546.In our considered view, the study conducted by the Department of Community Medicine, Tirunelveli Medical College cannot be discredited or Page http://www.judis.nic.in 667 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 outrightly discarded. The report states that it has covered a population of 80,725 people and the impact of the petitioner-industry has been brought out in the report. No material has been placed before us to show that the petitioner has disputed the report at an earlier point of time and when this has been pointed out before this Court, it is the petitioner's case that the report as a whole does not indicate any health concern due to the operation of the petitioner's unit. The duty to provide a clean and health living atmosphere is the duty of the State, doctrine of public trust cast a duty on the State. Nevertheless, if operation of the industry causes certain health concerns, it is a matter, which should have been taken with utmost seriousness by the appropriate authorities. When two sets of data are pitted against each other, that is, data collected by a Government Medical College and data submitted by the petitioner, the authorities should have made an endeavour to assess the health condition of the people of the locality. The petitioner being, a red category industry, highly polluting industry, had no fundamental right to carry Page http://www.judis.nic.in 668 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 on its business, but for the consent/permission granted by the MoEF and the TNPCB. Therefore, the burden is on the petitioner to prove that their operations are benign. Unfortunately, the appropriate authorities of the State appear to have not given a serious thought to the health aspect of the general public living in and around the industry. No material was placed before us to show as to how the health monitoring reports submitted once in six months are processed. Whether the TNPCB has a team of medical experts or it referred to the District Medical Hospital etc. Thus, we would be well justified in considering that the periodical reports said to have been submitted by the petitioner once in six months are merely 'filed'.
547.So far as the health of the employees is concerned, there is no data, which is available with the authorities to controvert the stand taken by the petitioner that there are no health issues faced by their employees on account of their operation. Therefore, we conclude that the health concern of Page http://www.judis.nic.in 669 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 the people in and around the petitioner's factory has not been properly monitored. It may be true that one in six months, the company submits their periodical health reports, but submission of such reports to the authorities is not sufficient, but what is required is cross verification, which appears to have not been done. Thus, a deeper probe into this issue is required and as to what extent, the operation of the petitioner's unit has impacted on the health of the general public in the area in question.
548.Next we proceed to take into consideration the principles of law laid down by the Hon'ble Supreme Court in environmental matter.
549.In M.C.Mehta vs. UoI, (1987) 1 SCC 395, the Hon'ble Supreme Court while dealing with liability of industries engaged in hazardous or dangerous activities, held that an enterprise, which is engaged in hazardous or inherently dangerous industry, which poses potential threat to the health and Page http://www.judis.nic.in 670 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 safety of persons working in the factory and residing in the surrounding areas, owes an absolute non-delegable duty to the community to ensure that no harm results to anyone. Such enterprise was held to be under an obligation to provide that the hazardous or inherently dangerous activity in which it is engaged, must be conducted with the highest standards of safety and, if any harm results to anyone on account of an accident in the operation of such activity resulting, for example in escape of toxic gas, the enterprise is strictly and absolutely liable to compensate all those who are affected by the accident as part of the social cost. It was further held that such liability is not subject to any exceptions, which operates vis-a-vis the tortious principle of “strict liability” under the rule in Rylands vs. Fletcher, (1868 LR 3 HL330). Further, it was held that if the enterprise is permitted to carry on hazardous or inherently dangerous activity for its profit, the law must presume that such permission is conditional on the enterprise absorbing the cost of any accident arising on account of such activity as an appropriate item of its overheads, the Page http://www.judis.nic.in 671 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 larger and more prosperous the enterprise, the greater must be the amount of compensation payable by it for the harm caused on account of an accident in carrying on of the hazardous or inherently dangerous activity by the enterprise.
550.In M.C.Mehta vs. UoI, (1987) 4 SCC 463, the Hon'ble Supreme Court while dealing with the case of letting out the trade effluent into the river Ganga, pointed out that water is the most important of the elements of nature. River valleys have been the cradles of civilisation from the beginning of the world. Steps have, therefore, to be taken for the purpose of protecting the cleanliness of the stream in the river Ganga, which is in fact, the life sustainer of a larger part of Northern India. It was pointed out that Article 48-A of the Constitution provides that the State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country. Article 51-A of the Constitution imposes as one of the fundamental duties on every citizen the duty to protect and improve the natural environment including Page http://www.judis.nic.in 672 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 forests, lakes, rivers and wildlife and to have compassion for living creatures. In the United Nations Conference on Human Environment at Stockhom from th th 5 to 16 of June, 1972, it was pointed out that to defend and improve the human environment for present and future generation has become an imperative goal for mankind – a goal to be pursued together with, and in harmony with, the established and fundamental goals of peace and world-wide economic and social development. While lamenting that the Government as well as the Parliament though have taken a number of steps to control the water pollution, nothing substantial has been achieved, no law or authority can succeed in removing the pollution, unless people cooperate. Ultimately, the Court directed closure of the tanneries, which have failed to take minimum steps required for the primary treatment of industrial effluent and was conscious that closure of tanneries may bring unemployment, loss of revenue, but held that life, health and ecology have greater importance to the people. Page http://www.judis.nic.in 673 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019
551.In Vellore Citizens' Welfare Forum, the Hon'ble Supreme Court dealt with a Public Interest Litigation under Article 32 of the Constitution, against the pollution which is being caused by enormous discharge of untreated effluent by the tanneries and other industries in the State of Tamil Nadu. The Hon'ble Supreme Court issued directions to NEERI to send a team of experts to examine the feasibility of setting up of Common Effluent Treatment Plants (CETPs). NEERI submitted a report stating that water samples collected from dug-wells near tannery cluster are unfit for drinking and the water in Palar river downstream from the place where effluent is discharged, is highly polluted. Therefore, the Court directed all the tanneries in five Districts in the State of Tamil Nadu to be closed with immediate effect. The matter was being monitored by the Hon'ble Supreme Court for nearly five years and it was pointed out that despite repeated extensions granted by the Court during the five-year-period and prior to that by the TNPCB, the tanneries in the State of Tamil Nadu have miserably failed Page http://www.judis.nic.in 674 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 to control the pollution generated by them. The Court took note of the economic consequences and the employment avenues and pointed out that the leather industry in India has become a major foreign exchange earner and Tamil Nadu was the leading exporter of finished leather accounting for approximately 80% of the country's export, that though the leather industry is of vital importance to the country, as it generates foreign exchange and provides employment avenues, it has no right to destroy the ecology, degrade the environment and pose a health hazard. It cannot be permitted to expand or even continue with the production, unless it tackles by itself the problem of pollution created by the said industry (emphasis supplied). It was further pointed out that the traditional concept that development and ecology are opposed to each other is no longer acceptable and “sustainable development” is the answer. Explaining further, it was pointed out that some of the salient principles of “sustainable development”, as culled-out from the Brundtland Report and other doctrines are Inter-Generational Equity, Use and Page http://www.judis.nic.in 675 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 Conservation of Nature Resources, Environmental Protection, the Precautionary Principle, Polluter Pays Principle, Obligation to Assist and Cooperate, Eradication of Poverty and Financial Assistance to the developing countries. Explaining the meaning of the “Precautionary Principles” and “Polluter Pays Principles”, which are essential features of “sustainable development”, in the context of Municipal Law, it was held that environmental measures would mean measures by the State Government and the statutory authorities to anticipate, prevent and attack the causes of environmental degradation; 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 and the onus of proof is on the industrialist to show that his action is environmentally benign.
552.In Indian Council for Enviro-Legal Action, it was held that once the activity carried on is hazardous or inherently dangerous, the person Page http://www.judis.nic.in 676 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 carrying on such activity is liable to make good the loss caused by any other person by his activity irrespective of the fact whether, he took reasonable care while carrying on his activity, as the rule is premised upon the very nature of activity carried on. Further, it was pointed out that the “Precautionary Principle” and the “Polluter Pays Principle” have been accepted as part of environmental law of the country. Discussing about the EP Act, it was held that the main purpose of the Act is to create an authority or authorities under Section 3(3) of the Act with adequate powers to control pollution and protect environment. Noting the serious condition in the five Districts in the State of Tamil Nadu, where the tanneries were operating, it was pointed out that if they are permitted to continue, then in the near future all rivers/canals would be polluted, underground waters contaminated, agricultural lands turned barren and the residents of the area exposed to serious diseases. Therefore, the Court directed the Central Government to take immediate action under the provisions of the EP Act. Considering the cases of the industry, which had Page http://www.judis.nic.in 677 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 setup necessary pollution control device subsequently, it was held that those industries shall be liable to pay for the past pollution generated by them, which has resulted in environmental degradation and suffering to the residents of the area.
553.In Kamal Nath, the Court explained the legal theory developed by the ancient Roman Empire - “Doctrine of Public Trust”. The said doctrine was explained by observing that it primarily rests on the principle that certain resources like air, sea, waters and forests have such a great importance to the people as a whole that it would be wholly unjustified to make them a subject of private ownership. The resources being, a gift of nature, they should be made freely available to everyone irrespective of status in life., the said doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public, rather than to permit their use for private ownership or commercial purposes. It was pointed out that protection of Page http://www.judis.nic.in 678 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 ecological values is among the purposes of public trust, may give rise to an argument that ecology and environment protection is a relevant factor to determine which lands, waters or airs are protected by the public doctrine. It was held that there is no reason as to why the “public trust doctrine” should not be expanded to include all ecosystems operating in our natural resources. Further, our legal system, based on English Common Law, includes the “public trust doctrine” as part of its jurisprudence. The State is the trustee of all natural resources, which are by nature meant for public use and enjoyment. The State as a Trustee is under a legal duty to protect the natural resources. It was held that one who pollutes the environment must pay to reverse the damage caused by its act and “public trust doctrine” was made part of the law of the land.
554.In Prof.M.V.Nayudu, the Hon'ble Supreme Court elaborately discussed the issue pertaining to the uncertain nature of scientific opinions. It Page http://www.judis.nic.in 679 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 was pointed out that in the environment field, the uncertainty of scientific opinion has created serious problems for the Courts. After referring to certain decisions of the United States Supreme Court, it was held that uncertainty becomes a problem, when scientific knowledge is institutionalized in policy making or used as a basis for decision-making by agencies and Courts. Scientists may refine, modify or discard variables or models, when more information is available; however, agencies and Courts must make choices based on existing scientific knowledge. In addition, agency decision-making evidence is generally presented in a scientific form that cannot be easily tested. Therefore, inadequacies in the record due to uncertainty or insufficient knowledge, may not be properly considered. It was further held that the inadequacies of science result from identification of adverse effects of a hazard and then working backwards to find the causes; secondly, where clinical tests are performed, where toxins are involved; and thirdly, conclusions based on epidemiological studies are flawed by the scientist's Page http://www.judis.nic.in 680 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 inability to control or even accurately assess past exposure of the subject. It was further pointed out that it is the above uncertainty of science in the environmental context, that has led international conferences to formulate new legal theories and rules of evidence. The Court referred to the “Precautionary Principles” and the new burden of proof in Vellore Citizens' Welfare Forum case and explained the 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. It was held that the “Precautionary Principle” has replaced the assimilative capacity principle and in order to protect environment, the precautionary approach shall be widely applied by States according to their capabilities, where there are threats of serious or irreversible damages, lack of scientific certainty shall not be used as a reason for postponing cost effective measures to prevent environmental degradation. The Court referred to an Article by Charmian Barton with regard to the cause for emergence of the said principle, wherein, the learned author had stated that Page http://www.judis.nic.in 681 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 there is nothing to prevent decision-makers from assessing the record and concluding that 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. The “Principle of Precaution” was further explained by stating that it 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 (emphasis supplied). 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 concern of risk potential (emphasis supplied). While dealing with the issue pertaining to burden of proof, the Hon'ble Supreme Court held that the “Precautionary Principle” suggests that where there is an identifiable risk of serious or irreversible harm, for example widespread toxic Page http://www.judis.nic.in 682 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 pollution, it may be appropriate to place the burden of proof on the person or the entity proposing the activity, that is, potentially harmful to environment. If insufficient evidence is presented by them to alleviate concern about the level of uncertainty, then the presumption should operate in favour of environment protection. The Court dealt with the duty of the present generation towards posterity: Principle of Inter-Generational Equity: and Rights of the Future against the Present. The Court referred to principles 1 and 2 of the Stockholm declaration wherein, the environment is viewed more as a resource basis for the survival of the present and future generations (emphasis supplied).
555.In M.C.Mehta vs. UoI, (2004) 12 SCC 118, the Hon'ble Supreme Court held that the most vital necessities, viz., air, water and soil, having regard to right to life under Article 21 of the Constitution, the same cannot be permitted to be misused and polluted so as to reduce the quality of life of others. It was pointed out that in such matters, the required standard is Page http://www.judis.nic.in 683 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 that the risk of harm to the environment or to human health is to be decided in public interest according to “reasonable persons”. While considering as to which would take precedence for protection, the Court pointed out that in case of doubt, protection of an environment would have precedence over the economic interest. “Precautionary Principle” requires anticipatory action to be taken to prevent harm. The harm can be prevented even on a reasonable suspicion, it is not always necessary that there should be direct evidence of harm to the environment (emphasis supplied).
556.In Intellectuals Forum, the Honble Supreme Court considered the aspect where industries invested several crores of rupees for setting up their enterprise. The Court referred to the book “Environmental Activities Handbook”, wherein it had been mentioned that the Judges are carried away by the monies spent on projects and that mega projects, that harm the environment, are not condemned. It was pointed out that criticism seems to be Page http://www.judis.nic.in 684 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 baseless, as in Virendra Gaur, the Hon'ble Supreme Court insisted on the demolition of structure, which has been constructed on the lands reserved for any purposes and the Court did not allow decision to be frustrated by the action of parties. It was further pointed out that the Hon'ble Supreme Court followed the said decision in several cases issuing directions and ensuring its enforcement by nothing short of demolition or restoration of status quo ante. That the fact that crores of rupees has already been spent on development projects, did not convince the Court while being in a zeal to jealously safeguarding the environment and in preventing the abuse of environment by a group of human or authorities of the State or that matter (emphasis supplied).
557.In Tirupur Dyeing Factory Owners Association, the Hon'ble Supreme Court while dealing with the Public Interest Litigation for preservation of ecology and keeping Noyyal river in Tamil Nadu, free from pollution, took note of the fact that the country earned about Rs.10,000 Crores Page http://www.judis.nic.in 685 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 in foreign exchange annually as a result of garment export from Tiruppur. The Court noted that the reports of the Monitoring Committee appointed by the High Court assessed the amount paid for removing the sludge from the rivers for treatment of water making it worth for irrigation and human consumption. After referring to the decision in Indian Council for Enviro-Legal Action; Vellore Citizens Welfare Forum ; People's Union for Civil Liberties vs. UoI & Anr. [(1997) 3 SCC 433]; Prof.M.V.Naidu ; and M.C.Mehta vs. UoI, (2004) 12 SCC 118, it was pointed out that the concept of sustainable development covers the development that meets the needs of the person without compromising the ability of the future generation to meet their own needs; it means development that can take place and which can be sustained by nature/ecology with or without mitigation. Therefore, in such matters, the required standard 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 (emphasis supplied). With regard to the closure of the industries, the Page http://www.judis.nic.in 686 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 Court pointed out that in case in spite of stringent conditions, degradation of environment continues and reaches a stage of no return, the Court may consider the closure of industrial activities in areas where there is such a risk (emphasis supplied). The authorities also have to take into consideration the macro effect of wide-scale land and environmental degradation caused by absence of remedial measures. Right to information and community participation for protection of environment and human health is also a right, which flows from Article 21 of the Constitution.
558.In Indian Handicrafts Emporium, the Court after referring to Articles 48-A and 51-A of the Constitution held that eyes cannot be shut to the statements made under Article 48-A of the Constitution, which enjoins upon the State to protect and improve the environment and to safeguard the forest and wildlife. Further, it was held that what is destructive of environment, forest and wildlife, thus, in contrary, the directive principles of State policy, Page http://www.judis.nic.in 687 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 which is fundamental to the governance, which is to be given effect to, Article 51-A was referred to. These observations were made in the context of amending the objects and reasons of an enactment and the circumstances in which they have to be brought out.
559.In Uday Singh, the Hon'ble Supreme Court considered an appeal against an order pertaining to the release of a tractor and trolley seized for being involved in illegal excavation of sand from Chambal River. The Court while dealing with the amendment made by the State of Maharashtra to the Indian Forest Act, 1927, held that the amendments are introduced with the solitary public purpose, after referring to Articles 48-A and 51-A(g) of the Constitution, it held that the legislature is intended to ensure that confiscation is an effective deterrent. The absence of effective deterrence was considered by the legislature to be a deficiency legal regime and the State amendment has sought to overcome that deficiency by imposing stringent deterrents against Page http://www.judis.nic.in 688 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 activities which threaten the pristine existence of forests in Madhya Pradesh. It was held that as an effective tool for protecting and preserving environment, provisions must be made to the purposive interpretation, as it is only when the interpretation of law keeps pace to the object of the legislature with grave evils, which pose a danger to our natural environment can be suppressed. It was pointed out that the avarice humankind through the ages has resulted in an alarming depletion of the natural environment, the consequences of climate changes are bearing down on every day of our existence; statutory interpretation must remain eternally vigilant to the daily assaults on the environment.
560.In In Re: Bhavani River – Sakthi Sugars Ltd. vs. Unknown, (1998) 6 SCC 335, the Hon'ble Supreme Court held that the High Court fell in error in disposing of the writ petition merely on the consent of the TNPCB, as matters like this, which involve greater public interest, should not normally be Page http://www.judis.nic.in 689 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 decided merely on the consent of the Pollution Control Board. Further, the Hon'ble Supreme Court expressed displeasure about the manner in which the TNPCB gave its consent unmindful of grave consequences, which have been amply demonstrated before the Court (emphasis supplied).
561.In Sayyed Ratanbhai Sayeed, the Court referred to the Latin maxims “Salus”, “Populi”, “Suprima” and “Lex”, which connotes that health, safety and welfare of the public is supreme in law. It was pointed out that the emerging situation is one where private interest is pitted against public interest. The notion of public interest synonymous collective welfare of the people and public institution and is generally informed with the dictates of public trust doctrine – res communis that is by everyone in common. That perceptionally health, law and order, peace, security and a clean environment are some of the area of public and collective good where private rates being in conflict there with has to take a back seat. The words of Cicero were quoted - “the good of the people is the chief law”.
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562.In Hanuman Laxman Aroskar, the matter concerned the development of a green field International Airport at Mopa in Goa. The Hon'ble Supreme Court pointed out that the fundamental to the outcome of the case is a quest for environmental governance within a rule of law paradigm. Environmental governance is founded on the need to promote environmental sustainability as a crucial enabling factor which ensures the health of our ecosystem. The Hon'ble Supreme Court pointed out that in 2015, the international community adopted the 2030 agenda for sustainable development and its 17 SDGs. It was observed that each of these goals has a vital connection to others; together they provide an agenda for human development; the development in a manner which accords adequate protection to the environment. The United Nations Environment Programmes (UNEP) recognises that the natural environment - forest, soils and wetlands - contribute to the management and regulation of water availability and water quality, Page http://www.judis.nic.in 691 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 strengthening the resilience of water sheds and compliments investments in physical infrastructure and institutional and regulatory arrangements for water access and disaster preparedness. After noting the statistics on climate change, the Hon'ble Supreme Court pointed out that it is in this back drop, SDG 16 emphasis the need to protect, restore and promote sustainable use and management of terrestrial ecosystems and forests, combat desertification of river lands, prevent land degradation and halt the loss of biodiversity. Terrestrial ecosystems provide a range of ecosystem services including the capture of carbon, maintenance of soil quality, provision of habitat for biodiversity, maintenance of water quality and regulation of water flow and together with control over erosion. It was further pointed out that in our domestic context, environmental governance, that is, founded on the rule of law, emerges from the values of our Constitution. The health of the environment is key to preserving the right to life as a constitutionally recognised value under Article 21 of the Constitution. Proper structures for Page http://www.judis.nic.in 692 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 environmental decision-making find expression in the guarantee against arbitrary action and affirmative duty of fair treatment under Article 14 of the Constitution (emphasis supplied).
563.The petitioner's contention is that the decision in the cases of Vellore Citizens' Welfare Forum, Prof.M.V.Naidu, Kamal Nath and M.C.Mehta are all admitted cases of pollution, not to be applied to them, as there is no pollution alleged by the regulator. In Vellore Citizens' Welfare Forum, the tanneries were given ten years to construct the ETPs and the industries, which had commenced construction, were granted time and the Hon'ble Supreme Court ultimately, did not direct closure. The decision in Prof.M.V.Naidu deals with the case where a red category industry commenced civil work without NOC. Further, the Precautionary Principle is based on inadequacies of science and inadequate information whereas, the petitioner's operation do not suffer from inadequate information inasmuch as Page http://www.judis.nic.in 693 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 apart from reports and studies done by premier National Institutes on environmental effects of petitioner's by-products, including the TNPCB. That the petitioner has all along discharged the burden cast on them and therefore, the said decision will not apply to the case of the petitioner. Equally, in the decision in Kamal Nath, the Court did not shut down the Motel as also in the case of M.C.Mehta (1987) SC, permitted the tanneries which had already set- up the primary treatment plant to continue. It is the submission of the learned Senior Counsel for the petitioner that the “Precautionary Principle” allows the competent public authority to take, on a provisional basis, preventive protective measure on what is as yet an incomplete scientific basis, pending the availability of additional scientific evidence. The competent public authority must weigh its obligation and decide either to wait until the results of more detailed scientific research become available or to act on the basis of the scientific information available. To support such contention, the learned Senior Counsel referred to the decision in the case of State of Tamil Nadu vs. Page http://www.judis.nic.in 694 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 State of Kerala and Another, (2014) 12 SCC 696; Narmada Bachao Andolan vs. UoI, (2000) 10 SCC 664; and Pfizer Animal Health SA vs. Councisl of the European Union, 2002 ECR II-03305.
564.The decisions which were cited at the Bar, which we have referred to in the preceding paragraphs, spell out as to how the Regulator or the Government should safeguard the environment. No two environmental issues can be alike, even if the polluter or the enterprise carries on the same activity. Pollution can be in different forms, having varied impacts. The location of the enterprise, climatic conditions, effect on ecology can never be similar in all cases. Thus, even if a common bench mark is laid down, it can, at best, be regarded as a broad parameter, specifics are necessarily to be taken note of, which would involve multiple factors. Therefore, we need to apply the broad principles of environmental jurisprudence, which has been evolved by the Hon'ble Supreme Court over four decades and the common thread Page http://www.judis.nic.in 695 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 which runs in all these decisions is to preserve the environment for the “future- inter- generational equity”. If there is uncertainty in scientific opinion, it would be appropriate to err on the side of caution. The theory of sustainable development has been eloquently explained, the development of law on the said aspect and, the ultimate conclusion arrived at in all the decisions is that environmental protection is always at a higher pedestal compared to economic interest.
565.By way of illustration, if we take the aspect regarding the copper slag generated by the petitioner, it is the case of the petitioner that CPCB has certified that the slag is non-hazardous and also stipulated the varied uses to which slag can be put to. The petitioner states that the copper slag has been sold by the petitioner with full knowledge of the TNPCB. Certain articles also have been referred to in support of their contention that the by-product is environmentally safe. On the contrary, scientific papers, articles and reports give a different picture.
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566.We have also noted that anything in abundance, could be dangerous. We have also noted that laboratory tests and opinions are rendered on idealistic situations and not in case where several lakh tons of copper slag have been indiscriminately dumped, left to lie open to the fury of nature for nearly a decade. Therefore, there is definitely a scientific uncertainty on the effect of the copper slag as to how the beneficial uses can be undertaken etc. Therefore, we have no hesitation to hold that the respondent-State and the Regulator would be well justified in invoking the “Precautionary Principle” bearing in mind the aspect of sustainable development. In fact, in the 2013 judgment of the Hon'ble Supreme Court, the petitioner has been held to be a polluter, and applying the “Polluter Pays Principle”, a sum of Rs.100 crores was directed to be paid. Therefore, the Doctrine of Sustainable Development, Precautionary Principle and the Polluter Pays Principle needs to be applied to the case on hand. If applied, facts speak for themselves, petitioner needs to be closed and permanently sealed.
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567.The petitioner would submit that inspection reports and survey conducted in the petitioner's unit pursuant to the petitioner's application for renewal of consent, do not disclose any adverse finding to warrant rejection of consent and immediate closure of the petitioner's unit. The reasons leading to the rejection of the consent and subsequent closure of the petitioner's unit are demonstrably extraneous and in the nature of knee-jerk reaction to the public protests against the petitioner's unit. It is argued that the respondent Board and the State have failed to take into consideration the relevant factors such as recommendations of the inspection and scrutiny reports and have considered wholly irrelevant factors such as situation prevalent in Thoothukudi pursuant to the unfortunate shooting incident, in issuing orders impunged in the present writ petitions.
568.It is submitted that when the petitioner intimated the stock exchange during November, 2017 regarding the expansion project, protests Page http://www.judis.nic.in 698 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 began during December, 2019 opposing the petitioner's expansion project. In February, 2018, protests started in Kumara Reddy Palayam village against the expansion. During the last week of February, 2018, the Media reported the visit of Mr.Samarendra Das, from United Kingdom Co-founder of “Foil Vedanta”, who visited Thoothukudi and started conducting anti-Sterlite rd movements. During 3 week of March, 2018, the protests shifted to the existing plant of the petitioner with the Vanigar Sangam (Traders Federation) participating in the protests. The activists called for total shutdown of the Thoothukudi Town and messages were circulated in the social media and pamphlets spreading rumours and misinformation about the petitioner's unit. On 25.03.2018, the petitioner's existing plant was shutdown for its annual maintenance activity. Thereafter, on 09.04.2018, the impugned order of rejection of application to renew the consent to operate came to be passed. It is submitted that the public agitation and protests were primarily directed against the petitioner's expansion project, owing to certain vested interests, Page http://www.judis.nic.in 699 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 were diverted to the petitioner's existing plant, which had been operating under a valid consent, which expired on 31.03.2018 and the renewal application was pending consideration of the TNPCB.
569.Thus, it is the submission of the petitioner that the impugned orders were passed with a sole aim to divert the national attention from the administrative lapse of the State of Tamil Nadu and the local administration in failing to control the law and order situation with the aim of appeasing the public protests and for political consideration. Therefore, the impugned orders are ex facie illegal and have been motivated by improper consideration. In support of such contention, reliance was placed on the decision in Harrisons Malayalam Limited.
570.Before we examine the effect of the public protests on the closure of the petitioner's unit, we need to first consider as to the applicability Page http://www.judis.nic.in 700 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 of the decision in Harrisons Malayalam Limited. The Indian company, which was amalgamated with a foreign company, filed a writ petition to enable them to hold and enjoy the lands that devolved on them by virtue of the amalgamation. The question was whether, the foreign company could have continued holding of such lands after India got independence and the challenge was to the eviction proceedings initiated by the State of Kerala inter alia alleging fraud, forgery and collusion. The proceedings impugned in those writ petitions were action initiated under the Kerala Land Conservancy Act, 1957 (for brevity “the KLC Act”) essentially, the challenge was with regard to the jurisdictional competence of the Special Officer under the said enactment by contending that the petitioner-company therein was in possession of the lands in question on the strength of valid title of grants of licence or lease and based on fixity of tenure under the provisions of the Kerala Land Reforms Act, 1963. The Court found that the Special Officer, who is authorized under the KLC Act, cannot initiate a probe on the allegations raised in the report in Page http://www.judis.nic.in 701 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 seeking a CBI investigation as also the involvement of the Enforcement Directorate, thereby acting beyond the scope and ambit of the power and authority conferred under the KLC Act. In the penultimate paragraph of the said judgment, the Court referred to the judgment of the Constitution Bench in the case of Bishan Das vs. State of Punjab [AIR 1961 SC 1570] and drew a parallel by observing that the State willingly succumbed to public outcry without looking at the legal implications.
571.Firstly, the said judgment did not pertain to a polluting red category industry as that of the instant case, nor there is any allegation of any pollution having been caused by the said industry essentially, the challenge in the said proceedings was to an eviction proceedings initiated under the KLC Act and while taking a decision, the Court made an observation as to how the welfare State has to function. Therefore, in our considered view, the said decision cannot be made applicable to the case on hand. The petitioner placed Page http://www.judis.nic.in 702 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 reliance on the decision of the Hon'ble Supreme Court in P.Sivakumar in support of their contention that people cannot take law into their hands. In the said decision, the Hon'ble Supreme Court referred to the judgment rendered in Destruction of Public and Private Properties In Re vs. State of Andhra Pradesh & Ors. [2009] 5 SCC 212, wherein guidelines were issued as to how to effectuate the modalities for preventive action when such destruction of public and private properties are resorted to. After referring to those guidelines, it was pointed out that the fundamental purpose is that there cannot be any agitation which relates to an order passed by the Court and any grieved party is under obligation to take recourse to legal remedies for mitigation of grievances. It was reiterated, neither any “bandh”, nor any “agitation” can take place when Court has passed an order. The people cannot become law unto themselves and therefore, it is obligatory on the part of the authorities to prevent such action. In our opinion, this decision cannot render any support to the case of the petitioner. There is nothing on record to indicate that there was Page http://www.judis.nic.in 703 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 a breach of an order passed by the Court. In fact, it is the petitioner, who had dragged the authorities to Court by filing writ petitions seeking for prohibitory orders and it prima facie appears that in tune with the observations made by the Court in one of those writ petitions filed by the petitioner, an order under Section 144 Cr.P.C., was promulgated. It is not disputed before us that the protest was for 100 days. Earlier, there were protests which the petitioner would admit with a caveat that the protesters, protested against their proposed expansion and not the unit which was functioning. We find there is no basis for such a submission taking note of the chequered history of the case ever since 1996. Therefore, the decision in P.Sivakumar is distinguishable and not applicable to the case of the petitioner.
572.The anti-sterlite people federation represented by Mr.G.Hari th Raghavan, the 11 respondent would state that from 1997, incidence of suspicious death of employees of the petitioner has been reported Page http://www.judis.nic.in 704 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 continuously. There are frequent incidents and there are also few incidents of leakages of hazardous gas from the industry in the year 1997-2013. It is submitted that on 02.01.1997, on account of a cylinder burst, 40 workers were injured. On 03.05.1997, due to an explosion in the copper smelting plant, one person died. On 04.07.1997, 167 persons were convicted on account of gas leak. On 30.08.1997, two person died due to an explosion, who were employees of the petitioner company, viz., one Mr.Perumal and Sankar.  Six person were injured in an explosion, which occurred on 19.11.1998. On 21.09.2008, one person died due to wall collapse. One lorry driver was injured on 18.09.2010, when the lorry was carrying, as its components met with an accident. One person died on 31.05.2011 due to electric shock. One person was injured on 13.08.2011 on account of a fire accident due to electrical issues and he lost one of his hands. On 14.11.2014, one Subbiah died falling into the acid tank. On 22.02.2018, one person died in the harbour complex, when the Page http://www.judis.nic.in 705 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 raw material was off loaded from the vessel to the lorry. One person was injured on 08.03.2018 (Amalan) in the phosphoric acid plant. One person died by name Masanamuthu by falling from the height of about 60ft on 18.03.2013. On 26.03.2013, one employee of the petitioner, who was native of Bihar, had fainted in the industry and he was taken to the AVM hospital, but he was declared dead due to natural cause. It is submitted that though in cases where deaths have occurred due to accidents, criminal cases have been registered as suspicious deaths, the State has not initiated any action.
573.In the preceding paragraphs, we have elaborately noted the factual position and the challenge to the very establishment of the industry commenced in the year 1996, much prior to the industry starting commercial production. Ever since then, apart from local protests and agitations, which were in a small way, much of the time was spent in Courts either at the instance of the public interest litigations or at the instance of the petitioner. Page http://www.judis.nic.in 706 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 Therefore, we cannot accept the stand taken by the petitioner that the impugned orders are knee-jerk reactions, especially the order of closure. The public cannot be shut out, Amendment Act 47 of 1981 has emphasised the role of the public and recognised public participation. We have also noted that for a substantial period of time, the petitioner had been operating without a valid consent and on the strength of the stay orders granted by the Court/Tribunal. In the 2013 judgment, the Hon'ble Supreme Court had appreciated the efforts of the public interest litigants and NGOs in taking up the cause of environment especially, against an organisation like the petitioner, which is undoubtedly a very large organisation with sufficient resources. The ultimatum was announcing a 100 day protest and the decision of the protesters to lay siege to th the office of the District Collector on the 100 day, that is, on 22.0.2013 till the petitioner is closed down, was widely published. In fact, it is the petitioner, who had approached the Madurai Bench of this Court twice for virtually the same relief. It is not for the petitioner to state as to when the Page http://www.judis.nic.in 707 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 authorities have to invoke their power under Section 144 Cr.P.C. Surprisingly, in the discussions which were had by way of peace committee meetings by the officials, we find that TNPCB was not a party to any of the discussions. Several persons had been detained under the Tamil Nadu Act, 14 of 1982 by way of preventive detention, which orders were quashed by the Madurai Bench. Therefore, we hold that the orders rejecting the application for grant of consent, directing closure, permanent sealing of the petitioner industry cannot be treated as knee-jerk reaction pursuant to the unfortunate shooting incident, but it is a culmination of various issues solely attributable to the petitioner.
574.It is submitted on behalf of the State and the TNPCB that the petitioner has not initiated any voluntary measures to improve environment, they have given least regard to sustainability and improvement measures and only when the respondent Board imposed conditions in the consent order, they are being complied with, that too, after much insistence. That the plant Page http://www.judis.nic.in 708 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 facilities and technology are not state of art facilities they are inferior in quality and second hand facilities have been used. Further, copper smelters are generally located in third world countries and even in those countries it is not located in areas inhabited by people. The State has taken a stand that the Country can import copper from outside and is not reliant on the petitioner and therefore, the plant can be shut. The impleaded respondent would state that the petitioner Unit is not the only copper smelter operating in the Country, the Government of India has established a plant which can cater to the copper requirement of the Court and it is an integrated copper smelter and it uses mined material from India which is sufficient to meet the requirement. These submissions were made by the State and one of the impleaded respondent with regard to the sustainability, the need for the petitioner to have its presence.
575.The petitioner's contention is that they operate based on a sustainability frame work model developed in line with International Finance Corporation guidelines, they have a practice of sending their employees to Page http://www.judis.nic.in 709 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 smelters across the world to adopt the best practices. The petitioner would rely upon the key environment improvement initiatives which are adopted by foreign smelters and the implementation standards in so far as the petitioner's Unit is concerned. It is submitted that the best practices followed by the petitioner Unit has been compared with Best Availability Technology [BAT] adopted by European Smelters which covers list of projects and practices implemented in the ears of energy conservation and management, process optimization and control, diffuse emission control, waste recovery and emission/water management. Further it was submitted that the petitioner has initiated studies for environment improvement measures by employing reputed organization and apart from that they have carried out various improvement measures voluntarily since their inception with regard to the air, water and solid based management. The Waste Heat Recovery Boiler Technology installed in the petitioner Unit is the first in the World to be certified under the Clean Development Mechanism of United National Frame Work for Climate Page http://www.judis.nic.in 710 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 Change and have reduced one lakh tonnes of Carbondioxide emission indirectly. The petitioner has carried out biodiversity study around their Unit through the Forest Research Institute, Dehradun. They have carried out detailed bench marking exercise of their performance with the global copper smelter through a German based agency and the comparison of the emission of the global copper smelter with that of the petitioner Unit would show that the emissions from the petitioner Unit are significantly lower than the global copper smelters. The Sodium Sulphide Technology process adopted in the effluent treatment system helps in reducing 30-35% of hazardous waste quantities. Apart from that, the petitioner carries out extensive corporate social responsibility activities in near by communities in the areas of education, health, child care, women empowerment, etc. All these have lead to the petitioner being recognized by various reputed forums and bodies and awards have been presented to the petitioner. It is submitted that the Mo&EF in their counter affidavit filed during 1997-98 that the petitioner Plant is a Page http://www.judis.nic.in 711 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 State of Art Technology. The Mount ISA Technology is the most sought technology globally for its efficiency in copper production. The petitioner has also furnished the list of copper refinery operating globally, list of sulphuric acid plant operating globally, the schematic of the gas cleaning plant and the list of installations operating globally with the same technology adopted by the petitioner for gas cleaning. The petitioner has referred to the three copper smelters in India which includes the petitioner, the production level of the other two Units and the details of the reserves of copper ore available in India and to substantiate their stand that to meet the copper demand, the smelters in India are absolutely critical and also referred to the limited reserves of copper ore exploitable for copper production in India. Further it is submitted that it is incorrect that copper smelters are located only in third world countries but are spread across all the Continents in the World except Antartica and in this regard, a summarized list of Country wise was referred to by the learned senior counsel.
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576.From the above submissions on either side, what emerges is that the State and the TNPCB have taken a categorical stand that all is not well with the petitioner Unit. Reference to affidavits which were filed in 1997 by Mo&EF supporting the petitioner may not help them. We had noted that in September 2004 the Committee appointed by the Hon'ble Supreme Court visited the petitioner Unit as well as other red category industries in the Country. The Committed makes a specific observation to the effect that the petitioner has not provided adequate infrastructure and facilities for management of the waste generated. The Committee was particularly concerned with the issues relating to disposal of arsenic contained slag which was found dumped in the factory premises in the range of several thousands of tonnes and the Committed noted that there is a maintenance of arsenic bearing slag and also a mountain of phospogypsum. It was pointed out that if phospogypsum is not contained properly, it occasionally becomes airborne and Page http://www.judis.nic.in 713 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 may cause severe respiratory disorders in the surrounding vulnerable poplulation. Further, the Committed pointed out that there are some issue stills to be resolved in terms of the hazardous nature of arsenic bearing ETP waste which were earlier contained in an inadequately designed hazardous waste land fill and require disposal as per CPCB guidelines. Further the petitioner reported to the Committee during their visit that they are also emitting Sulphurdioxide far in excess of the permissible standards particularly when the sulphuric acid plant is not operating. The inadequacies which were observed by the Committee had made them to render finding that since the wastes were not properly managed, they have resulted in adverse impact on the environment including the health of the people. The Committee directed the concerned authority of the Government of Tamil Nadu to conduct a detailed environmental audit of the Unit and to assessee the efficacy of its environmental management practices by an independent agency. What prompted the Committee to direct the assessment to be done by an Page http://www.judis.nic.in 714 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 independent agency, would we be justified in drawing adverse inference against the regulator, TNPCB or did not the Committee have faith in the Governmental machinery of the State of Tamil Nadu or did they doubt the bonafides of the officials of the Government and the TNPCB. These questions have remained unanswered and the TNPCB have been renewing the concerns off and on reiterating the very same conditions knowing fully well that the petitioner had not complied with the same in its entirety.
577.In this regard, it is beneficial to refer to the decision of the Hon'ble Supreme Court in the case of Noida Memorial Complex Near Okhla Bird Sanctuary, In Re. [(2011) 1 SCC 744]. The controversy in the said case was a large project of the Uttar Pradesh Government at Noida. Two of the residents of the area claiming to be public spirited people objected to the project stating that the project undertaken at the instance of the UP Government is a huge unauthorized construction; very large number of trees Page http://www.judis.nic.in 715 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 were cut down for clearing the ground for the project without permission of the Central Government and the Hon'ble Supreme Court and in gross violation of the provisions of the Forest Conservation Act; project involved massive construction that were made without any prior environmental clearance from the Central Government based on environment impact assessment; constructions were in complete breach of the provisions of the EP Act and the notification issued under Act and more importantly, the project was causing great harm and was bound to further devastate the delicate and sensitive ecological balance of the Okhla Bird Sanctuary. In the said case, a direction was issued by the Court directing the Mo&EF to make a study of the environmental impact of the projects and to suggest measures for undoing the environmental degradation, if any, caused by the project and the amelioration measures to safeguard the adjacent bird sanctuary. The Mo&EF directed the project proponents to have an environmental impact assessment of the project done by some expert agencies. Three groups made a study including the Page http://www.judis.nic.in 716 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 persons from the Indian Institute of Technology, New Delhi. What is important is the observation contained in paragraph No.84 of the judgment which is as follows:
“84.Before putting down the records of the case of a few observations may not be out of place. The EIA Notification dated 14.09.2006 urgently calls for a close second look by the authorities concerned.
The projects/activities under Items 8(a) and 8(b) of the schedule to the notification need to be described with greater precision and clarity and the definition of built-up area with facilities open to the sky needs to be freed from its present ambiguity and vagueness. The question of application of the general condition to the projects/activities listed in the schedule also needs to be put beyond any debate or dispute. We would also like to point out that the environmental impact studies in this case were not conducted either by the MoEF or any organisation under it or even by any agencies appointed by it. All the three studies that were finally Page http://www.judis.nic.in 717 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 placed before the Expert Appraisal Committee and which this Court has also taken into consideration, were made at the behest of the project proponents and by agencies of their choice. This Court would have been more comfortable if the environment impact studies were made by the MoEF or by any organisation under it or at least by agencies appointed and recommended by it.”
578.The observations made by the Hon'ble Supreme Court are very pertinent and very relevant to the case on hand. The rapid EIA for establishment and for increased production was at the instance of the petitioner, the project proponent. The test report submitted by them at various points of time were by Vimta Labs, a choice of the petitioner. The consent conditions states that periodical analysis report has to be submitted and such test reports to be done in the laboratory of the TNPCB or authorized by it and it is based on this material, the authorities at various levels take decision. Page http://www.judis.nic.in 718 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019
579.In the case of P.V.Krishnamoorthy vs. Government of India and others [WP Nos.16630 of 2018, etc batch dated 08.04.2018], the feasibility study undertaken by an agency was vitiated by plagiarism and non-application of mind and directed to be scrapped. Therefore the environmentalist may be well justified in contending that much credence cannot be attached to report submitted by project proponent himself. Such is the observation of the High Court of Delhi in the case of Rajendra Singh and others vs. Government of NCT of Delhi and others [WP No.7506 of 2007 dated 03.11.2008]. In fact, in the said decision the Court commented upon the report submitted by NEERI stating that it gives an impression that it is an tailor-made report given to suit the requirement of the respondent therein.
580.The Committee appointed by the Hon'ble Supreme Court noted the various inadequacies and specifically recommended not to grant approval Page http://www.judis.nic.in 719 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 for increased production capacity. Yet the petitioner succeeded in obtaining approval. To understand the quantum of slag generated all that we are required to note is the permitted operating capacity and the average amount of slag that will be generated. Experts have stated that about 2 to 2.2 tonnes of copper slag is generated for every one ton of copper annode manufacture. This figure is taken for illustrative purpose as the petitioner may take a stand that it depends upon the quality of the ore and such factors. The petitioner's permitted production capacity is 1200 tonnes per day and the approximate slag that will be generated per day will be 2400 tonnes which totals to about 800,000 tonnes per year given the optimum functioning of the factory. This staggering figure shocks the system.
581.The petitioner does not possess sufficient land or infrastructure for storage or disposal of this huge quantity of slag generated. The respondents have referred to a report by M/s.SGS India Private Limited, who Page http://www.judis.nic.in 720 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 have conducted a study of the area between 12.10.2018 and 15.10.2018. This report is objected by the petitioner on all angles and terming the same to be an unscientific study. This report is again by a private agency which states that the soil samples drawn in 12 locations show that they are impacted by varying degrees of heavy metal contamination which is due to indiscriminate dumping of copper slag by the petitioner. The report recommends certain sites to be declared as contaminated sights which would mean that it cannot be put to use for any purpose for all the years to come. Thus the larger question would be as to whom the Court should trust. On the one hand, the regulator took a firm stand. NEERI submitted reports are were adverse to the petitioner. Thereafter on further direction being issued, the TNPCB curiously took a stand that only thirty conditions need to be laid down. The stand taken by the expert body which was given the full liberty by the Hon'ble Supreme Court to give their comments on the report accepted the stand of the regulator, TNPCB and issued directions. Now the TNPCB states that all the conditions which are to be Page http://www.judis.nic.in 721 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 cumulatively complied, have not been done by the petitioner. Can this lead to an inference that TNPCB was guilty of not placing the full facts before the Hon'ble Supreme Court in the 2013 case. We have held that the past conduct of the petitioner should be and can be taken into consideration by the regulator and while deciding the correctness of the orders passed by the regulator and the Government, the Court also is empowered to take note of the past conduct. We have assigned reasons in support of such conclusion. Hence, the stand taken by the petitioner that they are state of art Unit with utmost commitment to the environment and society is hard to believe. The Courts have their limitation when it comes to examining highly technical issues and this is why the Constitutional Courts have circumscribed a self imposed restriction on judicial review of executive action. The problem which is very peculiar to the case on hand is as to whom to believe. Why do we say so? This is because of the inconsistency of the authorities at various levels at different points of time. Probably this prompted one of the impleaded respondent to take a stand that he Page http://www.judis.nic.in 722 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 will pursue his claim independently and seek for sustaining the order of closure regardless of party in power in the State. If Courts are left to doubt every technical report relied on by the regulator, it would lead to a disastrous consequences and ultimate self destruction.
582.In the case of Noida Memorial Complex, the Hon'ble Supreme Court observed that the Court would have been more comfortable if the environmental impact studies were made by the Mo&EF or by an organization under it or atleast by agencies appointed and recommended by it. Therefore much may have to be said about these expert bodies manned by experts and as men change probably reports may also change. If such is the situation, it is undoubtedly against public interest and needs to be condemned. For all these reasons, we reject the contentions advanced by the petitioner with regard to their sustainability.
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583.The petitioner has been consistently stating that if their plant is shut the requirement of copper in India cannot be met, it will be a great blow on the economy, etc. The Courts have held that when it comes economy pitted against environment, environment will reign supreme. Therefore, economic considerations can have no role to play while deciding the sustainability of a highly polluting industry and the only consideration would be with regard to safeguarding environment for posterity and remedying the damage caused.
584.The Committee during its visit was informed that the petitioner is proceeding for a three times expansion of its capacity from 70,000 TPA to 1.8 lakhs TPA. On coming to know of the said fact, the Committee observed that the existing waste management practices of the petitioner are not in compliance with the environmental standards and solid hazardous waste generated also required to be properly managed, particularly in terms of available space and infrastructure and it would be inadvisable to consider Page http://www.judis.nic.in 724 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 expansion of the Unit at that stage. Unfortunately, approval was granted for the increased capacity. Therefore, the regulatory authority at various levels have not taken the matter seriously and the inadequacy and incapacity of the TNPCB has added to the confusion. The Committee made a categorical observation that environmental clearance for the proposed expansion should not be granted by the Mo&EF and it did not stop with that and made an observation that if it is granted, it shall be revoked. It appears that the concerned authorities did not take note of the observations of the Committee nominated by the Hon'ble Supreme Court for a specific purpose. The Committee issued direction to the TNPCB to make a detailed visit to the plant to ascertain whether the Unit has already proceeded with the expansion of the project without prior permission from the authorities and in which case directed the TNPCB to take action under the provisions of the EIA notification as well as under the Air and Water Act and HW Rules. Thus, there was material available at the time when the Committee made the visit of the Page http://www.judis.nic.in 725 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 petitioner Unit in September 2004 indicating the petitioner has commenced expansion activities without prior permission.
585.If such was the state of affairs of the petitioner in 2004, we on going through the factual position and noting the various incidents and issues which have arisen, we can safely conclude that the sustainability as projected by the petitioner may appear good on paper. As mentioned, the petitioner has no vested right or fundamental right to establish a hazardous industry and the permission is subject to the consent granted by the Board and the other authorities. Thus the liability of the petitioner continues as long as they are permitted to operate.
586.In this regard, it would be beneficial to refer to the decision in the case of Environment Protection Authority vs. Kembla Copper Pty. Ltd. [(2001) NSW LEC 174 (New South Wales Land of Environment Court)]. Page http://www.judis.nic.in 726 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 The defendant therein was a copper smelter and there were five charges against them having breached the conditions of the Environment Protection License. As contended by the petitioner before us, the defendant smelter therein took a stand that the risk assessment process has been carried out in a reasonable manner and there was no inadequacies in the acid plant risk assessment having regard to the current standards and that the Court was advocating a standard of perfection in a hind sight. The Court observed that the very fact that the smelter was adopting a new and complex technology in an operation involving potentially harmful gases should have required a great deal of attention to be paid to risk assessment and to the possibility that incidents would occur during the commission period and that the possibility of the license emission limit would be exceeded on each occasion was reasonable foreseeable and as a result each of the incidents could have been prevented. Page http://www.judis.nic.in 727 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019
587.In the case of Environment Protection Authority vs. Adi Limited [(1999) NSWLEC 14], the defendant Company had committed an offence of polluting of waters of Murray river by introducing solid waste and ethanol contrary to the Clean Waters Act. The Court observed the fact that the defendant held a license [which permitted a discharge which did not contain more than 45mg/L of non-filterable residue at various point adjacent to the boundaries of the premises; ethanol was not referred to specifically in license condition] heightened its responsibility to keep the level of discharge from the premises within the parameters set by the license.
588.The learned Senior Counsel appearing for the petitioner vehemently contended that there are 63 other red category industries in the industrial complex. The petitioner has been singled out, no source apportionment study was undertaken despite an interim direction issued by the NGT that the decision for closure/permanent closure is vitiated by mala fides, Page http://www.judis.nic.in 728 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 on extraneous consideration it is a colourable exercise of power and for political considerations. Though in several places, the petitioner pleads mala fides, it has not been proved in the manner known to law. Does the petitioner state that the State Government has acted mala fide, if so, what is the foundation of such a plea. If the petitioner states that the TNPCB's action is mala fide it should establish as to which officer or which authority of the regulator acted mala fide. Thus, mere use of the expression mala fide would not make the decision a mala fide exercise of power. Equally we find that there is no colourable exercise of power rather it is a belated exercise of power. We have commented upon the inadequacies in the infrastructure of the TNPCB and also observed that the magnitude of the petitioner was a big deterrent not only to the regulator TNPCB but to the District Administration and the officers of the Government at various levels. If the petitioner makes a statement that the order of closure is for political consideration, then it needs to be examined as to how the petitioner was able to secure an approval from Page http://www.judis.nic.in 729 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 the State Government in 14 days for establishing this hazardous industry in Thoothukudi when they were unable to do so in two other States in India. In fact, the Division Bench while ordering closure had commented upon the fast track procedure. In the 2013 judgment of the Hon'ble Supreme Court this issue came up for consideration and it was pointed out that the notification issued under the EP Act provided for a rapid environment impact assessment could done. The petitioner while stating that the impugned order was passed for political consideration stated that the order was passed to divert the public attention from the mishandling by the State and the officials are ultimately lead to the shooting incident. This averment is required to be outrightly rejected as vague and devoid of any substance. We had made certain observations as regards the order passed under Section 144 Cr.P.C. Such order was at the behest of the petitioner when they approached the Madurai Bench of this Court by way of two writ petitions virtually for an identical relief. In the instant case, an order under Section 144 Cr.P.C., was passed and Page http://www.judis.nic.in 730 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 under normal circumstances, such order is passed to protect the public and public properties and not to protect a private asset as that of the case on hand. This appears to be unprecedented. Therefore, if according to the petitioner the order of closure is for political consideration, then it goes without saying that the order granting permission to establish the Unit twenty years ago is also for political considerations. We refrain from making any further observation in this regard.
589.We have held that the petitioner has violated the consent conditions and many of the violations were blatant and the effect of such violations will not be evident immediately it may take several years. The petitioner cannot state that they have been singled out or victimised.
590.In Bharat Iron Works vs. Bhagubhai Balubhai Patel & Ors. [(1976) 1 SCC 518], the employee of the State Government contended that he Page http://www.judis.nic.in 731 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 was victimized by his employer. It was observed that victimization is a serious charge by an employee against the employer and therefore, it must be properly and adequately pleaded giving all particulars upon which the charge is based to enable the employer to fully meet them; the onus of establishing a plea of victimization will be upon the person pleading it and a proved misconduct is antithesis of victimization as understood in industrial relations. This decision was referred to in the case of Bharat Forge Co. Ltd. vs. Uttam Manohar Nakate [(2005) 2 SCC 480].
591.Apart from reiterating their stand that no source apportionment study has been done, the petitioner has not established the plea of mala fides or victimization. The other submission is that they have been singled out when there are 63 other red category industries in the same industrial complex. The question would be whether this is a ground to infer discrimination. Page http://www.judis.nic.in 732 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019
592.In Budhan Choudry and aothers vs. The State of Bihar [AIR 1955 SC 191], the Constitution Bench of the Hon'ble Supreme Court explained the meaning and scope of Article 14 of the Constitution. It was held that Article 14 forbid class legislation, it does not forbid reasonable classification for the purpose of legislation. To pass the test of permissible classification two conditions must be fulfilled, namely, (i) that classification must be founded on a intelligent differentia and (ii) that differentia must have a rational relation to the object sought to be achieved by the statute in question. It was further held that classification must be founded on different bases, namely, geographical or according to objects or occupations or like. This decision is quoted with the approval in Ram Krishna Dalmia vs. Mr.Justice S.R.Tendolkar [AIR 1958 SC 538], wherein it was held that a law may be constitutional even though it relates to a single individual, if on account of the special circumstances or reasons applicable to him and not applicable to others, the single individual may be treated as a class by himself. Page http://www.judis.nic.in 733 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 These decisions were referred to in the case of S.P.Mittal vs. Union of India [(1983) 1 SCC 51], while upholding the “single person” legislation concerning Sri Arabindo Society.
593.In Charajit Lal Choowdhuri vs. The Union of India and others [AIR 1951 SC 41], it was held that the respondents therein alone was affected is no ground to hold that it is a single person legislation.
594.In the case of State of Himachal Pradesh and another vs. Kailash Chand Mahajan and others [1992 (Suppl.) 2 SCC 351], the Court upheld the validity of the decision which purported to affect a single person.
595.In Re. The Special Courts Bill, 1978 [(1979) 1 SCC 380], while upholding the legality of the State's power to pick out a hectic phase, the Hon'ble Supreme Court referred to the decision in the case of State of Gujarat Page http://www.judis.nic.in 734 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 and another vs. Shri Ambica Mills Limited [(1974) 4 SCC 656] and held as follows:
“134. Another good reason for upholding the classification is the legality of the State's power to pick out a hectic phase, a hyper-pathological period, a flash flood and treat that spell alone, leaving other like offensive periods well alone because of their lesser trauma. It is a question of degree and dimension. This Court in Ambica Mills observed: (SCC p. 676, paras 56 & 57) Mr. Justice Holmes,, in urging tolerance of under- inclusive classification, stated that such legislation should not be disturbed by the Court unless it can clearly see that there is no fair reason for the law which would not require with equal force its extension to those whom it leaves untouched. What, then, are the fair reasons for non-extension ? What should a court do when it is faced with a law making an under-inclusive classification in areas relating to economic and tax matters. Should it, by its judgment, force the legislature to choose between inaction or perfection ?
Page http://www.judis.nic.in 735 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 The legislature cannot be required to impose upon administrative agencies tasks which cannot be carried out or which must be carried out on a large scale at a single-stroke.
If the law presumably hits the evil where it is most felt, it is not to be overthrown because there are other instances to which it might have been applied. There is no doctrinnaire requirement that the legislation should be couched in all embracing terms. (See West Coast Hotel Company v. Parrish) The Emergency was witness to criminal abuse of power, so says the Preamble, on a scale unheard of before or after. Therefore, this ominous period lends itself to legislative segregation and special treatment. Mr. Justice Mathew has explored the jurisprudence of selective treatment as consistent with the pragmatism of eglitarianism. The present Bill is a textbook illustration of the dictum: (SCC pp. 676-677, paras 58 to 63) The piecemeal approach to a general problem permitted by under-inclusive classifications, appears justified when it is considered that legislative Page http://www.judis.nic.in 736 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 dealing with such problems is usually an experimental matter. It is impossible to tell how successful a particular approach may be, what dislocations might occur, what evasions might develop, what new evils might be generated in the attempt. Administrative expedients must be forged and tested. Legislators, recognizing these factors, may wish to proceed cautiously, and courts must allow them to do so (supra).
Administrative convenience in the collection of unpaid accumulations is a factor to be taken into account in adjudging whether the classification is reasonable. A legislation may take one step at a time addressing itself to the phase of the problem which seems most acute to the legislative mind. Therefore, a legislature might select only one phase of one field for application or a remedy. Two Guys from Harrison-
Allentown v. McGinley, 366 U.S. 582, 592.
It may be remembered that Article 14 does not require that every regulatory statute apply to all in Page http://www.judis.nic.in 737 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 the same business; where size is an index to the evil at which the law is directed, discriminations between the large and small are permissible, and it is also permissible for reform to take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind.
A legislative authority acting within its field is not bound to extend its regulation to all cases which it might possibly reach. The legislature is free to recognise degrees of harm and it may confine the restrictions to those classes of cases where the need seemed to be clearest (see Mutual Loan Co. v. Martell) 56 L.Ed. 175, 180.
In short, the problem of legislative classification is a perennial one admitting of no doctrinnaire definition. Evils in the same field may be of different dimensions and proportions requiring different remedies. Or so the legislature may think (see Tigner v. Texas) 310 U.S. 141.
Page http://www.judis.nic.in 738 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 Once an objective is decided to be within legislative competence, however, the working out of classification has been only infrequently impeded by judicial negatives.
The Courts attitude cannot be that the state either has to regulate all businesses, or even all related businesses and in the same way, or, not at all. An effort to strike at a particular economic evil could not be hindered by the necessity of carrying in its wake a train of vexatious, trouble some and expensive regulations covering the whole range of connected or similar enterprises.
"All or nothing" may lead to unworkable rigidity. Principled compromises are permissible in law; where non- negotiable fundamentals are not tampered with. The Bill in question, viewed in this light, passes the constitutional test.”
596.The above decision would aptly answer the submission of the petitioner. Undoubtedly the petitioner is the biggest industry in the region Page http://www.judis.nic.in 739 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 generating the maximum amount of hazardous waste. If such is the position the State and the regulator would be well justified in considering the magnitude of the petitioner, as held by the Hon'ble Supreme Court, where size is an index to the evil at which the law is directed, discrimination between the large and small are permissible and it is also permissible for reform to take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind.
597.The above decision of the Constitution Bench was referred to in the case of Heena Kausar vs. Competent Authority [(2018) 14 SCC 724]. While on this issue, it is relevant to refer to the decision of the Hon'ble Supreme Court in the case of M/s.Dhampur Sugars vs. State of Uttranchal [(2007) 5 SCC 418], wherein it was held that mere assertion, vague averment or bald statement is not enough to hold the action to be malafide. Page http://www.judis.nic.in 740 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019
598.In the case of Ajit Kumar Nag vs. Indian Oil Corporation [(2005) 7 SCC 764], referred to the decision of the Hon'ble Supreme Court in E.P.Royappa vs. State of Tamil Nadu & Anr. [(1974) 4 SCC 3], it was pointed out that the burden of proving malafide is on the person making allegation and the burden is “very heavy”; here is every presumption in favour of the administration that the power has been exercised bonafide and in good faith; allegations of malafide are often more easily made than made out and the very seriousness of such allegations demands proof of a high degree of credibility. This principle was elaborated in the case of Girias Investment Private Limited vs. State of Karnataka [(2008) 7 SCC 53].
“14. It is obvious from a reading of the pleadings quoted above that only vague allegations of malafides have been leveled and that too without any basis. There can be two ways by which a case of malafides can be made out; one that the action which is impugned has been taken with the specific object of damaging the interest of the party and, secondly, such action is aimed at helping some party which results in damage to the party Page http://www.judis.nic.in 741 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 alleging malafides. It would be seen that there is no allegation whatsoever in the pleadings that the case falls within the first category but an inference of malafide has been sought to be drawn in the course of a vague pleading that the change had been made to help certain important persons who would have lost their land under the original acquisition. These allegations have been replied to in the paragraph quoted above and reveal that the land which had been denotified belonged to those who had absolutely no position or power. In this view of the matter, the judgments cited by Mr. Dave have absolutely no bearing of the facts of the case.
15. ................
16. ................
17. ................
18. ................
19.It is no doubt open to the court to go into the question of malafides raised by a litigant but in order to succeed, much more than a mere allegation is required. Mr. Dave's inference of malafide based on the ground that the change in the location of the trumpet interchange and the access road had been Page http://www.judis.nic.in 742 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 suddenly made without proper application of mind to help certain unidentified individuals resulting in the acquisition of the land belonging to the appellants is, thus, without any factual basis.
20.Mr. Hulla, the learned counsel appearing for some of the respondents has also placed reliance on Keshab Rao vs. State of West Bengal (1973) 3 SCC 216, First Land Acquisition Collector & Ors. vs. Nirdohi Prakash Ganguli & Anr. (2002) 4 SCC 160, Ajit Kumar Nag vs. G.M.(PJ) I.O.C.Ltd., Haldi & Ors. (2005) 7 SCC 764 and Prakash Singh Badal & Anr. Vs. State of Punjab and & Ors. (2007) 1 SCC 1 to submit that a mere allegation of malafide is not enough and cogent evidence thereof must be given. We respectfully endorse the opinion expressed in these judgments and reiterate that no material or details of malafides have come on record in the present case. We nevertheless quote paragraphs 56 and 57 from Ajit Kumar Nag's case (supra) to support our discussion:
“56. In our view, neither the learned Single Judge nor the Division Bench has committed any error of law and/or of jurisdiction which deserves Page http://www.judis.nic.in 743 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 interference in exercise of discretionary jurisdiction under Article 136 of the Constitution. As is clear, the situation has been created by the appellant. It was very grave and serious and called for immediate stern action by the General Manager. Exercise of extraordinary power in exceptional circumstances under Standing Order 20(vi) in the circumstances, cannot be said to be arbitrary, unreasonable or mala fide. It is well settled that the burden of proving mala fide is on the person making the allegations and the burden is "very heavy". (vide E.P. Royappa v. State of T.N. ( 1974) 4 SCC 3) There is every presumption in favour of the administration that the power has been exercised bona fide and in good faith. It is to be remembered that the allegations of mala fide are often more easily made than made out and the very seriousness of such allegations demands proof of a high degree of credibility. As Krishna Iyer, J. stated in Gulam Mustafa v. State of Maharashtra ((1976) 1 Page http://www.judis.nic.in 744 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 SCC800 p.802, para 2) : "It (mala fide) is the last refuge of a losing litigant."
57. We hold clause (vi) of Standing Order 20 of the Certified Standing Orders of the respondent Corporation valid, constitutional and intra vires Article 14 of the Constitution. We also hold the action taken by the General Manager of the respondent Corporation dismissing the appellant-petitioner from service as legal and lawful. We thus see no substance either in the appeal or in the writ petition and both are, therefore, dismissed. In the facts and circumstances of the case, however, there shall be no order as to costs.” In the light of the above, no further discussion on this aspect is called for.
21. ................
22. ...............
23. As observed above, the appellants have not identified any person who had been instrumental in harming their cause. We would, therefore, even be precluded from going into Page http://www.judis.nic.in 745 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 the question of malafides although we have nevertheless examined the matter in extenso.”
599.In the light of the above discussion, we are of the clear view that the petitioner has not been able to establish that the impugned decisions are malafide or on account the extraneous consideration or political consideration or a colourable exercise of power. The petitioner being the biggest in the area cannot plead that they have been singled out and victimized when they have been found to be a violator. This observation will equally apply to the argument of the petitioner that 101 red category industries do not have authorization under HW Rules. This is a sorry state of affairs, the reasons are unknown but that can hardly be an argument to exonerate the petitioner.
600.The learned Senior Counsel for the petitioner referred to the decision of the High Court of Delhi in Gopinath Private Limited, where the Court held, on facts, that the Pollution Control Board may direct closure of Page http://www.judis.nic.in 746 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 industry, but it cannot seal the entire industry bringing every unoffending activity to a standstill. We are afraid that this decision can hardly apply to the facts of the present case. In the said decision, the complaint was against a small part of the business carried on by the appellant therein, where casting of iron components using furnace was carried on from a premises residential in nature. The petitioner is a red category industry, the establishments, which are located within the factory complex are inextricable and to be treated as a single establishment and that is how the petitioner has perceived the same. The power plant is a unit for captive power generation and its location is within the same premises. Therefore, the argument that those independent units cannot be closed is an argument that needs to be rejected. The petitioner cannot be heard to say that an ancillary unit, ancillary to a main unit, should be permitted to function when the main unit has been locked, sealed and directed to be dismantled. Therefore, we reject such submission. Page http://www.judis.nic.in 747 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019
601.We had earlier discussed the issue as regards the power of the State Government to permanently close and seal the petitioner industry. It was the argument on behalf of the petitioner that there is no such power vested under Section 18 of the Act. We have assigned reasons as to how such submission is not acceptable by reading all the relevant provisions of the Air and Water Acts, which confer all powers, which are incidental and consequential. In this regard, it would be beneficial to refer to the decision of the Hon'ble Supreme Court in Khargram Panchayat Samiti. The question, which fell for consideration was whether the Panchayat Samiti, which had authority to grant licence for holding a fair, had the consequential or incidental power to specify a day for holding such fair. The High Court held that the Panchayat Samiti had power to grant licence, but had no consequential or incidental power to specify a date for holding of such fair. Reversing the said decision, the Hon'ble Supreme Court held that the power to grant the licence for holding a fair includes the power to make incidental or consequential Page http://www.judis.nic.in 748 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 orders for specification of a day on which such fair shall be held; the statutory bodies like the Panchayat enjoy a wide incidental power, that is, they may do everything which is calculated to facilitate or is conducive or incidental to the discharge of any of their functions and the doctrine of ultra vires is not to be applied narrowly. Further, it was pointed out that it is well accepted that the conferral of statutory powers on the local authorities must be construed as impliedly authorising everything which would fairly and reasonably be regarded as incidental or consequential to the power itself. The relevant portion of the judgment reads as follows:-
“4. .........The conferment of the power to grant a licence for the holding of a hat or fair under s. 117 of the Act includes the power to make incidental or consequential orders for specification of a day on which such hat or fair shall be held. The deci- sion of the High Court runs counter to the well-
accepted principles. It overlooks that the statutory bodies like the Panchayat Samiti enjoy a wide 'incidental power' i.e. they may do every thing which is 'calculated to facilitate, or is Page http://www.judis.nic.in 749 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 conductive or incidental to, the discharge of any of their functions' and the doctrine of ultra vires is not to be applied narrowly. It is well-accepted that the conferral of statutory powers on these local authorities must be con- strued as impliedly authorising everything which could fairly and reasonably be regarded as incidental or conse- quential to the power itself. See: de Smith's Judicial Review of Administrative Action. 4th edn., p. 95. HWR Wade's AdminiStrative Law, 5th edn., p. 217. Craies on Statute Law, 6th edn., p. 276. Attorney General v. Great Eastern Railway, LR (1880) 5 AC 473; Baroness Wenlock v. River Dee Co., LR (1885) 10 AC 354. De Smith in his celebrated work Judicial Review of Administrative Action, 5th edn. at p. 95 puts the law tersely in these words:
The House of Lords has laid down the principle that "whatev- er may fairly be regarded as incidental to. or consequent upon. those things which the Legislature has authorised. ought not (unless expressly prohibited) to be held, by judicial construction, to be ultra vires."
This principle was. enunciated by Lord Selborne in Attorney General v. Great Eastern Railway, supra, in these words: Page http://www.judis.nic.in 750 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 "The doctrine of ultra vires ought to be reasonably. and not unreasonably, understood and applied and whatever may be fairly regarded as incidental to. or consequential upon, those things which the legislature has authorised ought not (unless expressly prohibited) to be held, by judicial con- struction. to be ultra vires."
These words have been quoted by Professor wade in his monumental work Administrative Law. 5th edn. at p, 2 17 and also by Craies on Statute Law, 6th edn. p, 276. Craies also refers to the observations of Lord Watson in Baroness Wenlock v. River Lee Co., supra, .to the effect:
"Whenever a corporation is created by Act of Parliament with reference to the purposes of the Act, and solely with a view to carrying these purposes into execution, I am of opinion not only that the objects which the corpora- tion may legitimately pursue must be ascer- tained from the Act itself, but that the powers which the corporation may lawfully use in furtherance of these objects must either be expressly conferred or derived by reasonable implication from its provisions,"
Page http://www.judis.nic.in 751 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019
602.This aspect was explained by the Hon'ble Supreme Court in Indian Council for Enviro-Legal Action with reference to the EP Act, the Air Act and the Water Act and it was pointed out as follows:-
“60. ..........Section 3 of the Environment (Protection) Act, 1986 expressly empowers the Central Government [or its delegate, as the case may be] to "take all such measures as it deems necessary or expedient for the purpose of protecting and improving the quality of environment.........". Section 5 clothes the Central Government [or its delegate] with the power to issue directions for achieving the objects of the Act. Read with the wide definition of "environment" in Section 2(a), Sections 3 and 5 clothe the central Government with all such powers as are "necessary or expedient for the purpose of protecting and improving the quality of the environment". The Central Government is empowered to take all measures and issue all such directions as are called for the above purpose." Page http://www.judis.nic.in 752 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019
603.The petitioner faced with the situation and fully conversant with the legal position that it being a company cannot claim shelter under Article 19(1)(g) of the Constitution, as elucidated by the Hon'ble Supreme Court in State Trading Corporation of India Ltd., and other decisions, appears to have setup a person residing in Chennai by name Smt.C.M.Vijayalakshmi, W/o.Shri A.Balaganesan stating that she has purchased 12,000 shares in the year 2005 and subsequently, purchased 13,958 shares in 2013 and on account of the petitioner's unit being shutdown, her share value had dropped, therefore, she is vitally interested in the well being of the petitioner company. In paragraph 6 of the affidavit filed in support of the implead petition, she would state that at the time of oral submissions by the State of Tamil Nadu, an objection has been raised that the writ petitioner cannot raise any ground pertaining to Article 19(1)(g) of the Constitution, since fundamental rights are available only to natural persons and not to a corporate entity and therefore, it has become just Page http://www.judis.nic.in 753 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 and necessary that a shareholder is impleaded as a joint petitioner or a respondent, which adopts the writ petitioner's submissions. She would further state that she had been following up the proceedings and reliably understand that several persons including employee shareholders had sought for impleadment. However, this Court deem it fit not to implead such persons, since the writ petitioner had represented that it would be in a position to take care of its interest. It is further stated that several third parties have been impleaded and a shareholder, who is vitally interested in the business of the company and who is invested in its capital has paramount and direct interest in reopening the plant and therefore, it is just and necessary to implead herself in the proceedings. The petitioner further briefly states that the order of closure is illegal, passed without any authority of law. She would further state that she became aware of the shareholders not being a party to the proceedings by virtue of wide reporting in the newspapers of the submissions by the State Government pointing out the failure of any shareholder being a party to the Page http://www.judis.nic.in 754 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 writ petition and therefore, she is immediately approaching the Court for impleadment as a writ petitioner along with the petitioner company.
604.From the averments in the affidavit filed in support of the petition, it is evidently clear that the person, who seeks impleadment has been setup by the petitioner. The said Smt.C.M.Vijayalakshmi, at no earlier point of time, had sought to get herself involved in the litigation and her submission is that during the oral submission before this Court, the State contended that Article 19(1)(g) of the Constitution cannot be pressed into service by the petitioner. This averment is sufficient to doubt the bona fides of the petitioner. In any event, at this belated stage, that too, after the objection has been raised by the respondents as regards the applicability of Article 19(1)(g) qua the petitioner, we refuse to entertain such an impleadment, that too, when she seeks to get herself impleaded as a writ petitioner along with the writ petitioner. In this regard, it would be beneficial to refer to the decision of the Page http://www.judis.nic.in 755 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 Hon'ble Supreme Court in Dharam Dutt, to explain the rights conferred by Article 19 in the following terms:-
“36.Article 19 confers fundamental rights on citizens. The rights conferred by Article 19(1) are not available to and cannot be claimed by any person who is not and cannot be a citizen of India. A statutory right as distinguished from a fundamental right conferred on persons or citizens is capable of being deprived of or taken away by legislation. The fundamental rights cannot be taken away by any legislation; a legislation can only impose reasonable restrictions on the exercise of the right. Out of the several rights enumerated in clause (1) of Article 19, the right at sub-clause (a) is not merely a right of speech and expression but a right to freedom of speech and expression.
The enumeration of other rights is not by reference to freedom. In the words of the then Chief Justice Patanjali Sastri (In State of West Bengal Vs. Subodh Gopal Bose & Ors., 1954 SCR 587) these rights are great and basic rights which are recognized and guaranteed as the natural rights, inherent in the status of a citizen of a free country. Yet, there Page http://www.judis.nic.in 756 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 cannot be any liberty absolute in nature and uncontrolled in operation so as to confer a right wholly free from any restraint. Had there been no restraints, the rights and freedoms may tend to become the synonyms of anarchy and disorder. The founding fathers of the Constitution, therefore, conditioned the enumerated rights and freedoms reasonably and such reasonable restrictions are found to be enumerated in clauses (2) to (6) of Article 19 excepting for sub-clauses (i) and (ii) of clause (6), the laws falling within which descriptions are immune from attack on the exercise of legislative power within their ambit (See: H.C. Narayanappa & Ors. Vs. State of Mysore & Ors., (1960) 3SCR 742).” Hence, for the above reasons, the petition in W.M.P.SR No.102459 of 2019 is rejected.
605.In Karnataka Live Band Restaurants Association, the Court after referring to the legal maxims 'salus', 'populi', 'suprima' lex' and salus repiblique suprema lex - meaning the safety of the people is supreme in law; Page http://www.judis.nic.in 757 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 safety of the State is the supreme law. The Court then proceeded to explain the reasonable restrictions under Clause (6) of Article 19 of the Constitution and it was held as follows:-
“64) As held above, the public interest, the welfare and the safety of general public always override the right of an individual. There is no prohibition for any individual to carry on such business. However, if he wishes to carry on such business, he has to follow the norms and the statutory regulation framed for carrying on the business. He cannot be heard to say that he will carry on the business but without ensuring the norms and the regulations framed for the purpose.
65) In our opinion, here comes the application of the two maxims quoted supra while determining the rights of an individual qua public and the State.
66) Indeed, we can take judicial notice of an incident occurred in recent past in a restaurant in Mumbai where life of several innocent people sitting in the restaurants were lost due to lapses in ensuring compliance Page http://www.judis.nic.in 758 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 of safety measures. Yet another incident of the similar nature occurred few years before in Upahar Theater in Delhi where several innocent people lost their life due to non-observance of safety measures.
67) When such incidents occur, they never obliterate from the memories of the citizen and leave a message to all the stakeholders that steps for strict compliance must be taken to avoid any such recurrence in future at any place. We hope that all the stakeholders will keep our observations in mind.”
606.The learned Senior Counsel for the petitioner placed reliance on the decisions in the case of Asgar, All India Manufacturers Organisation, Joydeep Mukharjee, Daryao and Amalgamated Coalfields Ltd., to support their contention that Section 11 of the Code of Civil Procedure applies to public interest litigation, substantive res judicata and constructive res judicata are embodied as statutory principles, no one can be twice vexed on the same cause more particularly, when a judgment is in a public interest litigation is a Page http://www.judis.nic.in 759 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 judgment in rem and there should be finality to litigation. Further, it was contended that doctrine of res judicata applies to Article 32 petitions, when the same was a matter decided under Article 226 by the High Court. The above decisions set down the legal principles. When we apply these principles to the case on hand, we need to examine as to its applicability. To decide this issue, the factual matrix is the predominant material, to come to a conclusion as to whether the principles of constructive res judicata, substantive res judicata will apply.
607.The argument of the learned Senior Counsel on the applicability of this doctrine stems basically from the contention that the petitioner cannot be twice vexed on the same cause. This submission is predicated on the contention that the 2013 judgment of the Hon'ble Supreme Court puts an end to all controversies, all issues, all disputes and contentions advanced which occurred prior to the decision. We have rejected the said submission and Page http://www.judis.nic.in 760 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 given reasons to do so and the reasons are manifest on a reading of the 2013 judgment of the Hon'ble Supreme Court. In our view, the proper reading of the judgment of the Hon'ble Supreme Court is to hold that the regulator has power to take action including ordering closure.
608.The respondent-State is right in their submission that the 2013 judgment arose out of an order of the Court directing closure whereas, the impugned orders in these writ petitions are orders refusing to renew the consent to operate by the TNPCB and an order of permanent closure by the Government followed by further orders by the TNPCB. Therefore, the two situations, that is, the situations which prevailed before the Division Bench of the High Court while ordering closure, the correctness of this was tested by the Hon'ble Supreme Court in the 2013 judgment and the present impugned orders are two different situations. Therefore, the 2013 judgment of the Hon'ble Suprme Court cannot be a bar for the authorities issuing directions for closure. Page http://www.judis.nic.in 761 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019
609.As already pointed out, the petitioner was not exonerated by the Hon'ble Supreme Court in the 2013 judgment. Therefore, on facts, we hold that the doctrine of res judicata can have no application to the facts of this case and it is not a case where the matter has been determined in a former proceedings and therefore, it is not open to the parties to re-agitate the matter again. At this juncture, it would be worthwhile to refer to the relevant paragraphs of the 2013 judgment of the Hon'ble Supreme Court, which read as follows:-
“38.This is not to say that in case it becomes necessary for preservation of ecology of the aforesaid four islands which form part of the Gulf of Munnar, the plant of the appellants cannot be directed to be shifted in future. We find from the affidavit filed on behalf of the State of Tamil Nadu on 29.10.2012 that the Gulf of Munnar consisting of 21 islands including the aforesaid four islands have been notified under Section Page http://www.judis.nic.in 762 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 35(1) of the Wildlife (Protection) Act, 1972 on 10th September 1986 and a declaration may also be made under Section 35(4) of the said Act declaring the Gulf of Munnar as a Marine National Park. We have, therefore, no doubt that the Gulf of Munnar is an ecological sensitive area and the Central Government may in exercise of its powers under clause (v) of sub- section (1) of Rule 5 of the Environment (Protection) Rules, 1986 prohibit or restrict the location of industries and carrying on processes and operations to preserve the biological diversity of the Gulf of Munnar.
As and when the Central Government issues an order under Rule 5 of the Environment (Protection) Rules, 1986 prohibiting or restricting the location of industries within and around the Gulf of Munnar Marine National Park, then appropriate steps may have to be taken by all concerned for shifting the industry of the appellants from the SIPCOT Industrial Complex depending upon the content of the order or notification issued by the Central Government under Page http://www.judis.nic.in 763 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 the aforesaid Rule 5 of the Environment (Protection) Rules, 1986, subject to the legal challenge by the industries.
39.The next question with which we have to deal is whether the High Court could have directed the closure of the plant of the appellants on the ground that though originally the TNPCB stipulated a condition in the ‘No Objection Certificate’ that the appellant-company has to develop a green belt of 250 meters width around the battery limit of the plant, the appellants made representation to the TNPCB for reducing the width of the green belt and the TNPCB in its meeting held on 18.08.1994 relaxed this condition and required the appellants to develop the green belt with a minimum width of 25 meters.
39.1.We find on a reading of the No Objection Certificate issued by the TNPCB that various conditions have been imposed on the industry of the appellants to ensure that air pollution control measures are installed for the control of emission Page http://www.judis.nic.in 764 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 generated from the plant and that the emission from the plant satisfies the ambient area quality standards prescribed by the TNPCB and development of green belt contemplated under the environmental management plan around the battery limit of the industry of the appellants was an additional condition that was imposed by the TNPCB in the No Objection Certificate. If the TNPCB after considering the representation of the appellants has reduced the width of the green belt from a minimum of 250 meters to a minimum of 25 meters around the battery limit of the industry of the appellants and it is not shown that this power which has been exercised was vitiated by procedural breach or irrationality, the High Court in exercise of its powers of judicial review could not have interfered with the exercise of such power by the State Pollution Control Board.
39.2.The High Court in the impugned judgment has not recorded any finding that there has been any breach of the mandatory provisions of the Air Page http://www.judis.nic.in 765 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 Act or the Rules thereunder by the TNPCB by reducing the green belt to 25 meters. Nor has the High Court recorded any finding that by reducing the width of the green belt around the battery limit of the industry of the appellants from 250 meters to 25 meters, it will not be possible to mitigate the effects of fugitive emissions from the plant. The High Court has merely held that the TNPCB should not have taken such a generous attitude and should not have in a casual way dealt with the issue permitting the appellant-company to reduce the green belt particularly when there have been ugly repercussions in the area on account of the incidents which took place on 05.07.1997 onwards. It was for the TNPCB to take the decision in that behalf and considering that the appellant’s plant was within a pre-existing industrial estate, the appellant could not have been singled out to require such a huge green belt.
40.This takes us to the argument of Mr. Prakash that had the Ministry of Environment and Page http://www.judis.nic.in 766 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 Forests, Government of India, applied its mind fully before granting the environment clearance and had the TNPCB applied its mind fully to the consents under the Air Act and the Water Act and considered all possible environmental repercussions that the plant proposed to be set up by the appellants would have, the environmental problems now created by the plant of the appellants would have been prevented. As we have already held, it is for the administrative and statutory authorities empowered under the law to consider and grant environmental clearance and the consents to the appellants for setting up the plant and where no ground for interference with the decisions of the authorities on well recognized principles of judicial review is made out, the High Court could not interfere with the decisions of the authorities to grant the environmental clearance or the consents on the ground that had the authorities made a proper environmental assessment of the plant, the adverse environmental effects of the industry could have been prevented. If, Page http://www.judis.nic.in 767 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 however, after the environmental clearance under the Environment (Protection) Act, 1986, and the Rules and the notifications issued thereunder and after the consents granted under the Air Act and the Water Act, the industry continues to pollute the environment so as to effect the fundamental right to life under Article 21 of the Constitution, the High Court could still direct the closure of the industry by virtue of its powers under Article 21of the Constitution if it came to the conclusion that there were no other remedial measures to ensure that the industry maintains the standards of emission and effluent as laid down by law for safe environment (see M.C. Mehta v. Union of India and others [(1987) 4 SCC 463] in which this Court directed closure of tanneries polluting the waters of Ganga river).
41.We have, therefore, to examine whether there were materials before the High Court to show that the plant of the appellants did not maintain the standards of emission and effluent as laid down by the Page http://www.judis.nic.in 768 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 TNPCB and whether there were no remedial measures other than the closure of the industry of the appellants to protect the environment. We find on a reading of the impugned judgment of the High Court that it has relied on the report of NEERI of 2005 to hold that the plant site itself is severely polluted and the ground samples level of arsenic justified classifying the whole site of the plant of the appellant as hazardous waste.
42.We extract hereinbelow the relevant observations of NEERI in its report of 2005 relating to air, water and soil environment in the Executive Summary:
“Air Environment:
The emission factors of SO2 from sulphuric acid plant – I (SAP- I) and sulphuric acid plant – II (SAP-II) were 0.55 kg/MT of H2SO4 manufactured which is well within the TNPCB stipulated limit of 2kg/MT of H2SO4 manufactured.
The acid mist concentration of SAP-I was 85 mg/Nm3, which exceeds the TNPCB limit of 50 Page http://www.judis.nic.in 769 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 mg/Nm3. The acid mist concentration from SAP-II was 42 mg/Nm3, which is well within the TNPCB limit. In view of the exceedance of TNPCB limit for acid mist, it is recommended that the performance of acid mist eliminators may be intermittently checked. It is further recommended to install a tail gas treatment plant to take care of occasional upsets.
Out of the seven D.G. sets, one (6.3 MW) was monitored for particulate matter (PM) emissions. The level of PM was 115 mg/Nm3 (0.84 gm/kWh) which is within the TNPCB stipulated limit of 150 mg/Nm3 for thermal power plants of 200 MW and higher capacity (165 mg/Nm3) but higher than that stipulated for diesel engines / Gen sets up to 800 KW capacity (0.3 gm/kWh). Therefore TNPCB may decide whether the present PM emissions from the DG sets of 6.3 MW capacity is within the limit or otherwise.
The fugitive emissions were monitored at four sites to assess the status of air quality with respect of SO2, NO2 and SPM. The results of analysis at all Page http://www.judis.nic.in 770 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 fugitive emission monitoring sites indicate that the levels of gaseous pollutants SO2 and NO2, were below the respective NIOSH/OSHA standards for work place environment. The levels of SPM were also within the stipulated TNPCB standards for industrial areas.
Impact of stack and fugitive emissions on surrounding air quality was also assessed by monitoring SO2, NO2 and SPM levels at five monitoring locations. The levels of SPM, SO2 and NO2 at all the five sites were far below the TNPCB standards of 120 µg/Nm3 for SO2 as well as NO2 and 500 µg/Nm3 for SPM for industrial zone.
Water Environment:
Surface water samples were collected and analyzed for physico- chemical, nutrient demand parameters. The physico-chemical characteristics and nutrient demand parameters, i.e. with special reference to pH (7.9-8.0), TDS (120-160 mg/L), COD (11- 18 mg/L) and levels of heavy metals viz. Cd, Cr, Cu, Pb, Fe, Mn, Zn and As in surface water, were found within Page http://www.judis.nic.in 771 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 the prescribed limits of drinking water standards (IS: 10500-1995).
Total eight groundwater samples were collected (seven from hand pumps and one from dug well) to assess the groundwater quality in the study area. The analysis on physico-chemical characteristics of groundwater samples collected from various locations showed high mineral contents in terms of dissolved solids (395-3020mg/L), alkalinity (63-210 mg/L), total hardness (225-2434 mg/L), chloride (109- 950 mg/L), sulphate (29-1124 mg/L) and sodium (57-
677 mg/L) as compared to the drinking water standards (IS:10500-1995). Thus, it could be concluded that water in some of the wells investigated is unfit for drinking. The concentrations of nutrient demand parameters revealed that phosphate was in the range 0.1-0.3 mg/L while nitrate was in the range 1- 7.5 mg/L at all sampling locations which is within the limits stipulated under drinking water standards (IS:10500- 1995). Levels of Chromium, Copper and Page http://www.judis.nic.in 772 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 lead were found to be higher in comparison to the parameters stipulated under drinking water standards (IS:10500-1995), other heady metal concentrations, viz. iron, manganese, zinc and arsenic were found in the range 0.01-0.05 mg/L, ND-0.01 mg/L and ND-0.08 mg/L respectively which are within the drinking water standards (IS:10500-1995).
To assess the impact on groundwater quality due to secured and fill sites and other waste disposal facilities, five samples were collected from monitoring wells (shallow bore wells located around the waste disposal sites). The Physico-Chemical characteristics of well water around secured land fill site and gypsum pond showed mineral contents higher then the levels stipulated in IS: 10500-1995 in terms of dissolved solids (400- 3245 mg/L), alkalinity (57-137 mg/L), hardness (290-1280 mg/L), chloride (46-1390 mg/L), sulphate (177-649 mg/L) and sodium (9- 271 mg/L). The results of nutrient demand parameters showed phosphate in the range 0.1-0.5 mg/L while nitrate was Page http://www.judis.nic.in 773 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 in the range 0.8-11.7 mg/L at all sampling locations, which are within the levels stipulated in IS:10500- 1995, whereas level of arsenic was found in the range of ND-0.08 mg/L as against the stipulated limit of 0.05 mg/L under drinking water standards (IS:10500-
1995). Levels of cadmium, chromium, copper and lead were also found to exceed the drinking water standards in some of the wells.
The hourly composite wastewater samples were collected at six locations. During the sample collection, flow monitoring was also carried out at the inlet and final outlet of the effluent treatment plant (ETP). The concentrations of total dissolved solid (TDS) and sulphate exceed the limit stipulated by the TNPCB for treated effluent. All the other parameters are within the consent conditions prescribed by TNPCB. The treated effluent is being recycled back in the process to achieve zero discharge.
Soil Environment:
Page http://www.judis.nic.in 774 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 Soil samples were also analyzed for level of heavy metals. The soil samples at the plant site showed presence of As (132.5 to 163.0 mg/kg), Cu (8.6 to 163.5 mg/kg), Mn (283 to 521.0 mg/kg) and Fe (929.6 to 1764.6 mg/kg). Though there is no prescribed limit for heavy metal contents in soil, the occurrence of these heavy metals in the soil may be attributed to fugitive emission, solid waste dumps, etc.” It will be clear from the extracts from the Executive Summary of NEERI in its report of 2005, that while some of the emissions from the plant of the appellants were within the limits stipulated by the TNPCB, some of the emissions did not conform to the standards stipulated by TNPCB. It will also be clear from the extracts from the Executive Summary relating to water environment that the surface water samples were found to be within the prescribed limits of drinking water (IS:10500-1995) whereas ground water samples showed high mineral contents in terms of dissolved solids as compared to the drinking water standards, Page http://www.judis.nic.in 775 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 but concentrations of nutrient demand parameters revealed that the phosphate and nitrate contents were within the limits stipulated under drinking water standards and levels of chromium, copper and lead were found to be higher in comparison to the parameters stipulated under drinking water standards, whereas the heavy metal concentrations, namely, iron, manganese, zinc and arsenic were within the drinking water standards. Soil samples also revealed heavy metals. Regarding the solid waste out of slag in the plant site, the CPCB has taken a view in its communication dated 17.11.2003 to TNPCB that the slag is non- hazardous. Thus, the NEERI report of 2005 did show that the emission and effluent discharge affected the environment but the report read as whole does not warrant a conclusion that the plant of the appellants could not possibly take remedial steps to improve the environment and that the only remedy to protect the environment was to direct closure of the plant of the appellants.
Page http://www.judis.nic.in 776 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019