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W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 IN THE HIGH COURT OF JUDICATURE AT MADRAS Orders reserved on Orders pronounced on 08.01.2020 18.08.2020 Dated : 18.08.2020 Coram The Hon'ble Mr. Justice T.S.SIVAGNANAM and The Hon'ble Mrs.Justice V.BHAVANI SUBBAROYAN Writ Petition Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 and W.M.P.Nos.6575, 6590, 6596, 6598, 6602, 6628, 6630, 6703, 6634 of 2019 and W.M.P.SR No.102459 of 2019 W.P.No.5756 of 2019 :- Vedanta Limited, Unit: Sterlite Copper, Rep., by its General Manager-Legal, SIPCOT Industrial Complex, Madurai Bypass Road, Thoothukudi, Tamil Nadu-628 002. .. Petitioner -vs- 1.State of Tamil Nadu, Rep., by the Principal Secretary, Environment and Forest Department, Page http://www.judis.nic.in 1 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 Secretariat, Chennai-600 009. 2.Tamil Nadu Pollution Control Board, Rep., by its Chairman, No.76, Mount Salai, Guindy, Chennai-600 032. 3.The District Collector, Thoothukudi District, Tamil Nadu. 4.Tamil Nadu Electricity Board, Rep., by its Superintendent Engineer, (Presently, Tamil Nadu Generation and Distribution Company – TANGEDCO), Thoothukudi District. 5.Town Welfare Officer, Thoothukudi Corporation, Thoothukudi. 6.Director of Boilers, First Floor (South Wing), P.W.D. Office Compound, Chepauk, Chennai-600 005. 7.Joint Director, Industrial Safety and Health, Page http://www.judis.nic.in 2 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 Directorate of Industrial Safety and Health, Thoothukudi-628 003. 8.Director/DGP, Tamil Nadu Fire and Rescue Services, No.17, Rukmani Lakshmipathi Salai, Egmore, Chennai-600 008. 9.Fatima 10.S.Raja 11.K.S.Arjunan, S/o.T.Seetharaman, District Secretary, Communist Party of India (Marxist), 16, Masilamanipuram 3rd Street, Thoothukudi-625 008. 12.Vaiko, General Secretary, Marumalarchi Dravida Munnetra Kazhagam Party, 12, Rukmani Lakshmipathy Salai, Egmore, Chennai-600 008. .. Respondents [RR9 to 12 are impleaded vide order dated 12.06.2019 made in W.M.P.Nos.9850, 9451, 8288 & 8848 of 2019 in W.P.No.5756 of 2019] Prayer:- Petition under Article 226 of the Constitution of India praying for issuance of Writ of Certiorari to call for the records in respect of the Impugned Page http://www.judis.nic.in 3 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 Order passed by respondent no.2 vide Proceeding No.T1/TNPCB/F.0212TTN/RL/W&A/2018 dated 12.04.2018 as arbitrary and illegal and quash the same. W.P.No.5764 of 2019 :- Vedanta Limited, Unit: Sterlite Copper, Rep., by its General Manager-Legal, SIPCOT Industrial Complex, Madurai Bypass Road, Thoothukudi, Tamil Nadu-628 002. .. Petitioner -vs- 1.State of Tamil Nadu, Rep., by the Principal Secretary, Environment and Forest Department, Secretariat, Chennai-600 009. 2.Tamil Nadu Pollution Control Board, Rep., by its Chairman, No.76, Mount Salai, Guindy, Chennai-600 032. 3.The District Collector, Thoothukudi District, Tamil Nadu. Page http://www.judis.nic.in 4 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 4.Tamil Nadu Electricity Board, Rep., by its Superintendent Engineer, (Presently, Tamil Nadu Generation and Distribution Company – TANGEDCO), Thoothukudi District. 5.Town Welfare Officer, Thoothukudi Corporation, Thoothukudi. 6.Director of Boilers, First Floor (South Wing), P.W.D. Office Compound, Chepauk, Chennai-600 005. 7.Joint Director, Industrial Safety and Health, Directorate of Industrial Safety and Health, Thoothukudi-628 003. 8.Director/DGP, Tamil Nadu Fire and Rescue Services, No.17, Rukmani Lakshmipathi Salai, Egmore, Chennai-600 008. 9.K.S.Arjunan, S/o.T.Seetharaman, District Secretary, Communist Party of India (Marxist), rd 16, Masilamanipuram 3 Street, Thoothukudi-625 008. Page http://www.judis.nic.in 5 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 10.Vaiko, General Secretary, Marumalarchi Dravida Munnetra Kazhagam Party, 12, Rukmani Lakshmipathy Salai, Egmore, Chennai-600 008. .. Respondents [RR9 & 10 are impleaded vide order dated 12.06.2019 made in WMP Nos.9842 & 9371 of 2019 in W.P.No.5764 of 2019] Prayer:- Petition under Article 226 of the Constitution of India praying for issuance of Writ of Certiorari to call for the records in respect of the Impugned Order passed by respondent no.2 vide Proceeding No.T7/TNPCB/F.30921/2012/TTN/A-1 dated 29.03.2013 and quash the same as arbitrary and illegal. W.P.No.5771 of 2019 :- Vedanta Limited, Unit: Sterlite Copper, Rep., by its General Manager-Legal, SIPCOT Industrial Complex, Madurai Bypass Road, Thoothukudi, Tamil Nadu-628 002. .. Petitioner Page http://www.judis.nic.in 6 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 -vs- 1.State of Tamil Nadu, Rep., by the Principal Secretary, Environment and Forest Department, Secretariat, Chennai-600 009. 2.Tamil Nadu Pollution Control Board, Rep., by its Chairman, No.76, Mount Salai, Guindy, Chennai-600 032. 3.The District Collector, Thoothukudi District, Tamil Nadu. 4.Tamil Nadu Electricity Board, Rep., by its Superintendent Engineer, (Presently, Tamil Nadu Generation and Distribution Company – TANGEDCO), Thoothukudi District. 5.Town Welfare Officer, Thoothukudi Corporation, Thoothukudi. 6.Director of Boilers, First Floor (South Wing), P.W.D. Office Compound, Chepauk, Chennai-600 005. Page http://www.judis.nic.in 7 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 7.Joint Director, Industrial Safety and Health, Directorate of Industrial Safety and Health, Thoothukudi-628 003. 8.Director/DGP, Tamil Nadu Fire and Rescue Services, No.17, Rukmani Lakshmipathi Salai, Egmore, Chennai-600 008. 9.K.S.Arjunan, S/o.T.Seetharaman, District Secretary, Communist Party of India (Marxist), rd 16, Masilamanipuram 3 Street, Thoothukudi-625 008. 10.S.Raju, State Co-ordinator, Makkal Athikaram (People Power), No.16, Mullai Nagar Commercial Complex, nd Ashok Nagar 2 Avenue, Chennai-600 083. 11.Vaiko, General Secretary, Marumalarchi Dravida Munnetra Kazhagam Party, 12, Rukmani Lakshmipathy Salai, Egmore, Chennai-600 008. .. Respondents [RR9 to 11 are impleaded vide order dated 12.06.2019 made in W.M.P.Nos.9846, 9827 & 9372 of 2019 in W.P.No.5771 of 2019] Page http://www.judis.nic.in 8 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 Prayer:- Petition under Article 226 of the Constitution of India praying for issuance of Writ of Mandamus, directing the Respondent No.2 to grant forthwith the Hazardous Waste Authorization to the petitioner in keeping with the Hazardous and Other Wastes (Management and Transboundary Movement) Rules, 2016. W.P.No.5772 of 2019 :- Vedanta Limited, Unit: Sterlite Copper, Rep., by its General Manager-Legal, SIPCOT Industrial Complex, Madurai Bypass Road, Thoothukudi, Tamil Nadu-628 002. .. Petitioner -vs- 1.State of Tamil Nadu, Rep., by the Principal Secretary, Environment and Forest Department, Secretariat, Chennai-600 009. 2.Tamil Nadu Pollution Control Board, Rep., by its Chairman, No.76, Mount Salai, Guindy, Chennai-600 032. Page http://www.judis.nic.in 9 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 3.The District Collector, Thoothukudi District, Tamil Nadu. 4.Tamil Nadu Electricity Board, Rep., by its Superintendent Engineer, (Presently, Tamil Nadu Generation and Distribution Company – TANGEDCO), Thoothukudi District. 5.Town Welfare Officer, Thoothukudi Corporation, Thoothukudi. 6.Director of Boilers, First Floor (South Wing), P.W.D. Office Compound, Chepauk, Chennai-600 005. 7.Joint Director, Industrial Safety and Health, Directorate of Industrial Safety and Health, Thoothukudi-628 003. 8.Director/DGP, Tamil Nadu Fire and Rescue Services, No.17, Rukmani Lakshmipathi Salai, Egmore, Chennai-600 008. Page http://www.judis.nic.in 10 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 9.S.Raju, State Co-ordinator, Makkal Athikaram (People Power), No.16, Mullai Nagar Commercial Complex, Ashok Nagar 2nd Avenue, Chennai-600 083. 10.G.Hariraghavan 11.K.S.Arjunan, S/o.T.Seetharaman, District Secretary, Communist Party of India (Marxist), rd 16, Masilamanipuram 3 Street, Thoothukudi-625 008. 12.Vaiko, General Secretary, Marumalarchi Dravida Munnetra Kazhagam Party, 12, Rukmani Lakshmipathy Salai, Egmore, Chennai-600 008. .. Respondents [RR9 to 12 are impleaded vide order dated 12.06.2019 made in W.M.P.Nos.9832, 9835, 9848 and 9373 of 2019 in W.P.No.5772 of 2019] Prayer:- Petition under Article 226 of the Constitution of India praying for issuance of Writ of Certiorarified Mandamus to call for the records in respect of the Impugned Order passed by the Respondent No.2 vide Proc. Page http://www.judis.nic.in 11 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 No.T1/TNPCB/F.0212TTN/RL/28/W&A/2018 dated 09.04.2018 under Section 25 of the Water (Prevention and Control of Pollution) Act, 1974 (the 'Water Act') and Section 21 of the Air (Prevention and Control of Pollution) Act, 1981 (the 'Air Act') and quash the same and consequently, direct the Respondent No.2 to forthwith issue the Consents to Operate to the petitioner for its copper smelter plant for a period of 5 years, under the Air Act and Water Act. W.P.No.5773 of 2019 :- Vedanta Limited, Unit: Sterlite Copper, Rep., by its General Manager-Legal, SIPCOT Industrial Complex, Madurai Bypass Road, Thoothukudi, Tamil Nadu-628 002. .. Petitioner -vs- 1.State of Tamil Nadu, Rep., by the Principal Secretary, Environment and Forest Department, Secretariat, Chennai-600 009. Page http://www.judis.nic.in 12 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 2.Tamil Nadu Pollution Control Board, Rep., by its Chairman, No.76, Mount Salai, Guindy, Chennai-600 032. 3.The District Collector, Thoothukudi District, Tamil Nadu. 4.Tamil Nadu Electricity Board, Rep., by its Superintendent Engineer, (Presently, Tamil Nadu Generation and Distribution Company – TANGEDCO), Thoothukudi District. 5.Town Welfare Officer, Thoothukudi Corporation, Thoothukudi. 6.Director of Boilers, First Floor (South Wing), P.W.D. Office Compound, Chepauk, Chennai-600 005. 7.Joint Director, Industrial Safety and Health, Directorate of Industrial Safety and Health, Thoothukudi-628 003. Page http://www.judis.nic.in 13 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 8.Director/DGP, Tamil Nadu Fire and Rescue Services, No.17, Rukmani Lakshmipathi Salai, Egmore, Chennai-600 008. 9.K.S.Arjunan, S/o.T.Seetharaman, District Secretary, Communist Party of India (Marxist), rd 16, Masilamanipuram 3 Street, Thoothukudi-625 008. 10.Vaiko, General Secretary, Marumalarchi Dravida Munnetra Kazhagam Party, 12, Rukmani Lakshmipathy Salai, Egmore, Chennai-600 008. .. Respondents [RR9 & 10 are impleaded vide order dated 12.06.2019 made in W.M.P.Nos.8296 & 9374 of 2019 in W.P.No.5773 of 2019] Prayer:- Petition under Article 226 of the Constitution of India praying for issuance of Writ of Mandamus directing the respondents to furnish copies to the petitioner of all Record of Proceedings maintained by the Government of Tamil Nadu and the Tamil Nadu Pollution Control Board together with the Inspection and Scrutiny Reports pertaining to the petitioner's plant and Page http://www.judis.nic.in 14 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 operations, including, without limitation, the copy of the Report of Inspection along with annexures of the Joint Chief Environment Engineer, Monitoring, Tirunelveli dated 27.02.2018 for renewal of consents, the Scrutiny Report prepared by TNPCB officials after the inspection of the petitioner's Unit in February 2018, the Inspection Report dated 28.02.2018, for renewal of the Hazardous Waste Authorization by the Joint Chief Environmental Engineer, Monitoring, Tirunelveli and to furnish the same to the petitioner forthwith and the record of proceedings (administrative file(s) by whichever name called), in respect of the issuance of the order dated 23.05.2018 passed by the TNPCB, the Respondent No.2 herein and the issuance of the Government of Tamil Nadu Order in G.O.(Ms) No.72 dated 28.05.2018 issued by the State of Tamil Nadu, Department of Environment and Forest, the Respondent No.1 herein. W.P.No.5774 of 2019 :- Vedanta Limited, Unit: Sterlite Copper, Rep., by its General Manager-Legal, Page http://www.judis.nic.in 15 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 SIPCOT Industrial Complex, Madurai Bypass Road, Thoothukudi, Tamil Nadu-628 002. .. Petitioner -vs- 1.State of Tamil Nadu, Rep., by the Principal Secretary, Environment and Forest Department, Secretariat, Chennai-600 009. 2.Tamil Nadu Pollution Control Board, Rep., by its Chairman, No.76, Mount Salai, Guindy, Chennai-600 032. 3.The District Collector, Thoothukudi District, Tamil Nadu. 4.Tamil Nadu Electricity Board, Rep., by its Superintendent Engineer, (Presently, Tamil Nadu Generation and Distribution Company – TANGEDCO), Thoothukudi District. 5.Town Welfare Officer, Thoothukudi Corporation, Thoothukudi. Page http://www.judis.nic.in 16 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 6.Director of Boilers, First Floor (South Wing), P.W.D. Office Compound, Chepauk, Chennai-600 005. 7.Joint Director, Industrial Safety and Health, Directorate of Industrial Safety and Health, Thoothukudi-628 003. 8.Director/DGP, Tamil Nadu Fire and Rescue Services, No.17, Rukmani Lakshmipathi Salai, Egmore, Chennai-600 008. 9.K.S.Arjunan, S/o.T.Seetharaman, District Secretary, Communist Party of India (Marxist), rd 16, Masilamanipuram 3 Street, Thoothukudi-625 008. 10.Vaiko, General Secretary, Marumalarchi Dravida Munnetra Kazhagam Party, 12, Rukmani Lakshmipathy Salai, Egmore, Chennai-600 008. .. Respondents [RR9 & 10 are impleaded vide order dated 12.06.2019 made in W.M.P.Nos.8297 & 9375 of 2019 in W.P.No.5774 of 2019] Page http://www.judis.nic.in 17 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 Prayer:- Petition under Article 226 of the Constitution of India praying for issuance of Writ of Certiorari to call for the records in respect of the Impugned Order passed by respondent no.2 vide Proceeding No.T7/TNPCB/F.30921/2012/TTN/A-2 dated 29.03.2013 and quash the same as arbitrary and illegal. W.P.No.5776 of 2019 :- Vedanta Limited, Unit: Sterlite Copper, Rep., by its General Manager-Legal, SIPCOT Industrial Complex, Madurai Bypass Road, Thoothukudi, Tamil Nadu-628 002. .. Petitioner -vs- 1.State of Tamil Nadu, Rep., by the Principal Secretary, Environment and Forest Department, Secretariat, Chennai-600 009. 2.Tamil Nadu Pollution Control Board, Rep., by its Chairman, No.76, Mount Salai, Guindy, Chennai-600 032. Page http://www.judis.nic.in 18 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 3.The District Collector, Thoothukudi District, Tamil Nadu. 4.Tamil Nadu Electricity Board, Rep., by its Superintendent Engineer, (Presently, Tamil Nadu Generation and Distribution Company – TANGEDCO), Thoothukudi District. 5.Town Welfare Officer, Thoothukudi Corporation, Thoothukudi. 6.Director of Boilers, First Floor (South Wing), P.W.D. Office Compound, Chepauk, Chennai-600 005. 7.Joint Director, Industrial Safety and Health, Directorate of Industrial Safety and Health, Thoothukudi-628 003. 8.Director/DGP, Tamil Nadu Fire and Rescue Services, No.17, Rukmani Lakshmipathi Salai, Egmore, Chennai-600 008. Page http://www.judis.nic.in 19 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 9.Vaiko, General Secretary, Marumalarchi Dravida Munnetra Kazhagam Party, 12, Rukmani Lakshmipathy Salai, Egmore, Chennai-600 008. 10.K.S.Arjunan, S/o.T.Seetharaman, District Secretary, Communist Party of India (Marxist), rd 16, Masilamanipuram 3 Street, Thoothukudi-625 008. .. Respondents [RR9 & 10 are impleaded vide order dated 12.06.2019 made in W.M.P.Nos.9376 & 8298 of 2019 in W.P.No.5776 of 2019] Prayer:- Petition under Article 226 of the Constitution of India praying for issuance of Writ of Certiorarified Mandamus to call for the records in respect of the Impugned Order passed by Respondent No.2 vide Proceeding No.TS1/TNPCB/F.0212/TTN/EB/2018 dated 23.05.2018 and quash the same as arbitrary and illegal and consequently direct the immediate restoration of power supply to the petitioner's plant. Page http://www.judis.nic.in 20 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 W.P.No.5792 of 2019 :- Vedanta Limited, Unit: Sterlite Copper, Rep., by its General Manager-Legal, SIPCOT Industrial Complex, Madurai Bypass Road, Thoothukudi, Tamil Nadu-628 002. .. Petitioner -vs- 1.State of Tamil Nadu, Rep., by the Principal Secretary, Environment and Forest Department, Secretariat, Chennai-600 009. 2.Tamil Nadu Pollution Control Board, Rep., by its Chairman, No.76, Mount Salai, Guindy, Chennai-600 032. 3.The District Collector, Thoothukudi District, Tamil Nadu. 4.Tamil Nadu Electricity Board, Rep., by its Superintendent Engineer, (Presently, Tamil Nadu Generation and Distribution Company – TANGEDCO), Thoothukudi District. Page http://www.judis.nic.in 21 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 5.Town Welfare Officer, Thoothukudi Corporation, Thoothukudi. 6.Director of Boilers, First Floor (South Wing), P.W.D. Office Compound, Chepauk, Chennai-600 005. 7.Joint Director, Industrial Safety and Health, Directorate of Industrial Safety and Health, Thoothukudi-628 003. 8.Director/DGP, Tamil Nadu Fire and Rescue Services, No.17, Rukmani Lakshmipathi Salai, Egmore, Chennai-600 008. 9.K.S.Arjunan, S/o.T.Seetharaman, District Secretary, Communist Party of India (Marxist), rd 16, Masilamanipuram 3 Street, Thoothukudi-625 008. 10.Vaiko, General Secretary, Marumalarchi Dravida Munnetra Kazhagam Party, 12, Rukmani Lakshmipathy Salai, Egmore, Chennai-600 008. Page http://www.judis.nic.in 22 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 11.G.Hariraghavan 12.S.Raju, State Co-ordinator, Makka Athikaram (People Power), No.16, Mullai Nagar Commercial Complex, nd Ashok Nagar 2 Avenue, Chennai-600 083. .. Respondents [RR9 to 12 are impleaded vide order dated 12.06.2019 made in W.M.P.Nos.9856, 9377, 9836 & 9834 of 2019 in W.P.No.5792 of 2019] Prayer:- Petition under Article 226 of the Constitution of India praying for issuance of Writ of Certiorari to call for the records of the impugned order passed by the Department of Environment and Forest, the Respondent No.1 herein, vide Government Order G.O.(Ms) No.72 dated 28.05.2018 and the consequential orders being Order No.H2/9992/14 dated 28.05.2018 passed by Respondent No.5, Order No.DB/1420/2018 dated 28.05.2018 with respect to Boiler Nos. T-6129, T-6144, T-6662, T-6663, T-6664, T-6665, T-7290, T- 7797, T-8121, T-8122 passed by Respondent No.6, Order No.C/1056/2018 dated 30.05.2018 passed by Respondent No.7, Order No.C/1057/2018 dated Page http://www.judis.nic.in 23 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 30.05.2018 passed by Respondent No.7, Order K.Dis.No.23562/C1/2017 dated 01.06.2018 passed by Respondent No.8 and quash the same. W.P.No.5793 of 2019 :- Vedanta Limited, Unit: Sterlite Copper, Rep., by its General Manager-Legal, SIPCOT Industrial Complex, Madurai Bypass Road, Thoothukudi, Tamil Nadu-628 002. .. Petitioner -vs- 1.State of Tamil Nadu, Rep., by the Principal Secretary, Environment and Forest Department, Secretariat, Chennai-600 009. 2.Tamil Nadu Pollution Control Board, Rep., by its Chairman, No.76, Mount Salai, Guindy, Chennai-600 032. 3.The District Collector, Thoothukudi District, Tamil Nadu. Page http://www.judis.nic.in 24 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 4.Tamil Nadu Electricity Board, Rep., by its Superintendent Engineer, (Presently, Tamil Nadu Generation and Distribution Company – TANGEDCO), Thoothukudi District. 5.Town Welfare Officer, Thoothukudi Corporation, Thoothukudi. 6.Director of Boilers, First Floor (South Wing), P.W.D. Office Compound, Chepauk, Chennai-600 005. 7.Joint Director, Industrial Safety and Health, Directorate of Industrial Safety and Health, Thoothukudi-628 003. 8.Director/DGP, Tamil Nadu Fire and Rescue Services, No.17, Rukmani Lakshmipathi Salai, Egmore, Chennai-600 008. 9.K.S.Arjunan, S/o.T.Seetharaman, District Secretary, Communist Party of India (Marxist), rd 16, Masilamanipuram 3 Street, Thoothukudi-625 008. Page http://www.judis.nic.in 25 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 10.Vaiko, General Secretary, Marumalarchi Dravida Munnetra Kazhagam Party, 12, Rukmani Lakshmipathy Salai, Egmore, Chennai-600 008. .. Respondents [RR9 & 10 are impleaded vide order dated 12.06.2019 made in W.M.P.Nos.8299 & 9378 of 2019 in W.P.No.5793 of 2019] Prayer:- Petition under Article 226 of the Constitution of India praying for issuance of Writ of Certiorarified Mandamus to call for the records in respect of the Impugned Order passed by Respondent No.2 vide Proceeding No.TS1/TNPCB/F.0212/TTN/RL/W&A/2018 dated 28.05.2018 and quash the same as arbitrary and illegal and consequently direct the Respondent No.2 to facilitate the immediate opening including by immediate de-sealing of the petitioner's plant with restoration of supply of electricity. W.P.No.5801 of 2019 :- Vedanta Limited, Unit: Sterlite Copper, Rep., by its General Manager-Legal, Page http://www.judis.nic.in 26 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 SIPCOT Industrial Complex, Madurai Bypass Road, Thoothukudi, Tamil Nadu-628 002. .. Petitioner -vs- 1.State of Tamil Nadu, Rep., by the Principal Secretary, Environment and Forest Department, Secretariat, Chennai-600 009. 2.Tamil Nadu Pollution Control Board, Rep., by its Chairman, No.76, Mount Salai, Guindy, Chennai-600 032. 3.The District Collector, Thoothukudi District, Tamil Nadu. 4.Tamil Nadu Electricity Board, Rep., by its Superintendent Engineer, (Presently, Tamil Nadu Generation and Distribution Company – TANGEDCO), Thoothukudi District. 5.Town Welfare Officer, Thoothukudi Corporation, Thoothukudi. Page http://www.judis.nic.in 27 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 6.Director of Boilers, First Floor (South Wing), P.W.D. Office Compound, Chepauk, Chennai-600 005. 7.Joint Director, Industrial Safety and Health, Directorate of Industrial Safety and Health, Thoothukudi-628 003. 8.Director/DGP, Tamil Nadu Fire and Rescue Services, No.17, Rukmani Lakshmipathi Salai, Egmore, Chennai-600 008. 9.Vaiko, General Secretary, Marumalarchi Dravida Munnetra Kazhagam Party, 12, Rukmani Lakshmipathy Salai, Egmore, Chennai-600 008. 10.K.S.Arjunan, S/o.T.Seetharaman, District Secretary, Communist Party of India (Marxist), rd 16, Masilamanipuram 3 Street, Thoothukudi-625 008. .. Respondents [RR9 & 10 are impleaded vide order dated 12.06.2019 made in W.M.P.Nos.9379 & 9858 of 2019 in W.P.No.5801 of 2019] Page http://www.judis.nic.in 28 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 Prayer:- Petition under Article 226 of the Constitution of India praying for issuance of Writ of Certiorarified Mandamus to call for the records in respect of the Impugned Order passed by Respondent No.2 vide Proceeding No.TS1/TNPCB/F.0212/TTN/RL/W&A/2018 dated 23.05.2018 and quash the same as arbitrary and illegal and consequently direct the immediate opening of the petitioner's plant together with restoration of electricity supply by the Respondent No.4. W.P.No.21547 of 2019 Fatima, D/o.M.G.Rodriguez .. Petitioner -vs- 1.State of Tamil Nadu, Rep., by the Principal Secretary, Environment and Forest Department, Secretariat, Chennai-600 009. 2.Tamil Nadu Pollution Control Board, Rep., by its Chairman, No.76, Mount Salai, Guindy, Chennai-600 032. Page http://www.judis.nic.in 29 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 3.The District Collector, Thoothukudi District, Tamil Nadu. 4.Vedanta Limited, Unit: Sterlite Copper, Rep., by its General Manager, SIPCOT Industrial Complex, Madurai Bypass Road, Thoothukudi, Tamil Nadu-628 002. Prayer:- Petition under Article 226 of the Constitution of India praying for issuance of Writ of Mandamus directing respondents 1 to 3 to forthwith th demolish the 4 respondent's industry, restore the site to its previous state by remediating the environment, including the soil and water. ****** For Petitioners :- In W.P.Nos.5764 & 5774 of 2019 :- Mr.ARL.Sundaresan, Senior Counsel In W.P.Nos.5792 & 5793 of 2019 :- Mr.G.Masilamani, Senior Counsel Page http://www.judis.nic.in 30 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 In W.P.No.5756 of 2019 :- Mr.P.S.Raman, Senior Counsel In W.P.Nos.5772, 5801, 5776, 5773 and 5771 of 2019 :- Mr.C.A.Sundaram, Senior Counsel assisted by Ms.Rohini Mussa For Respondents :- For RR1, 3, 5 to 8 in all Writ Petitions :- Mr.Vijay Narayan, Advocate General Assisted by Mr.V.Jayaprakash Narayanan, Government Pleader & Mr.K.V.Viswanathan, Senior Counsel For R2 in all Writ Petitions :- Mr.C.S.Vaidyanathan, Senior Counsel Assisted by Mr.Siddhart Kohli for Mr.Abdul Saleem, Mr.M.Yogesh Kanna & Mr.Balaji Srinivasan, Additional Advocate General Page http://www.judis.nic.in 31 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 For Respondent in W.P.No.21547 of 2019, For RR9 & 10 in W.P.No.5756 of 2019:- Mr.A.Yogeshwaran for Ms.Poonguzhali For R9 in W.P.No.5756 of 2019 :- Ms.R.Vaigai, Senior Counsel assisted by Ms.B.Poonguzhali For R9 in W.P.No.5772 of 2019, for R10 in W.P.No.5771 of 2019 & for R12 in W.P.No.5792 of 2019 :- Mr.T.Mohan for Mr.A.Suresh Sakthi Murugan For R10 in W.P.No.5772 of 2019 and for R11 in W.P.No.5792 of 2019 :- Mr.Balan Haridas for Mr.Jimraj Milton For R12 in W.P.No.5756 of 2019, For R10 in W.P.No.5764 of 2019, for R11 in W.P.No.5771 of 2019, for R12 in W.P.No.5772 of 2019, for R10 in W.P.Nos.5773, 5774, 5792 & 5793 of 2019 and for R9 in W.P.Nos.5776 & 5801 of 2019 :- Mr.Vaiko (Party-in-person) Page http://www.judis.nic.in 32 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 For R9 in W.P.Nos.5773, 5774, 5764, 5771, 5764, 5792, 5793 of 2019, for R10 in W.P.Nos.5776, 5801 of 2019 band for R11 in W.P.Nos.5756 & 5772 of 2019 :- Mr.N.G.R.Prasad for Mr.L.Subbumuthuramalingam ******* COMMON ORDER T.S.Sivagnanam, J.
The petitioner, in all these Writ Petitions, except W.P.No.21547 of 2019, is M/s.Vedanta Limited – Unit Sterlite Copper Thoothukudi, formerly known as 'Sterlite Industries (India) Ltd/ Sesa Goa Ltd/ Sesa Sterlite Limited'.
2.The petitioner is a company incorporated under the Companies Act having its registered office at Mumbai. The nature of activities done by the petitioner, are exporting, extracting and processing minerals such as copper, iron ore, aluminium, oil and gas and commercial power and claims to be one of the world's largest diversified natural resources companies. Page http://www.judis.nic.in 33 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019
3.The ten Writ Petitions, filed by the petitioner, could be segregated into four categories. The first being, the lead cases; the second set of cases challenging consequential orders; the third set of cases in which independent reliefs have been sought for; and the fourth set of cases challenging the orders passed by the Tamil Nadu Pollution Control Board (TNPCB) in the year 2013. In the course of discussion in these Writ Petitions, primarily, we will refer to the lead cases, which are W.P.Nos.5772 of 2019 and 5792 of 2019.
4.The reliefs sought for in the Writ Petitions are to quash the order passed by the TNPCB, dated 09.04.2018, rejecting the application for renewal of consent to operate under Section 25 of the Water (Prevention and Control of Pollution) Act, 1974 (for brevity the 'Water Act') and Section 21 of the Air (Prevention and Control of Pollution) Act, 1981 (for brevity the 'Air Act') and for a consequential direction to renew the consent to operate the petitioner's plant and to quash the Government Order in G.O.Ms.No.72, Environment and Page http://www.judis.nic.in 34 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 Forest EC-3 Department, dated 28.05.2018, in and by which, the Government endorsed the closure direction of the TNPCB and also directed TNPCB to close the petitioner's unit and close the plant permanently.
5.The Writ Petitions, which fall in the second category are W.P.No.5756 of 2019, challenging the order of the TNPCB, dated 12.04.2018, directing the petitioner not to resume production; W.P.No.5801 of 2018, challenging the order of closure, dated 23.05.2018, passed by the TNPCB and for a consequential direction to reopen the unit and restore electricity supply; W.P.No.5776 of 2019, challenging the order dated 23.05.2018, disconnecting the power supply to the petitioner's unit; and Writ Petition in W.P.No.5793 of 2019, challenging the order of TNPCB, dated 28.05.2018, sealing the petitioner's unit, consequent upon G.O.Ms.No.72, dated 28.05.2018 and for a direction to de-seal the unit and restore the electricity. Page http://www.judis.nic.in 35 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019
6.In the third category of cases, W.P.No.5773 of 2019, has been filed to issue a direction to the authorities to furnish copies of the proceedings with regard to inspection and scrutiny reports etc., and W.P.No.5771 of 2019, has been filed to direct the TNPCB to forthwith grant Hazardous Waste Authorisation under the provisions of the Hazardous and other Wastes (Management and Transboundary Movement) Amendment Rules 2019, as amended (for brevity 'Hazardous Rules').
7.The Writ Petitions in the fourth category in W.P.Nos.5764 & 5774 of 2019, are challenging the two orders even dated 29.03.2013, passed by the TNPCB in exercise of powers under Section 31 of the Air Act, directing closure of the petitioner's unit and disconnection of power supply. W.P.No.21547 of 2019, has been filed by one Ms.Fatima, which we shall deal with separately in the later part of the order.
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8.As the present matter has had a chequered history and there has been litigation since 1997, i.e., soon after the petitioner commenced production, a prelude is essential.
9.The plant set up by the petitioner in Thoothukudi is engaged in the manufacture of copper cathode, copper rods, sulphuric acid, phosphoric acid and other by-products in the process of smelting copper concentrate. The copper rod plant and the captive power plant are situated within the copper smelter complex of the petitioner's unit.
10.During 1997, the Government of Tamil Nadu approved the project of the petitioner to set up a copper smelting plant and during 1994, the State Industries Promotion Corporation of Tamil Nadu (SIPCOT) allotted an extent of 102.50.0 hectares of land in an industrial complex developed by it at Thoothukudi. The manufacture of copper is classified as 'red category Page http://www.judis.nic.in 37 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 industry' signifying that the process is highly polluting and the effluents are hazardous. Therefore, prior environmental clearance of the Central Government was mandatory. On 16.01.1995, the Ministry of Environment, Forest and Climate Change (MoEF & CC) granted environmental clearances for the project. Thereafter, the Government of Tamil Nadu, the Department of Forest granted environmental clearance on 17.05.1995. In terms of the provisions of the Air Act and Water Act, the petitioner was required to obtain consent to establish the plant. This was granted by the TNPCB on 22.05.1995, to manufacture 234 tonnes of blister copper per day and 638 tonnes of sulphuric acid per day. The order of consent contained various conditions. By order dated 14.10.1996, under Section 21 of the Air Act and Section 25 of the Water Act, the petitioner was granted consent to operate the plant with a capacity of 391 tonnes of blister copper per day and 1060 tonnes of sulphuric acid per day till 31.03.1997. This order also contained conditions. Soon after the grant of the consent orders, Writ Petitions were filed before this Court Page http://www.judis.nic.in 38 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 during November 1996, essentially challenging the grant of environmental clearance and other related matters. On 01.01.1997, the petitioner commenced production. During April 1997, W.P.No.5769 of 1997, was filed challenging the grant of environmental clearance, dated 06.01.1995 and the clearance granted by the State Government, dated 17.05.1995. Within about seven months, after commencement of production, the petitioner was visited with an order of closure dated 06.07.1997, on account of an incident regarding gas leakage. The State Government, presumably taking note of the concern expressed by the local public, constituted a Committee to investigate into the incident. It is the petitioner's case that upon reports being submitted by the Expert Committee, the TNPCB by order dated 13.08.1997, ordered reopening of the plant and permitted the petitioner to commence and continue production. Subsequently, during June 1998, the State Government appointed another team of experts to examine the working of the petitioner's unit. Page http://www.judis.nic.in 39 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019
11.In the Writ Petition, which was filed challenging the environmental clearance namely, W.P.No.5769 of 1997 and other matters, which were tagged along with the same, direction was issued to the National Environmental Engineering Research Institute (for brevity 'NEERI') to submit a report. On 17.11.1998, NEERI submitted a report to the Court, which was adverse to the petitioner. On 23.11.1998, the Division Bench, which heard the matters, ordered for closure of the petitioner's plant. Subsequently, the Division Bench by order dated 23.12.1998, lifted the order of closure and permitted the plant to operate on experimental basis for about two months from 26.12.1998 to 28.02.1999. On 09.02.1999, NEERI opined that the petitioner can be allowed to operate and the Division Bench taking note of such report, permitted the petitioner to operate the plant, by order dated 23.02.1999. Presumably during the period when the plant was to operate on experimental basis, the full production capacity could not have been achieved or was not permitted, but eventually the TNPCB while issuing the consent Page http://www.judis.nic.in 40 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 order dated 20.05.1999, permitted the petitioner to operate full capacity, i.e., 391 tonnes of blister copper per day and 1060 tonnes of sulphuric acid per day. Roughly about the said time, the petitioner made an application for expansion of its production capacity from 391 tonnes of copper per day to 900 tonnes per day (TPD). Public hearing is stated to have been conducted on 10.01.2003, on the application of the petitioner for expansion. Thereafter, on 01.07.2004, the State Government issued No Objection Certificate for the expansion and accordingly, addressed the MoEF. The Expert Committee appointed by the MoEF had visited the petitioner's factory on 12.08.2004 and 13.08.2004.
12.While the matters stood thus, in a Public Interest Litigation, the Hon'ble Supreme Court appointed a Monitoring Committee for all 'red category industries' in the country including the petitioner and directed inspection to be conducted, vide order dated 21.09.2004. On 22.09.2004, the MoEF granted environmental clearance for expanded capacity of 900 TPD. In Page http://www.judis.nic.in 41 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 terms of the directions issued by the Hon'ble Supreme Court on 21.09.2004, the TNPCB constituted a Committee on 29.10.2004, for monitoring all red category industries in the State and a report was submitted on 16.11.2004, ie., after expansion. The TNPCB, on its part, appointed NEERI for conducting an environmental audit of the petitioner, who, in turn, submitted their report on 16.03.2005, with pointed observations and directions. By order dated 19.04.2005, the TNPCB granted consent to operate for the increased capacity, i.e., from 391 TPD to 900 TPD with conditions and such consent to be valid till 31.03.2006. During September 2005, the petitioner made an application for further increase in the production capacity from 900 TPD to 1200 TPD through a process called 'bottlenecking'.
13.According to the petitioner, this process essentially focuses on increased production with the available infrastructure by adopting technical and scientific processes. The TNPCB granted consent for the expansion and Page http://www.judis.nic.in 42 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 permitted the petitioner to operate with the increased capacity up to 1200 TPD, by order dated 15.11.2006, valid till 31.03.2007. The MoEF had issued interim operational guidelines with regard to red category industries on 21.11.2006, the environmental clearance of the petitioner unit for increased capacity from 900 TPD to 1200 TPD was granted. The petitioner sought for further increase in their production capacity from 1200 TPD to 2400 TPD, which was favourably considered by the MoEF and on 01.01.2009, environmental clearance was granted, but no public hearing was conducted. According to the petitioner, the same is not required to be conducted. On 19.01.2009, the TNPCB renewed the consent to operate both under the Air Act and Water Act subject to condition, the consent to be valid till 31.03.2009. Subsequently, on 14.08.2009, the consent was renewed till 31.03.2009, subject to conditions, more particularly, with directions to dispose of the waste gypsum stored by the petitioner.
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14.The Writ Petition in W.P.No.5769 of 1997, which was filed challenging the grant of environmental clearance dated 16.01.1995, was allowed and by order dated 28.09.2010, the petitioner's unit was directed to be closed. The petitioner filed appeal to the Hon'ble Supreme Court in C.A.Nos.2776 - 2783 of 2013, and an order of interim stay was granted on 01.10.2010. The Hon'ble Supreme Court issued directions to NEERI to conduct an environmental study vis-a-vis the petitioner's unit along with the Central Pollution Control Board (CPCB), TNPCB, the public interest litigants, NGOs and political parties, who were parties before the Hon'ble Supreme Court. NEERI submitted its report dated 20.05.2011, which contained various observations and directions. The TNPCB, pursuant to the directions issued by the Hon'ble Supreme Court on 18.07.2011, filed their response/ report on the report submitted by NEERI on 02.08.2011. The District Collector, Thoothukudi District also filed his status report dated 22.08.2011, on the ground situation in Thoothukudi. In the said report, the Collector has stated Page http://www.judis.nic.in 44 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 that the President of the Meelavittan Panchayat had stated that on account of the petitioner-industry, agricultural activities have been affected, several cattle were found dead after drinking the contaminated water from the Odai. The President of Therkkuveerapandiyapuram Village Panchayat stated about the discharge of gaseous emission during the early morning hours and also that the ground water is polluted. The Joint Director of Agriculture had stated that the agricultural operations in the area has dropped to 10%, as most of the agricultural lands have been converted into industries or divided into housing plots. The District Collector refers to the report of the Assistant Director of Geology, who reports general change in the Total Dissolved Solids (TDS), Sulphates-Chlorides; and the Deputy Director of Health Services mentions about respiratory diseases in the said area. In conclusion, the District Collector in his observations stated that there is a distinct smell which emanated in and around the factory premises, attributing the same to the production activity of the petitioner. He would further state that agricultural Page http://www.judis.nic.in 45 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 lands were diverted and the operation of the petitioner caused some kind of air and water pollution and waste water discharged could have flowed and found its way into the channel.
15.The Hon'ble Supreme Court directed TNPCB to examine the report of NEERI, dated 20.05.2011, pursuant to which they filed their report on 02.09.2011. The Hon'ble Supreme Court directed TNPCB to issue statutory directions, who, in turn, by order dated 24.10.2011, issued 30 directions which were directed to be complied with by the petitioner as per the orders of the Hon'ble Supreme Court, dated 11.11.2011. On 02.03.2012, the petitioner was granted renewal of consent to operate till 30.06.2012, and necessary directions were issued to CPCB and TNPCB. On 14.09.2012, a joint report was filed by the Boards stating that 29 directions out of the 30 directions have been complied with. On 05.10.2012, the TNPCB renewed the consent to operate till 31.03.2013. On 23.03.2013, a complaint was received Page http://www.judis.nic.in 46 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 by TNPCB from the public, complaining of eye irritation, suffocation, more particularly in the areas in New Colony, Keezha Shanmugapuram and other areas. This resulted in issuance of show cause notice dated 24.03.2013, for non-compliance of consent conditions and public complaint. The petitioner was called upon to show cause as to why action should not be initiated based on such violation and public complaint. The petitioner had submitted their reply and additional reply on 27.03.2013 and 28.03.2013, respectively. TNPCB by order dated 29.03.2013, directed closure of the plant under Section 31A of the Air Act and power supply was ordered to be disconnected. On 30.03.2013, the feed to the plant is stated to have been stopped and power was disconnected.
16.On 01.04.2013, the petitioner filed appeal before the National Green Tribunal (NGT) in Appeal Nos.22 & 23 of 2013. On 02.04.2013, the Hon'ble Supreme Court delivered judgment in the appeals filed by the Page http://www.judis.nic.in 47 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 petitioner against the order of closure directed by the Division Bench in W.P.Nos.5769 of 1997, etc., dated 28.09.2010 and reported in (2013) 4 SCC
575. We shall dwell into the finer aspects of the judgment in the later part of this order.
17.In the appeals filed before the NGT, Expert Committee was appointed on 09.04.2013, to cause an inspection. On 19.04.2013, the TNPCB suspended the closure order from 09.00 am on 04.05.2013 to carry out inspection. Subsequently, these appeals were transferred to the Principal Bench of the NGT from South Regional Bench. A report was submitted by the Committee on 28.04.2013. On transfer to the Principal Bench, a Committee was constituted on 31.05.2013. The petitioner's application for renewal of consent dated 31.03.2013, was returned on 28.05.2013. Since, the unit was allowed to commence production by the NGT, TNPCB challenged the said order before the Hon'ble Supreme Court in C.A.Nos.4763-4764 of Page http://www.judis.nic.in 48 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 2013. The Hon'ble Supreme Court on 10.06.2013, directed to file the report of the Committee constituted by NGT. On 13.06.2013, the CPCB and TNPCB proposed inspection of the plant on 14.06.2013 to comply with the directions issued by the NGT, the closure direction was suspended for the period from 14.06.2013 to 10.07.2013. The Committee had conducted the inspection on 16.06.2013, and subsequently, the TNPCB extended the suspension of closure direction till 15.07.2013, specifically mentioning about their appeal filed before the Hon'ble Supreme Court.
18.As noted earlier, the NGT by order dated 31.05.2013, had constituted an Expert Committee, which submitted its report on 10.07.2013. On 15.07.2013, NGT ordered the petitioner's unit be allowed to continue operations till final orders are passed. It is mentioned that the report dated 10.07.2013, was signed by the Member Secretary, TNPCB and District Environmental Engineer, TNPCB without prejudice to the rights and Page http://www.judis.nic.in 49 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 contentions in the appeal pending before the Hon'ble Supreme Court. On 22.01.2014, the NGT disposed of O.A.No.176 of 2013. The petitioner would state that their applications for renewal of consent to operate was kept pending and despite several reminders, no orders were passed. It is to be noted that the NGT by an interim order dated 08.08.2013, had directed TNPCB to consider the application filed by the petitioner for renewal of consent to operate. On 07.03.2016, the CPCB issued notification regarding harmonisation of classification of industries under 'red', 'orange' etc., categories. It is only on 13.04.2016, the TNPCB renewed the consent to operate till 31.03.2017.
19.While so, on 28.04.2016, W.P.No.13810 of 2009, which was filed challenging the environmental clearance for expansion dated 01.01.2009, was dismissed. Consequent upon the directions issued by CPCB, orders were passed revising the period of consent to operate for red category industries from one year to five years. TNPCB issued orders on 26.09.2016 and Page http://www.judis.nic.in 50 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 04.07.2017, prescribing time lines for consideration of applications for consent to operate and for authorisation under the Hazardous Waste Management Rules, 2016 (hereinafter referred to as “the HWM Rules”). On 14.11.2016, TNPCB granted consent to establish Copper Smelter Plant – II with validity for seven years i.e., till 2023. The petitioner would state that between December 2016 and October 2017, they had invested about Rs.600 crores for expansion i.e., for Copper Plant No.II. The petitioner filed applications dated 31.01.2017, 14.03.2017 &and 23.03.2017, for renewal of consent to operate under the Air Act and Water Act. While the applications were pending, TNPCB conducted inspection of the unit on 10.03.2017 and 11.03.2017. This lead to issuance of show cause dated 14.03.2017, pointing out eleven violations under the Water Act and six violations under the Air Act. The petitioner submitted separate replies dated 23.03.2017, along with annexures. On 06.09.2017, the Joint Chief Environmental Engineer, TNPCB, Madurai and District Environmental Engineer, TNPCB, Thoothukudi conducted Page http://www.judis.nic.in 51 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 inspection of the plant. On the very next day i.e., 07.09.2017, the consent to operate under the Water Act and Air Act were renewed till 31.03.2018, with special and general conditions. Earlier, the Joint Chief Environmental Engineer, TNPCB, Madurai conducted inspection of the unit on 25.07.2017 and 05.08.2017 and recommended for issuing certain directions. This recommendation was accepted by TNPCB and further directions were issued to the petitioner on 11.09.2017. On 10.11.17, objections were raised from different quarters objecting expansion of the petitioner's industry. The petitioner on 31.01.2018, applied for renewal of consent to operate under both Acts for a period of five years, from 01.04.2018 to 31.03.2023 and along with the applications, they enclosed details of compliance effected by them with regard to the conditions which were imposed by TNPCB by order dated 07.09.2017, while renewing the consent to operate under both Acts till 31.03.2018. On 05.02.2018, protest by the public escalated more particularly, at Kumara Reddy Palayam village. On 22.02.2018, an inspection was Page http://www.judis.nic.in 52 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 conducted by the TNPCB, and a report, dated 27.02.2018, was submitted. The petitioner would state that copy of the said report was not furnished to them and they had obtained the same under the Right to Information Act. The petitioner would state that there is a discrepancy in the copy of the report, as one of the copies of the report does not show the name of the representative of the company whereas, the other does. The petitioner would state that the said inspection report dated 27.02.2018, shows that the petitioner was fully compliant of all directions. On 22.08.2018, the Joint Chief Environmental Engineer, TNPCB, Tirunelveli recommended renewal of the hazardous waste authorisation.
20.As mentioned earlier, protests were held at various places and it appears that the Police authorities refused permission for conducting protests, which led to the filing of Writ Petition before the Madurai Bench of this Court in W.P.(MD).No.5276 of 2018, in which an order was passed on 15.03.2018 Page http://www.judis.nic.in 53 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 by the Division Bench granting permission subject to conditions. On 24.03.2018, the protest spread to Chidambaram Nagar. The petitioner in the mean time appears to have sought for police protection and also addressed the TNPCB on 26.03.2018, stating that the plant has been shutdown for repairs and maintenance. The petitioner moved the Madurai Bench of this Court in W.P.(MD)No.7313 of 2018, requesting for grant of police protection, which Writ Petition was disposed of by order dated 04.04.2018, by directing the petitioner to submit a fresh representation to the Superintendent of Police, Thoothukudi for police protection which was directed to be considered in accordance with law. While so, on 09.04.2018, TNPCB rejected the applications for renewal of consent dated 31.01.2018 and 27.02.2018. This order is impugned in W.P.No.5772 of 2019. The petitioner on 12.04.2018, filed an appeal against the said order before the Appellate Authority constituted under the provisions of the Air and Water Acts. Consequential order dated 12.04.2018, was passed by the TNPCB directing the petitioner not Page http://www.judis.nic.in 54 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 to resume production without obtaining prior approval/renewal of consent from the Board. This order is impugned in W.P.No.5756 of 2019. The appeal filed before the Appellate Authority was heard, TNPCB had filed their response and the matter was adjourned from time to time. The petitioner moved the Madurai Bench of this Court in W.P.(MD).No.11190 of 2018, to declare the area to the radius up to 1km around the petitioner's plant, residential premises of its employees and its warehouse as 'protest free zone'. The said Writ Petition was disposed of by order dated 18.05.2018, directing the authorities to consider the petitioner's representation, dated 09.04.2018, and reminder dated 16.04.2018 on its own merits with due consideration of the observations made in the order wherein, the Court observed that the proposed protest is likely to trigger a law and order situation and in such scenario, invoking Section 144 Cr.P.C. would be highly recommended in public interest. On the ill-fated day, 22.05.2018, police resorted to firing leading to the death of several persons. On 23.05.2018, TNPCB ordered for closure of Page http://www.judis.nic.in 55 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 the petitioner's plant and disconnection of power supply. This order is impugned in W.P.No.5801 of 2019.
21.The petitioner submitted representation to TNPCB for restoration of power supply for maintenance of the plant. On 28.05.2018, the Government by G.O.Ms.No.72, endorsed the order of closure passed by the TNPCB, dated 23.05.2018, and directed sealing of the petitioner's unit and permanent closure thereof. This Government Order is impugned in W.P.No.5792 of 2019.
22.In compliance with the directions issued by the Government, the TNPCB issued consequential order, dated 28.05.2018, sealing the petitioner's plant. This order is impugned in W.P.No.5793 of 2019. Subsequently, the Municipal Corporation passed an order dated 28.05.2018, rejecting the petitioner's renewal application for renewal of horse power licence; the boilers' Page http://www.judis.nic.in 56 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 licence was revoked by the Director of Boilers by order dated 28.05.2018; factory licence was revoked as suspended by the Joint Director, Industrial Safety by order dated 30.05.2018; the registration certificate under the Contract Labour Regulation Act was revoked on 30.05.2018 and the fire licence was cancelled by the Director, Tamil Nadu Fire and Rescue Services by order dated 01.06.2018.
23.The petitioner filed Miscellaneous Petitions to grant licenses, approvals and permits which stood cancelled/withdrawn to facilitate the maintenance activities of the plant pending disposal of W.P.No.5792 of 2019. On 29.05.2018, SIPCOT cancelled the land allotted to the petitioner for the expansion project, copper smelter plant-II. In the light of the Government Order directing sealing and permanent closure of the petitioner's plant, the Appellant Authority by order dated 06.06.2018, felt it not appropriate to hear the appeals filed by the petitioner against the order passed by the TNPCB rejecting the applications for renewal of consent to operate. Page http://www.judis.nic.in 57 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019
24.The petitioner moved the Madurai Bench of this Court in W.P.(MD)No.13144 of 2018 seeking for restoration of power supply and for manpower access for maintenance activities. On 21.06.2018, the Government of Tamil Nadu constituted a high level committee comprising of six members to identify and assess the materials stored in the premises of the petitioner and offer its recommendations and the committee visited the plant on 22.06.2018. While so, the petitioner filed an appeal before the NGT challenging the orders passed by the TNPCB, including the orders dated 09.04.2018, 12.04.2018, 23.05.2018 and the Government Order dated 28.05.2018. The District Collector, Thoothukudi, passed an order dated 30.06.2018, directing the petitioner to move all materials as found in the plant at the time of inspection by the high level committee within the time stipulated. The Writ Petition filed by the petitioner in W.P.(MD)No.13144 of 2018, was closed by order dated 09.07.2018. The NGT by order dated 09.08.2018, directed CPCB to conduct an inspection of the petitioner's plant on the current status of the materials in Page http://www.judis.nic.in 58 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 the plant and make recommendations of their storage/disposal. This order was challenged by the TNPCB before the Hon'ble Supreme Court in Civil Appeal No.8250 of 2018, in which it was clarified that the NGT, may continue to hear the matter on merits and finally decide the matters both on maintainability as well as on merits. On 20.08.2018, the NGT passed an order and made certain observations and issued directions permitting the representative of the petitioner to have access to the administration section as have already been ordered. This order was put to challenge by the State as well as TNPCB before the Hon'ble Supreme Court, which was disposed of on 10.09.2018. While so, the Committee constituted by the NGT had visited the slag site at Pudukottai as well as the petitioner's plant and also conducted a public hearing in the premises of the Government Polytechnic, Thoothukudi. The petitioner had challenged the order passed by SIPCOT by a writ petition before the Madurai Bench in W.P.(MD).No.20788 of 2018 and an order of interim stay was granted on 30.10.2018. Thereafter, the petitioner had been addressing the Page http://www.judis.nic.in 59 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 authorities reiterating their request for access to the plant to carry out maintenance and repair works. Ultimately, the NGT by order dated 15.12.2018, allowed the appeal filed by the petitioner and set aside the orders of rejection, closure and sealing passed by the respondents and directed immediate issuance of consent to operate and hazardous waste management authorisation. The Appellate Authority by order dated 18.12.2018, closed the appeals in the light of the final order of the NGT dated 15.12.2018. The TNPCB filed appeal before the Hon'ble Supreme Court challenging the order of the NGT dated 15.12.2018, the State had also filed appeal against the said order. The petitioner filed an application in I.A.No.1188 of 2019 in C.A.No.23 of 2019, seeking implementation of the directions issued by the NGT, vide order dated 15.12.2018. The Hon'ble Supreme Court by order dated 18.02.2019, allowed the appeals filed by the State and TNPCB, setting aside the orders of the NGT, dated 31.05.2018, 08.08.2013 and 15.12.2018. The Hon'ble Supreme Court granted leave to the petitioner to file Writ Page http://www.judis.nic.in 60 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 Petitions before this Court by restoring the position as of 2013 and May 2018, thereby, reviving the orders, which are impugned in these Writ Petitions. The Hon'ble Supreme Court allowed the appeals on the ground that the NGT lacks jurisdiction to deal with the matter. This is how, these Writ Petitions are before us.
25.Mr.C.A.Sundaram, learned Senior Counsel appearing for the petitioner prefaced his submission by contending that the first ground raised by the petitioner challenging the impugned orders is on the ground of violation of principles of natural justice, as no notice was issued to the petitioner alleging pollution, no explanation was called for, but series of orders were passed including cancellation of various licenses granted to the petitioner. Though such a ground has been canvassed, the petitioner requested the Court to hear the case on merits, since if the petitioner succeeds in establishing that there has been serious violation of principles of natural justice, the Page http://www.judis.nic.in 61 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 consequence that would normally follow, is an order of remand to the authorities to reconsider the matter again, which course would work prejudice to the petitioner and therefore, while not giving up the said ground of challenge, the Court was requested to decide the matter on merits.
26.It is further submitted that for issuing an order of closure, there should be a clear finding of pollution, which is sine qua non and, the impugned orders of closure does not allege any pollution and the same have been passed for extraneous reasons and the order of permanent closure will clearly show, it is mala fide. It is submitted that even assuming there is a case of pollution, if the same is remediable, closure should not be resorted to. It was submitted that the petitioner is the largest manufacturer of copper in India and if the petitioner is to be shutdown, it will have a serious impact on the economy, as India would have to import copper at high cost. Further it is submitted that in the SIPCOT Industrial Complex at Thoothukudi, there are 63 Page http://www.judis.nic.in 62 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 industries, which are 'red category industries' including the petitioner and without conducting a source apportionment study, the petitioner cannot be stated to be the ''sole contributor'. In fact, a direction was issued by the NGT to the TNPCB to conduct a source study, which was not complied with. Further, it is submitted that the plant is 'zero' discharge plant and there is no effluent released by the petitioner into the sea.
27.In 1998, NEERI had submitted a report making certain adverse observations against the petitioner, which were objected to by the petitioner and in fact, the State and Central Government also objected to the report and ultimately, the order of closure was revoked by the Division Bench and the petitioner incurred a cost of about Rs.500 crores and implemented all recommendations made by the NEERI and this being a reason for TNPCB to permit the petitioner to operate full capacity by order dated 20.05.1999. It is further submitted that so far as the hazardous waste management authorisation Page http://www.judis.nic.in 63 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 is concerned, there are 101 industries, which require such authorisation, but none of them have been issued such authorisation, but no action has been taken to close down any such industry. It is further submitted that the state of affairs up to the year 2013, will clearly show that the petitioner is not a pollutant and now to say that the petitioner is a chronic polluter is unsustainable especially when, there has been no complaint of pollution from 2013 till 2016 and in April 2016, environmental clearance was granted for Copper Plant-II and earlier expansion of Phase-I was permitted and increase in production capacity by the process of de-bottlenecking was also permitted. Further, during November 2016, consent to establish Plant-II was granted by the TNPCB. While so, for the first time, in the show cause notice dated 14.03.2017, there is an allegation. Further, it is submitted that the petitioner obtained the copy of the inspection report, dated 27.02.2018, under the RTI Act, which recommends renewal of consent for five years. However, the petitioner's unit was closed down based on this report. It is further submitted Page http://www.judis.nic.in 64 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 that along with the inspection report, there is a scrutiny report, which has recommended renewal of consent for five years, which has not been produced by the respondents. For the first time in April 2018, there is an allegation of groundwater pollution, when the fact remains that the ground water analysis report, dated 30.04.2018, shows it is within the permissible parameters. Further, the allegation of groundwater pollution was not one of the grounds for passing the impugned order dated 09.04.2018 and for the first time in the pleadings filed before the NGT, TNPCB raised such a ground.
28.The learned Senior Counsel submitted that the order of closure passed by the Chairman, TNPCB is without jurisdiction. The source of power traceable by the Chairman of TNPCB is based on a resolution passed by the Board on 24.02.1994, empowering the Chairman to pass orders under Sections 33A/31A of the Water and Air Acts.
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29.To exercise power under these provisions, factum of pollution is a must and such power can be used where there is urgency and in a given situation, where emergent action is required in the matter, when act of pollution is continuous and when following normal course of action will delay the matters and to ensure prompt action considering the emergent situation. Thus, only under such circumstances, the Chairman of TNPCB can invoke such a power and not otherwise. It is submitted that the above mentioned factors warranting exercise of power are absent in the instant case and such power could not have been exercised by the Chairman, TNPCB. Further, it is submitted that the order of refusal to renew the consent is not final, as on compliance of the conditions, consent can be granted. Further, the learned Senior Counsel raised serious objections to the alleged inspection on 18.05.2018 and 19.05.2018 and disputed the taxi receipts produced by the TNPCB, as proof of officials having travelled for conducting inspection. Therefore, it is submitted that the very foundation of the order of closure Page http://www.judis.nic.in 66 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 should go. Further, commenting upon the impugned Government Order, it is submitted that the Government wanted to prove a political point and what motivated the Government to pass the order, is not to safeguard against pollution, but for extraneous consideration and the order is a colourable exercise of power. It is submitted that the main allegation that one of the reasons for closure as stated in the order dated 09.04.2018, is that the copper slag has not been removed. Even as per the stand taken by the MoEF and TNPCB, copper slag is non-hazardous and the designated use of copper slag as land fill has been authorised by the CPCB, sale of copper slag to private party has been permitted by the TNPCB and the petitioner has entered into agreements with private parties for sale of slag and the TNPCB is aware of the same. The copper slag, which has been stored in the patta land, belongs to a private party, who had purchased the slag and the TNPCB instead of initiating action against the land owner, cannot proceed against the petitioner. It is submitted that though the petitioner is not the owner of the said land, on their Page http://www.judis.nic.in 67 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 part, they had taken action and had erected a physical barrier between the river and the patta land, where copper slag has been stored.
30.The learned Senior Counsel elaborated upon the inert nature of copper slag, how it is non-hazardous, etc. Further, the petitioner has not violated any one of the 11 conditions imposed in the renewal of consent order dated 07.09.2017. Further, it is submitted that there are 67 industries, which are in the SIPCOT Industrial Complex, Thoothukudi including three thermal plants apart from four other thermal plants in Thoothukudi District and the order of closure passed against the petitioner is violative of Articles 14 and 19(1)(g) of the Constitution of India. It is further submitted that the TNPCB drew samples on 30.04.2018, and the report shows everything was within the permissible limit and this report was suppressed. It is further submitted that until 30.04.2018, with three years of continuous monitoring, shows there is 'zero' pollution. This is fortified by the fact that after one year of closure, it is Page http://www.judis.nic.in 68 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 stated that the TDS level is high, this will clearly show that the petitioner is not the cause. Further, it is reiterated that non-removal of slag by a private party cannot be a reason for closure. Furthermore, when consent was renewed on 07.09.2017, two conditions were imposed which are new conditions and therefore, these cannot be a reason to order closure. Further, it is submitted that the authorities were aware of the fact that the slag was stored by the patta landowner and not by the petitioner and that is why no notice was issued to the petitioner. Further, for the first time in the pleadings, it is stated that copper slag is a pollutant and there was no such allegation in any of the orders passed by the TNPCB.
31.The learned Senior Counsel appearing for the petitioner referred to various documents to emphasis his arguments that copper slag is non- hazardous, the CPCB clearly states that slag is a non-hazardous and the present stand of the TNPCB is contrary to records. Further, by referring to the Page http://www.judis.nic.in 69 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 HWM Rules, it is submitted that slag has been excluded from the category of hazardous waste and a contrary stand cannot be taken by the respondents in their counter affidavit.
32.Referring to the report of the National Institute of Oceanography, it is submitted that copper slag is used as a reclamation material. Earlier, TNPCB had taken a clear stand that the slag is non-hazardous and it is non- leachable and would not affect groundwater and this was based upon the stand taken by the CPCB. Further, by referring to various test reports of TNPCB, it is submitted that the parameters have been found to be within permissible limits. Further, it is submitted that the application for hazardous waste management authorisation was pending and there are several such industries in the State, whose applications are pending and the petitioner had been continuously submitting representations for renewal of the authorisation. Further, in terms of Rule 6(1)(a)(b) of the HWM Rules, authorisation under Page http://www.judis.nic.in 70 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 the Rules is not a pre-condition for obtaining consent to establish or to operate. It is submitted that when the impugned order dated 09.04.2018, was passed, the application for renewal of authorisation was pending. Therefore, the same could not have been a reason for rejection of the renewal of consent to operate. It is submitted that the TNPCB had recommended for renewal of HW authorisation with 16 conditions, therefore, the reason stated in paragraph 3 of the impugned order dated 09.04.2018, is wrong. Further, it is submitted that while granting renewal of consent dated 07.09.2017, there was no specific condition that the test will be conducted in the Board's laboratory, as in the past i.e., from 2002, the test reports were submitted by the petitioner as conducted by M/s.Vimta Labs and if the petitioner had been informed that test has to be conducted through a particular laboratory, they were willing to do so. Further, even assuming that the test had to be conducted in the Board's laboratory or an accredited laboratory, it is only a remediable breach and cannot be a reason for closure.
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33.With regard to construction of the gypsum pond, for the first time a direction was issued on 22.02.2018, to construct the gypsum pond in accordance with the CPCB guidelines which the petitioner would comply, but however the same cannot be done in five weeks, as its a 40 acre pond. Furthermore, even as per the guidelines issued in October 2014, the petitioner had time to comply till September 2019 and the same cannot be a ground for closure. Furthermore, at no earlier point of time, there was any allegation about gypsum except in the year 2003, when it was pointed out that there is excess stock which was later promptly disposed of by the petitioner.
34.With regard to the allegation of presence of heavy metals, arsenic, it is submitted that the arsenic level is below the deductible limit, the petitioner has done sampling in all 10 sites and all are within the regulatory limit of 5mg/l. Further, TNPCB in 2013, filed a counter affidavit before the Hon'ble Supreme Court stating that the petitioner is fully compliant and cannot Page http://www.judis.nic.in 72 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 now take a contrary stand. The learned Senior Counsel referred to the various monthly reports, which were filed and submitted that the approach of the TNPCB should be fair and unbiased and their decision is open to judicial review to examine as to whether there has been a decision taken for collateral purposes.
35.It is reiterated that international practices of slag disposal clearly show that the copper slag is non-hazardous and hence, cannot be a pollutant and much less a reason for closure of the petitioner's plant. Similarly, gypsum is manufactured throughout the country and it is a non-hazardous material and the TNPCB takes a stand that it is the hazardous only in the case of the petitioner. If the stand taken by the TNPCB is to be accepted, then all fertiliser industries must be closed. Further, as per the guidelines issued by the CPCB, storage of gypsum is regulated and unless there is a violation of such regulation, the petitioner cannot be penalised. Furthermore, there is no allegation that the petitioner violated the storage regulation. Page http://www.judis.nic.in 73 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019
36.Further, the learned Senior Counsel made elaborate reference to the design which has been adopted for the storage pond and that being the reason, CPCB granted time till September 2019 for construction of the pond as per the new design. It is submitted that though there was no requirement for such a storage pond, which was imposed only in the year 2014, the petitioner had constructed a state of art storage pond as early as 1999 and the present guidelines is a change of specifications which the petitioner would achieve. Further, the learned Senior Counsel submitted as to the effect of non- maintenance of gypsum pond on account of disconnection of power supply and the consequences which will result, if there is a overflow due to rains and there is a likelihood of polluting the groundwater. Further, the learned counsel referred to the affidavit filed before the Committee constituted by the NGT and the observations made therein.
37.Mr.C.S.Vaidyanathan, learned Senior Counsel appearing for TNPCB submitted that the petitioner cannot refer to any of those documents Page http://www.judis.nic.in 74 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 which were placed before the NGT, as all proceedings are non est, in the light of the order passed by the Hon'ble Supreme Court.
38.In response, Mr.C.A.Sundaram, learned Senior Counsel submitted that he is not putting forth an argument that the order of NGT or the observations of the Committee are binding, but the affidavits filed before the Committee/NGT can be relied on. Further, with regard to the usage of phosphogypsum, the learned counsel referred to the tender notifications issued by the various State Governments and governmental agencies for supply of gypsum for agricultural purposes or for the purpose of reducing alkalinity in the soil etc., which will clearly show that the material is non-hazardous. In October 2014, guidelines were issued for management, handling and disposal of phosphogypsum by the CPCB and only if there is a violation of the guidelines, action could have been initiated and there is no allegation against the petitioner as to which of the guidelines/regulation, the petitioner had Page http://www.judis.nic.in 75 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 violated. Further, it is submitted that in the impugned order of closure, dated 09.04.2018, five observations were made to state that they were the basis of the order of closure, however, now the TNPCB has raised various other grounds in different form and that too, for the first time in the counter affidavit filed in the Writ Petitions.
39.It is submitted that the petitioner will be able to demonstrate that none of the grounds are sustainable, as the petitioner is fully compliant with all parameters. In this regard, the learned Senior Counsel had referred to the various documents filed in their typed set of papers. Further, it is submitted that as per the pollution norms, each industry is informed about the marker pollutants which would be generated in the manufacturing process and so far as the petitioner is concerned, the marker pollutants are arsenic, zinc and fluoride and only if there is an increase of these marker pollutants, an inference can be drawn against the petitioner and not otherwise. Further, it is Page http://www.judis.nic.in 76 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 submitted that chlorides, sulphate and calcium are not marker pollutants of the petitioner and it is the TNPCB, who has to state as to who is responsible for increase of these parameters in the ground water, as there was no allegation earlier against the petitioner.
40.Continuing his arguments, the learned Senior Counsel submitted that in environmental matters, normally, the Courts will go one step ahead than what has been stated in the orders impugned before it. The questions, that will be normally posed, are has this industry caused pollution?; is this industry in a continuous sense causing pollution?; and is the alleged pollution being caused cannot be remedied?. It is submitted that unless all the above three tests are satisfied, the Court will not close the industry and this is so held in the judgment pertaining to the petitioner in Sterlite Industries (India) Ltd. vs. Union of India [(2013) 4 SCC 575]. In other words, it is submitted that closure should not be resorted to, if there is a chance to remedy. It is Page http://www.judis.nic.in 77 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 submitted that so far as the petitioner's case is concerned, none of the three tests have been satisfied, thus, the question would be, is the action of the respondents justified, which was taken based on the public reaction.
41.Further, by commenting upon the stand taken by the TNPCB in their counter affidavit, it is submitted that in several places the expression “may” cause pollution, has been mentioned and the same cannot be a basis for closure order, as proof or factum of pollution is sine qua non. Further, it is submitted that there is no material to point out that the petitioner was the reason for fall in standards of the groundwater and to say that the petitioner is the cause, is untenable when there are 67 other industries and that too, without conducting any source apportionment, such allegation could not have been made. Further, it is submitted that the Hon'ble Supreme Court in its judgment dated 02.04.2013, records that the 30 directions have been complied with by the petitioner and this finding of fact cannot be revisited. In this regard, Page http://www.judis.nic.in 78 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 reference was made to the various directions, more particularly direction numbers 16(a) to (e).
42.Further, it is submitted that raw material is not tested for pollution and it is a by-product which has to be tested, this is so because by- product, what is eliminated in the manufacturing process, is to be disposed of after removing the toxic elements. Further, it is submitted that the details given in the tabulated statement in page 37 of the counter affidavit of the TNPCB are factually wrong and the information available after 20.12.2017 has not been disclosed in the counter affidavit. Further, the baseline figures, i.e., the parameter which existed prior to 1996, i.e., before the petitioner commenced operation or before the SIPCOT Industrial Complex came into existence, have not been mentioned. Further, by referring to certain figures in the details furnished in the counter affidavit, it is submitted that inference that has to be drawn is that the petitioner is not the cause for the pollution. Further, Page http://www.judis.nic.in 79 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 it is reiterated that after the order passed by the Hon'ble Supreme Court dated 02.04.2013, all matters have been done and dusted and cannot be reopened.
43.Further, by referring to various documents, it is submitted that slag is non-hazardous and non-leachable, even as per the report of CPCB and, the stand taken by the TNPCB before this Court is untenable. Further, it is submitted that if the salinity level is high, it will reflect higher TDS levels. In this regard, the learned Senior Counsel referred to the groundwater year book for Tamil Nadu & Pondicherry to show that TDS level in Thoothukudi was always high attributing to the sea water and the salt pans etc. There was elaborate reference to the various documents, facts and figures to demonstrate that the TDS levels in Thoothukudi are high and within SIPCOT area, it is the lowest. It is submitted that report of the Central Water Organisation was challenged by the State by filing a Writ Petition before this Court, which was dismissed. Thus, it is the argument of the learned Senior Counsel that this Page http://www.judis.nic.in 80 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 report destroys the case of the respondents and therefore, they wanted the report to be scrapped and failed in their attempt. Thus, it is submitted that there is no material to infer pollution and no scientific study has been done by the TNPCB and the reasons given for closure, are wholly unsustainable. Further, by filing a Writ Petition challenging the report of the Central Government will not only show there is malice in fact, but malice in law as well.
44.Further, with regard to the effect of the discharge made by the Thermal Power Plants, reference was made to the report filed by the respondents to show that heavy metals were present in the water which were discharged into sea by the Thermal Power Plants, yet no action has been taken against the thermal power plants by the respondents. It is further submitted that based on all these reports, the Hon'ble Supreme Court considered the matter and allowed reopening of the petitioner's industry and there cannot be Page http://www.judis.nic.in 81 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 an order of closure by relying upon the very same report. Further, it is submitted that the report submitted by NEERI in the year 2007 was accepted by the Hon'ble Supreme Court in 2013 and the same cannot be revisited at this juncture. Further, reiterating as regards the type of gypsum pond provided by the petitioner, it is submitted that the petitioner has higher standards in their system and this system could not be operated, as the power supply was disconnected after issuance of the order of closure. Further, as per the report submitted by NEERI in the year 2011, the Secured Land Fill (SLF) is as per the CPCB guidelines and this report was accepted by the Hon'ble Supreme Court and the respondent did not report of any problem till 2018 and therefore, the order of closure should not have been passed.
45.The learned Senior Counsel referred to the parameters regarding nickel sludge residue and that nickel sludge is sold to authorised parties, the conclusion of the report more particularly, with regard to fluoride concentration etc. Thus, it is submitted that there must be a clear evidence Page http://www.judis.nic.in 82 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 pointing towards pollution and it cannot be presumed. Further, if according to the respondents, copper slag is toxic and hazardous, then the other copper manufacturers like Hindustan Copper, Hindalco, etc., should not be permitted to operate, more so when they are not zero discharge units like the petitioner. Further, it is reiterated that the inspection report dated 27.02.2018, was not furnished to the petitioner and in the report, higher values from the years have been taken note of and it is not clear as to what value was adopted for the month of February 2018 and the petitioner had no notice of such inspection.
46.Mr.G.Masilamani, learned Senior Counsel appearing for the petitioner in W.P.No.5792 of 2019 questioned the validity of the impugned Government Order ordering permanent closure and sealing of the plant. It is submitted that the Government while ordering for sealing of the Unit and permanent closure of the plant, endorsed the order of closure passed by the TNPCB, whereas the TNPCB did not order for permanent closure and the Page http://www.judis.nic.in 83 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 order was only non-renewal of consent to operate. Therefore, it is submitted that the State Government has to trace their power to a specific provision under the Act, as the Government Order refers to only Section 18(1)(b) of the Water Act.
47.Referring to the averments made in the affidavit filed in the writ petition, more particularly, paragraph 68, it is submitted that the order of closure of the Unit dated 23.05.2018, was passed by the Chairman of TNPCB in his individual capacity basing such action on the delegation of powers under Section 33A of the Water Act and Section 31A of the Air Act by the TNPCB to its Chairman, vide resolution dated 11.03.1994. Further, the order passed by the State Government is also in the individual capacity as Principal Secretary to Government. Therefore, it is submitted that the Principal Secretary to Government, vide his order dated 28.05.2018 endorsed his own order dated 23.05.2018 passed in his capacity as Chairman of TNPCB. Page http://www.judis.nic.in 84 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 Therefore, it is clear that the State Government has not independently considered the matter before passing such drastic order of closure. Thereafter, the Chairman, TNPCB in his individual capacity passed consequential order dated 28.05.2018 relying upon G.O.Ms.No.72 dated 28.05.2018. Further, it is submitted that merely by stating that the order is passed in public interest cannot be countenanced and the Government Order is in complete violation of the petitioner's fundamental right to do business as protected under Article 19(1)(g) of the Constitution of India. Further, it is submitted that if the Government states that it has taken a policy decision, then the procedure under the Rules is required to be followed in respect of policy decision and nothing is on record to show that the impugned order of closure is a policy decision of the Government.
48.Referring to the averments set out in the counter affidavit filed by the first respondent, it is submitted that if the first respondent states it is a Page http://www.judis.nic.in 85 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 policy decision of the Government, then it should be shown that such decision was scientifically arrived. It is submitted that the petitioner industry is a permitted industry and the field of activity is not res extra commercium, though it is classified as a red category industry. Therefore, such permitted industry cannot be closed for reasons set out by the first respondent in their counter affidavit. It is further submitted that if the Government endorses the order of the TNPCB refusing to renew the consent to operate, it cannot order for permanent closure, because the petitioner can comply with the conditions and would be able to obtain renewal of consent to operate. Therefore, it is submitted that in a democracy, mobocracy has no room. Elaborating on this submission, the learned Senior Counsel referred to the counter affidavit filed by the first respondent and submitted that the stand taken by TNPCB is, if compliance is effected, the petitioner would be able to secure renewal of consent to operate. It is submitted that the only power invoked for passing the impugned Government Order is Section 18(1)(b) of the Water Act, which Page http://www.judis.nic.in 86 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 gives power to the State Government to issue directions to the Board and it shall be bound by such directions. It is submitted that crucial words in the said provision are "such" and "such directions", which would necessarily mean 'Functions of the Board', as enumerated in Section 17(1) of the Water Act. It is submitted that the 'Functions of the Board' are exhaustive and not illustrative. So, therefore, such directions contained in Section 18(1)(b) of the Water Act cannot be interpreted to mean any directions. In sub-clauses (a) to
(o) of Section 17(1) of the Water, the 'Functions of the Board' have been exhaustively set out and none of the clause gives power for permanent closure of an industry. It is further submitted that order of permanent closure is an independent cause and the same has been ordered without issuing a show cause notice to the petitioner.
49.The learned Senior Counsel submitted that he is not arguing that the impugned order is vitiated for not following the Wednsebury principles of Page http://www.judis.nic.in 87 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 reasonableness, because the order is challenged on the ground of lack of jurisdiction and as well as on merits. Further, the counter affidavit filed by the first respondent does not show that any material was placed before the Government for ordering permanent closure. It is submitted that on a reading of the counter affidavit filed by the first respondent, more particularly, paragraph 18, it is seen that the Government surrendered to the pressure, because the only reason assigned is that the people started agitation. If according to the respondents, the Unit has to be permanently closed as there is a reference to Article 48(A) of the Constitution of India, there should be unabated pollution and there is no material produced by the TNPCB to establish that there was unabated pollution.
50.Referring to the documents filed, it is submitted that the emission from the Sulphur Dioxide plant of the petitioner is 1%, that of the power plant is 4%, whereas from the Government power plant, it is 50%. That apart, there Page http://www.judis.nic.in 88 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 are several red category industries in the SIPCOT Industrial Complex and the petitioner cannot be isolated. Further, it is submitted that due regard should be given to the impact of the closure of the plant on the employees and considering all the factors, the order of permanent closure is wholly arbitrary and unreasonable, apart from being vitiated on the ground of lack of jurisdiction.
51.Mr.A.R.L.Sundaresan, learned Senior Counsel appearing in W.P.No.5764 of 2013, which challenges the order of closure dated 29.03.2013 and in W.P.No.5774 of 2019, which challenges the order of disconnection of electricity supply dated 29.03.2013 reiterating the factual matrix which ultimately culminated in the order of closure, submitted that the District Environmental Engineer, Thoothukudi, by letter dated 23.03.2013, addressed to the District Collector, Thoothukudi though states that the ambient air 3 3 quality value shot up suddenly from 20ug/m to 62ug/m even though within Page http://www.judis.nic.in 89 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 3 3 the limit of 80ug/m and the value was immediately reduced to 10ug/m around 6.35 a.m. The District Collector has also issued a press release on 24.03.2013 informing the general public that they need not fear of any gas leak. On the very same day, an inspection was conducted at about 16.30 hrs., and perusal of the inspection report would show that the allegations in the show cause notice are wrong. Further, the figures with regard to the ambient air quality values will be reflected in the Care Air Centre (CAC). Further, by referring to the proceedings of the District Collector dated 25.03.2013, it is seen that the petitioner is not the only industry in the area and precisely for such reason, the District Collector while constituting a Committee for conducting safety audit inspection, decided to do the same for all industries in the area. The petitioner while responding to the show cause notice in their reply dated 27.03.2013, apart from other things, submitted that during Sulphuric Acid Plant (SAP) heat up process on 23.03.2013, sulphuric acid plant bed was maintained at required temperature using furnace oil and the gas was routed through Tail Gas Page http://www.judis.nic.in 90 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 Scrubber (TGS) and during the alleged gas leak complaint, the values of the SAP, SO2 online analyser as reported by CAC were found to be within the prescribed norms of 479PPM, as the software captures the actual emission values even though the software was in maintenance mode inadvertently during the period.
52.The learned Senior Counsel referred to an information furnished under the Right to Information Act dated 28.03.2013, from the Government Medical College Hospital, Thoothukudi, to show that there was no in-patient admitted in the hospital on 23.03.2013 affected by any alleged leakage of gas. Referring to the report of the Deputy Chief Scientific Officer, Mobile Environmental Laboratory, TNPCB, Thoothukudi, addressed to the District Environmental Engineer dated 02.04.2013, it is submitted that maximum of sulphur dioxide emission was 22.0ug/m as against the permissible upper limit of 80ug/m3. Therefore, it is submitted that the impugned order has been Page http://www.judis.nic.in 91 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 passed on assumptions. The learned Senior Counsel drew the attention of this Court to a report dated 28.04.2013 submitted by the Expert Committee appointed by the NGT.
53.Mr.C.S.Vaidyanathan, learned Senior Counsel appearing for TNPCB objected to placing reliance on the said report, as the order passed by the NGT has been set aside by the Hon'ble Supreme Court. This report is pressed into service to show that the Sulphur dioxide Analysers for stack gas are in working condition; emission from all the stacks were within the permissible limit prescribed by the TNPCB when the plant was in normal operation and in addition, the ambient SO2 concentration in all the sixteen monitoring stations were within the prescribed limit when the plant was in normal operations. It is submitted that in the said report, it has been pointed out that M/s.V.V.Minerals and Pigments Limited, situated very near by the petitioner, causes emission, which could have impact on the monitoring of the Page http://www.judis.nic.in 92 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 results at manual monitoring station installed at location-All India Radio. Further, the Committee noted that to control air pollution, the Unit has installed wet scrubbers, etc., installed TGS for SAPs in March 2006, which has helped reduction of emission level lower than 1kg/tonne of sulphuric acid produced and has listed out various measures taken by the petitioner to control emission from the plant specifically noting that all stacks are provided with trips and inter logs to trip process in case of deviations. Further, the report states that the total emissions from all the stacks were 0.1% which is equivalent to 0.98MT. Hence, the total sulphur fixed in the process and the stacks is 99.93% which is equivalent to 1108.92 MT.
54.The learned Senior Counsel further elaborated upon the mass balance of copper smelter by referring to the said report. It is further submitted that the report clearly states that the emission from all stacks meet 3 the prescribed standards for SO2 of 1250mg/nm , i.e. 477PPM. The learned Page http://www.judis.nic.in 93 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 Senior Counsel referred to the emission statistics of polluting industries functioning in and around Thoothukudi as reported by the Expert Committee and submitted that the emission load of SO2 from Thoothukudi Thermal Power Station is 51.3 Tonnes Per Day (TPD), which will go to show the inferences arrived at by the Expert Committee that there are other industries which contribute the major portion towards polluting the atmosphere. The learned counsel also referred to the recommendations made by the Committee which the petitioner was always ready and willing to comply. It is therefore submitted that from 2013 till the impugned order of closure, there was no complaint of air pollution and such drastic order of closure followed by an order of permanent closure ought not to have been passed. Further, by referring to various provisions of the Air Act, it is submitted that the intention of the legislature is only to regulate, which has been lost sight of by the respondents. The learned counsel by referring to the trend graphs for the parameters of SO2 and NO2 during the period 2014-2019 which have been Page http://www.judis.nic.in 94 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 filed by the respondents, had argued that the emission levels were far below the standards fixed, which will go to show that the petitioner has not violated the parameters.
55.Mr.P.S.Raman, learned Senior Counsel instructed by Ms.Rohini Moosa, learned counsel appearing in W.P.Nos.5756, 5771 and 5773 of 2019 submitted that the question would be as to whether the public opinion will prevail or the pollution control laws would prevail. It is submitted that there was absolutely no material available for ordering permanent closure. Apart from these two main points, it is submitted that he would address the Court with regard to the compliance regarding stack height requirement, compliance regarding green belt requirement, whether there was any misrepresentation with regard to the extent of land, when the petitioner obtained environmental clearance during 2007 and subsequently, for enhancement of production capacity by the process of de-bottlenecking, was there any pollution on Page http://www.judis.nic.in 95 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 account of movement of copper ore from the Port to the petitioner's factory. It is further submitted that the care and maintenance of the plant after the order of closure is with the State and the entire responsibility is that of the State. It is submitted that finally, it is the duty of the petitioner to dispel the myths about Sterlite and demonstrate as to how the myths are ex facie false. It is submitted that the first and foremost requirement for a Red Category Industry is to obtain no objection from the State Government, which was granted to the petitioner on 01.08.1994. Thereafter, environmental impact assessment study was done by TCS and a report was submitted to the Central Government.
56.The MoEF by order dated 16.01.1995, granted environmental clearance for production of 391 TPD. It is submitted that the period during which the petitioner had operated the Unit without renewal of consent to operate was dealt with by the Hon'ble Supreme Court and a fine of Rs.100 Crores was imposed on the petitioner and the very same reason cannot be used Page http://www.judis.nic.in 96 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 to close down the petitioner. It is submitted that it is not the general public, who want closure, but only a small section of people, that too, they were objecting the expansion of the Unit.
57.To demonstrate as to how the impugned action was on account of public opinion, the learned counsel submitted that an organization, based in UK, called “Foil Vedanta”, made incorrect statements on 18.02.2018 and 24.02.2018 and immediately thereafter on 27.02.2018, the TNPCB conducts inspection and submits a report running to about 200 pages recommending renewal of consent to operate. However, ignoring the said report by a single page order dated 09.04.2018, the application for renewal of consent to operate was rejected citing five reasons. The petitioner was not furnished with the inspection report dated 27.02.2018. It is submitted that there must be record to show that between 27.02.2018 and 09.04.2018, there was unabated pollution and the application for renewal of consent to operate should be rejected and Page http://www.judis.nic.in 97 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 without any application of mind, the respondent had passed the order. The petitioner filed an appeal before the Appellate Authority under the Air Act on 12.04.2018 and in the counter affidavit filed by the TNPCB, only the five grounds mentioned in the order dated 09.04.2018 were dealt with and no other points were canvassed. When the appeal was pending, on 22.05.2018, the protesters entered the residential colony of the employees of the petitioner and caused extensive damage to the vehicles parked therein, which is estimated to be around Rs.17 Crores. Thereafter, on the ill-fated day, firing was resorted to in which, 13 people died and as a knee-jerk reaction, an order of closure was passed by the Government.
58.The learned Senior Counsel referred to the representation stated to have been signed by 1,60,000 people supporting Sterlite and seeking for revoking the order of closure. Since the entire matter is fully covered by the legislation, rule of law will have to prevail and public opinion cannot be the Page http://www.judis.nic.in 98 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 basis for ordering closure. Further, it is submitted that order of closure can be resorted to, only if the TNPCB or the State Government comes to the conclusion that the situation is irremediable. Further, it is submitted that the fine amount, which was paid by the petitioner, i.e., Rs.100 Crores has not been spent for any remedial measures and the amount stated to have been spent are for other works such as installing bore wells, cleaning open wells, etc.
59.Referring to the decision in the case of P.Sivakumar vs. Secretary, Ministry of Home, Government of Karnataka & Ors. [Manu/SC/1281/2016(SC)], it is submitted that people cannot become law unto themselves. In support of the argument that the State succumbed to the public out cry, reliance was placed on the decision of the Kerala High Court in M/s.Harrisons Malayalam Limited vs. State of Kerala & Ors. [Manu/KE/0911/2018 ]. On the second aspect as to whether, there was material available for ordering permanent closure, it is submitted that the Page http://www.judis.nic.in 99 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 petitioner had placed the utilization plan proposing SAP and import of phosphates to enable production of phosphoric acid for fertilizer industry. Further, there are a copper rod plant, a 32 megawatt captive power plant, diesel based captive power plant for maintenance and to meet the emergency power shutdown and, a 160 megawatt thermal power plant with 100% fly ash utilization programme as per TNPCB norms with full-fledged RO system and on account of the impugned order, all the above independent entities were also closed down.
60.Referring to the reports, it is submitted that there was no complaint against the petitioner and the report clearly shows that there is nothing adverse against the petitioner in the year 2016, 2017 and 2018 and hence, there is no material to term the petitioner as a 'chronic polluter' for ordering, sealing and permanently closing. It is submitted that the word 'closure' is not synonymous with sealing and to explain this concept, further Page http://www.judis.nic.in 100 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 reliance was placed on the decision in the case of Gopinath Private Limited vs. Department of Environment, Government of N.C.T. of Delhi & Ors. [MANU/DE/0190/1998].
61.It is further submitted that ever since 2013, there has been no allegation of air pollution caused by the petitioner and there is nothing to indicate that the poor quality of the ambient air is due to the petitioner. It is submitted that after the order of closure, samples stated to have been drawn from undisclosed locations and report of analysis of such samples cannot be the basis for ordering permanent closure. Though it may be true that in the report submitted by NEERI during 2005 there were certain observations against the petitioner in respect of certain parameters, after the decision of the Hon'ble Supreme Court in 2013 (4) SCC 575 [Sterlite Industries (India) Limited vs. UoI & Ors.], the NEERI report of 2005 cannot be put against the petitioner. It is submitted that the allegation with regard to stack height is that Page http://www.judis.nic.in 101 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 it should be 84m, but only 60.38m have been provided, the production capacity has not been increased since 2007 and as per the consent conditions, the required stack height is only 60.38m and the petitioner has provided two separate stacks for the two SAPs and therefore, the petitioner is compliant of that condition. With regard to the green belt, it is submitted that 25% of the total area is to be maintained as a green belt.
62.Before the Hon'ble Supreme Court, the Member Secretary, TNPCB filed an affidavit dated 06.10.2012, confirming that out of 30 directions issued by the TNPCB, 29 directions have been complied. This will go to show that the petitioner had complied with the green belt requirement. That apart, in the order of renewal of consent to operate, there is no reference to non-compliance of the green belt requirement. The learned Senior Counsel also referred to the inspection report submitted by the TNPCB before the Hon'ble Supreme Court. As per the directions issued in the order dated Page http://www.judis.nic.in 102 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 27.08.2012, which states that green belt of around 26 hectares of land has been developed to the width of 25 meters and among other things, recommending for proper watering of the area for increasing the growth rate, stated that the direction regarding greed belt has been complied with. Therefore, it is submitted that on this score also, the application for renewal of consent could not have been rejected. Regarding the allegation of misrepresentation of the land area and with regard to the classification of the land, it is submitted that for increase of production by adopting the process of de-bottlenecking, no additional land is required.
63.The petitioner in their reply dated 19.01.2007, addressed to MoEF have clearly set out all facts and there is no misrepresentation. The environmental clearance for de-bottlenecking was granted on 09.08.2007, which will also show that there was no misrepresentation and subsequently, the MoEF also passed orders on 25.06.2012. With regard to the classification Page http://www.judis.nic.in 103 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 of land, it is submitted that the factory is situated in an industrial complex where apart from the petitioner, there are other red category industries and such an objection raised by the private respondents at this distance of time, is to be rejected as a frivolous objection. The land was allotted by SIPCOT and after following due procedure, the plant was established and has been functioning since 01.01.1997 and therefore, such contention needs to be rejected. Further, it is submitted that the frivolous allegations have been made against the petitioner by the impleaded parties with regard to the health condition of the local public.
64.Referring to the study conducted by the Public Health Department, it is submitted that there is not a single incident of arsenic poisoning in the area. It is further submitted that the power under Section 31A of the Air Act can be invoked for emergent situations and the only emergence that is shown by the petitioner is the shooting incident in which, 13 people Page http://www.judis.nic.in 104 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 died. It is submitted that on 26.03.2018, the plant was shutdown for maintenance and the entire plant will be dismantled and would be put back after repairs and maintenance. The TNPCB alleged that on 23.05.2018, the petitioner attempted to start production which is impossible, because the entire plant was dismantled. On 25.05.2018, i.e., immediately after closure order by TNPCB, the petitioner addressed the Chairman, TNPCB pointing out that the plant requires serious maintenance, leaks were noticed and if maintenance is not done, the plant and machinery worth about Rs.2,250 Crores will be let to rot. It is submitted that when such was the request made by the petitioner, the shocking response as could be seen from the counter affidavit filed by the State Government is that the petitioner should dismantle and leave. Thus, the learned Senior Counsel submitted that the order rejecting renewal of consent to operate and the order of permanent closure passed by the Government, are wholly illegal and arbitrary.
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65.Mr.C.S.Vaidyanathan, learned Senior Counsel appearing for the TNPCB submitted that the first misconception that the petitioner has had is that they have fundamental right to carry on their activity and their only duty is to rectify the mistakes pointed out. It is submitted that everyone has a right to get clean air and clean water, and everyone has a duty to ensure that the water is clean and the air is clean, and it is on this fundamental principle that a right is given to establish an industry and carry on its activities and this is more so in an inherently polluting industries, such as the petitioner. It is submitted that the Government is not an adversary, but it is exposing the cause of all; the TNPCB is the watchdog, which is vested with this sacred duty. It is submitted that it is incorrect to state that the protest led to the closure, but closure was ordered as pollution continued, despite remedial steps stated to have been taken by the petitioner.
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66.It is submitted that the Hon'ble Supreme Court in the earlier round of litigation, found that the petitioner was polluting, yet gave an opportunity, but the petitioner continued to pollute and now, they seek a premium to continue pollution. The petitioner's attempt was to make a show of compliance, when the fact remains that there was no fair and complete compliance and pollution is continuing, and giving further opportunity would be putting a premium.
67.Referring to the preamble of the Water Act and the statement of objects and reasons, it was pointed out that the Government came to the conclusion that the existing local provisions are neither adequate, nor satisfactory and therefore, there is an urgent need for introducing a comprehensive legislation, which would establish unitary agencies in the Centre and States to prevent abatement and control of pollution of rivers and streams, for maintaining or restoring wholesomeness of such watercourses and Page http://www.judis.nic.in 107 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 for controlling the existing and new discharges of domestic and industrial wastes.
68.The statement of objects and reasons in the Amendment Act 44 of 1978 proposed to amend the Act to provide for appointment of the Chairman of the State Board; it felt that there should be an integrated approach for tackling the water and air pollution problem and proposed that the existing Boards for Prevention and Control of Water Pollution should be authorised to perform functions relating to prevention, control and abatement of air pollution.
69.The learned Senior Counsel referred to the statement of objects and reasons of Amendment Act 53 of 1988 and pointed out that the amendments propose to make it obligatory on the part of a person to obtain the consent of a relevant Board for establishing or taking any steps to establish an Page http://www.judis.nic.in 108 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 industry, operation or process, which is likely to cause pollution of water, and also to empower the Boards to limit their consents for suitable periods so as to enable them to monitor observance of the prescribed conditions. Further, it proposed to empower the Boards to give directions to any person, officer or authority including the power to direct closure or regulation of offending industry, operation or process or stoppage of regulation of supply of services, such as water and electricity.
70.The learned Senior Counsel has drawn the attention of this Court to the various definitions under the Water Act and in particular, Section 2(d), which defines “occupier”; Section 2(e), which defines “pollution”; Section 2(g), which defines “sewage effluent”; Section 2(j), which is an inclusive definition of “stream”; and Section 2(k), which is an inclusive definition of “trade effluent”.
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71.Referring to Sections 17(1)(f) & (l) of the Water Act, it is submitted that sub-Clause (l) uses the expression “any order”, which would mean 'order of consent to establish, order of consent to operate' and therefore, the Board has sufficient powers to vary or revoke an order of consent to establish, or an order of consent to operate.
72.The learned Senior Counsel has referred to Section 18(1)(b), Section 24(1)(a), Section 24(1)(b) and Section 25 of the Water Act to substantiate his case that the Government is empowered to issue directions, which shall be binding upon the TNPCB. Elaborating his submissions, with reference to Section 25 of the Water Act, it is submitted that there is no fundamental right to establish such a polluting industry, because it is a right to establish the industry with the consent of the Board. This is clear from sub- Section (4) of Section 25, because conditions as to the nature of composition, temperature, volume, etc., of the discharge are mentioned. Further, Section 27 Page http://www.judis.nic.in 110 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 of the Water Act empowers the Board to refuse or withdraw consent to establish or operate.
73.Section 33-A of the Water Act was inserted by Act 53 of 1988 and it commences with a non obstante clause and it gives supervening power to the Central Government. Thus, all the above provisions cast a duty on the petitioner to strictly comply with the provisions of the Water Act.
74.Referring to the statement of objects and reasons of the Air Act, it was pointed out that an integrated approach was required for tackling environmental problems relating to pollution and therefore, proposed that the Central Board, constituted under the Water Act, will also perform the functions of the Central Board for the Air Act. The statement of objects and reasons of Amendment Act 47 of 1981 speaks of “eliciting public cooperation” and any person should be able to complain to the Courts Page http://www.judis.nic.in 111 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 regarding violations of the provisions of the Air Act after giving sixty days notice to the Board. Thus, it is submitted that the public have a role to play in the matter relating to pollution.
75.The learned Senior Counsel referred to the various provisions of the Air Act, viz., Section 2(a), which defines “air pollutant”; Section 2(b), which defines “air pollution”; Section 2(h), which defines “chimney”; and Section 2(j), which defines “emission”. Sections 17(e) & (f) to highlight the “Functions of the Boards”; Section 18 was referred to with regard to power to issue directions; and in particular Section 21 to emphasis the point that no person shall without the previous consent of the Board, establish or operate any industry/ plant in an air pollution controlled area. Therefore, there is a prohibition from establishing such an industry/ plant and by grant of consent, this prohibition is lifted. Reference was also made to Section 31A, which deals with “power to give directions” and Section 52, which deals with Page http://www.judis.nic.in 112 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 “overriding the effect of the Air Act” notwithstanding inconsistent therewith contained in any enactment other than the Air Act.
76.Referring to the statement of objects and reasons of the National Green Tribunal Act, 2010 (for brevity “the NGT Act”), it is submitted that it was noted that the right to help the environment has been construed as a part of the right to life under Article 21 of the Constitution in the judicial pronouncement in India; the National Environment Tribunal Act, 1995, was enacted to provide for strict liability for damages arising out of any accident occurring while handling any hazardous substance and for the establishment of a National Environmental Tribunal for effective and expeditious disposal of cases arising from such accident, with a view to give any compensation for damages to persons, property and the environment noting that the Tribunal had very limited mandate, was not established. Therefore, it was decided to establish the NGT. Thus, it is submitted that the right to healthy environment, Page http://www.judis.nic.in 113 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 cast a duty on every person that he or they do not impair the healthy environment.
77.It is further submitted that Courts while exercising power under Article 226 of the Constitution, has also propounded the theory of Polluter Pays Principle; Precautionary Principle; and Principles of Sustainable Development and the above three principles have been incorporated in Section 20 of the NGT Act and the same will equally apply to proceedings under Article 226 of the Constitution. Thus, it is submitted that the burden is on the petitioner to show that they do not cause any pollution.
78.Referring to the statement of objects and reasons of the Environment (Protection) Act, 1986, it is submitted that an urgent need was felt for the enactment of a general legislation on environmental protection which, inter alia, should enable co-ordination of activities of the various Page http://www.judis.nic.in 114 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 regulatory agencies, creation of an authority or authorities with adequate powers for environmental protection, regulation of discharge of environmental pollutants and handling of hazardous substances, speedy response in the event of accidents, threatening environment and deterrent punishment to those, who endanger human environment, safety and health.
79.The learned counsel referred to Section 2(a), which defines “environment”; Section 2(b), which defines “environmental pollutant”; Section 2(c), which defines “environmental pollution”; Section 2(d), which defines “handling”; and Section 2(e), which defines “hazardous substance”. It was submitted that the petitioner had contended that copper slag and gypsum are not hazardous, as it has been removed from the list of processes generating hazardous wastes in Schedule-I under the HWM Rules and this submission is incorrect.
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80.After referring to the various provisions of the HWM Rules, and Schedule-I thereto, it is submitted that the wastes mentioned in serial nos.7.1 to 7.5 are all hazardous wastes to be kept in the SLF. Further, it is submitted that no finality can be attached to Schedule-I to the Rules and inclusion or exclusion is not final. It is submitted that though in the note below Schedule-I, it has been stated that phosphogypsum is excluded from the category of hazardous wastes, the TNPCB will be able to establish that it is a hazardous waste, if it falls within the ambit of Section 3(17) of the Act.
81.Referring to Part-C in Schedule-III of the HWM Rules, which furnishes the list of hazardous characteristics, in particular, Code Nos.H12 and H13, it is submitted that if the leachate from copper slag or leachate from gypsum possess any of the characteristics in Code Nos.H1 to H11 or H12 and H13, it will be hazardous. Further, Part-B of Schedule-III gives the list of other wastes and one of the other wastes as per Basel No.1100 is slag from Page http://www.judis.nic.in 116 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 copper processing containing arsenic, lead or cadmium is other waste. Thus, it is submitted that the petitioner's responsibility does not cease upon sale of these wastes. This is precisely the reason as to why the expression “may” has been used in the counter affidavit in several places, while referring to that the petitioner's operation “may” cause pollution and therefore, the criticism made by the petitioner with regard to the phraseology adopted in the counter affidavit is unwarranted.
82.In support of his contention, the learned counsel referred to the following decisions :-
(i) M.C.Mehta vs. UoI [(1987) 4 SCC 463];
(ii) Vellore Citizens Welfare Forum vs. UoI [(1996) 5 SCC 647];
(iii) M.C.Mehta vs. Kamal Nath & Ors. [(1997) 1 SCC 388];
(iv) A.P.Pollution Control Board vs. Prof.M.V.Nayudu [(1999) 2 SCC 718];
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(v) M.C.Mehta vs. UoI [(2004) 12 SCC 118];
(vi) Intellectuals Forum, Tirupathi vs. State of A.P. & Ors. [(2006) 3 SCC 549];
(vii) Tirupur Dyeing Factory Owners Association vs. Noyyal River Ayacutdars Protection Association & Ors. [(2009) 9 SCC 737];
(viii) Rural Litigation and Entitlement Kendra vs. State of U.P. [1989 Supp (1) SCC 504];
(ix) Chairman, All India Railway Recruitment Board & Anr. vs. K.Shyam Kumar & Ors. [(2010) 6 SCC 614]; and
(x) PRP Exports & Ors. vs. Chief Secretary, Government of Tamil Nadu & Ors. (2014) 13 SCC 692.
Thus, it is submitted that in the present case, the TNPCB and the Government applied the Precautionary Principle, which involves anticipation of environmental harm and the onus of proof in environmental matters is on the Page http://www.judis.nic.in 118 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 party, who wants to alter the existing circumstances and such party should bear onus, as the presumption should be in favour of environment.
83.The learned Senior Counsel elaborately referred to the rapid Environmental Impact Assessment (EIA) report, the environment impact study, the toxic gas effect, etc. Reference was also made to the orders granting consent to establish, general conditions and other specific conditions, to buttress his submission that the Government and TNPCB did not permit storage of huge quantity of slag and gypsum and, the direction was to clear the same from time to time.
84.Referring to the NEERI reports, it is submitted that the parameters clearly exceed the desirable standards of the soil samples, 100 times than the desired parameters. The observations of the inspecting team were also referred to wherein, there is a reference to a possibility of acid rain. Page http://www.judis.nic.in 119 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 The learned Senior Counsel also referred to the Articles written by eminent persons to explain the toxic effect of the waste generated. Reference was made to the NEERI Report dated 09.02.2019, and in particular, the characteristics of solid waste, the tracer study, quality of water (not potable), etc. It is submitted that based upon the directions issued by the Division Bench dated 30.04.1999, consent to operate was granted on 20.05.1999, which was valid till 30.09.1999 and, till 2005, no order of consent to operate was granted and in the interregnum, the unit was operating based on Court orders.
85.Reference was also made to the environmental audit reports to support the contentions that from 1999 to 2005, the matter concerning pollution had not improved. Further, the petitioner failed to comply with the direction to remove the huge quantities of gypsum lying in stock without being cleared and there is a primary responsibility on the petitioner to remove the same including the copper slag and it cannot state that the TNPCB did not Page http://www.judis.nic.in 120 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 direct them to do so. Further, the water in certain wells was unfit for drinking; cadmium, chromium and copper were in excess than the prescribed standards; the TDS and sulphates were in excess in the trade effluent; and the soil had high content of heavy metals. It is submitted that condition was imposed to dispose of phosphogypsum by December, 2008, but the petitioner did not comply with the same thereby, violating such condition.