66. From the bare reading of the above order, it is clear that the issue in regard to the closure and/or functioning of the plant of the appellant-company was specifically raised. In fact, it was contended on behalf of the respondents that the machines and instruments that had been attached to the plant were not working properly and this led to emission of SO2 and caused health hazards. After noticing these rival contentions, the Southern Bench of the Tribunal decided that the circumstances of the case warranted appointment of an expert committee and thus, made specific TOR in its order. The TOR were so wide as to cover the working condition of the analyser, to measure the emission of SO2, to oversee the calibration of the analyser and to 75 find out the location, working condition and data record system of the monitoring stations under the NAAQMS. These TOR were specific but still wide enough to cover the necessary facets of the working of the plant and thus, to bring on record the possibility of any pollution resulting from the operation of the plant of the appellant-company. The Expert Committee was to be duly assisted by the representatives of the Respondent-Board as well as that of the appellant-company. The report of the Committee was filed in furtherance to this order, which we have already discussed. The main contention raised is that the TOR did not make a specific reference to the incident of 23rd March, 2013 and as such the report of the Committee cannot be taken into consideration and cannot form the basis of the decision of the Tribunal. This argument is without any basis and, in fact, is merely an after-thought on the part of the respondents. The order was passed in the presence of the respondents, who were vehemently contesting the application. It was for the respondents to request the Southern Bench of the Tribunal to incorporate in the order/TOR the incident of 23rd March, 2013 and its effects, if any. For reasons best known to the respondents, this contention was not raised. Thus, the respondents cannot be permitted to take advantage of their own wrong and omission.
67. We have also noticed that the TOR were general in nature, and therefore, would cover the entire functioning of the plant of the appellant-company. It would bring before the Tribunal the defects in the functioning of the machinery, tools, analysers, air 76 monitoring stations and the general impact of emissions on the health of the public. The general TOR, as directed by the Southern Bench of the Tribunal, do not leave any scope for any restriction or inability on the part of the Expert Committee to bring out any deficiency in the appellant-company's unit on record. The report submitted before the Tribunal is comprehensive and deals with all the specific issues that are germane to the matter requiring adjudication in the present application. Therefore, the objection raised by the respondent is more of an after-thought and cannot, in any way, be a ground for non-consideration of the Expert Committee's report by the Tribunal.
WHETHER THE CHAIRMAN OF THE RESPONDENT BOARD IS VESTED WITH THE POWER TO DIRECT CLOSURE OF AN INDUSTRY? IF SO, WHETHER THE EXERCISE OF SUCH POWER BY THE CHAIRMAN WAS PROPER IN THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE?
68. In terms of Section 5 of the Environment (Protection) Act and Section 31A of the Air Act, a Board is vested with the power to issue any directions in writing to any person, officer or authority and such person, officer or authority shall be bound to comply with such directions. Section 5 of the Air Act concerns itself with regard to constitution of the State Board. The State Government is obliged to constitute a State Pollution Control Board under the provisions of this Act. Section 17 of the Air Act states as to what functions a State Board is required to perform. In terms of this Section, subject to the provisions of the Air Act 77 and without prejudice to the performance of its functions, if any, under the Water Act, the functions of the Board have been stated under clauses (a) to (j) of Sub-section (1). The Board has to perform functions which include such functions, as may be prescribed or entrusted to the Board by the Central Government or the State Government, as the case may be. A general power is vested in the Board to do such other things and to perform such other acts, as it may think necessary for the proper discharge of its functions and generally for the purpose of carrying into effect the purposes of the Air Act. In other words, the functions of the Board always aim at achieving the purposes of the Air Act and giving effect to its provisions. Every State Board constituted under the Air Act is a body corporate with the name as specified by the State Government in the notification.
69. A State Board constituted under the Air Act shall consist of a Chairman and the Members, as specified in the Air Act. Section 15 of the Air Act contemplates that the Chairman of the Board, being the head of the institution, has to perform such functions as the State Board may, by a general or special order, delegate to the Chairman or the Member-Secretary or any other officer of the Board, subject to such conditions and limitations, if any, as may be specified in that order. There is no provision in the Air Act to state as to what are the specific functions which are to be performed by the Chairman of the Board. The Act does not specify any powers which can be exercised by the Chairman but he has to exercise only such powers as are delegated to him by 78 the Board. The Board in turn can only delegate such powers and functions as it is required to perform in terms of Section 17 of the Air Act. Section 15 of the Air Act is a composite repository of powers and functions of the Chairman of a Board.
70. The Chairman has, thus, to be only a delegatee in regard to the performance and powers that can be exercised by him. The Board in turn can only delegate such powers and functions as the Board itself is competent to perform in terms of Section 17 of the Air Act.
71. The Respondent Board on 24th February, 1994, passed a resolution, being Resolution No.134-32. In this Resolution, the Respondent Board referred to its powers to issue directions under Section 33A of the Water Act and Section 31A of the Air Act. These powers to issue directions include the power to direct closure, prohibition or regulation of any industry, operation or process. The Respondent Board can also direct the stoppage or regulation of supply of electricity, water or any other service to the industry under the provisions of the Air Act and Water Act. This power of the Board was delegated to the Chairman in terms of Section 33A and 31A of the respective Acts where the situation arises all of a sudden and in the case of polluting industries contravening the provisions of the Acts and where in the event of urgency it is necessary to pass such directions. Thus, the Respondent-Board after careful examination, decided to delegate such powers to the Chairman under Section 12(3B) of the Water 79 Act and Section 15 of the Air Act. In order to appreciate the intent of such resolution, it is important to refer to the Resolution dated 11th March, 1994, which is reproduced below:
"As per the Section 33-A of the Water (Prevention and Control of Pollution) Act 1974 as amended in 1988 and Section 31-A of the Air (Prevention and Control of Pollution) Act, 1981 as amended in 1987, the Board in the exercise of the powers and performance of its functions under the said Act or not withstanding anything contained in any other law but subject to the provisions of these Acts, and to any direction that the Central Government may give in this behalf, may issue any directions in writing to any person, Officer or authority and such person, Officer or authority shall be bound to comply with such directions.
The Power to issue directions under Section 33- A of the Water (Prevention and Control of Pollution) Act, 1974 as amended in 1988 and Section 31-A of the Air (Prevention and Control of Pollution) Act, 1981 as amended in 1987 includes the Power to direct.
(a) The closure, Prohibition or regulation, of any industry operation or process (OR)
(b) The stoppage or regulation of supply of electricity, Water or any other service. In the event of a person, Officer or authority or industry contravening the provisions of the Water (Prevention Control of Pollution) Act, 1974 or the Air (Prevention and Control of Pollution) Act, 1981 as amended, and liable for closure, prohibition or regulation or stoppage of electricity water or any other service as the case may be, the matter will have to be referred to Board for its approval to issue the directions.
As per rule 3 of the Tamil Nadu Water (Prevention and Control of Pollution) Rules, 1983 "Seven clear days' notice of an ordinary meeting and three clear days' notice of a special meeting along with the notes, if any shall be given by the Member Secretary to the members".
The Board meets once a month where as a urgency and the necessary for issue or directions under Section 33-A of the Water (Prevention and Control of 80 Pollution) Act, 1974 as amended in 1988 or under Section 31-A of the Air (Prevention and Control of Pollution) Act, 1981 as amended in 1987 arises all of a sudden.
Hence, in the case of a polluting industry contravening the provisions of the Water (Prevention and Control of Pollution) Act, 1974 and / or Air (Prevention and Control of Pollution) Act, 1981 and liable for closure, prohibition or regulation or stoppage of electricity, Water of the industry, operation or process, or other services, under Section 33A of the Water (Prevention and Control of Pollution) Act, 1974 as amended in 1988 or Section 31-A of the Air (Prevention and Control of Pollution) act, 1981 as amended in 1987 action gets delayed and till such time the offence continues.
By virtue of the provisions of Section 12 (3B) of the Water (Prevention and Control of Pollution) Act, 1974 as amended and Section 15 of the Air (Prevention and Control of Pollution) Act, 1981 as amended, the Board may delegate to any Officer of the Board such of its powers and functions under the said as it may deem necessary.
Hence necessary proposal was placed before the Board as its 134th meeting held on 24.02.94, to delegate its powers to the Chairman, Tamil Nadu Pollution Control Board for issue of necessary Show Cause Notices and directions for closure prohibition, regulation of any industry, operation or process, or stoppage of electricity, Water or any other services, so as to ensure that prompt action could be taken to tackle any emergency.
The Board after careful examination vide its Resolution No.134-32 (Part-I) dt.24.2.94, decided to delegate powers to the Chairman under Sub-Section (3B) of Section 12 of the Water (Prevention and Control of Pollution) Act, 1974 as amended in 1988 and to issue direction under Section 33(A) of the Water (Prevention and Control of Pollution) Act, 1974 as amended in 1988 and under Section 15 of the Air (Prevention and Control of Pollution) Act, 1981 as amended in 1987 to issue direction under Section 31-A of the Air (Prevention and Control of Pollution) Act, 1981 as amended in 1987."
72. The bare reading of the above resolution shows that the Respondent Board meets once a month. It was, in order to meet 81 an emergency or environmental exigency that may arise all of a sudden requiring passing of appropriate directions within the ambit and scope of Section 33A or Section 31A of the Water Act and the Air Act respectively that delegation of powers to the Chairman was made. In the preamble to the resolution, it has been specifically stated that where urgency is necessary, and such directions are required to be issued in the case of a polluting industry contravening the provisions of the Acts, there in order to avoid delay in taking appropriate action that the powers and functions of the Respondent Board to issue directions, as contemplated under Section 33A or Section 31A of the respective Acts have been delegated to the Chairman of the Respondent Board. In other words, the following are the essential features which must exist before the Chairman can exercise the power to issue directions of closure, etc.:-
(a) There should be urgency and necessity to issue such directions;
(b) The polluting industry must be contravening the provisions of either of or both the Acts; and lastly
(c) Delay in taking action would frustrate the very object of the Acts and would be prejudicial to the environment.
73. These appear to be the in-built limitations of delegation of powers to the Chairman to issue directions. When powers of such wide magnitude and of serious consequences are delegated, then the delegatee is expected to act with greater caution. Higher 82 the element of authority delegated, greater is the degree of caution required from such authority while exercising such powers. The delegatee can exercise the powers within the framework of the limitations to which such powers are subjected. The delegatee would exercise the powers as if being exercised by the delegator but the onus of responsibility, caution and objectivity is, to a great extent, upon the former. Essentially the authority delegated with the powers must eliminate the element of arbitrariness in its process and directions. It is not only that specifically prescribed limitations have relevant consideration but also the object and spirit of delegation is a relevant factor. Such delegation would squarely fall in the category of conditional delegation. Conditional delegation of such functional powers would depend upon the satisfaction of the delegator. It also depends upon the objective facts that are to be reached before the powers can be exercised. There is fine distinction between the absolute power provided by legislation and the conditional delegation of power in furtherance to a subordinate legislation. Exercise of such powers is dependent upon the fulfilment of certain conditions and the delegatee has to exercise such powers within the authority, conditional or otherwise, as delegated. The power of the Chairman to pass such directions like the impugned order, can hardly be questioned. In terms of the provisions of Section 12(3B) of the Water Act and Section 15 of the Air Act, the Respondent Board, as a matter of fact, has delegated its power to pass directions, as contemplated under Section 31A of the Air 83 Act and Section 33A of the Water Act. This delegation was in the discretion of the Respondent Board and once such power of delegation is exercised by the Respondent Board, the correctness of vesting such powers in the Chairman of the Respondent Board can hardly be open to question. The resolution of the Respondent Board dated 24th February, 1994 and as circulated vide letter dated 11th March, 1994, thus, is a complete delegation of powers in regard to the relevant provisions of the respective Acts.
74. Still the question that remains to be answered is whether exercise of the power by the Chairman of the Respondent Board was proper, free of vice of arbitrariness and rightly called for in the facts and circumstances of the case. As already noticed, the alleged incident of 23rd March, 2013 when SO2, in excess of the prescribed parameters, is stated to have emanated from the industrial plant of the appellant-company resulting in health hazards to the residents of the villages located at 6-8 kms. from the industrial premises of the appellant-company does not aspire credence. We have discussed, in greater detail, the occurrence and reliability of the allegations made against the appellant- company separately in the later part of the judgment. We are unable to contribute to the view of the respondents that undoubtedly SO2 gas emanated in violation of the prescribed parameters from the stacks of the unit of the appellant-company. The various allegations made against the appellant-company have not been substantiated by any scientific data. During the 84 course of hearings, it was even conceded before us that there were no 84 instances of leakage of gas in violation of the prescribed standards and the table shown in the reply filed by the respondents only related to the period of calibration.
75. In light of these circumstances and the fact that the complaints were uncertain in terms and based on mere suspicion that gases might have leaked from the premises of the appellant- company, their (complaints) reliability is doubtful. It is to be seen whether these complaints provide a definite basis to the Respondent-Board to pass such a serious direction ordering closure of the industrial unit. The expression in the resolution clearly points out that the industry should be a polluting industry contravening the provisions of the Act. No data, much less scientific data, has been placed on record to support this aspect of the matter. Even if the complaints are read in their entirety, they still mention that the gas "could have" leaked from the industrial plant of the appellant-company. Still the apprehension indicated in these complaints is required to be supported by proper scientific data or analytical report which ought to have been taken immediately on the date of occurrence or immediately thereafter. Firstly, neither any supporting documents whatsoever were filed on record nor any samples, either from stack or of the Ambient Air Quality (AAQ) were collected, to show that on 23rd/24th March, 2013 there were excessive emissions from the plant of the appellant-company. Secondly, it must have been shown that some urgency existed 85 which necessitated passing of such a direction. From the records before us, it does not appear that even the Respondent Board itself considered it a case of such an extreme urgency or necessity. The incident is alleged to have occurred on 23rd March, 2013 but the appellant-company's plant was permitted to continue its manufacturing activities till 29th March, 2013. The Respondent Board was not expected to compromise with the health of the public at large and wait for a week before it could pass the order of closure in relation to the appellant-company. It is nobody's case before us that the appellant-company carried on its manufacturing activities in violation to the prescribed parameters on 23rd of March 2013 or any subsequent day thereto and the same is not supported by any analysis report. The incident of 23rd March, 2013 has not been established by any cogent evidence before the Tribunal. Moreover, neither the order of the Respondent Board nor any record produced before us showed that any emergency existed right from 23rd March to 29th March, 2013.
76. The impugned order dated 29th March, 2013 that has been passed by the Respondent Board did not refer to any independent data or analytical report that would substantiate the plea that the industry was leading to environmental pollution. The technical part of the impugned order, we have discussed separately, does not support the case of the Board any further.
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77. Another aspect which we must notice in relation to the impugned order dated 29th March, 2013 is that the order specifically states, "The Board after deep consideration of the above factors and your reply to show cause notice, has taken a serious view of the matter". This undoubtedly is a factually incorrect statement of facts. It is undisputed before us that the matter was never placed before the Respondent-Board pre or post-passing of the order dated 29th March, 2013. Months have gone by and there is no explanation on record before us as to why the matter has not been placed before the Board for its appropriate consideration. This by itself may not vitiate the order but certainly is an indicator of callousness and undue haste with which the order in question has been passed. An order of such serious consequences does deserve better attention and forethought at the hands of the authority vested with such powers particularly where the authority decided to close any industry while framing a trajectory for achieving the object of preventing and controlling environmental pollution.
78. Any of the reports, whether before or immediately subsequent to the event of 23rd March, 2013 do not attribute causing of air pollution to the plant of the appellant-company.
79. The cumulative effect of the above circumstances and particularly the fact that the authority has mis-construed the data, has acted on an unfounded suspicion and has considered irrelevant matters, does to some extent, introduce an element of 87 arbitrariness in the process of passing of the impugned order dated 29th March, 2013 itself. Thus, we are of the considered view that the Chairman of the Board has not exercised his power in an emergent situation where a necessity existed and recourse to any regulatory mechanism was not possible, leaving no option but to close the appellant company's unit. The order does suffer from the vice of arbitrariness and thus, cannot be sustained. SCIENTIFIC ANALYSIS, TECHNICAL ASPECTS OF THE CASE WITH PARTICULAR REFERENCE TO CALIBRATION, EPISODIC INCIDENTS OF EMISSION FROM STACK AND AMBIENT AIR QUALITY:
80. In the very opening part of the judgment, we have explained that one of the principle questions that require determination by the Tribunal in the facts of the present case is whether the alleged incident of 23rd March, 2013 was a consequence of calibration or leakage of gas in excess of the prescribed parameters. To examine this aspect in its broader perspective, it would be necessary to examine the manufacturing process of the appellant-company along with the cause of the alleged incidents of emission and what was its effect on the ambient air quality in and around the premises of the appellant-company. The parties to these proceedings have filed voluminous data, supporting documents and reports to substantiate their respective pleas. The Tribunal has analysed these records with reference to the pleadings of the parties, more particularly in regard to the incident of 23rd March, 2013 as a lot turns on that issue. The 88 Tribunal has also minutely and critically examined the episodic incidences of emission and health hazards complained of by the respondents.
Manufacturing Process and Sources of Sulphur Dioxide (SO2)
81. The appellant company, as already noticed, is engaged in manufacturing of copper cathodes and copper rods. These are manufactured by smelting copper concentrate (copper ore) containing 30% copper, 30% sulphur, 30% iron and balance of other impurities. Copper concentrate with moisture along with quartz and limestone is fed into smelter where pure oxygen is injected. As a result of the reactions, the copper concentrate gets mainly split into Matte (a mixture of sulphide having copper and iron), Slag (containing iron silicate) and SO2 gas. The Matte is transferred to Holding Furnace from where it is tapped periodically from the bottom through a water cooled tap hole and the Slag gets further separated out owing to differential density. The Matte is further processed into Blister Copper and Ferro Sand (0.7 to 1% copper) in two stages in a Convertor where in the first stage 98.5% blister copper is obtained by removal of iron slag and small quantity of trapped Sulphur. In the second stage, remaining Sulphur is removed by oxidation. The Cleaning Furnace further recovers the Copper left in the Ferro Sand and subsequently Anode Furnace further refines Blister Copper by oxidizing remaining Sulphur to produce Copper Anode (i.e. copper of 99.7% purity). Finally Electro Refinery produces Copper Cathode (copper of 99.9%) purity). In this entire 89 manufacturing process of Copper, the Sulphur contained in the copper concentrate is converted into SO2 primarily during the Smelter operation followed by comparatively limited quantities of SO2 during operation of Holding Furnace and Convertor.
82. Entire SO2 gas produced in Smelter, Convertor and other Furnaces is collected and carried through ducts to two Sulphuric Acid Plants (SAP-1 and SAP-2). The SO2 is then cleaned and oxidized to sulphur-tri-oxide (SO3) using Vanadium Pentaoxide catalyst. The SO3 is then absorbed in water to convert it into sulphuric acid. The Sulphuric Acid Plants SAP-1 and SAP-2 are of identical capacity and use same technology for conversion of SO2 to sulphuric acid. The residual gas from the SAP Plant is further treated in the Tail Gas Scrubber to meet the prescribed norms and then emitted through the stacks into the atmosphere.
83. From the understanding of the entire manufacturing process, it is evident that the possible sources of emission of SO2 are i) Stack emissions from Smelter, Convertor and other Furnaces, ii) Stack emissions from SAP-1 and SAP-2, ii) Fugitive emissions opening of all furnaces mouth and transfer of material from one furnace to another, iii) Leakages from Ducts, and iv) Effluent from Secondary Gas Scrubbers (SGS). To further understand likely sources of excessive emission, it is placed on record that of the total sulphur contents in the raw material; almost 95.75% sulphur is fixed in SAP-1 and SAP-2 whereas 1.92% sulphur is fixed in Slag of Smelter and another 2.08% sulphur is fixed in the cakes of Effluent Treatment Plant; thereby 90 fixing almost 99.7% of total sulphur contents. Remaining sulphur amounting to 0.24 to 0.29% is released to the atmosphere through the five stacks i.e., Smelter, SAP-1, SAP-2, SGS-1 and SGS-2.
84. All the above sources of emission from the stacks have been installed with online SO2 analyzers to continuously monitor the concentration of SO2 in the Stack emissions. Each stack is connected with one online analyzer to continuously monitor the extent of SO2 being released into the atmosphere. The appellant company uses three different types of online SO2 analyzers for stack monitoring, which are: i). ABB make model AO2020 (LIMAS11) extraction type analyzer working on principle of UV absorption integrated by Emersion Process Management installed at the stack of SAP-1; ii). Rosemount make model MLT1 extraction type analyzer working on IR absorption principle installed at Smelter and furnaces (ISA HVS); and iii) OPSIS make model AR600 in situ type analyzer working on principle of open path technology at the stack of SAP-2, SGS-1 and SGS-2.
85. The data collected by all the 5 online analyzers is transferred to DCS within plant and a direct line from the online analyzers of SAP-1 and SAP-2 to the CARE AIR Centre located in the office of Respondent Board at Chennai. The software used is as per the specifications of Respondent Board and is temper- proof. The Respondent Board has prescribed consent limit for SO2 emission in stacks as 477.53 PPM (equivalent to 1175 mg/m3) at tip of stacks and 80µg/m3 for the ambient air. It is 91 important to note here that the online analyzers installed are of 3 types and each type of analyzer has different range of measurement. The range of measurement of online analyzers is 0 to 500 ppm for analyzer at the stack of smelter, 0 to 1000 ppm for the analyzer at the stack of SAP-1, 0 to 700 ppm for the analyzer at the stack of SAP-2 and 0 to 5000 ppm for the analyzers at the stack of SGS-1 and SGS-2. It is equally important to note that OPSIS make online analyzers installed at SAP-2, SGS-1 and SGS-2 stack requires calibration normally once in a year whereas the other 2 online analyzers at SAP-1 and ISA stacks require regular calibration in order to ensure the quality of data collected by them. Such calibration checks are also needed before restarting the smelter plant, when the plant has been shut down either on account of scheduled maintenance or minor unscheduled break-down.
Calibration v/s Emission of SO2
86. In order to understand the complexity of the problem, it is essential to go into the finer details of calibration process. Calibration is a comparison between measurements - one of known magnitude or correctness made or set with one device and another measurement made in as similar a way as possible with a second device. The device with the known or assigned correctness is called the standard. The second device is the unit under test, test instrument, or any of the several other names for the device being calibrated.
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87. Instrument calibration is one of the primary processes used to maintain instrument accuracy. Calibration is the process of configuring an instrument to provide a value within an acceptable range. Eliminating or minimizing factors that may cause inaccurate measurements is a fundamental aspect of instrumentation design. In the case on hand, the calibration process generally involves using known concentration of the SO2 of one or more known values. The results are used to establish a relationship between the observed values in the instrument and the known values. The process in essence "teaches" the instrument to produce results that are more accurate than those that would occur otherwise. The instrument after calibration can then provide more accurate results.
88. Here it is important to understand as to why the instrument needs calibration on regular basis when it generally makes sense that calibration is required for a new instrument in order to ensure that the instrument is providing accurate indication or output signal when it is installed. Therefore, the obvious question is as to why it can't continue to provide indication accurately as long as the instrument is operated properly. It is known that instrument error can occur due to a variety of factors: drift, environment, electrical supply, addition of components to the output loop, process changes, etc. Since calibration is performed by comparing or applying a known signal to the instrument under test, errors can be detected by performing a calibration. An error is the algebraic difference 93 between the indication and the actual value of the measured variable. Typical errors that occur include: Zero and Span errors and these can be corrected by performing a calibration. The zero adjustment is used to produce a parallel shift of the input-output curve. The span adjustment is used to change the slope of the input-output curve. Linearization error may be corrected, if the instrument has a linearization adjustment. If the magnitude of the nonlinear error is unacceptable and it cannot be adjusted, the instrument must be replaced. To detect and correct the instrument error, periodic calibrations are essential. Even if a periodic calibration reveals the instrument is perfect and no adjustment is required, one would not know the same unless calibration is performed. Even if adjustments are not required for several consecutive calibrations, one still needs to perform the calibration check at the next scheduled due date to over-rule the possibility of erroneous data. Periodic calibrations at scheduled intervals as provided by the manufacturer to specific tolerances using approved procedures are an important element of any quality control system.
89. Calibration of an instrument may be called for at the time of
i) installation of a new instrument; ii) after an instrument has been repaired or modified; iii) when a specified time period has elapsed; iv) when a specified usage (operating hours) has elapsed;
v) before and/or after a critical measurement; vi) after an event, for example after smelter has been stopped for scheduled or unscheduled maintenance or an instrument has had a 94 shock, vibration, or has been exposed to an adverse condition which potentially may have put it out of calibration or damaged it; v) sudden changes in weather; and vi) whenever observations appear questionable or instrument indications do not match the output of surrogate instruments. In general, calibration is often regarded as including the process of adjusting the output or indication on a measurement instrument to agree with value of the applied standard, within a specified accuracy.
90. From the records before us, it is seen that the industry carries out calibration for SAP-1 and ISA online analyzer on regular basis, whereas SAP-2, SGS-1 and SGS-2 online analyzers are calibrated on yearly basis as per the Manufacturer's recommendations. Apart from the regular schedule, the online analyzers of ISA and SAP-I are also calibrated pursuant to any process shutdown/restart as a result of any break-down. For calibration, typically a gas having a higher known concentration is fed into analyzer directly, without routing such gas through stack and it is tested whether the analyzer is capable of reading accurate value as per the known concentration. In the instant case, the online analyzers are calibrated using SO2 cylinders of concentrations of 490 ppm, 1000 ppm or 4000 ppm depending on availability of cylinders at appellant company and the duration of calibration varies from 30 minutes to 4-5 hours or more depending upon other preventive maintenance activities taken up along with the calibration. There are also occasions when multiple calibrations in a day are carried out owing to 95 maintenance problem because the online analyzer needs calibration every time the plant is shut down for maintenance.
91. The Expert Committee appointed by NGT Southern Zonal Bench oversaw the calibration exercise of online analyzers on 23rd April, 2013. According to appellant company, three types of processes are adopted for calibration i.e. (i) single point calibration; (ii) two point calibration; and (iii) multi-point calibration. In all the above calibration procedures zero is checked using zero-grade Nitrogen gas into analyzer and in single point calibration 490 ±10 ppm SO2 is used whereas in two point calibration, 490 ±10 ppm and 1000 ±10 ppm SO2 is used while in multi-point calibration, 4000 ±10 ppm, SO2 is used for full range of calibration. Calibration of all the three types of online analyzers was carried out in presence of the committee members. The entire calibration time for SAP-1 was 19 minutes and 64 minutes for online analyzer to check for maximum measurement. Thus, the time required for one calibration is around 83 minutes. If the plant has to be shut down again for maintenance, the next calibration is required, which may take more time and thus, time required for calibration could significantly vary.
92. Another important aspect pertains to the fact that although, the online analyzer for SAP-1 has a maximum range of recording upto 1000 ppm; however, the data presented in various reports is shown upto 1123 ppm. It was brought on record that although the online analyzer for SAP-1, has a maximum measurement range of 1000 ppm, however, the instrument has small leverage 96 and the maximum which this analyzer can record is 1123 ppm. It was pointed out that SAP-1 online analyzer calibration for 1000 ppm based on 20 mA output and 1125 ppm based on 22 mA output is carried out using linearity check-up.
93. In the present matter, as per stand of Respondent Board, in the early morning of 23rd March, 2013, there were complaints of eye irritation and throat suffocation from the New Colony, Keela Shanmugapuram and other areas of Thoothukudi town. In response to the complaints, District Environmental Engineer, Respondent Board, Thoothukudi and other officials namely Deputy Chief Inspector of Factories, Thoothukudi and Sub- Divisional Magistrate and Revenue Division Officer, Thoothukudi inspected the Appellant-company's plant premises to check the pollution status. Finally on 29th March, 2013, Respondent Board issued closure order to the appellant company wherein the main reason is stated to be values of excessive emission that were reflected from the online analyzer on 23rd March, 2013 between 2.15 a.m. to 2.45 a.m. ranging from 2103.23 mg/m3 to 2939.55 mg/m3 (803.5 ppm to 1123.6 ppm) and 1767.65 mg/m3 to 2941.12 mg/m3 (675.3 PPM to 1123.6 PPM) between 9.15 a.m. and 11.15 a.m. on the same day, as against the stipulated emission standards of 1250 mg/m3 (477.53 ppm) prescribed by the MoEF Gazette Notification No 248 dated 07th May, 2008.
94. The appellant company contended that the plant was taken for maintenance shut down around 3.20 a.m. on March 21, 2013 to attend certain repairs and was taken for start-up at around 97 2.00-2.45 a.m. on March 23, 2013 and during start up process, the online analyzer for SAP-1 was taken up for calibration as required in the standard prescribed procedure of the instrument. It is further contended that on the same day between 9.15 a.m. and 11.15 a.m., calibration exercise was repeated before the inspecting team of officials to demonstrate the abnormal values observed in the online analyzer of SAP-1. The higher values as recorded in the online analyzer of SAP-1, were due to calibration process and was a spam gas and not due to excessive emission as the emission source was dis-connected from the Analyzer during calibration. The observed values during such repeated calibration exercise were in the range of 675 ppm (equivalent to 1767 mg/m3) to 1123 ppm (equivalent to 2940 mg/m3).
95. From the further averment made by the Respondent Board it is evident that the entire premise on which they arrived at the conclusion that the appellant company is releasing excessive emission relates to the online analyzer data in respect of stack of SAP-1. The SAP-1 is alleged to have emitted high SO2 on 23rd March, 2013 on two occasions as mentioned earlier. The appellant company contended that the two sulphuric acid plants are designed in such a way that SAP-1 and SAP-2 are getting entire SO2 from copper smelter from a common duct and is then divided equally into two sulphuric acid plants of similar capacity and technology. From the corresponding data of both the online analyzers of SAP-1 and SAP-2, it is argued that the recorded data of emission from both the online analyzers is almost at the same 98 level except the time period when calibration of the online analyzer of SAP-1 is carried out and it is also argued that the same data is also sent online to CARE AIR Centre of Respondent Board at Chennai.
96. Thus, it is clear that the higher values recorded by the SAP-1 analyzer is due to calibration and not due to excessive emission.
Episodic Incidences of Emission
97. During the course of arguments, Respondent Board submitted that the excess emission was not only on two occasions on 23rd March, 2013 but in fact, based on past available data of online analyzer of SAP-1, 84 such incidences were reported based on analysis of data for every 15 minutes interval between the period from October, 2012 to March, 2013 on 7 occasions. These are: on 17th October, 2012, between 13.30 and 14.00 hrs and 18.15 and 20.45 hrs, for about 3 hrs 30, 14 incidences with reported values of SO2 between 694.5 and 1123.5 ppm, on 26th October, 2012 to 27th October, 2012, between 20.15 hrs and 01.00 hr, for 5 hrs, 20 incidences with reported values of SO2 between 527.0 and 1123.4 ppm, on 24th November, 2012, between 14.15 to 17.00, for 3 hrs, 12 incidences with reported values of SO2 between 554.8 and 1123.5 ppm, on 1st December, 2012 to 2nd December, 2012, between 21.45 to 01.15 hrs, for 3 hrs 45 minutes, 15 incidences with reported values of SO2 between 598.4 and 1123.1 ppm, on 21st December, 2012 between 16.45 to 19.30, for 2 hrs, 8 incidences 99 with reported values of SO2 between 504.5 and 1122.3 ppm, on 16th January, 2013, between 08.15 and 8.45, for 45 minutes, 3 incidences with reported values of SO2 between 583.0 and 1082.7 ppm, on 23rd March, 2013, between 02.15 and 02.45 and 09.15 and 11.15 hrs, for 3 hrs, 12 incidences with reported values of SO2 between 675.3 and 1123.6 ppm.
98. However, the appellant company again relied on the emission data recorded in respect of online analyzers of SAP-1 and SAP-2 to make the point that only during calibration in respect of SAP-1 online analyzer, higher emission is recorded whereas for the same time period, reading of online analyzer for SAP-2, which has the same supply source for gases, indicated values in permissible range. Since the SAP-2 emission values as recorded at CARE AIR Centre, Chennai on all the said 84 occasions is normal, there is no reason why emissions from SAP- 1 should be different from SAP-2 on the alleged calibration days. In this context, Respondent Board also placed reliance on analysis of graphical data representation of the above reported 84 incidences at 15 minutes interval. The contention of Respondent Board pertained to the fact that calibration normally takes approximately 20 minutes whereas in all these incidences, the duration of the event runs into few hours. The Respondent Board contested that during calibration, the online analyzer is fed with very high known concentration of SO2 and this leads to sudden spurt in the graphical presentation of emission data at shorter intervals and thus, the graph should reflect sudden 100 higher concentration of SO2 that was fed into the online analyzer. These graphs were prepared during examination by the Expert Committee appointed by NGT, Southern Bench. The appellant company contended that during calibration there would be gradual increase in SO2 release as only very small quantity is fed into the analyzer at the ground level and it takes a while for the gases to reach the online analyzer at the top of the stack and therefore, would be reflected as gradual increase in the graphs and hence contention of Respondent Board that all the values exceeding the limits are due to emission and not calibration is incorrect. As further contended by the appellant company, the calibration may continue for longer time due to maintenance and hence cannot be taken as firm evidence to establish that all the events when the higher values recorded from SAP-1 at CARE AIR Centre were due to emission and not due to calibration. It is pertinent to note that not a single incidence of excessive emission of SO2 is reported from the historical data of SAP-2 stack online analyser. Even assuming that excessive emission took place in SAP-1 owing to malfunctioning in this plant, the question that arises for consideration is why malfunctioning only took place in SAP-1 as against SAP-2. Equally important is the fact that even if such excessive emission episodes were occurring, not a single point data of ambient air quality from any of the stations have shown exceedence in permissible levels of SO2.
99. From the discussion made above, it is clear that the episodic incidences of emission from SAP-1 in view of the 101 corresponding data of emission recorded at SAP-2 and also the fact that source of supply to both SAP-1 and SAP-2 online analyzer is connected to the same duct, no merit is observed in the contention of Respondent Board. The contention of the Respondent Board regarding graphical interpretation of episodic incidences of emission from SAP-1 online analyzer also does not satisfy on merits in view of the discussion made above. Ambient Air Quality Monitoring
100. Air pollutants are added in the atmosphere from variety of sources that change the composition of atmosphere and affect the biotic environment. The concentration of air pollutants depend not only on the quantities that are emitted from air pollution sources but also on the ability of the atmosphere to either absorb or disperse these emissions. The air pollution concentration vary spatially and temporarily causing the air pollution pattern to change with different locations and time due to changes in meteorological and topographical condition. The sources of air pollutants include vehicles, industries, domestic sources and natural sources. In order to ensure the air quality within stipulated standards, ambient air quality monitoring is made mandatory for the polluting industries around their plants. Ambient air quality monitoring programmes are needed to determine the existing quality of air and evaluation of the effectiveness of pollution control programmes.
101. Any air quality monitoring network thus, involves selection of pollutants to be monitored, selection of locations, frequency, 102 duration of sampling, sampling techniques, infrastructural facilities, man power and operation and maintenance. The network design also depends upon the type of pollutants in the atmosphere through various common sources, called common air pollutants, such as Respirable Suspended Particulate Matter (RSPM), Sulphur dioxide (SO2), Oxides of Nitrogen (NOx), and Carbon Monoxide (CO) etc. Air pollutants show short term, seasonal and long term variations. Atmospheric conditions determine the fate of the air pollutants after their release into the atmosphere. The mean transport wind velocity, turbulence and mass diffusion are three important and dominant mechanisms in the dispersal of air pollutants. Meteorological conditions play a major role in monitoring ambient air quality. The wind speed and direction play a major role in dispersion of air pollutants. The wind direction is the measurement of direction from which the wind is blowing, measured in points of compass viz. North, South, East, West or in Azimuth degrees. Wind direction has an important role in distributing and dispersing pollutants from stationary and mobile sources in horizontally long downwind areas. The wind speed is the measure of horizontal motion of wind relative to the surface of earth per unit time. The effect of wind speed on air pollution is two-fold. It determines the travel time from a source to a given receptor while on the other causes dilution of pollutants in downwind direction. The stronger the wind, the greater will be the dissipation and dilution of pollutants emitted. Knowledge of the frequency distribution of 103 wind direction as well as wind speed is essential for accurate estimation of the dispersion of pollutants in the atmosphere. The frequency distribution of wind speed and direction varies considerably from month to month. Air pollutants show diurnal variations in their levels. During the daytime, solar heating causes maximum turbulence and strongest vertical motions. This causes the maximum amount of momentum exchange between the various levels in the atmosphere. On clear nights with light winds, heat is radiated from the Earth's surface resulting in cooling of the ground and air adjacent to it. This results in extreme stability of the atmosphere near the Earth's surface. Under these conditions turbulence is at a minimum and thus, air pollution dispersion is also minimal. More calm the conditions during winter, higher are levels of air pollution. The concentration of pollutants is maximum in winter months and is low during summer and monsoon months. A plausible explanation for these results may be found by examining meteorological conditions. The general meteorology during the winter is dominated by high pressure causing increased atmospheric stability, which in turn allows for less general circulation and thus, more stagnant air masses. Stagnant air masses allow more accumulation of pollutants in any given area. During the winter, average mixing height is lower as compared to other seasons and atmospheric dispersion is typically at a minimum and therefore, the pollutants will not be as widely dispersed. During the summer months, the average mixing 104 height is typically at its highest resulting in increased mixing through a greater volume of the troposphere, and hence lower pollutant concentrations. The monsoons result in large amount of precipitation, high wind velocities and changes in general wind direction. The large amounts of precipitation reduce atmospheric pollution via associated wet deposition processes. Further wind velocities will allow for pollutant transport away from sources, increase mixing processes and the winds coming from the marine environment will have less background concentrations than that of continental air masses. The strong and medium wind in the coastal areas during summer and monsoon season creates turbulent conditions and local disturbances in the environment which causes fast dispersion of air pollutants. Therefore, Tuticorin area, where the appellant-company is located, being a coastal area will experience fast dispersion of air pollutants in the nearby areas and by the time the same reaches too far off areas, its impact will become negligible. During monsoon, frequent rains washes down the air borne particulates and other pollutants generated and dispersed from the sources in the environment, therefore, the period from July to September is cleaner period in the year.
Number and Distribution of Air Quality Monitoring Locations
102. SIPCOT industrial area, where the appellant-company is located has got large number of large, medium and small scale industries. The major industries being M/s Spic India Ltd, Sterlite Power Plant, Tuticorin Thermal Power Plant, M/s Ind 105 Bharat Power Gen Co. Pvt Ltd, M/s TEC Ltd and M/s DCWD Ltd. In addition to large industries, there are several small scale industries in the area and some of these industries are maintaining ambient air quality stations. There are 13 monitoring stations (7 being continuous) being maintained by appellant company in addition to 3 being operated by the Respondent Board under National Ambient Air Quality Monitoring Programme of CPCB. These stations are regularly recording the ambient air quality data on Respirable Suspended Particulate Matter (RSPM), Sulphur dioxide (SO2) and Oxides of Nitrogen (NOX).
Emission v/s Ambient Air Quality
103. The appellant company has contended that the ambient air concentration of SO2 should be in the order of 5 ppm, which is equivalent to 13000 µg/m3, to cause symptoms (such as mucosal irritation, eye irritation and throat suffocation, etc.) experienced by local population that formed the basis for closure of the appellant-company and also that such high levels of emission is far in excess of the stipulated National Ambient Air Quality Standards of 80 µg/m3. Moreover, such values of high emission shall obviously get reflected in any of the monitoring stations being operated either by them or by the Respondent Board.
104. The 24 hourly basis values of SO2 reported during episodic days of excessive emission would provide the clues. 106
105. Ambient air quality with respect to levels of SO2 at 13 stations being operated in the surroundings of appellant company has been tabulated below:
Date 1 2 3 4 5 6 7 8 9 10 11 12 13 17.10.12 6 9 (25) 6 (19) 9 (14) 11(17) 5(5) 26.10.12 6 (25) 6 (19) 7(14) 9(17) 5(5) 27.10.12 7 (25) 6 (19) 6(14) 11(17) 4(5) 17(19) 16(18) 24(29) 21(27) 19(25) 6(6) 24.11.12 6(6) 15(42) 5(40) 6(14) 2(6) 12(16) - 01.12.12 6(16) 34(34) 4(7) 5(6) 7(7) 14(14) 3(6) 17(18) 14(17) 27(29) 24(29) 23(25) 6(7) 02.12.12 6(16) 15(34) 7(7) 5(6) 7(7) 12(14) 3(6) 18(18) 14(17) 26(29) 23(29) 21(25) 6(7) 21.12.12 6(16) 26(34) 4(7) 4(6) 6(7) - 5(6) 16(18) 15(17) 29(29) 26(29) 25(25) 6(7) 16.01.13 8(10) 17(35) 6(12) 4(6) 4(7) - 3(4) 14(17) 16(19) 25(28) 25(27) 23(26) 5(8) 23.03.13 5(7) 7(14) - 13(16) 6(6) 8(22) 8(8) 14(17) 12(16) 26(30) 27(27) 20(23) 7(7)
Continuous: 1 = SIIL Entrance, 2 = AIR Station, 3 = Gypsum Pond East, 4 = SIIL Colony, 5 = SIPCOT Office, 6 = Gypsum Pond West, 7 = TV Puram Village Manual: 8 = SIIL Entrance, 9 = SIIL Colony, 10 = AIR Station, 11 = Rock Silo Area, 12 = SLF Area, 13 = Millavittan Agri Bank Note: The values in the columns are in µg/m3 reported against the dates recorded in the first column and the values in the brackets are the highest values recorded during the whole month.
106. It is also the contention of Respondent Board that such high levels of SO2 damages vegetation, soil and water in the locality, however, no such evidence was produced before us.
107. The argument of Respondent Board that emission values reported at the Continuous Ambient Air Quality Monitoring (CAAQM) stations in the M/s Sterlite Colony situated in East Direction had shot up suddenly from 20 µg/m3 to 62 µg/m3 at around 6.00 a.m. on the day of incidence and that this immediately reduced to 10µg/m3 around 6.35 a.m. Here it is pertinent to observe that the SO2 emission can cause eye irritation or other symptoms, as reported in the complaints of the residents around the industry, only when the emission values are in the range of 13,000µg/m3. A perusal of the ambient air 107 quality data for various stations provides no such trend and rather on all occasions, the values are well within the permissible limits. This data of ambient air quality for the disputed days of excessive emissions when compared with air quality data recorded for preceding or successive days also provides no such inference that the values are varying significantly. To this, the contention put forward on behalf of the Respondent Board that since these values are on 24-hour basis and, therefore, the incidences of excessive emission have been averaged out and to draw any such inference, air quality data recorded at shorter interval would be relevant. In this context, ambient air quality at three locations under National Ambient Air Quality Monitoring Programme was looked at. It is observed that the ambient air quality data of 4-hourly interval for the three monitoring stations maintained under National Ambient Air Quality Monitoring Programme indicates that corresponding SO2 values were as follows:
Ambient air quality with respect to SO2 as recorded by Respondent Board at three continuous monitoring stations.
Date Station 4 hourly Max SO2 Date on which value in µg/m3 highest value of SO2 Recorded in µg/m3 recorded during the whole month 17.10.12 AVM Jewelry 26.3 52.5 (26.10.12) 26.10.12 52.5 52.5 (26.10.12) 27.10.12 24.11.12 30.6 (20.11.12 and 10.11.12) 01.12.12 02.12.12 21.12.12 17.5 35.0 (04.12.12) 16.01.13 - 25.1 (08.01.13) 108 23.03.13 - 28.4 (22.03.13) 17.10.12 SIPCOT Industrial 26.10.12 27.10.12 24.11.12 39.4 (05.11.12) 01.12.12 43.7 (06.12.12) 02.12.12 39.3 (03.12.12) 21.12.12 16.01.13 25.0 33.9 (24.01.12) 23.03.13 - 26.0 (25.03.12) 17.10.12 Raja Agency 21.9 30.6 (13.10.12) 26.10.12 27.10.12 24.11.12 20.7 29.5 (03.11.12) 01.12.12 20.7 37.1 (12.12.12) 02.12.12 21.12.12 29.5 (22.12.12) 37.1 (12.12.12) 16.01.13 - 24.5 (09.01.12) 23.03.13 17.7 22.1 (13.03.13)
108. Therefore, the possibility of such high values of emission that could lead to such SO2 level in the ambient air quality to cause symptoms reported in the complaints in the surrounding areas is extremely doubtful.
109. Source pollutants play a key role in ambient air quality apart from meteorological and topographical factors and hence if emission has gone manifolds up during alleged incidences of emission, then there has to be some change in the ambient air quality. At no time such high value was recorded during the ambient air quality monitoring. This does not reflect in the data gathered from any of the monitoring stations. From the above, it 109 is clear that the values on disputed 84 incidences of excessive emission, on none of the days, the values of ambient air quality with respect to SO2 at any of the station were found higher. In fact, the highest values were reported on other days of the month as presented in the Tables (in bracket in the table at page 106 and in the last column in the table at page 107) above except on 26th October 2012. Therefore, if disputed incidences of emissions for 1 to 3 hours duration had occurred, there would have been at least some impact on ambient air quality in the surrounding areas where ambient air quality is being monitored. No such higher values above the prescribed standard were recorded by any of the monitoring stations. In fact, the ambient levels of SO2 (4-6µg/m3) as recorded by the monitoring stations close to the human settlements, from where the complaints were received on 23rd March, 2013, were also well below the prescribed standards of 80µg/m3 for SO2. In fact, at such low levels of SO2 (4-6 mg/m3), there cannot be any possibility of experiencing eye irritation or throat irritation or any respiratory discomforts or ailments.
110. In view of the above facts, following conclusions can be drawn:
1. There is no correlation between alleged high emissions (to the extent of 20 times higher than normal emission rates) on 23rd March, 2013 or earlier 84 incidences reported with ambient air quality.
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2. Two sulphuric acid plants drawing SO2 from the same source having exactly same source of raw material, process technology, capacity cannot have drastically different emissions as they were continuously giving comparable values all the time except during calibration as evident from the recorded data of last 6 months.
3. The symptoms reported by the residents in their complaints can only be possible at very high levels of SO2. Such levels are not possible even at a nearest point from the industry with the alleged levels of emissions.
4. Calibration could continue for longer than stipulated time for testing and maintenance.
111. Expert Committee constituted vide order dated 31st May, 2013 submitted its report on 10th July 2013. The Expert Committee deserves appreciation for the efforts made and valuable insights provided in the report within a short period of operation of the unit. Main points are:
a) Based on various improvements suggested from time to time in past 19 years, the appellant-company has in place
i) various updated emission control measures apart from provisions for trips and interlocks to trip process in case of deviations in emission standards;
ii) "Zero Discharge" of water/waste water;
iii) Adequate facilities for solid waste handling especially hazardous waste;
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iv) Additional environment improvement measures for dust reduction, waste heat recovery, etc.
b) Mass balancing of copper smelter for various ingredients of raw material has been carried out for 28th June 2013 operation of the smelter, which suggests that the sulphur that is fixed in the process is 99.93% which is equivalent to 1108.92 MT.
c) Safety measures, emergency preparedness and Disaster management plan has been reviewed at length and few important suggestions have been made for further improvement.
d) Entire air quality monitoring network comprising of 13 existing stations (out of which 7 are continuous whereas remaining 6 are manual) were inspected and after calibration, air quality data for entire month of June has been analyzed critically especially with respect to air quality parameters, with and without operation, of the appellant- company. This has been further analyzed with regard to prevalent meteorological conditions especially wind velocity and wind direction. Additional air quality monitoring was carried out at 13 more stations within a radius of 8km on 8 days using mobile monitoring van. The interpretation of data suggests that air quality parameters are well within limits with or without operation of the appellant-company, both in windward and cross-wind directions. Of course, enhanced ambient SO2 levels, within permissible limits are 112 observed when the appellant-company is in operation apart from the fact that contribution of other industries in the vicinity is also observed at a few air quality monitoring stations on both occasions i.e. with or without operation of the appellant-company.
e) Manual Emission monitoring was carried out on 29th June 2013 and this data was looked with data recorded in 3 online analyzers and it is reported that emission was well within prescribed limit.
f) Certain observations have been made with regard to Air Quality Monitoring, Stack Monitoring, Interlocking system, Emergency Preparedness & Response Plan and Disaster Management Plan.
g) 25 recommendations have been made for which timeline needs to be provided.
DOCTRINE OF PRECAUTIONARY PRINCIPLE VIS-À-VIS PUNITIVE MEASURES WITH REFERENCE TO THE FACTS OF THE CASE
112. In the year 1974, the Indian Parliament enacted the Water Act, with an object to provide prevention and control of water pollution and the maintaining or restoring of wholesomeness of water besides constitution of Boards under that Act. Similarly, the Air Act was enacted in the year 1981 by the Parliament to provide for the prevention, control and abatement of air pollution and for establishment of the Boards for that purpose. The very preamble of the Air Act refers to the decisions that were taken at 113 the United Nations Conference on Human Environment held at Stockholm June, 1972. Then came the Environment (Protection) Act, 1986 - an Act to provide for protection and improvement of the environment. This Act in turn also refers to the Stockholm Conference of 1972. Thus, the three Acts clearly impose various restrictions/obligations and control measures that are expected to be performed by each stakeholder to ensure that the environment remains pollution-free and cleaner and so that wholesome environment is available to the citizenry of the country. Today, environment is no longer merely a domestic issue but is a global one. The environment law in India has developed immensely with the passage of time. Furthermore, the judicial interpretation of the Constitutional law and the environmental law has provided new dimensions to the environmental jurisprudence in India.
113. Article 21 of the Constitution of India which provides that no person shall be deprived of his right to life or personal liberty, except according to the procedure established by law, is interpreted by the Indian courts to include in this right to life, the right to clean and decent environment. Right to decent environment, as envisaged under Article 21 of the Constitution of India also gives, by necessary implication, the right against environmental degradation. It is in the form of right to protect the environment, as by protecting environment alone can we provide a decent and clean environment to the citizenry. Right to clean environment is a guaranteed fundamental right. Various 114 courts, particularly the superior courts in India are vested with wide powers, especially in terms of Articles 32 and 226 of the Constitution of India to deal with issues relating to the fundamental rights of the persons. The courts, in fact, can even impose exemplary damages against the polluter. Proper and healthy environment enables people to enjoy a quality life which is the essence of the right guaranteed under Article 21. The State and the citizens are under a fundamental obligation to protect and improve the environment including forests, lakes, rivers, wild life and to have compassion for living creatures. Right to have living atmosphere congenial to human existence is a right to life. The State has a duty in that behalf and to shed its extravagant unbridled sovereign power and to forge in its policy to maintain ecological balance and hygienic environment. The power to issue directions and other powers should be exercised by the State to effectuate and further the goals of approved scheme, zonal plans, etc. The hazards to health and environment of not only the persons residing in illegal colonisations but of the entire town as well as the provisions and schemes of the relevant Acts have to be taken into consideration. The most vital necessities, namely air, water and soil having regard to the right to life under Article 21 cannot be permitted to be misused or polluted so as to reduce the quality of life of others. Risk of harm to the environment or to human health is to be decided in public interest, according to a "reasonable person's" test. Life, public health and ecology have priority over unemployment and loss of 115 revenue. It is often said that development and protection of environment are not enemies but are two sides of the same coin. If without degrading the environment or by minimising the adverse effects thereupon by applying stringent safeguards, it is possible to carry on developmental activities applying the principle of sustainable development, in that eventuality, development has to go on because one cannot lose sight of the need for development of industry, irrigation resources, power projects, etc. including the need to improve employment opportunities and the generation of revenue. A balance has to be struck. Courts have exercised the power of imposing exemplary damages against the pollutants in order to protect the environment and to restore the damage done to the environment as well. In fact, even the disturbance in the environment by undesirable sound of various kinds, amounts to noise pollution. It is a shadowy public enemy whose growing public menace has increased in the modern age of industrialisation and technological advancement. Noise has become one of the major pollutants and has serious effects on human health. Consistent judicial opinion in India has recognised the right to live in freedom from noise pollution as a fundamental right also, protected under Article 21 of the Constitution. If anybody increases the volume of speech and that too with the assistance of artificial devices so as to compulsorily expose unwilling persons to hear a noise raised to unpleasant or obnoxious levels, then the person speaking is violating the right of others to a 116 peaceful, comfortable and pollution-free life guaranteed under Article 21. Courts have even held that Article 19(1)(a) cannot be pressed into service for defeating the fundamental right guaranteed under Article 21 of the Constitution. Thus, the right of an individual to healthy and clean environment including air, water, soil and noise-free environment is of paramount consideration and it is impermissible to cause environmental pollution and particularly in violation of the prescribed standards. Since the different facets of environment are relatable to life and human rights and concern a person's liberty, it is necessary that resources are utilised in a planned manner. Wherever industrialisation has an impact on utilisation of essential resources like air, water and soil and results in irreversible damage to environment, then it may be impermissible to utilise these resources in that fashion. In the recent times, there has been accelerated degradation of the environment, primarily on account of lack of effective enforcement of laws and non-compliance with the statutory norms. Concentrated industrialisation in some pockets has been the other reason for enhanced damage to the environment. It emerges from the desire of the people to operate from the areas where the industry presently exists. [ References: Subhash Kumar v. State of Bihar (1991) 1 SCC 598; Virendra Gaur v. State of Haryana (1995) 2 SCC 577; A.P. Pollution Control Board v. Prof. M.V. Nayudu (1999) 2 SCC 718; M.C. Mehta v. Kamal Nath (2000) 6 SCC 213; Narmada Bachao Andolan v. Union of India (2000) 10 117 SCC 664; Hinch Lal Tiwari v. Kamla Devi (2001) 6 SCC 496; T.N. Godavarman Thirumulpad v. Union of India (2002) 10 SCC 606; M.C. Mehta v. Union of India (2004) 6 SCC 588; M.C. Mehta v. Union of India (2004) 12 SCC 118; In Re: Noise Pollution (2005) 5 SC 733; Milkmen Colony Vikas Samiti v. State of Rajasthan (2007) 2 SCC 413 ].
114. The right to development itself cannot be treated as a mere right to economic betterment or cannot be limited as a misnomer to simple construction activities. It encompasses much more than economic well-being and includes within its definition the guarantee of fundamental human rights. It includes the whole spectrum of civil, cultural, economic, political and social process, for the improvement of people's well-being and realisation of their full potential. It is an integral part of human rights. Of course, development is the essence of any pragmatic and progressive society. But essentially, development besides being inter- generational, must be balanced to its ecology and environment. Sustainable development means that the richness of the earth's bio-diversity would be conserved for future generations by greatly slowing or if possible halting extinctions, habitat and ecosystem destruction, and also by not risking significant alterations of the global environment that might - by an increase in sea level or changing rainfall and vegetation patterns or increasing ultraviolet radiation - alter the opportunities available for future generations. Sustainable development has been defined in many 118 ways but the most frequently quoted definition is from the Brundtland Report which states as follows:
"Sustainable development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs. It contains within it two key concepts:
The concept of needs, in particular the essential needs of the world's poor, to which overriding priority should be given; and The idea of limitations imposed by the state of technology and social organisation on the environment's ability to meet present and future needs."
115. The earlier school of thought was that development and ecology are opposed to each other but with the passage of time and development of law, this concept has undergone tremendous change and is no longer acceptable. Now operates the principle of sustainable development. It takes within its ambit the application of 'principle of proportionality' and the 'precautionary principle'. In other words, one must, while promoting development, not only ensure that no substantial damage is caused to the environment but also take such preventive measures which would ensure that no irretrievable damage to the environment, even in future, is caused. All these principles have to be examined and applied on the touch stone of "reasonable person's test", as afore-stated. Where the principle of proportionality introduces prudent mind's reasonableness in relation to development vis-a-vis environment, there the precautionary principle can be explained to say that it contemplates that an activity which poses danger and threat to 119 the environment is to be prevented since prevention is better than cure.
116. While applying the concept of sustainable development, one has to keep in mind the "principle of proportionality" based on the concept of balance. It is an exercise in which courts or tribunals have to balance the priorities of development on the one hand and environmental protection on the other. So sustainable development should also mean the type or extent of development that can take place and which can be sustained by nature/ecology with or without mitigation. In these matters, the required standard now is that the risk of harm to the environment or to human health is to be decided in public interest, according to a 'reasonable person's test'. [Refer: Research Foundation for Science and Technology and Natural Resource Policy v. Union of India (2007) 9 SCR 906; Narmada Bachao Andolan v. Union of India supra; Chairman Barton: The Status of the Precautionary Principle in Australia (Vol.22) (1998) (Harv. Envtt. Law Review, p. 509 at p.549-A) as in A.P. Pollution Control Board v. Prof. M.V. Nayudu supra; and M.C. Mehta v. Union of India, supra.] At this stage, we may usefully refer to a very recent judgment of the Supreme Court in the case of G. Sundarrjan v. Union of India & Ors. (2013) 6 SCC 620 where the Court, while referring to the principles of balance inbuilt in the concept of sustainable development, elaborated the principles as follows:
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"228. I have referred to the aforesaid pronouncements only to highlight that this Court has emphasized on striking a balance between the ecology and environment on one hand and the projects of public utility on the other. The trend of authorities is that a delicate balance has to be struck between the ecological impact and development. The other principle that has been ingrained is that if a project is beneficial for the larger public, inconvenience to smaller number of people is to be accepted. It has to be respectfully accepted as a proposition of law that individual interest or, for that matter, smaller public interest must yield to the larger public interest.
Inconvenience of some should be bypassed for a larger interest or cause of the society. But, a pregnant one, the present case really does not fall within the four corners of that principle. It is not a case of the land oustees. It is not a case of "some inconvenience". It is not comparable to the loss caused to property. I have already emphasized upon the concept of living with the borrowed time of the future generation which essentially means not to ignore the inter-generational interests. Needless to emphasize, the dire need of the present society has to be treated with urgency, but, the said urgency cannot be conferred with absolute supremacy over life. Ouster from land or deprivation of some benefit of different nature relatively would come within the compartment of smaller public interest or certain inconveniences. But when it touches the very atom of life, which is the dearest and noblest possession of every person, it becomes the obligation of the constitutional courts to see how the delicate balance has been struck and can remain in a continuum in a sustained position. To elaborate, unless adequate care, caution and monitoring at every stage is done and there is constant vigil, life of "some" can be in danger. That will be totally shattering of the constitutional guarantee enshrined under Article 21 of the Constitution."
117. Sustainable Development primarily finds its origin from the Rio Declaration, 1992 on Environment and Development. Certain principles were stated for achieving sustainable development. The element of integration of environmental and developmental 121 aspects was spelt out in the following principles of that Declaration:
"Principle 3:
The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations.
Principle 4:
In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it."
118. In fact, in Karnataka Industrial Areas Development Board v. C. Kenchappa & Ors. (2006) 6 SCC 383-84, the Apex Court held as follows:
"63. 'The World Conservation Union' and 'the Worldwide Fund for Nature' prepared jointly by UNEP described that 'sustainable development, therefore, depends upon accepting a duty to seek harmony with other people and with nature' according to Caring for the Earth, A Strategy for Sustainable Living. The guiding rules are:
(i) People must share with each other and care for the earth; (ii) Humanity must take no more from nature than man can replenish; and (iii) People must adopt lifestyles and development paths that respect and work within nature's limits."
119. The development should be such as can be sustained by ecology. Sustainable development would be the development which can be maintained indefinitely in proportion to environment and ecology. Thus, there should not be development at the cost of causing irretrievable or irreversible damage to the 122 ecology or the environment. They must find a common path and objectivity in achieving the goal of sustainable development.
120. Precautionary principle is one of the most important concepts of sustainable development. This principle essentially has the element of prevention as well as prohibition. In order to protect the environment, it may become necessary to take some preventive measures as well as to prohibit certain activities. These decisions should be based on best possible scientific information and analysis of risks. Precautionary measures may still have to be taken where there is uncertainty but potential risk exists. Ecological impact should be given paramount consideration, particularly when the end result would be irreversible. The decision making authority should assess the records and conclude whether it was a case of directing precautionary and preventive measures to be taken or that the information on which it has to reach a determination is inadequate. Informed decision is the essence of a preventive or a prohibitory decision. The principle of direction thereunder involves the anticipation of environmental harm and taking measures to avoid it or to choose the least environmentally harmful activity which is based on scientific certainty. Environmental protection should not only aim at protecting health, property and economic interest but also the environment for its own sake. It is said that inadequacies of science is the basis that has led to change from an 'assimilating impact principle' to 'precautionary principle'. Availability of scientific 123 data is one of the most essential features of environmental adjudication. The precautionary principle was stated in Article 7 of the Bergen Ministerial Declaration on Sustainable Development in the ECE Region, May, 1990, as incorporated in an article of Professor Ben Boer, which reads as follows:
"Environmental measures must anticipate, prevent and attack the causes of environment degradation. Where there are threats of serious or irreversible damage, lack of scientific certainty should not be used as reason for postponing measures to prevent environmental degradation."
121. The Indian Supreme Court, in the case of Vellore Citizens' Welfare Forum v. Union of India (AIR 1996 SC 2715) recognised the precautionary principle and explained it as follows:
"11.(i) Environmental measures - by the State Government and the statutory authorities - must anticipate, prevent and attack the causes of environmental degradation.
(ii) Where there are threats of serious and irreversible damage, lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.
(iii) The 'onus of proof' is on the actor or the developer/industrialist to show that his action is environmentally benign."
122. On the analysis of the above, one could state the essentials of invocation of precautionary principle as under:
(a) There should be an imminent environmental or ecological threat in regard to carrying out of an activity or development;
(b) Such threat should be supported by reasonable scientific data; and 124
(c) Taking precautionary, preventive or prohibitory steps would serve the larger public and environmental interest.
123. With reference to these ingredients, the decision making authority, upon taking an objective approach, could take recourse to and pass directives under the precautionary and preventive principles. These are the tools available to the authorities concerned to adopt a balanced and pragmatic approach to ensure environmental protection while permitting sustainable development.
124. It will not only be expected of but shall be an obligation on the decision making authority to identify sources of pollution as well as their impact on public health or environment. It must be understood that every direction under the precautionary principle is not a punitive action in its content and effect. These are two different legal connotations which operate in their own respective fields. Precaution in contradistinction to punitive action is an anticipated action and is futuristic.
125. 'Precaution' is a measure taken in advance to prevent something dangerous, unpleasant or inconvenient from happening. To put it simply, it is a prudent foresight, while a 'punitive' action is one involving or inflicting punishment. It has an element of something that has already occurred.
126. Environmental pollution was controlled rigidly in the ancient times. It was an affair limited to individuals but the society as a whole accepted as its duty to protect environment. It was to sustain and ensure progress of all. Thus, it was acceded 125 as a positive duty with regard to protecting the environment on the one hand and the fear of punishment on the other. Apart from the motivation, efforts were not only to punish the culprits who damage the trees or other environment but also to balance the ecosystem [T.N. Godavarman Thirumulpad v. Union of India (supra)].
127. Punitive action, which would include punishment in one form or the other, would normally be for the damage or the wrong done to environment and for its restoration thereto. Therefore, there must be a nexus between befalling of an event, or its likelihood thereof, and its pollution source and the injury apprehended or caused. All these ingredients must be supported by reasonable scientific data, especially in the case of precautionary principle.
128. This brings us to discuss the onus of proof in matters relating to environment.
129. We must, at the very threshold of discussion on this topic refer to the judgment of the Supreme Court in A.P. Pollution Control Board v. Prof. M.V. Nayudu supra, where the Hon'ble Court, while discussing the onus in environmental matters, held as under:
"31. The Vellore judgment has referred to these principles briefly but, in our view, it is necessary to explain their meaning in more detail, so that Courts and tribunals or environmental authorities can properly apply the said principles in the matters which come before them.126
The precautionary Principle replaces the Assimilative Capacity principle:
32. A basic shift in the approach to environmental protection occurred initially between 1972 and 1982. Earlier the concept was based on the 'assimilative capacity rule as revealed from Principle 6 of the Stockholm Declaration of the U.N. Conference on Human Environment, 1972. The said principle assumed that science could provide policy-makers with the information and means necessary to avoid encroaching upon the capacity of the environment to assimilate impacts and it presumed that relevant technical expertise would be available when environmental harm was predicted and there would be sufficient time to act in order to avoid such harm. But in the 11th principle of the U.N. General Assembly Resolution on World Charter for Nature, 1982, the emphasis shifted to the 'precautionary Principle', and this was reiterated in the Rio Conference of 1992 in its Principle 15 which reads as follows:
Principle 15: In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage; lack of full scientific certainty shall not be used as a reason for proposing cost-effective measures to prevent environmental degradation.
33. In regard to the cause for the emergence of this principle, Chairman Barton, in the article earlier referred to in Vol. 22, Harv. Envtt. L. Rev. (1998) P. 509 at (p. 547) says:
There is nothing to prevent decision makers from assessing the record and concluding there is inadequate information on which to reach a determination. If it is not possible to make a decision with "some" confidence, then it makes sense to err on the side of caution and prevent activities that may cause serious or irreversible harm. An informed decision can be made at a later stage when additional data is available or resources permit further research. To ensure that greater caution is taken in environmental management, implementation of the principle through Judicial and legislative means is necessary.
In other words, inadequacies of science is the real basis that has led to the precautionary principle of 127 1982. It is based on the theory that it is better to err on the side of caution and prevent environmental harm which may indeed become irreversible.
34. The principle of precaution involves the anticipation of environmental harm and taking measures to avoid it or to choose the least environmentally harmful activity. It is based on scientific uncertainty. Environmental protection should not only aim at protecting health, property and economic interest but also protect the environment for its own sake. Precautionary duties must not only be triggered by the suspicion of concrete danger but also by (Justified) concern or risk potential. The precautionary principle was recommended by the UNEP Governing Council (1989). The Bomako Convention also lowered the threshold at which scientific evidence might require action by not referring to "serious" or "irreversible" as adjectives qualifying harm. However, summing up the legal status of the precautionary principle, one commentator characterised the principle as still "evolving" for though it is accepted as part of the international customary law, "the consequences of its application in any potential situation will be influenced by the circumstances of each case". (See First Report of Dr. Sreenivasa Rao Pemmaraju, Special - Rapporteur, International Law Commission dated 3.4.1998 paras 61 to 72).
The Special Burden of Proof in Environmental cases:
35. We shall next elaborate the new concept of burden of proof referred to in the Vellore case AIR1996SC2715 . In that case, Kuldip Singh, J. stated as follows:
The 'onus of proof is on the actor or the developer/industrialist to show that his action is environmentally benign.
36. It is to be noticed that while the inadequacies of science have led to the 'precautionary principle', the said 'precautionary principle' in its turn, has led to the special principle of burden of proof in environmental cases where burden as to the absence of injurious effect of the actions proposed, is placed on those who want to change the status quo (Wynne, Uncertainty and Environmental Learning, 2 Global Envtl. Change 111 (1992) at p. 123). This is often termed as a reversal of the burden of proof, because otherwise in environmental cases, those opposing the 128 changes would be compelled to shoulder the evidentiary burden, a procedure which is not fair. Therefore, it is necessary that the party attempting to preserve the status quo by maintaining a less- polluted state should not carry the burden of proof and the party who wants to alter it, must bear this burden. (See James M. Olson, Shifting the Burden of Proof, 20 Envtl. Law p.891 at 898 (1990). (Quoted in Vol. 22 (1998) Harv. Env. Law Review p. 509 at 519,
550).
37. The precautionary principle suggests that where there is an identifiable risk of serious or irreversible harm, including, for example, extinction of species, widespread toxic pollution in major threats to essential ecological processes, it may be appropriate to place the burden of proof on the person or entity proposing the activity that is potentially harmful to the environment. (See Report of Dr. Sreenivasa Rao Pemmaraju, Special Rapporteur, International Law Commission, dated 3.4,1998, para 61).
38. It is also explained that if the environmental risks being run by regulatory inaction are in some way "ascertain but non-negligible", then regulatory action is justified.. This will lead to the question as to what is the non-negligible risk'. In such a situation, the burden of proof is to be placed on those attempting to alter the status quo. They are to discharge this burden by showing the absence of a 'reasonable ecological or medical concern. That is the required standard of proof. The result would be that if insufficient evidence is presented by them to alleviate concern about the level of uncertainty, then the presumption should operate in favour of environmental protection. Such a presumption has been applied in Ashburton Acclimatisation Society v. Federated Fanners of New Zealand [1988] 1 NZLR 78. The required standard now is that the risk of harm to the environment or to human health is to be decided in public interest, according to a 'reasonable persons' test. (See Precautionary Principle in Australia by Charmian Barton) (Vol. 22) (1988) Harv. Env. L. Rev. 509 at 549)."
130. The normal rule of evidence is that one who pleads must prove before the Court or the Tribunal i.e. the onus of proving, while claiming relief, is on the person who approaches the 129 Court/Tribunal. However, this rule may not be applicable to this Tribunal stricto sensu.
131. This Tribunal has been established both with original and appellate jurisdiction relating to environmental laws. The NGT Act, 2010 was enacted for effective and expeditious disposal of cases relating to environmental protection and conservation of forests and other natural resources including enforcement of any legal rights relating to environment. In relation to NGT, the legislature, in its wisdom, has specifically excluded the application of the procedure under the Code of Civil Procedure, 1908 and the Indian Evidence Act, 1872 (for short 'the Evidence Act') in terms of Section 19(1) and 19(3) of the NGT Act. On the contrary, Section 19(2) of the NGT Act empowers the Tribunal to have the power to regulate its own procedure. In terms of its Section 19(5), NGT is a judicial Tribunal.
132. Section 20 of the NGT Act further recognises the application of the principles of sustainable development, precautionary principle and polluter pays principle by the Tribunal while adjudicating upon disputes on environment.
133. Once the applicability of specific rules of evidence, as prescribed under the Evidence Act, is excluded, the Tribunal has to state its own procedure, including recording of evidence, but the same essentially has to be in consonance with the principles of natural justice. It will have to be examined on a case to case basis as to when the onus will shift from the 130 applicant to non-applicant. In environmental cases, normally the damage to environment or public health is evident by itself, res ipsa loquitur. The cases of environmental degradation, damage and health hazards are obvious by themselves as a result of some industrial activity or development. In that event and keeping in view the very object of the NGT Act, it will be unacceptable to require the applicant to discharge his primary onus by strict number of events and their details.
134. In Ravi Kapur v. State of Rajasthan (2012) 9 SCC 284, it was held that the doctrine of res ipsa loquitur serves two purposes. Firstly, that an accident may by its nature be more consistent with being caused by negligence for which the opposite party is responsible than by any other cause and that in such a case, the mere fact of the accident is prima facie evidence of such negligence. Secondly, it is to avoid hardship in cases where the claimant is able to prove the accident but cannot prove how the accident occurred. Recourse to this principle is also permissible where there is no direct evidence brought on record. These stated principles apply more often than not to motor accident cases and can squarely be applied to cases of environmental pollution resulting from industrial activities or development.
135. Under the provisions of the NGT Act, any aggrieved person can approach the Tribunal for redressal of his grievances in relation to environment within the ambit and scope of Sections 14, 16 and 18 of the NGT Act. The legislative object appears to 131 be to catalyse the access to environmental justice, which need not be circumscribed by strict rule of locus standi in legal prescriptions.
136. Once an applicant approaches the Tribunal with a complaint of environmental injury or environmental degradation or health hazards resulting from negligence, or incidental occurrence of emission or discharge of gases or effluents in violation of the prescribed standards, then such an applicant discharges the primary onus by instituting a petition in the prescribed form, supported by an affidavit, which then shifts upon the industrial unit, developer or the person carrying out the activity complained of, to establish by cogent and reliable evidence that it has not caused pollution or health hazards by carrying out its activities; all the expected norms of discharge have been strictly adhered to by that unit; and any harm, if caused, was neither the result of any negligence nor violation of prescribed standards. Upon discharge of such onus, which is certainly much heavier, by the developer/industrial unit, it will then again be for the applicant to establish to the contrary. In other words, heavy onus lies upon the industrial unit or the developer to show by cogent and reliable evidence that it is non-polluting and non-hazardous or is not likely to have caused the accident complained of.
137. The view we are taking finds strength from the observations stated by the Supreme Court in its judgment in the case of 132 Narmada Bachao Andolan v. Union of India (supra) where the Court, while referring to the case of Vellore Citizens' Welfare Forum supra and the report of the International Law Commission, held as under:
"119. It is this decision which was the subject-matter of challenge in this Court. After referring to the different concepts in relation to environmental cases like the 'precautionary principle' and the 'polluter- pays principle', this Court relied upon the earlier decision of this Court in Vellore Citizens' Welfare Forum v. Union of India (AIR1996SC2715) and observed that there was a new concept which places the burden of proof on the developer or industrialist who is proposing to alter the status quo and has become part of our environmental law. It was noticed that inadequacies of science had led to the precautionary principle and the said 'precautionary principle' in its turn had led to the special principle of burden of proof in environmental cases where burden as to the absence of injurious effect of the actions proposed is placed on those who want to change the status quo. At page 735, this Court, while relying upon a report of the International Law Commission, observed as follows:
'The precautionary principle suggests that where there is an identifiable risk of serious or irreversible harm, including, for example, extinction of species, widespread toxic pollution is major threats to essential ecological processes, it may be appropriate to place the burden of proof on the person or entity proposing the activity that is potentially harmful to the environment.'
120. It appears to us that the 'precautionary principle' and the corresponding burden of proof on the person who wants to change the status quo will ordinarily apply in a case of polluting or other project or industry where the extent of damage likely to be inflicted is not known. When there is a state of uncertainty due to lack of data or material about the extent of damage or pollution likely to be caused then, in order to maintain the ecology balance, the burden of proof that the said balance will be maintained must necessarily be on the industry or the unit which is likely to cause pollution. On the other hand where the effect on ecology or environment of setting up of an industry is known, 133 what has to be seen is that if the environment is likely to suffer, then what imitative steps can be taken to offset the same. Merely because there will be a change is no reason to presume that there will be ecological disaster. It is when the effect of the project is known then the principle of sustainable development would come into play which will ensure that imitative steps are and can be taken to preserve the ecological balance. Sustainable development means what type or extent of development can take place which can be sustained by nature/ ecology with or without mitigation."
138. Therefore, the stated principle could be a valid dictum for environmental adjudicatory process.
139. In the backdrop of these legal principles, now we must revert to the facts of the case in hand. We have already held that the incident, as projected by the Board, was not reliable, trust- worthy and in any case, could not be the foundation for passing such a punitive direction. Further, we have also held that it was a case of calibration and not actual emission at the relevant point of time. The reports - pre and post date of the alleged incident - fully tilt the case in favour of the appellant-company rather than the case advanced by the Respondent-Board. The Chairman of the Respondent-Board has also not exercised the delegated power subject to the limitations placed upon him and in fact did so in a somewhat arbitrary manner.
140. Shutting down an industry amounts to 'civil death' of the company. A direction of closure in relation to a running unit not only results in stoppage of production but has far reaching economic, social, and labour consequences. Before directing the 134 civil death of a company, the decision making authority is expected to have before it some reliable and cogent evidence. An inquiry into the incident or accident of breach by the industrial company should be relatable to some reasonable scientific data. There should be a direct nexus between the leakage of gas, the source of leakage and its effect/impact on ambient air quality and public health. These are the sine qua non and not conditions to be satisfied post-order.
141. We have also held above that there is no direct or even indirect evidence to show that there was no possibility of leakage of gas or excessive emission from any other industry except the appellant-company. The Respondent-Board in fact has not even brought its case with reasonable probability in contradistinction to the above beyond reasonable doubt.
142. The action taken by the Board on 29th March, 2013 directing closure of the appellant-company's unit was not as much of a preventive direction with reference to precautionary principle as it was a punitive measure, recourse to which was taken on the premise that there was excessive emission on 23rd March, 2013 and it had caused health hazards to the people residing 6-8 kms. away from the appellant-company's unit. It could not be prevented as according to the Respondent-Board itself, the event had already happened and it was not an anticipated action. At best, it was partially preventive and primarily punitive so that firstly, the people do not suffer eye irritation, throat irritation or suffocation in future and secondly, 135 because complaints in that regard had already been received. The parameters for taking punitive action are entirely different to the ones that may be required for passing directions as per precautionary principle. Since there was no reasonable scientific data and the Respondent-Board itself did not even care to collect stack and ambient air quality samples post-23rd March, 2013, we fail to understand as to how such an order could be passed, particularly in view of the admitted position that there are large number of industries in SIPCOT and out of which quite a few industries are heavy and 'red' category industries in relation to causing pollution. They were admittedly discharging gases. It is also equally true that the alleged health problems could result from discharge of other gases besides SO2. The order passed by the Respondent-Board is not based on precautionary principle but is a punitive direction in terms of Section 5 of the Environment (Protection) Act, 1986. As a condition precedent to punitive action, it ought to have been established that there had been excessive emission from the stack of the appellant- company's unit and that the ambient air quality analysis showed presence of SO2 primarily attributable to the appellant- company's plant and then it had travelled to the villages 6-8 kms away and had affected the health of its' residents. Once this was established as a ground for punitive action, that itself could form a valid basis for passing the preventive order in relation to future. In the case of punitive action, it should be tested on the touch-stone of validly proved action while in a preventive order, it 136 could be done as per a reasonable apprehension of a prudent person. Stringent proof and specific scientific data is the very crux for passing such direction and absence thereof would vitiate the action taken.
143. Furthermore, the scope of 'merit review' by the Tribunal is not confined to the Wednesbury's principle. Besides this, other considerations like no evidence, no specific and scientific data or abuse of authority can be additional grounds that can be considered by the Tribunal while determining such a controversy. In view of the detailed discussion, we have no hesitation in coming to the conclusion that the punitive order dated 29th March, 2013 passed by the Respondent-Board is not sustainable in law.
144. Having dealt with the various facets of this case, another ancillary point of some public importance needs to be addressed by us before we part with this file. It has come in evidence by way of affidavits of the respondents as well as of the doctors that there are serious health problems persisting in the area of the villages afore-indicated. All these villages are within a distance of 6-8 kms. from SIPCOT Industrial Complex established by the State Government. The doctors have, by necessary implication of their affidavits, attributed the cause of termination of pregnancies of young women to the release of some gases from different industries in that area. Furthermore, the people, more often than not, complained of eye burning, throat irritation and suffocation resulting in problems relating to breathing. Despite 137 filing of complaints at various quarters of the State Government, including the Respondent-Board, no effort had been made by the authorities to carry out any study or collect proper data so that the residents of these villages are able to get a clean and decent environment, more particularly with reference to air. It is not only a statutory but also a Constitutional right of all the persons living in the vicinity of this industrial cluster and other industries located in that area to have clean, healthy and pollution-free environment. It was expected of the State Government and the Respondent-Board to carry out its statutory obligation and consequently deal with the legal rights under the environmental laws of the affected persons to redress their grievance against polluted environment.
145. The respondents and even the interveners have placed material on record to show that prior to and post the alleged date of occurrence, i.e. 23rd March, 2013, the complaints of similar kind have persisted over a passage of time. According to the affidavit of one of the doctors, young women had to terminate their pregnancies, probably, as a result of inhalation of obnoxious gases. Continuous health hazards, particularly in regard to the termination of pregnancies with young ladies, is a matter of very serious concern and one would have expected these authorities not only to have undertaken due study in that regard, but also taken both corrective and preventive measures in relation to pollution arising from these industrial clusters and affecting the villages afore-referred. There is no explanation 138 whatsoever, much less, a reasonable case advanced on behalf of these official respondents for their failure to advert themselves to such a serious human health problem totally relatable to environment. The provisions of NGT Act declare that a direct violation of specific statutory environmental obligations by a person by which the community at large is affected or is likely to be affected by the environmental consequences, will be a substantial question relating to environment; which show the intent of the legislature that environmental violations affecting the community have to be treated with all rigours of law and thus, this Tribunal cannot overlook such specific instances. Thus, the present would be a fit case which requires issuance of specific directions by the Tribunal to protect the environment of these villages and health of the people residing therein. Conclusion and Directions :
146. The Legislature has mandated that the Tribunal while deciding cases must apply the principle of sustainable development, precautionary principle and polluter-pays principle. We have discussed above the first two principles, in some detail. The principle of sustainable development requires us to take a balanced view between industrial development and protection of environment. The cumulative view of the facts and circumstances of the present case shows that the case at hand is not a case of promoting development at the cost of the environment. It has not been established that the industrial 139 activity carried on by the appellant-company prejudicially and in any way compromises either the environment or the interests of the future generations. Furthermore, the alleged incident of 23rd March, 2013 is not attributable to the activity of the appellant- company. There is no cogent or reliable evidence or reasonable scientific data, even by necessary implication, to contribute the leakage of SO2 in excess of the prescribed parameters to the plant of the appellant-company. Nothing on record justifies the invocation of precautionary principle. In fact, it is a punitive action in the garb of a preventive measure. As far as the third principle of polluter-pays is concerned, this does not require any deliberation by this Tribunal in face of the judgment of the Supreme Court in the case of M/s. Sterlite (appellant-company) itself. It was brought to the notice of the Supreme Court that for some period, the industry had operated without consent of the Board. Taking it to be a case of environmental pollution, the Supreme Court, on the basis of the polluter pays principle directed the industry to pay a sum of Rs.100 crores. Thus, there is no occasion for the Tribunal to examine that aspect subsequent thereto which in any case is a matter of days and particularly when the industry has to operate its industrial activity with the consent of the Respondent-Board. We also have, in clear terms, held that exercise of delegated powers by the Chairman was beyond the prescribed limitation and it also suffered from the vice of arbitrariness.
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147. The economic factors and their consequences are relevant considerations for the Tribunal when it is determining the substantial questions of environment and allied disputes raised by the parties. Of course, such relevancy has a limited role and irretrievable degradation of environment only for economic reasons is not permissible as per the settled canons of environmental jurisprudence. SO2, a raw material for manufacture of various final products, for instance, pharmaceutical products, pesticides, sulphur phosphate, fertilizers and even used by the pickling plants etc., is a by- product in the manufacturing process of the Appellant- Company. Thus, it would always be the effort on the part of the appellant-company to minimize the emission of SO2 to ensure least economic loss. As a business person of common prudence, efforts would be made to maximise the use of gas and not minimise the profits. It is of some significance to notice that the emission of SO2 would mean, on the one hand economic loss to the appellant company and a complete waste for it, on the other.
148. The environmental restrictions must operate with all their rigour but no action should be suspicion-based which itself is not well-founded. Precautionary principle should be invoked when the reasonable scientific data suggests that without taking appropriate preventive measures there is a plausible indication of some environmental injury or health hazard. The Tribunal, in exercise of its power of merit-review and being an expert body itself has to examine all aspects of such cases whether they are 141 factual, technical or legal. Having comprehensively examined all these three aspects, we are of the considered view that the passing of the following order is necessitated in the facts and circumstances of the present case:
(i) Subject to the directions contained hereinafter, the interim order dated 31st May, 2013 is made absolute.
(ii) The recommendations and suggestions made in the report of Special Expert Committee constituted by this Tribunal vide its order dated 31st May, 2013 shall be binding upon the appellant-company. It shall ensure compliance of the directions, recommendations and suggestions as spelt out in that report within a time bound programme and expeditiously and in no case later than eight weeks from the date of pronouncement of this judgment.
(iii) The above recommendations and directions are for the better functioning of the plant of the appellant-company, which the appellant-company, as per the statement made at the Bar, has agreed to comply with, without any hesitation and in a time-bound manner. The appellant company shall abide by the above undertaking. In addition, the Respondent-Board is directed to commission "Source Apportionment study" in and around SIPCOT Industrial Area within a period of one year and take appropriate measures based on the findings of the said study under intimation to the NGT.
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(iv) The report of the Special Expert Committee shall be deemed to be an integral part of this order and all its conditions, directions, suggestions and recommendations would mutatis mutandi apply to the appellant-company.
(v) Besides and in addition to the above, the appellant-
company shall place its data of stack and ambient air quality in 'public domain', i.e. online dissemination of data.
(vi) The application for renewal of or obtaining consent of the appellant-company is presently pending with the Respondent-Board. The Respondent-Board shall consider and pass appropriate orders in relation to the said application in accordance with law, expeditiously.
(vii) We direct the Respondent-Board to take due notice of the report submitted by the Special Expert Committee dated 10th July, 2013 while dealing with the consent application of the appellant company.
(viii) The Special Expert Committee constituted vide order dated 31st May, 2013 by the Tribunal shall supervise and oversee the manufacturing process and industrial activity including pollution related issues of the appellant-company and shall submit a report to the Tribunal as well as to the respondent-Board bimonthly (once in two months). The Board shall give due regard and take into consideration the 143 report(s) of the 'Special Committee' while passing any orders in future in accordance with law.
(ix) We hereby constitute a Special Committee of the Secretary (Health), Government of Tamil Nadu, Member Secretary- Pollution Control Board, Tamil Nadu, Director General of Health Services of Tamil Nadu, Respondent No.5-Vaiko and two independent experts, one from the field of environment and the other from public health, to be nominated by the MoEF. This Committee shall conduct a study and place on record the causes for the health hazards that are resulting in and around the industries and the industrial clusters, like SIPCOT. It will give the reasons why the young ladies in those villages in the State of Tamil Nadu are suffering from termination of pregnancies and why the people are suffering from various ailments like throat and eye irritation and suffocation in breathing. This Committee shall further place on record the recommendations for remedying such environmental injury and health hazards. These recommendations shall be placed before the Tribunal within a period of six months from today.
(x) The report prepared in relation to health hazards by the Committee constituted under this order shall file the same within the stipulated period whereupon this report shall be placed before the appropriate Bench of the Tribunal for such further directions as may be deemed necessary by the 144 Tribunal. All authorities concerned shall ensure compliance of the above directions without demur and default. We grant liberty to either of the parties to approach this Tribunal in the event of violation of directions issued by this Tribunal, by any of the party to the lis or any authority or person for that matter.
149. Before we part with this file, we would like to place on record our deep appreciation for the work done by the Members of the Expert Committee constituted vide order dated 12th April, 2013 and the Special Expert Committee constituted by order dated 31st May, 2013.
150. The application is allowed partly in the above terms. The industry would be permitted to carry on its activity subject to the above directions. No orders as to costs.
Justice Swatanter Kumar Chairperson Dr. D.K. Agrawal Expert Member Dr. G.K. Pandey Expert Member Dr. R.C. Trivedi Expert Member New Delhi;
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