioner was operating inefficiently, as the levels of arsenic, selenium and lead in the treated effluent as well as the effluent stored in the surge ponds were higher than the standards stipulated by TNPCB. Further, it was contended that in the counter affidavit filed by the Union of India before the High Court, they did not disclose whether apart from the rapid EIA done by M/s.Tata Consultancy Services (TCS), was there any independent evaluation of the rapid EIA by the Page http://www.judis.nic.in 323 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 Environmental Impact Assessment Authority. Further, the TNPCB in its 'No Objection Certificate' dated 01.08.1994, has stipulated in Clause 18 that the petitioner has to carry out rapid EIA for one season more than monsoon as per EIA notification dated 27.01.1992, and this clause will show that TNPCB did not apply its mind as to whether there was sufficient rational analysis of the nature of the industry, nature of pollutant, quantum of fall out of the plant or method for handling the waste. Thus, it was contended that the finding of the Division Bench of this Court that the petitioner’s plant continues to pollute the environment has been substantiated by the inspection report filed before Court by NEERI as well as TNPCB from time to time and in particular, the joint inspection report of TNPCB and CPCB showed that the direction issued to improve solid waste disposal has not been complied with.
282.It was further contended that one of the conditions of the consent order issued by TNPCB was that no slag to be disposed in the Page http://www.judis.nic.in 324 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 premises. On the contrary, huge quantum of slag was stored in the premises and though direction was given to dispose of at least 50% more than the monthly generated quantity of both slag and gypsum, they were not complied with. Thus, it was contended that unless the petitioner’s plant is shut down, they will not be able to clear huge quantity of slag and gypsum lying in the plant premises. Further, it was submitted that it is not correct to state that slag is non-hazardous waste, as it contains arsenic, which will certainly jeopardise the environment. The TNPCB as well as the State of Tamil Nadu accepted before the Hon’ble Supreme Court that 21 Islands including the 4 Islands are ecologically sensitive area and notwithstanding the fact that four of the 21 Islands were near Thoothukudi, TNPCB gave the consent under the Water Act because, the petitioner represented that their plant is zero-effluent discharge.
283.The intervenor before the Hon’ble Supreme Court, a public interest litigant, submitted that a Marine Biosphere is an ecologically sensitive Page http://www.judis.nic.in 325 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 area and if in the consent order, the condition was stipulated that the plant of the petitioner has to be situated beyond 25kms from ecologically sensitive area, then this condition has to be complied with and in any case, the petitioner is liable to compensate for having damaged the environment.
284.After noting the contentions raised by the petitioner, the Hon’ble Supreme Court pointed out that the first question which has to be decided is whether the High Court could have interfered with the environmental clearances granted by MoEF and Government of Tamil Nadu. After referring to Section 3 of the EP Act and Rule 5(3) of the EP Rules and the notification dated 27.01.1994, it was observed that the language of the notification did not lay down that public hearing was a must. It was pointed out that as per the amended notification issued by the Government of India dated 10.04.1997, the Impact Assessment Agency should conduct a public hearing, however, the environmental clearance was granted to the petitioner on Page http://www.judis.nic.in 326 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 16.01.1995, prior to the amendment dated 10.04.1997, and therefore, public hearing was not a mandatory requirement. Further, the Hon’ble Supreme Court pointed out, as per the procedure laid down under the EP Act and EP Rules and notification dated 27.01.1994 as amended by notification 04.05.1994, and as explained by the Explanatory Note issued by the Government of India, rapid EIA was permissible in certain circumstances and therefore, the High Court could not have allowed the writ petitions on the ground that environmental clearance was issued to the petitioner on the basis of inadequate rapid EIA.
285.It was further observed that the decision of the Central Government to grant environmental clearance to the plant of the petitioner could only be tested on the anvil of well recognised principles of judicial review. After noting a few decisions on the said point, the Court observed that the well-recognised principles of judicial review are under three circumstances, viz., Page http://www.judis.nic.in 327 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019
(i) when the environmental clearance granted by the competent authority was clearly outside the powers of the EP Act, EP Rules or notifications issued thereunder;
(ii) when the environmental clearance suffers from Wednesbury unreasonableness; and
(iii) if the environmental clearance is granted in breach of proper procedure.
286.Thus, the Court proceeded to examine as to whether the Division Bench of the High Court while exercising power of judicial review had exceeded the well-recognised principles and circumstances of judicial review. Accordingly, it held that conduct of public hearing prior to grant of environmental clearance was not mandatory and hence, the High Court could not have interfered with the order granting environmental clearance. Page http://www.judis.nic.in 328 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019
287.With regard to the second ground, it was pointed out that there was no material placed to show that the grant of environmental clearance was wholly irrational and frustrated the very purpose of the EIA notification dated 27.01.1994. Noting that in several cases it was held that it is not for the Courts to decide what projects are to be authorised, but as long as they follow the statutory process, it is for the responsible authority. With regard to the location of the industry, within the prohibited distance from ecologically sensitive area, it was pointed out that the petitioner’s plant is situated in SIPCOT industrial complex and the condition imposed in the consent to establish was made without noticing that the industrial complex is within 25kms of ecologically sensitive area and hence, the High Court was wrong in saying that the petitioner had violated the condition.
288.In paragraph 38 of the judgment, the Hon’ble Supreme Court has, in our view, added a note of caution. It was observed that no doubt Gulf Page http://www.judis.nic.in 329 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 of Mannar is an ecologically sensitive area and the Central Government may exercise its powers under Rule 5(1)(v) of the EP Rules to prohibit or restrict location of industries to preserve biological diversity of Gulf of Mannar. Further, it was pointed out that as and when the Central Government issues an order under Rule 5 of the EP Rules, appropriate steps may have to be taken by all concerned for shifting of the industry of the petitioner from SIPCOT industrial complex.
289.To be noted that the State Government, in their submissions, had mentioned that a proposal has been sent by the Chief Wild Life Warden to the State Government for approval of the proposal to declare Gulf of Mannar as a Marine National Park under Section 35(4) of the Wild Life Act, but declaration has not been finally notified. Nextly, the Hon’ble Supreme Court examined the green belt requirement and held that if TNPCB after considering the representation of the petitioner has reduced the width of the green belt Page http://www.judis.nic.in 330 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 from 250m to 25m and when it is not shown that this power exercised by TNPCB was vitiated by procedural breach or irrationality, the High Court could not have interfered with the exercise of such power by TNPCB.
290.Further, the Hon’ble Supreme Court held that the High Court did not record any finding that there was breach of mandatory provision, High Court did not record a finding that by reducing the green belt width from 250m to 25m, it will not be possible to mitigate the effect of fugitive emission and High Court merely stated that TNPCB was generous to the petitioner and accordingly, the Hon’ble Supreme Court held that with regard to the width of the green belt, it is for TNPCB to take a decision.
291.With regard to the contention of the respondents that MoEF and TNPCB did not apply its mind fully, the Hon’ble Supreme Court held that it is for the administrative and statutory authorities empowered under the law to Page http://www.judis.nic.in 331 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 consider and grant environmental clearance and when no ground for interference with the decision of the authorities on well recognised principles of judicial review is made out, High Court could not have interfered with the decision of the authorities. After making such an observation, the Hon’ble Supreme Court also pointed out that after environmental clearance is granted under the EP Act and EP Rules and notification, and after consent is granted under the Air Act and Water Act, the industry continues to pollute the environment so as to affect the fundamental rights and life under Article 21 of the Constitution, the High Court could still direct the closure of the industry by virtue of its power under Article 21 of the Constitution, if it came to the conclusion that there were no other remedial measures other than closure of the petitioner industry to protect the environment. The Hon'ble Supreme Court then, proceeded to examine whether there were materials before the High Court to show that the plant of the petitioner did not maintain the standards of emission and discharge of effluent as laid down by TNPCB and Page http://www.judis.nic.in 332 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 whether there were no remedial measures other than the closure of the industry of the petitioner to protect the environment. The Hon’ble Supreme Court noted that the Division Bench of the High Court had relied on the report of NEERI of 2005. After extracting the relevant finding in the said report, it was noted that the report of NEERI of 2005 shows emission and effluent discharge, which have affected environment, but, however, pointed out that the report read as a whole does not warrant a conclusion that the plant of the petitioner could not possibly take remedial steps to improve the environment and that the only remedy to protect the environment was to direct closure of the plant of the petitioner. Thereafter, the Hon’ble Supreme Court took note of the directions issued earlier directing a joint inspection by NEERI with officials of CPCB and TNPCB, the report submitted by NEERI, synopsis of TNPCB specifying the deficiency and the submission of the petitioner that they have removed the deficiency, etc. After taking note of the joint inspection report, it was pointed out that out of 30 directions, the petitioner has complied with 29 Page http://www.judis.nic.in 333 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 directions and only one more direction under the Air Act was to be complied with. Thus, it was pointed out that the deficiencies in the plant of the petitioner, which affected the environment as mentioned by NEERI, have been removed and therefore, the order of the High Court directing closure of the plant is liable to be set aside. After coming to such a conclusion, the Hon’ble Supreme Court proceeded to consider the contention on behalf of the intervenor that the petitioner was liable to pay compensation for the damage caused by them to the environment. After taking note of the NEERI reports of 1998, 1999, 2003 and 2005, the Hon’ble Supreme Court pointed out that the petitioner did pollute the environment through emission, which did not confirm to the standards laid down by TNPCB under the Air Act and through discharge of effluent, which did not confirm to the standards laid down by TNPCB under the Water Act. It was noted, TNPCB did not renew the consent to operate for considerable period, yet the petitioner continued to operate its plant without such renewal. Thus, for the damages caused to the environment Page http://www.judis.nic.in 334 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 from 1997 to 2012 and for operating the plant without valid renewal for a fairly long period, the petitioner would liable to compensate by paying damages. After having held so, the Court proceeded to determine the quantum of compensation payable for which, it took note of the magnitude and capacity of the petitioner and made the petitioner liable for a compensation of Rs.100 Crores and issued direction as to how the money is to be utilised.
292.The next issue, which was considered by the Hon’ble Supreme Court, is with regard to the mis-representation and suppression of material facts by the petitioner before the Hon’ble Supreme Court in the Special Leave Petition and at the time of obtaining interim order. Reading of paragraph 48 of the judgment clearly shows that the Hon’ble Supreme Court held that the petitioner had mis-represented and suppressed material facts in the Special Leave Petition, however thought fit not to deny relief to the petitioner on the said ground taking note of the number of employees, who are dependent on Page http://www.judis.nic.in 335 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 the petitioner and the other persons, who are indirectly employed. Thus, a reading of paragraph 48 of the judgment would show that the relief granted to the petitioner was not on the ground that Rs.100 Crores was directed to be paid as compensation, but for other reasons noted in the said paragraph. Paragraph 49 of the judgment pays encomium to the writ petitioners before the High Court and the intervenor before the Hon’ble Supreme Court for having taken up the cause of environment both before the High Court and the Hon’ble Supreme Court and for having assisted the Court on all dates of hearing with utmost sincerity and hard work. The Hon’ble Supreme Court pointed out that very few would venture to litigate for the cause of environment, particularly against the mighty and the resourceful, but the writ petitioner before the High Court and the intervenor before the Hon’ble Supreme Court not only ventured, but also put in their best for the cause of the general public.
293.Two important factors emerge from the observations made by the Hon’ble Supreme Court in paragraph 49. Firstly, the effort of the writ Page http://www.judis.nic.in 336 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 petitioner before the High Court and the intervenor before the Supreme Court was appreciated. Secondly, the Hon’ble Supreme Court was conscious of the fact that the petitioner is mighty and resourceful and it will not be an easy task, rather an uphill task for the writ petitioner before the High Court to litigate for the cause of environment against the mighty and resourceful petitioner.
294.Paragraph 50 of the judgment is a clear indicator as to what the Hon’ble Supreme Court had to say in the matter and a careful reading of the said paragraph will give an answer to the question framed by us. By way of repetition, it is pointed out that the petitioner seeks to apply the principle of “washing off”, which is normally applied in service law jurisprudence. It is argued by the petitioner that they having paid Rs.100 Crores of compensation, none of the incidents, which were subject matter of the earlier round of litigation, can be looked into to assess as to whether the petitioner has to be closed down and sealed permanently.
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295.The first sentence of paragraph 50 shows that the appeals filed by the petitioner were allowed and the judgment of the Division Bench of the High Court was set aside consequence thereof, would be the order of closure stood revoked. The last sentence of paragraph 50 is very crucial wherein, the Hon’ble Supreme Court has made it clear that the judgment will not stand in the way of TNPCB issuing directions to the petitioner including a direction for closure of the plant, for protection of the environment in accordance with law. Therefore, in our considered view and proper understanding, the theory of “washing off” cannot be applied to the case on hand. The judgment of the Hon’ble Supreme Court, more particularly, the observations in paragraphs 42 and 45 clearly show that the petitioner did pollute the environment, violated the orders of consent, operated the plant for a considerable period of time without valid consent, etc. Therefore, to state that on payment of compensation of Rs.100 Crores, all the past misconducts stood wiped off is an argument, which is stated to be out rightly rejected as fallacious. Page http://www.judis.nic.in 338 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019
296.A careful reading of the decision of the Hon’ble Supreme Court will show that the appeals were allowed on the ground that the Division Bench of the High Court while setting aside the order of environment clearance and consents granted to the petitioner, transgressed the well-recognised principles of judicial review. In no part of the decision, the petitioner has been exonerated. The fact that the unit is within the prohibited distance of ecologically sensitive area, has been affirmed. The relief, the petitioner gets is on account of a technicality because notification is yet to be issued declaring the Gulf of Mannar as a National Park, though recommendation has been made as early as on 30.04.2003. It is not clear as to why the State of Tamil Nadu is sitting tight on the proposal, are there any hidden beneficiaries who would benefit by delaying the publication of the notification. Conscious of the factual position, the Hon’ble Supreme Court has pointed out, if notification is issued, the petitioner has to shift.
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297.With regard to public hearing to be conducted prior to the grant of environmental clearance, the petitioner has been granted relief because, the mandatory public hearing condition was introduced by way of an amendment in 1997, but by then in the year 1995, the petitioner has been granted environmental clearance. However, in the recent decisions of the various High Courts including this Court, it has been held that whether conduct of public hearing prior to the grant of environmental clearance is mandatory or directory, depends upon facts of each case or the magnitude of the impact that would be caused on environment, if a particular industry is granted environmental clearance. Therefore, in our considered view, the petitioner cannot take advantage of this fact to state that they have been wholly exonerated.
298.With regard to the rapid EIA, the Hon’ble Supreme Court noted that the EIA notification dated 27.01.1994 provided for a rapid EIA. At the Page http://www.judis.nic.in 340 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 same time, the Hon’ble Supreme Court has also noted the fall out of the regular EIA etc., but declined to exercise power by applying the principles of judicial review.
299.With regard to the green belt requirement, it was held that there was no material placed before the Court to show that there was breach of mandatory provision, nor did the High Court record a finding that by reducing green belt to 25m, it will not be possible to mitigate the effect of fugitive emission.
300.With regard to the pollution, which has been caused, the Hon’ble Supreme Court referred to the report of NEERI, 2005 and in paragraph 42 of the judgment, relevant observation has been extracted and it has been specifically pointed out that NEERI report of 2005 did show that the emission and effluent discharge affected the environment. However, the Page http://www.judis.nic.in 341 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 Hon’ble Supreme Court held that if the report is read as a whole, it does not warrant a conclusion that the plant of the petitioner could not possibly take remedial steps. Therefore, to state that there was a “clean chit” granted to the petitioner would be a statement, which is contrary to facts. Thus, taking note of all these factors, the Hon’ble Supreme Court had made the observations in paragraph 50, as pointed out earlier. Apart from that, the Court also noted that the petitioner is guilty of mis-representation and suppression of material fact in the Special Leave Petition and while obtaining interim orders, however, did not deny relief to the petitioner bearing in mind the plight of its employees and others. Therefore, the petitioner has not been exonerated by the Hon’ble Supreme Court and payment of Rs.100 Crores does not wipe away the earlier deficiencies, violations, etc., and it will be well open to the respondents to refer to them while taking a final decision in the matter, regarding permanent closure.
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301.By way of illustration, when a person accused of a crime is convicted by a criminal court and sentence is imposed, on appeal, the appellate court while agreeing with the findings of the trial court that the accused is guilty and confirming the conviction, may exercise discretion to alter the sentence. In fact, the conviction suffered by the petitioner, which ultimately led to an order of closure by the High Court, was subject matter of appeal before the Hon’ble Supreme Court.
302.The learned Senior Counsel for the petitioner referred to the decisions in the case of Forward Construction Co. vs. Prabhat Mandal Andheri [AIR 1986 SC 395]; Asgar; All India Manufacturers Organisation; Daryao; and Amalgamated Coalfields Ltd. These decisions were referred to in support of his submissions that the principles of constructive res judicata would apply and the respondents cannot rely upon any of the events which were prior to 02.04.2013, the date on which the Hon'ble Supreme Court Page http://www.judis.nic.in 343 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 delivered its verdict. On facts, we have found that the said contention is not acceptable and we have given our reasons for the same. In Forward Construction Co., the question arose as to whether the subject writ petition is barred by res judicata, which plea was rejected by the High Court primarily for two reasons. Firstly, in the earlier writ petition, the validity of the permission granted under the Development Control Rules, was not an issue and secondly, the earlier writ petition was not a bona fide one. The Hon'ble Supreme Court, on facts, held that the High Court was not right in holding that the earlier judgment would not operate as res judicata. One of the grounds taken in the present petition was conspicuous by its absence in the earlier petition. It further held that an adjudication is conclusive and final not only as to the actual matter determined, but as to every other matter which the parties might and ought to have litigated and have had it decided as incidental to or essentially connected with the subject matter of the litigation and every matter coming within the legitimate purview of original action both in respect of the Page http://www.judis.nic.in 344 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 matters of claim or defence. On the second issue as to whether the earlier writ petition was lacking in bona fides, the Hon'ble Supreme Court held that in view of Explanation (vi) to Section 11 of CPC, it cannot be disputed that Section 11 applies to public interest litigation as well, but it must be proved that the previous litigation was the public interest litigation not by way of private grievance.