# TAMIL NADU POLLUTION CONTROL BOARD v. STERLITE INDUSTRIES (I) LTD. & ORS

- **Citation:** [2019] 3 S.C.R. 777
- **Court:** Supreme Court of India
- **Decided:** 2019-02-18
- **Case number:** Civil Appeal Nos. 4763-4764 of 2013
- **Bench:** R. F. Nariman, Navin Sinha
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/tamil-nadu-pollution-control-board-v-sterlite-industries-i-ltd-ors-33607
- **Pages:** 58

## Headnote

Environment - Air (Prevention and Control of Pollutions) Act,
1981 - ss. 21, 31, 31A and 31B - Water (Prevention and Control of
Pollution) Act, 1974 - ss.18, 25, 26, 27, 28, 29, 33A and 33B -
National Green Tribunal Act, 2010 - ss. 14, 15, 16, 29 and 33 -
Leapfrog appeal before the National Green Tribunal (NGT) -
Maintainability of - Respondent was operating a copper smelter
plant - Tamil Nadu Pollution Control Board (TNPCB) directed
closure of the unit under the various provisions of the Air Act and
Water Act - Composite appeals against the six orders passed against
the respondent were filed u/s.16 of the NGT Act - NGT set aside the
six orders in the composite appeals - State and TNPCB contended
that once an appeal is available to an appellate authority, after
which an appeal lies to the NGT, a party cannot leapfrog directly to
the NGT - On appeal, held: It is clear that an appeal is a creature
of statute and an appellate tribunal has to act strictly within the
domain prescribed by statute - It is obvious that an appeal would
lie from an order or decision of the appellate authority u/s.28 of the
Water Act to the NGT only u/s.33B(a) of the Water Act r/w. s.16(a)
of the NGT Act - Similarly, an appeal would lie from an order or
decision of the appellate authority u/s.31 of the Air Act to the NGT
only u/s.31B of the Air Act read with s.16(f) of the NGT Act - Since
no order or decision had been made by the appellate authority under
either the Water Act or the Air Act, any direct appeal against an
original order to the NGT would be incompetent - NGT's jurisdiction
being strictly circumscribed by s.33B of the Water Act, r/w. s.31B of
the Air Act, r/w. s.16(a) and (f) of the NGT Act, would make it clear
that it is only orders or decisions of the appellate authority that are
appealable, and not original orders - This being the case, the NGT's
order being clearly outside its statutory powers conferred by the
Water Act, the Air Act, and the NGT Act, would be an order passed
without jurisdiction.
[2019] 3 S.C.R. 777
777
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SUPREME COURT REPORTS
[2019] 3 S.C.R.
National Green Tribunal Act, 2010 - Powers of judicial review
- Held: Under the NGT Act, the Tribunal exercising appellate
jurisdiction cannot strike down rules or regulations made under
this Act - It would be fallacious to state that the Tribunal has powers
of judicial review akin to that of a High Court exercising
constitutional powers u/Art. 226 of the Constitution of India -
Constitution of India - Art.226.
Doctrines/Principles - Doctrine of Necessity - NGT stated
that the doctrine of necessity would take over if an appellate
authority under the Act is not properly constituted - Held: If an
appellate authority is either not yet constituted, or not properly
constituted, a leapfrog appeal to the NGT cannot be countenanced
- NGT is only conferred appellate jurisdiction from an order passed
in exercise of first appeal - Where there is no such order, the NGT
has no jurisdiction - National Green Tribunal Act, 2010 - Water
(Prevention and Control of Pollution) Act, 1974 - Air (Prevention
and Control of Pollution) Act,1981.
Disposing of the appeals, the Court
HELD: 1. Order dated 09.04.2018 is an order which
rejected renewal of consent to operate, and therefore, is traceable
to Section 27 of the Water (Prevention and Control of Pollution)
Act, 1974 and Section 21 of the Air (Prevention and Control of
Pollution) Act,1981. There is no doubt whatsoever that an appeal
against an order made under Section 27 of the Water Act is
appealable to the appellate authority under Section 28 of the said
Act. Under Section 33B(a) of the said Act, if a person is aggrieved
by an order or decision of the appellate authority under Section
28, it is then appealable to the National Green Tribunal (NGT).
This is made clear also by Section 16(a) of the National Green
Tribunal Act, 2010. Equally, an order refusing consent under
Section 21 of the Air Act is appealable to the appellate autho

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TAMIL NADU POLLUTION CONTROL BOARD
v.
STERLITE INDUSTRIES (I) LTD. & ORS.
(Civil Appeal Nos. 4763-4764 of 2013)
FEBRUARY 18, 2019
[R. F. NARIMAN AND NAVIN SINHA, JJ.]
Environment - Air (Prevention and Control of Pollutions) Act,
1981 - ss. 21, 31, 31A and 31B - Water (Prevention and Control of
Pollution) Act, 1974 - ss.18, 25, 26, 27, 28, 29, 33A and 33B -
National Green Tribunal Act, 2010 - ss. 14, 15, 16, 29 and 33 -
Leapfrog appeal before the National Green Tribunal (NGT) -
Maintainability of - Respondent was operating a copper smelter
plant - Tamil Nadu Pollution Control Board (TNPCB) directed
closure of the unit under the various provisions of the Air Act and
Water Act - Composite appeals against the six orders passed against
the respondent were filed u/s.16 of the NGT Act - NGT set aside the
six orders in the composite appeals - State and TNPCB contended
that once an appeal is available to an appellate authority, after
which an appeal lies to the NGT, a party cannot leapfrog directly to
the NGT - On appeal, held: It is clear that an appeal is a creature
of statute and an appellate tribunal has to act strictly within the
domain prescribed by statute - It is obvious that an appeal would
lie from an order or decision of the appellate authority u/s.28 of the
Water Act to the NGT only u/s.33B(a) of the Water Act r/w. s.16(a)
of the NGT Act - Similarly, an appeal would lie from an order or
decision of the appellate authority u/s.31 of the Air Act to the NGT
only u/s.31B of the Air Act read with s.16(f) of the NGT Act - Since
no order or decision had been made by the appellate authority under
either the Water Act or the Air Act, any direct appeal against an
original order to the NGT would be incompetent - NGT's jurisdiction
being strictly circumscribed by s.33B of the Water Act, r/w. s.31B of
the Air Act, r/w. s.16(a) and (f) of the NGT Act, would make it clear
that it is only orders or decisions of the appellate authority that are
appealable, and not original orders - This being the case, the NGT's
order being clearly outside its statutory powers conferred by the
Water Act, the Air Act, and the NGT Act, would be an order passed
without jurisdiction.
[2019] 3 S.C.R. 777
777
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National Green Tribunal Act, 2010 - Powers of judicial review
- Held: Under the NGT Act, the Tribunal exercising appellate
jurisdiction cannot strike down rules or regulations made under
this Act - It would be fallacious to state that the Tribunal has powers
of judicial review akin to that of a High Court exercising
constitutional powers u/Art. 226 of the Constitution of India -
Constitution of India - Art.226.
Doctrines/Principles - Doctrine of Necessity - NGT stated
that the doctrine of necessity would take over if an appellate
authority under the Act is not properly constituted - Held: If an
appellate authority is either not yet constituted, or not properly
constituted, a leapfrog appeal to the NGT cannot be countenanced
- NGT is only conferred appellate jurisdiction from an order passed
in exercise of first appeal - Where there is no such order, the NGT
has no jurisdiction - National Green Tribunal Act, 2010 - Water
(Prevention and Control of Pollution) Act, 1974 - Air (Prevention
and Control of Pollution) Act,1981.
Disposing of the appeals, the Court
HELD: 1. Order dated 09.04.2018 is an order which
rejected renewal of consent to operate, and therefore, is traceable
to Section 27 of the Water (Prevention and Control of Pollution)
Act, 1974 and Section 21 of the Air (Prevention and Control of
Pollution) Act,1981. There is no doubt whatsoever that an appeal
against an order made under Section 27 of the Water Act is
appealable to the appellate authority under Section 28 of the said
Act. Under Section 33B(a) of the said Act, if a person is aggrieved
by an order or decision of the appellate authority under Section
28, it is then appealable to the National Green Tribunal (NGT).
This is made clear also by Section 16(a) of the National Green
Tribunal Act, 2010. Equally, an order refusing consent under
Section 21 of the Air Act is appealable to the appellate authority
under Section 31 of the Air Act, and thereafter, from the said
appellate authority's order, to the NGT, under Section 31B of the
Air Act and Section 16(f) of the NGT Act. [Para 21][813-B-C]
2. As has been stated hereinabove, it is clear that an appeal
to the appellate authority under the Air Act and the Water Act
was preferred. While these appeals were pending before the
appellate authority, the composite Appeals were filed before the
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NGT inter alia against the order of refusal of consent to operate
dated 09.04.2018. While it is argued that the appeals could not
be heard since the State Government had passed an order dated
28.05.2018 directing the TNPCB to close down the plant
permanently, the said order expressly states that the appeals
could not be decided at this juncture and were hence adjourned
to 10.07.2018. The said appeals on 10.07.2018 were further
adjourned, and it is only on 18.12.2018 that they were finally
withdrawn as being infructuous in view of the fact that the NGT
had passed its order on 15.12.2018 in which it had set aside the
order dated 09.04.2018. What becomes clear is the fact that while
an appeal was still pending before the appellate authority, the
NGT took up a matter directly against the original order dated
09.04.2018 which was challenged before the appellate authority
even before the appellate authority could decide the same. [Paras
22 and 23][813-D-H]
3. It is clear that an appeal is a creature of statute and an
appellate tribunal has to act strictly within the domain prescribed
by statute. It is obvious that an appeal would lie from an order or
decision of the appellate authority under Section 28 of the Water
Act to the NGT only under Section 33B(a) of the Water Act read
with Section 16(a) of the NGT Act. Similarly, an appeal would lie
from an order or decision of the appellate authority under Section
31 of the Air Act to the NGT only under Section 31B of the Air
Act read with Section 16(f) of the NGT Act. Obviously, since no
order or decision had been made by the appellate authority under
either the Water Act or the Air Act, any direct appeal against an
original order to the NGT would be incompetent. NGT's
jurisdiction being strictly circumscribed by Section 33B of the
Water Act, read with Section 31B of the Air Act, read with Section
16(a) and (f) of the NGT Act, would make it clear that it is only
orders or decisions of the appellate authority that are appealable,
and not original orders. On the facts of the present case, it is
clear that an appeal was pending before the appellate authority
when the NGT set aside the original order dated 09.04.2018.
This being the case, the NGT's order being clearly outside its
statutory powers conferred by the Water Act, the Air Act, and
the NGT Act, would be an order passed without jurisdiction. [Para
31][820-B-F]
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Kundur Rudrappa v. Mysore Revenue Appellate Tribunal
and Ors. (1975) 2 SCC 411; Cellular Operators
Association of India and Ors. v. Union of India and
Ors. (2003) 3 SCC 186 : [2002] 5 Suppl. SCR 222; B.
Himmatlal Agrawal v. Competition Commission of India
[2018] 4 SCR 496; Raja Soap Factory v. S.P.
Shantharaj [1965] 2 SCR 800; Northern Plastics Ltd.
v. Hindustan Photo Films Mfg. Co. Ltd. and Ors. (1997)
4 SCC 452 : [1997] 2 SCR 252; Manohar Lal v.
Ugrasen (2010) 11 SCC 557 : [2010] 7 SCR 346; Arcot
Textile Mills Ltd. v. Regional Provident Fund
Commissioner (2013) 16 SCC 1 : [2013] 11 SCR 371
- relied on.
S Franses Ltd. v. The Cavendish Hotel (London) Ltd.
[2018] UKSC 62 - referred to.
4. The orders dated 12.04.2018, 23.05.2018, and
28.05.2018 passed by the TNPCB under Sections 33A and 31A
of the Water Act and Air Act respectively. At this juncture, it is
important to state that Section 33B of the Water Act and Section
31B of the Air Act were both enacted on 18.10.2010, which is the
very date on which the NGT Act came into force. What is
important to note is that whereas Section 33B(c) of the Water
Act read with Section 16(c) of the NGT Act make it clear that
directions issued under Section 33A of the Water Act are
appealable to the NGT, directions issued under Section 31A of
the Air Act are not so appealable. In fact, the statutory scheme is
that directions given under Section 31A of the Air Act are not
appealable. This being the case, all the aforesaid orders, being
composite orders issued under both the Water Act and the Air
Act, it will not be possible to split the aforesaid orders and say
that so far as they affect water pollution, they are appealable to
the NGT, but so far as they affect air pollution, a suit or a writ
petition would lie against such orders. Respondent's argument
that these orders being substantially relatable to the Water Act
would, therefore, not hold, as such orders are composite orders
made both under the Water Act and the Air Act. Equally
disingenuous is the reference to Section 14 of the NGT Act which
only refers to the original jurisdiction of the NGT and not to its
appellate jurisdiction. Also, to state generally that the subject
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matter of environment lies with the NGT, is an argument of despair
that must be dismissed, an appeal being a creature of statute, a
statute either confers a right of appeal or it does not. In the present
case, so far as directions issued under Section 31A of the Air Act
are concerned, there is no right of appeal conferred by the Air
Act read with the NGT Act. The ingenious argument made by
Respondent that, in any case, a "direction" under Section 31A of
the Air Act is nothing but an "order", and would, therefore, be
appealable as such under Section 31B of the Air Act read with
Section 16(f) of the NGT Act would drive a coach-and-four through
the statutory scheme that has just been adverted to. All the
appellate proceedings to the NGT, whether under the Air Act,
the Water Act, or the NGT Act have been brought into force on
the same date. Whereas the identical power to give directions by
the Board under the Water Act is appealable to the NGT, the
same power to give directions by the Board under the Air Act is
not so appealable. The absence of any mention of Section 31A in
Section 31B of the Air Act, given the statutory scheme as
aforesaid, makes it clear that even this argument must be
rejected. Also, "directions" that are issued under Section 31A of
the Air Act are of a different quality from "orders" referred to in
Section 31 of the same Act. Directions are issued in the exercise
of powers and performance of functions under the Act and are
not quasi-judicial in nature, whereas orders that are appealed
against under Section 31 are quasi-judicial orders made, inter
alia, under Section 21 of the Air Act. [Para 35][822-C-H; 823-AD]
5. So far as the order dated 28.05.2018 is concerned, this
order is expressly stated to be made under Section 18 of the
Water Act. There is no doubt whatsoever that such an order is
not appealable to the NGT either under the Water Act or under
the NGT Act. However, respondents have argued that Section
18 is referable to orders generally made, and falls under Chapter
IV of the Water Act, which deals with powers and functions of
Boards, as opposed to the Sections that follow in Chapter V, which
deals with prevention and control of water pollution, which orders
are made against individuals and individual industries. On the
assumption that respondents are correct in this argument, it is
clear that such order can only be set aside in a suit by a Civil
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Court, or under Article 226 of the Constitution of India by a High
Court. Therefore, this order can only be set aside either in a
suit, or by the High Court in the exercise of judicial review. [Para
39][826-A-C]
State of Punjab v. Gurdev Singh (1991) 4 SCC 1
: [1991] 3 SCR 663; Tayabbhai M. Bagasarwalla v.
Hind Rubber Industries (P) Ltd. (1997) 3 SCC 443
: [1997] 2 SCR 152; Pune Municipal Corpn. v. State
of Maharashtra (2007) 5 SCC 211 : [2007] 3 SCR 277;
Krishnadevi Malchand Kamathia v. Bombay
Environmental Action Group (2011) 3 SCC 363 : [2011]
3 SCR 291; Kandla Port v. Hargovind Jasraj (2013) 3
SCC 182 : [2013] 1 SCR 589 - referred to.
Smith v. East Elloe Rural District Council [1956] 1 All
E.R. 855 - referred to.
6. Respondents then argued that this Court in L. Chandra
Kumar case made it clear that Tribunals that are set up, generally
have the power of judicial review, save and except a challenge to
the vires of the legislation under which such Tribunals are
themselves set up. For this, he relied strongly upon paragraphs
90 and 93 of the judgment in L. Chandra Kumar. It is important
to notice that L. Chandra Kumar pertained to a Tribunal that
was set up under Article 323A of the Constitution of India. Under
Article 323A(2)(d), the Administrative Tribunal so set up would
be able to exercise the jurisdiction of all courts except the
jurisdiction of the Supreme Court under Article 136 of the
Constitution. This would mean that the Administrative Tribunal
so set up could exercise the jurisdiction of all High Courts when
it came to the matters specified in Article 323A. This is further
made clear by a conjoint reading of Section 14 and Section 28 of
the Administrative Tribunals Act, 1985. Article 323B of the
Constitution of India also provides for Tribunals for certain other
matters which are specified by sub-clause (2) thereof. Suffice it
to say that the NGT is not a Tribunal set up either under Article
323A or Article 323B of the Constitution, but is a statutory
Tribunal set up under the NGT Act. That such a Tribunal does
not exercise the jurisdiction of all courts except the Supreme
Court is clear from a reading of Section 29 of the NGT Act. Thus,
a conjoint reading of Section 14 and Section 29 of the NGT Act
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must be contrasted with a conjoint reading of Section 14 and
Section 28 of the Administrative Tribunals Act, 1985. In Bharat
Sanchar Nigam Limited v. Telecom Regulatory Authority of India
and Ors., this Court had to construe the appellate power that is
contained in Section 14 of the Telecom Regulatory Authority of
India Act, 1997, by which, the TDSAT was conferred with the
power to hear and dispose of appeals against any direction,
decision, or order of the TRAI. In the present case, it is clear
that Section 16 of the NGT Act is cast in terms that are similar to
Section 14(b) of the Telecom Regulatory Authority of India Act,
1997, in that appeals are against the orders, decisions, directions,
or determinations made under the various Acts mentioned in
Section 16. It is clear, therefore, that under the NGT Act, the
Tribunal exercising appellate jurisdiction cannot strike down rules
or regulations made under this Act. Therefore, it would be
fallacious to state that the Tribunal has powers of judicial review
akin to that of a High Court exercising constitutional powers
under Article 226 of the Constitution of India. For this reason
also, the State Government order made under Section 18 of the
Water Act, not being the subject matter of any appeal under
Section 16 of the NGT Act, cannot be "judicially reviewed" by
the NGT. Following the judgment in BSNL, the NGT has no
general power of judicial review akin to that vested under Article
226 of the Constitution of India possessed by the High Courts of
this country. Respondent's strong reliance on the NGT judgment
dated 17.07.2014 in Wilfred v. Ministry of Environment and
Forests must also be rejected as this NGT judgment does not
state the law on this aspect correctly. This contention is also
without merit, and therefore, rejected. [Paras 40, 42][826-F-H;
827-A; 829-C-D; 830-C-D; 831-G-H; 832-A-B, E-G]
Bharat Sanchar Nigam Limited v. Telecom Regulatory
Authority of India and Ors. (2014) 3 SCC 222 : [2013]
12 SCR 999 - relied on.
7. In conclusion, this Court is cognizant of the fact that the
respondent's plant has been shut down since 09.04.2018. Since
the impugned judgments of the NGT on the ground of
maintainability have been set aside and the order dated 22.01.2019
passed by the TNPCB, being a consequential order, is also set
TAMIL NADU POLLUTION CONTROL BOARD v. STERLITE
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aside. The respondents are relegated to the position that the six
orders impugned before the NGT, dealt with by the impugned
judgment dated 15.12.2018, and the order dated 29.03.2013, dealt
with by the final judgment dated 08.08.2013, are alive and
operative. Given the fact that this Court is setting aside the NGT
judgments involved in these appeals on the ground of
maintainability, it will be open for the respondents to file a writ
petition in the High Court against all the aforesaid orders. If such
writ petition is filed, it will be open for the respondent to apply
for interim reliefs considering that their plant has been shut down
since 09.04.2018. [Para 45][833-F-H]
Kanhiya Lal Omar v. R.K. Trivedi (1985) 4 SCC 678 :
[1985] 3 Suppl. SCR 1; Maharashtra State Board of
Secondary and Higher Secondary Education v. Paritosh
Bhupeshkumar Sheth (1984) 4 SCC 27 : [1985] 1 SCR
29; Galada Power & Telecommunication Ltd. v. United
India Insurance Co. Ltd. (2016) 14 SCC 161; Allokam
Peddabbayya v. Allahabad Bank (2017) 8 SCC 272
: [2017] 8 SCR 121; Garikapati Veeraya v. N. Subbiah
Choudhury [1957] SCR 488 - distinguished.
L. Chandra Kumar v. Union of India and Ors. (1997) 3
SCC 261 : [1997] 2 SCR 1186; Re: Special Reference
[1965] 1 SCR 413 - referred to.
Case Law Reference
[1997] 2 SCR 1186
referred to
Para 13
(1975) 2 SCC 411
relied on
Para 24
[2002] 5 Suppl. SCR 222
relied on
Para 25
[2018] 4 SCR 496
relied on
Para 26
[1965] 2 SCR 800
relied on
Para 27
[1997] 2 SCR 252
relied on
Para 28
[2010] 7 SCR 346
relied on
Para 29
[2013] 11 SCR 371
relied on
Para 30
[1985] 3 Suppl. SCR 1
distinguished Para 35
[1985] 1 SCR 29
distinguished Para 36
(2016) 14 SCC 161
distinguished Para 37
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[2017] 8 SCR 121
distinguished Para 37
[1957] SCR 488
distinguished Para 38
[1991] 3 SCR 663
referred to
Para 39
[1997] 2 SCR 152
referred to
Para 39
[2007] 3 SCR 277
referred to
Para 39
[2011] 3 SCR 291
referred to
Para 39
[2013] 1 SCR 589
referred to
Para 39
[2013] 12 SCR 999
relied on
Para 42
[1965] 1 SCR 413
referred to
Para 42
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 47634764 of 2013.
From the Judgment and Order dated 31.05.2013 of the Principal
Bench of National Green Tribunal, New Delhi in Appeal No. 57 of 2013
(Appeal No. 22 of 2013 and Appeal No. 58 of 2013 (Appeal No. 23 of
2013 (SZ).
WITH
Civil Appeal Nos. 8773-8774/2013, 9542-9543/2013, 5782/2014,
1552-1554/2019, 23/2019 and 1582/2019.
Balaji Srinivasan, AAG, C. S. Vaidyanathan, K. V. Viswanathan,
Guru Krishnakumar, C. A. Sundaram, R. Raizada, Sr. Advs., M. Yogesh
Kanna, Siddhanth Kohli, Ms. Vrinda Bhandari, Ravi Raghunath,
Venkatraman, Akshay Nagarajan, G. Sivabalamurugan, G. Ananda
Selvam, Vasantha Kumar, Karuppaiah, Vivek Bharathi, Vinodh Kanna
B., R. Nedumaran, Beno Bencigar, Parijat Kishore, Santosh Kumar
Tripathi, Ms. Rohini Musa, Abhishek Gupta, Zaffar Inayat, Arjun Singh,
Deepak Goel, Ashutosh Kumar Sharma, Rajeev Dubey, Kamlendra
Mishra, Mrs. Rachna Gupta, Nikhil Nayyar, Ms. K. V. Bharathi
Upadhyaya, Advs. for the appearing parties.
Mr. Vaiko, Appellant in-person
The Judgment of the Court was delivered by
R. F. NARIMAN, J. 1. The present appeals arise out of orders
that have been passed by the National Green Tribunal ["NGT"] dated
31.05.2013, 08.08.2013, and 15.12.2018. The brief facts necessary to
appreciate the controversy raised in the present case are as follows.
TAMIL NADU POLLUTION CONTROL BOARD v. STERLITE
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2. The respondent, Sterlite Industries (India) Ltd. / Vedanta Ltd.,
was operating a copper smelter plant at the State Industries Promotion
Corporation of Tamil Nadu Ltd. (SIPCOT) Industrial Complex at
Thoothukudi, Tamil Nadu. On 01.08.1994, the respondent received a
No-Objection Certificate ["NOC"] from the Tamil Nadu Pollution
Control Board ["TNPCB"] for the production of blister copper and
sulphuric acid. The environmental clearance to the project by the Ministry
of Environment, Forest, and Climate Change ["MoEF"] followed on
16.01.1995. On 17.05.1995, the State MoEF also granted environmental
clearance to the respondent. The TNPCB granted its consent under the
Air (Prevention and Control of Pollution) Act, 1981 ["Air Act"] and
Water (Prevention and Control of Pollution) Act, 1974 ["Water Act"]
on 22.05.1995. After obtaining the requisite permissions, the consent to
operate the plant was issued on 14.10.1996 by the TNPCB. Production
commenced on 01.01.1997. However, the environmental clearances
that were granted were challenged before the Madras High Court in
Writ Petition Nos.15501-15503/1996, 5769/1997, and 16961/1998. On
20.05.1999, the TNPCB granted its consent for production of two more
products, namely, phosphoric acid and hydrofluorosilicic acid. On
21.09.2004, a Supreme Court Monitoring Committee was constituted to
verify the compliance status of hazardous waste management. It
recommended to the MoEF that the environmental clearance for the
proposed expansion should not be granted, and if granted, should be
revoked. On 19.04.2005, the TNPCB issued consent to operate, subject
to fulfillment of various conditions for the expanded capacity. Meanwhile,
the Madras High Court, on 28.09.2010, allowed the various writ petitions
that had been filed and quashed the environmental clearances granted
to the respondent and directed the TNPCB to close down the plant.
3. Meanwhile, on 23.03.2013, the residents of nearby areas started
complaining of irritation, throat infection, severe cough, breathing problem,
nausea etc. due to emissions from Sterlite Industries. Reports were
obtained after inspection of the premises by the TNPCB. Based on
these reports, the TNPCB issued a show-cause notice dated 24.03.2013
and directed closure of the unit under Section 31A of the Air Act on
29.03.2013. This order was stayed by the NGT on 31.05.2013, allowing
the respondent to commence production subject to certain conditions.
Against this, the TNPCB filed Civil Appeal Nos.4763-4764 of 2013,
which will be disposed of by the judgment delivered in this case. Finally,
on 08.08.2013, the NGT set aside the TNPCB order dated 29.03.2013,
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against which, Civil Appeal Nos. 8773-8774 of 2013 were filed, which
again will be disposed of by this judgment. It is important to note that the
appellants herein raised the issue of maintainability of the respondent's
appeal before the NGT, stating that an appeal should have been filed
first before the appellate authority under the Air Act / the National Green
Tribunal Act, 2010 ["NGT Act"]. This ground of maintainability was
decided against the appellants by the impugned order dated 08.08.2013.
4. Owing to various interim orders passed by the NGT, the
respondent continued to operate its plant. On 13.04.2016, the TNPCB
granted consent to operate the plant for one year subject to certain
conditions. Post inspection of the unit of the respondent in March 2017,
the TNPCB issued a show-cause notice dated 14.03.2017 for violations
under the Air Act and the Water Act which, apparently, was not pursued.
On 06.09.2017, an inspection report by the TNPCB was made, and an
order passed on 07.09.2017, granting renewal of consent to operate only
till 31.03.2018 subject to various conditions. Meanwhile, a protest had
been organized in March 2018 by some persons against the proposed
expansion sought by the respondent. The respondent, therefore, had to
file Writ Petition No.7313 of 2018 before the Madurai Bench of the
Madras High Court for police protection. This Writ Petition was disposed
of by an order dated 04.04.2018 with a direction to consider the
respondent's application. On 09.04.2018, the TNPCB refused renewal
of consent to operate to the respondent's unit based on non-compliance
with certain conditions that were laid down under the Air Act and the
Water Act. On 12.04.2018, the respondent filed Appeal Nos.36-37 of
2018 before the appellate authority under Section 28 of the Water Act.
In these appeals, various orders were passed, until, on 06.06.2018, the
following order was passed:
"APPLICATIONS 28 & 29 / 2018, APPLICATIONS 30 & 31 / 2018
AND APPEALS 36 & 37 / 2018:
Heard.
In view of the Government Order passed by the Government of
Tamilnadu in G.O. Ms. No: 72, Environment & Forests (EC-3)
Department Dated: 28.5.2018, directing the Tamilnadu Pollution
Control Board to close the plant permanently, we feel it is not
appropriate to hear the Appeals and decide the issue at this
juncture.
TAMIL NADU POLLUTION CONTROL BOARD v. STERLITE
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Hence the Appeals and applications are adjourned to 10.7.2018."
On 10.07.2018, the matter was further adjourned as follows:
"APPLICATIONS 28 & 29 / 2018, APPLICATIONS 30 & 31 / 2018
AND APPEALS 36 & 37 / 2018:
In view of the remarks made in the adjudication proceedings on
6.6.2018 and as the position is same now, the Appeals and
Applications are adjourned to 21.8.2018."
Finally, on 18.12.2018, i.e., three days after the impugned order
was passed by the NGT on 15.12.2018, an order passed by the appellate
authority was as follows:
"APPLICATIONS 28, 29, 30 & 31/2018 AND APPEALS 36 &
37/2018:
Ms. Janani, counsel for the appellant and Mr. V. Vasanthakumar,
counsel for the respondent-Board are present. None is present
on behalf of the 1st, 2nd and 3rd interveners.
Counsel for the appellant seeks permission to withdraw the
Appeals. She has also filed a memo to that effect.
In view of the order passed by the Hon'ble National Green
Tribunal, Principal Bench, New Delhi on 15.12.2018 in Appeal
No. 87 of 2018 setting aside the impugned order dated 9.4.2018
which is subject matter of these appeals pending before this
Appellate Authority, the Appeals have become infructuous and
hence they are closed."
5. On 12.04.2018, an order was passed by the TNPCB under
Section 33A of the Water Act and Section 31A of the Air Act directing
that the respondent's unit shall not resume production without obtaining
prior approval/renewal or consent from the TNPCB. This was followed
by two orders, both dated 23.05.2018, again issued under the same
Sections, this time to close down the respondent's unit and disconnect
power supply to it. Finally, on 28.05.2018, an order was issued by the
Government of Tamil Nadu under Section 18(1)(b) of the Water Act
stating:
"It is brought to the notice of the Government that Tamil Nadu
Pollution Control Board did not renew the Consent to Operate to
M/s.Vedanta Limited, Copper Smelter Plant, SIPCOT Industrial
Complex, Thoothukudi District in its order dated 9.4.2018.
Subsequently, on 23.5.2018, Tamil Nadu Pollution Control Board
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has also issued directions for closure and disconnection of power
supply to the Unit. The power supply has been disconnected on
24.5.2018.
2. Under Article 48-A of the Constitution,
"the State shall endeavour to protect and improve the
environment and to safeguard the forests and wildlife of the
country".
3. Under sections, 18(1)(b) of the Water Act, 1974 in the larger
public interest, the Government endorse the closure direction of
the Tamil Nadu Pollution Control Board and also direct the Tamil
Nadu Pollution Control Board to seal the unit and close the plant
permanently."
6. On the same date, the TNPCB issued a letter to the District
Collector, inter alia, directing him to seal the respondent's unit. These
six orders became the subject matter of a composite Appeal No. 87 of
2018 under Section 16 of the NGT Act.
7. A writ petition was filed by the respondent before the Madurai
Bench of the Madras High Court on 18.06.2018 so that the respondent
could access its unit to maintain its plant. This was dismissed as withdrawn
on 09.07.2018.
8. The appellants then took up a plea of maintainability of the
composite appeal. As this was not being disposed of by the NGT, this
Court, by its order dated 17.08.2018, directed the NGT to render its final
findings, both on maintainability as well as on merits. On 20.08.2018, the
NGT constituted a Committee to go into the material produced by the
parties to the Civil Appeal and to visit the site. This Committee was
ultimately headed by Justice Tarun Agarwala, former Chief Justice of
the Meghalaya High Court, together with two experts, one being a
representative of the Central Pollution Control Board ["CPCB"] and
another a representative of the MoEF. Aggrieved by this order, the
appellants knocked on the doors of this Court. This Court disposed of
this appeal on 10.09.2018, by stating:
"By our order dated 17.08.2018, we had made it clear that the
NGT may continue to hear the matter both on merits as well as
on maintainability and finally decide the matter on both counts.
Since our order is not referred to in the order dated 20.08.2018
passed by the NGT, we need only to state that once the
TAMIL NADU POLLUTION CONTROL BOARD v. STERLITE
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Committee's report is given to the Tribunal, it will proceed to decide
the matter in accordance with our order dated 17.08.2018.
xxx xxx xxx"
A review petition that was filed against this order was dismissed.
9. The Committee constituted by the NGT then inspected the site
on various dates in September/October, 2018, and heard all concerned
parties as well as intervenors. It then came out with a detailed Enquiry
Report dated 20.11.2018, in which it concluded as follows:
"On the basis of the site visit, public hearing and after hearing the
appellant Company, State of Tamil Nadu, Tamil Nadu Pollution
Control Board, and the interveners and, upon consideration of the
issues raised, the Committee is of the opinion:
1. The impugned orders cannot be sustained as it is against the
principles of natural justice. No notice or opportunity of
hearing was given to the appellant.
2. The grounds mentioned in the impugned orders are not that
grievous to justify permanent closure of the factory.
3. Other issues raised also does not justify the closure of the
factory even if the appellant was found to be violating the
conditions/norms/directions.
4. In the event the Hon'ble Tribunal is of the opinion that the
factory should commence production, the committee is of
the opinion that the following directions may be issued.
a) As per condition No.44 of the Consent Order dated 19-042005, the appellant should be directed to monitor ground
water quality including heavy metals such as Arsenic,
Cadmium, Silver, Copper, Fluoride, etc. in and around the
factory premises and nearby villages once a month and such
report should be furnished to the TNPCB.
b) The sampling of the above should be taken in the presence
of an official from TNPCB.
c) In addition to the above, the sampling of effluent/emission
and solid waste should also be done by a monitoring group
to be constituted by TNPCB comprising a representative
of the District Collector, an official of TNPCB, NGOs and
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academicians as per condition no.43 of Consent Order dated
19-04-2005.
d) Both the reports should be sent by TNPCB to CPCB for
analysis. Recommendations made by CPCB should be
followed.
e) Copper slag dumped at all the eleven sites including the
Uppar River should be removed. If copper slag has been
used for landfill purposes, then the excess amount of the
slag over and above the level of ground would be removed
and thereafter the landfill should be compacted with one
feet of soil, so that the copper slag is not blown away by
the strong winds.
f) The dead stock of copper slag lying in the dump yard inside
the factory premises which has solidified should be removed
in a time bound manner. Thereafter, the bottom of the dump
yard and the side walls should be covered with HDPE liner.
Further, the Company should ensure that the generation and
disposal of copper slag is maintained in the ratio of 1:1 and
that the Company at best, can retain 10 days generation of
copper slag in its dump yard.
g) The dead stock of gypsum lying in the dump yard inside the
factory premises which has solidified should be removed in
a time bound manner. Thereafter, the bottom of the dump
yard and the side walls should be covered with HDPE liner.
Further, the Company should ensure that the generation and
disposal of gypsum is maintained in the ratio of 1:1 and that
the Company at best, can retain 10 days generation of
gypsum in its dump yard.
h) The Company before disposing copper slag, gypsum (or)
any other waste product will seek previous permission from
the TNPCB.
i) Application of the Company for obtaining valid authorization
for disposal of hazardous waste under Hazardous & Other
Wastes (Management, & Transboundary Movement) Rules,
2016 should be disposed of by the TNPCB in a time bound
manner.
j) Even though there is no requirement of analyzing the air
samples through an accredited laboratory nonetheless a
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direction should be issued to the appellant that they will
conduct a periodical survey for ambient air quality/ noise
level/ stack emission through accredited laboratories of
MoEF&CC/NABL and furnish such report to the TNPCB.
k) The appellant company should be directed that they shall
develop a green belt of 25 metres width around the battery
limits of its factory by planting native and high foliage tree
and also in and around the factory.
l) The State of Tamil Nadu/ TNPCB should collect data from
their primary health centres and Govt. Hospitals to monitor
the various ailments that are being complaint of by the
inhabitants living in and around the factory premises.
m) The State Government should specify the module to the
appellant for conducting the proper and designed health
monitoring study.
n) The direction no. (iii) on "Source Apportionment Study"
and direction no. (ix) on "conducting a study on health
hazards" passed by the NGT in its judgment dated 8/8/2013
in Appeal 58 of 2013 should be carried out by the Tamil
Nadu State Government and TNPCB. Such reports should
be furnished to NGT in a time-bound manner.
o) The appellant should be directed to start the construction of
gypsum pond immediately and complete the same in a time
bound manner as per the conditions laid down in the
guidelines given by CPCB in October, 2014.
p) The appellant shall undertake a fresh detailed
hydrogeological study for determining aquifer vulnerability
and migration of leachate from the existing phosphogypsum
pond through a reputed organization approved by the
TNPCB as per condition No.15 of the Consent Order dated
19/04/2005.
q) Direction should be given to the TNPCB as well as to the
appellant to take independent ground water samples from
the same points for the purpose of finding out groundwater
pollution if any. Such reports should then be compared by
the CPCB. Recommendations made by CPCB should be
followed.
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r) Directions/ regulation may be framed for import of high grade
copper ore.
s) Irrespective of the norms, stack height in any case be
increased in order to remove the ambiguity and the
grievance of inhabitants of the people of the Tuticorin with
regard to emission of SO2.
t) Till such time, the stack height is not increased, the production
of copper as well as sulphuric acid should be restricted/
reduced to match the existing stack height.
u) The transportation of copper ore concentrate from the port
to the factory premises should be done in a closed
conveyance or through a pipe conveyor system.
v) Self-monitoring mechanism needs to be prepared by the
appellant for the periodic monitoring of Ambient Air Quality/
Stack emissions/ Fugitive emissions/ ground water quality/
surface water quality/ soil quality/ slag analysis through third
party and report shall be furnished to the concerned
regulatory agencies.
w) All the monitoring data, compliance reports of CTE/CTO/
EC and environmental statement shall be uploaded on the
website of the Company.
x) TNPCB should be directed to commission "Regional
Environmental Impact Assessment Study" in and around
Tuticorin District by engaging a reputed national agency.
y) CPCB recommendations as contained in the order of NGT,
dated 20.08.2018 to be complied with."
Both the respondent as well as the appellants made their detailed
comments on the Committee's report. The NGT then heard final
arguments and dictated the impugned order on 15.12.2018, in which it
substantially accepted the Committee's recommendations. In doing so,
it set aside the six impugned orders in the composite appeal. One major
bone of contention of both the State of Tamil Nadu as well as the TNPCB
in this case is that the appeal before the NGT is not maintainable and
hence, the order dated 15.12.2018 is without jurisdiction.
10. As a postscript to this order, the TNPCB looked into the matter
again, and issued yet another rejection letter dated 22.01.2019, by which
the respondent's application seeking renewal of consent to operate was
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rejected, stating that the conditions of various previous consents over
the last 20 years had not been followed.
11. We have heard wide-ranging arguments from learned counsel
appearing on behalf of all the parties as well as the intervenors, on
maintainability as well as on merits. Since we will be deciding this case
on maintainability alone, we have not ventured to state anything on the
merits of the case.
12. Shri C.S. Vaidyanathan, learned Senior Advocate appearing
on behalf of the TNPCB, showed us various provisions of the Water
Act, Air Act, and the NGT Act and argued that the six impugned orders
before the NGT were orders which could not have been corrected by
the NGT. Insofar as the first order dated 09.04.2018 was concerned, an
appeal was pending before the appellate authority, as a result of which,
the NGT, when it set aside the said order, could not have done so. Similarly,
the orders dated 12.04.2018, 23.05.2018, and 28.05.2018, made under
Section 33A of the Water Act and Section 31A of the Air Act, were
composite orders issued. As orders under Section 31A of the Air Act
were not appealable to the NGT either under the Air Act or under Section
16 of the NGT Act, the Tribunal acted without jurisdiction in interfering
with these orders. Further, the order dated 28.05.2018, issued by the
Government of Tamil Nadu under Section 18 of the Water Act, was
certainly not an appealable order under either the Water Act or the NGT
Act, and could only have been corrected in judicial review in a writ
petition filed under Article 226 of the Constitution of India or in a suit
before a Civil Court. According to him, therefore, the setting aside of
such an order was also completely without jurisdiction. Shri K.V.
Viswanathan, learned Senior Advocate appearing on behalf of the State
of Tamil Nadu, added to these submissions.