303.We have, in the earlier paragraphs, referred to the 2013 judgment of the Hon'ble Supreme Court and the observations, findings and liberty granted in various paragraphs and more particularly, in paragraph No.50. Considering the factual position which is involved in the present case, Section11 cannot be applied and the decision in Forward Construction Co., does not render assistance to the petitioner.
304.In Asgar, the Hon'ble Supreme Court held that in deciding as to whether a matter might have been urged in the earlier proceedings, the Court Page http://www.judis.nic.in 345 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 must ask itself as to whether it could have been urged. In deciding whether the matter ought to have been urged in the earlier proceedings, the Court will have due regard to the ambit of the earlier proceeding and the nexus which the matter bears to the nature of the controversy. In the said decision (paragraph
40), the Hon'ble Supreme Court referred to the Constitution Bench Judgment in Direct Recruit Class II Engg. Officers' Association vs. State of Maharashtra [(1990) 2 SCC 715] and the decision in Forward Construction Co., wherein it was pointed that an adjudication is conclusive and final not only as to the actual matter determined, but as to every other matter which the parties might and ought to have litigated and have had decided as incidental to or essentially connected with the subject matter of the litigation and every matter coming into legitimate purview of the original action both in respect of the matters of claim or defence. In the said case, the appeal arose before the Hon'ble Supreme Court against an order of the High Court dismissing a petition under Article 227 of the Constitution of India holding that the claim Page http://www.judis.nic.in 346 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 set up by the appellant before the Executing Court for the value of the improvements alleged to have been made by them on the land in dispute under the statute was barred by the principles of constructive res judicata. In our considered view, the decision did not deal with the public interest litigation. Secondly, the finding rendered was on examination of the factual position. Therefore, the decision cannot render support to the case of the petitioner.
305.In the case of All India Manufacturers Organization, the appeals, which were against the orders passed by the High Court in three public interest litigations, whereby the writ petitions which were filed to direct the State of Karnataka to continue to implement a certain project known as Bengaluru-Mysore Infrastructure Corridor Project, were dismissed. One of the appellants before the Hon'ble Supreme Court contended that the dispute between the State of Karnataka and Nandi is not barred by the principles of res judicata, constructive res judicata or estoppel arising from the judgment Page http://www.judis.nic.in 347 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 and proceedings in H.T.Somashekar Reddy vs. Government of Karnataka [(1999) 1 Karnataka Law Journal 224(DB)]. The Hon'ble Supreme Court discussed the doctrine of res judicata and pointed out that the doctrine is based on larger public interest and is founded on two grounds, one being that no one ought to be twice vexed for one and the same cause and second, public policy that there ought to be an end to the same litigation. After referring to various decisions including the decisions in Forward Construction Co., and Direct Recruit Class II Engg Association, on facts held that the prayer made the relief sought for in H.T.Somashekar Reddy's petition and the findings in H.T.Somashekar Reddy judgment and the claims and arguments in the appeals before the Hon'ble Supreme Court were substantially the same and therefore, the judgment in H.T.Somashekar Reddy operates as res judicata. The said decision is wholly distinguishable on facts.
306.As noted by us, the Hon'ble Supreme Court in the petitioners case primarily interfered with the order of the Division Bench directing Page http://www.judis.nic.in 348 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 closure on the ground that the Court transgressed the well recognized principles of judicial review under Article 226 of the Constitution of India. On facts, we found that the petitioner was not exonerated by the Hon'ble Supreme Court. This is precisely the reason as to why the Hon'ble Supreme Court granted liberty to the regulator, the TNPCB, to pass orders including an order of closure.
307.In Daryao, a bunch of writ petitions filed under Article 32 of the Constitution of India was placed for disposal. The opponents raised a preliminary objection against the maintainability of the writ petition on the ground that in each case, the petitioner had moved the High Court for a similar writ under Article 226 of the Constitution of India and the High Court rejected those petitions. The Hon'ble Supreme Court while answering the question as to whether the rule of res judicata to be merely a technical rule or is it based on high public policy, held that if the rule of res judicata itself embodies a Page http://www.judis.nic.in 349 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 principle of public policy which in turn is an essential part of the rule of law, then the objection with the rule cannot be invoked where fundamental rights are in question may lose much of its validity. It was further held that the rule of res judicata as indicated in Section 11 of CPC has no doubt some technical aspects, for instance, the rule of constructive res judicata may be said to be technical but the basis on which the said rule rests is founded on consideration of public policy. It was further held that it is in the interest of the public at large that a finality should attach to the binding decision pronounced by Courts of competent jurisdiction and it is also in public interest that individual should not be vexed twice over the same kind of litigation.
308.In our considered view, the decision may to a certain extent support the case of the respondents. The Hon'ble Supreme Court in the 2013 judgment found as a matter of fact that the petitioner had caused pollution and damage to environment has been done on account of their activities apart from Page http://www.judis.nic.in 350 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 operating the plant without obtaining an order of consent to operate. Nevertheless, the Hon'ble Supreme Court thought fit to grant liberty to the petitioner to remedy and therefore, permitted reopening of the plant subject to fulfilment of conditions. There was no complete exoneration of the petitioner of the damage caused. Therefore, the question of the petitioner being vexed twice would not arise. Therefore, the decision in the case of Daryao does not assist the case of the petitioner, equally so, the decision in Amalgamated Coal Fields Limited in which, the decision in the case of Daryao has been referred. Therefore, in our considered view, the decisions referred to by the learned Senior Counsel for the petitioner as referred supra are all factually distinguishable and the plea of constructive res judicata or res judicata would not apply to the facts and circumstances of the case on hand.
309.While on this issue, it is beneficial to refer to the decision of the Hon'ble Supreme Court in Rural Litigation and Entitlement Kendra. While Page http://www.judis.nic.in 351 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 considering the plea of res judicata and its applicability to the public interest litigation, the Hon'ble Supreme Court pointed out that every technicality in the procedural law is not available as a defence when a matter of great importance is for consideration before the Court. Even if it is said that there was a final order in a dispute of such type (public interest litigation), it will be difficult to entertain the plea of res judicata.
310.Therefore, the petitioner cannot seek to restrain the regulator or the State Government from exercising their powers on the technical ground that certain issues were raised in the earlier round of litigation and ultimately, the Hon'ble Supreme Court permitted reopening of the plant and therefore, all issues prior to 2013 are done and dusted. Such a plea can never be countenanced in the case before us.
311.The respondents had contended that the petitioner being a red category industry discharging hazardous substance can be located only in an Page http://www.judis.nic.in 352 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 area classified as 'special hazardous use zone'. It is interesting to note that neither the State nor the Pollution Control Board have taken a firm stand on th the point canvassed by the 9 respondent. This may be for various reasons, more particularly, because the petitioner is located in an industrial complex developed by a Government of Tamil Nadu undertaking. Be that as it may, the issue having been raised by the Court, it is necessary for the Court to take a decision on the said issue.
312.In the brief note on submissions filed by the learned Senior Counsel for the petitioner in paragraph B, they have dealt with misrepresentation of land area and land use classification. On a perusal of the response given by the petitioner to the contention raised by the respondents, we find the entire response deals only with the extent of land/land area and does not deal with the classification. During the course of argument, it was pointed out that the location of the industry was one of the contention raised Page http://www.judis.nic.in 353 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 by the Hon'ble Supreme Court stating that the industry is located within the prescribed distance of an ecologically sensitive location. While dealing with this issue, we noted that the Hon'ble Supreme Court did not reject the contention but observed that in the event a notification is issued by the Government, the petitioner would have to vacate. We had expressed our surprise as to why notification has not been issued by the State Government th and noted the inordinate delay. The point now canvassed before us by the 9 respondent is by contending that the petitioner being a red category industry cannot be located in a 'general industrial use zone' or an 'agricultural use zone' and permission can be granted only in an area classified as 'special industrial and hazardous use zone'. There appears to be no dispute on the said contention, as the Government in G.O.Ms.No.1730 dated 24.07.1974, while mentioning about the permitted usage of various zones, designated 'special industrial and hazardous use zone' for industries which are involved in handling, manufacturing and storage of toxic material. There is no challenge Page http://www.judis.nic.in 354 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 to the notification issued by the Government with regard to the zonation. Consequently, the petitioner cannot question its applicability. The resultant conclusion to be drawn is that the petitioner being a red category industry generating hazardous substances cannot be located in any other location except in 'special industrial and hazardous use zone'. If such is the factual position, the question to be considered is whether the industrial complex in which the petitioner industry is in existence could have permitted the petitioner industry of such magnitude producing toxic and hazardous substances. The answer to the question should be that the petitioner could not have been permitted to establish a red category industry in a 'general industrial use zone' or in an 'agriculture use zone'.
313.The next dispute which was raised by the learned Senior Counsel for the petitioner is with regard the existence or otherwise of a Master Plan for Thoothukudi classifying the usage. It is not in dispute that the Page http://www.judis.nic.in 355 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 petitioner is located in a village called Meelavittan. The Master Plan has been th produced by the 9 respondent which shows the land use schedule. In Meelavittan Village, none of the survey numbers have been classified as a 'special industrial and hazardous use zone' and the usage zones available in Meelavittan Village are Mixed Residential Use Zone, Commercial Use Zone, General Industrial Use Zone, Educational Use Zone, Agricultural Use Zone, Municipal Limits, Transportation and Coastal Regulation Zone. It is to be pointed out that the Survey Nos.1119 to 1125 of Meelavittan Village form part of the area allotted and used by the petitioner which falls in 'agricultural use zone'.
314.From the records placed, we find that in Meelavittan Village there is no special industrial and hazardous use zone or controlled industries use zone. Therefore, there is serious flaw in permitting the petitioner to be located in the area where they have presently established their plan. While discussing the issue regarding the total extent of land held by the petitioner, Page http://www.judis.nic.in 356 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 we have pointed out that the orders passed by the TNPCB, the classification of the land has been shown as 'general industrial use zone'. The petitioner while applying for renewal of their consent to operate, vide application dated 31.01.2018, they have mentioned the land use classification as 'institutional use zone'. However, in the Master Plan of Thoothukudi, in Meelavittan Village, there is no institutional use zone, there is no controlled industries use zone and there is no special industrial and hazardous use zone. The information furnished under the Right to Information Act dated 19.09.2018 along with the annexures shows that in Thoothukudi District only in two Villages lands have been earmarked as special industrial and hazardous zone, namely, Swaminatham and Palayakayal. Therefore, there is serious error in the location of the petitioner industry in the land in question.
th
315.The petitioner countered the submission of the 9 respondent by referring to certain response between SIPCOT and the DTCP stating that the entire area has been approved as industrial estate and the activity done by the Page http://www.judis.nic.in 357 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 petitioner is an industrial activity which is permissible at the given location. We have seen the Master Plan for Thoothukudi District as well as the information obtained under the Right to Information Act with regard to the land use zones in Meelavittan Village and we find that there is no special industrial and hazardous use zone in the said village. The lands which have been allotted to the petitioner partly fall in 'general industrial zone' and partly in 'agricultural use zone'. The question is whether there was reclassification of the classification as it originally stood and shown to remain as such even as on date. The change of classification is permissible but subject to the procedure under the provisions of the Tamil Nadu Town and Country Planning Act, 1971 (for brevity the “1971 Act”). A change in the Master Plan or a detailed development plan involves rigorous procedure and the persons in the locality are entitled to be heard before such reclassification is done. It is more a serious matter if an agricultural use zone is converted into an industrial use zone.
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316.It may not be necessary for us to go into the various statutory provisions in the 1971 Act and the procedure to be followed for reclassification. The respondent-State has not placed any document before us showing that the general industrial use zone lands have been reclassified as special industrial and hazardous use zone or for that matter, agricultural use zone has been converted as special industrial and hazardous use zone. However, the endeavour of the learned Senior Counsel of the petitioner is to convince this Court that the petitioner is located in a land which is properly classified. We test the correctness of the submission by considering the documents which have been placed by the petitioner [Volume 7 Page 3].
317.On 02.08.2002 the Project Officer, SIPCOT, Thoothukudi, has addressed his Superior Officer at Chennai stating that the petitioner has requested the land classification details and had forwarded the request to the Head Office. In the said letter, there is a mention about an earlier letter dated Page http://www.judis.nic.in 359 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 23.02.1987 where the SIPCOT has mentioned about the zonal classification and based on the said letter, DTCP, Tirunelveli accorded approval to the SIPCOT Industrial Complex vide order dated 24.04.1987. In the said communication dated 02.08.2002, there is no indication or reference regarding change of classification and only refers to approval of industrial complex layout. The Director of Town and Country Planning, Madras, addressed the Commissioner, Thoothukudi Panchayat vide letter dated 23.02.1987, by which the consent was granted for construction and commissioning of the petitioner in the land in SIPCOT industrial complex. The permission granted by the DTCP is of little avail qua zonal classification of the land in question. The SIPCOT by letter dated 16.08.2002, addressed the petitioner stating that their Project Officer has approved the layout, vide letter dated 23.02.1987 for allotment to major chemical industries. SIPCOT cannot change the classification of the land and the said communication cannot improve the situation in favour of the petitioner.
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318.The next document referred to by the learned Senior Counsel for the petitioner is a communication from the Member Secretary (Incharge), Local Planning Authority, Thoothukudi to the Commissioner, Town Planning, Chennai dated November, 2014. The said communication is pertaining to the application filed by the petitioner for putting up construction in the land allotted to them. Interestingly, there is a clear reference to the classification of the land as it stood on the date of allotment in favour of the petitioner. The classification of the land is 'general industrial' as per the revised approval plan in LP/DTCP.245/2001. The other details mentioned in the communication may not be relevant, as it pertains to the type of construction which the petitioner proposed to undertake. However, the said communication notes the fact that several objections have been received against the petitioner and they are all pending. Further, the communication mentions that an additional extent which has been allotted to the petitioner is from the general industrial use zone and controlled industrial use zone. In the details of Master Plan, Page http://www.judis.nic.in 361 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 Thoothukudi which was placed before us, we find that in Meelavittan Village there is no controlled industrial use zone. Even assuming that a portion of the general industrial use zone was converted as controlled industrial use zone, then it remains to be seen whether such conversion was legal. Even assuming the conversion was legal, it will not in any manner enure in favour of the petitioner since the petitioner can be located only in a special industrial and hazardous use zone and nowhere else. Therefore, the communication of the Member Secretary (Incharge), Local Planning Authority, Thoothukudi does not assist the petitioner rather does otherwise.
319.The petitioner relied upon a letter from the Chairman and Managing Director, SIPCOT to the Commissioner, Town and Country Planning dated 13.05.2014 informing about the obtaining of a layout approval initially in 1987 and subsequently in 2001 by way of revised approval and this includes the land allotted to the petitioner and other red category industries. Page http://www.judis.nic.in 362 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 The layout approval has nothing to do with the categorization of industries by the Pollution Control Board. It may be true that the land allotted to the petitioner forms part of an approved layout. However, that does not improve the situation because, unless and until the land is classified as special industrial and hazardous use zone, the petitioner cannot be located in the said land and SIPCTO by mentioning the word “Red Category Industry” cannot improve the case of the petitioner. Further, the authorities themselves would admit that the SIPCOT Industrial Complex is located in Meelavittan and Therkkuveerapandiyapuram Villages, where there is no piece of land classified as special industrial and hazardous use zone and most of the red category chemical industries are located in general industrial use zone. Therefore, it is clear that the petitioner could not have been permitted to locate their industry inside the Industrial Complex as it suffers from the zonal disqualification. During the course of argument, it was submitted that the issue pertaining to the zonation cannot be raised at this distance of time and 20 Page http://www.judis.nic.in 363 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 years is definitely a too long period and status quo prevailing cannot be dislodged on this ground assuming the respondent has made out a case.
320.To be noted, the first of the writ petitions filed before this Court as Public Interest Litigation, was much prior to the petitioner starting commercial production. These writ petitions of the year 1996 questioned the grant of environmental clearance. Therefore, the objection for location of the industry, which started in 1996, has not died down till date. In fact, the Hon'ble Supreme Court in the 2013 judgment appreciated the efforts of the public interest litigants and the NGOs with specific reference to the magnitude of the petitioner and that very few people would be able to maintain a challenge against industries of such magnitude. Therefore, if the location of the industry is hit by the zonation notification, there cannot be any via-media to the same. That apart, no attempt can be made by the State to now unsettle th things to suit any third party. Thus, the 9 respondent is perfectly justified in Page http://www.judis.nic.in 364 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 her stand with regard to the zonation and accordingly, we sustain the objection th raised by the 9 respondent with regard to the location of the petitioner industry. While we are in this issue, it would be relevant to refer to a few decisions which have dealt with the industries which were located in violation of the zoning restrictions as per the Master Plan.
321.In M.C.Mehta vs. UoI [(2004) 6 SCC 588], the Hon'ble Supreme Court dealt with industries which discharge highly toxic effluents and which did not affirm to the use zones. One of the questions which fell for consideration was, can the Government plead justification for violation of law and throw to winds the norms of environments, health and safety or is it possible to help the workers even without violating the law, if there is a genuine will to do so. It was held that regularization cannot be done if it results in violation of right of life enshrined under Article 21 of the Constitution. It was further held that the question will have to be considered Page http://www.judis.nic.in 365 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 not only from the angle of those who have set up industrial units in violation of the Master Plan, but also others who are residents and are using their premises as allowed by law. Further, it was held that the question cannot be examined only from the angle of the industry or even those who are employed there in the said industry. With regard to the importance of the Master Plan, it was held that the Master Plan is required to define the various zones into which Delhi may be divided for the purposes of development and indicate the manner in which the land in each zone is proposed to be used. The preparation of the zonal development plan provides for proposed land use and it also provides that no person shall use or permit to be used any land or building otherwise than in conformity with the plan in a zone. Further, it was pointed out that the relevant enactment, namely, the Delhi Development Act , 1957 provides for detailed procedure for modification of the Master Plan and the Zonal Development Plan and in terms of Section 14, there is a prohibition for use of land in contravention of the plan. The Court referred to the decision Page http://www.judis.nic.in 366 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 in the case of Virendra Gaur, wherein among other things a contention was raised that there has been change of user and two decades had passed. This argument was rejected and it was held that the self-destructive argument to put a premium on inaction cannot be accepted.
322.In the case of Hamer, before the European Court of Human Rights, the case originated by way of an application by a Dutch national with regard to a Holiday Home of the applicant inside a forest which was demolished by the domestic authorities. The interference of the applicant's possession was intended to control the use of the property in accordance with the general interest, since it involved bringing the property into conformity with the land-use plan establishing a forested zone in which no building was permitted. The debate, therefore, was on the proportionality of this interference. It was held that the financial imperatives and even certain fundamental rights such as ownership, should not be afforded priority over Page http://www.judis.nic.in 367 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 environmental protection considerations, in particular when the State has legislated in this regard. It was further held that the public authorities, therefore, assume a responsibility which should in practice result in their intervention at the appropriate time in order to ensure that the statutory provisions enacted with the purpose of protecting the environment are not entirely ineffective. In the said case, action was initiated after twenty seven years after the offence was established and the authorities allowed a further five years to elapse before instituting criminal proceedings. The Court noted that the authorities knew or should have known the existence of the applicant's house for a long time, however, failed to take appropriate action and thus, contributed to the continuation of a situation which could only be detrimental to the protection of the forested area which the legislation sought to protect. Ultimately ,the Court held that the applicant did not suffer any disproportionate interference with her property rights. Page http://www.judis.nic.in 368 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019
323.In the case of Bitou Local Municipality vs. Timber Two Processors CC & Ors., before the High Court of South Africa in Case No.9121/2007 dated 11.06.2008, the applicant sought for a declaratory order that operation of commercial sawmill on the farm was unlawful. One of the arguments by the respondent was that they were singled out by the applicant and did not apply the law equally and universally. The Court while rejecting the argument, held that the said submission not only amounts to an admission of their own illegal conduct, but also without merit.
324.In A.V.Papayya Sastry vs. Government of Andhra Pradesh [(2007) 4 SCC 211], the question was whether there was fraud played by the land owners in collusion with the Port Trust Officers and the land ceiling authorities. The Hon'ble Supreme Court held that it is well settled principle of law that if any judgment or order is obtained by fraud, it cannot be said to be a judgment or order in law, quoting Chief Justice Edward Coke, who Page http://www.judis.nic.in 369 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 proclaimed; “Fraud avoids all judicial acts, ecclesiastical or temporal”. It was further held that fraud may be defined as an act of deliberate deception with the design of securing some unfair or undeserved benefit by taking undue advantage of another. In fraud one gains at the loss of another. It was further held that fraud is thus an extrinsic collateral act which vitiates all judicial acts, whether in rem or in personam. The principle of 'finality of litigation' cannot be stretched to the extent of an absurdity that it can be utilized as an engine of oppression by dishonest and fraudulent litigants.
325.In our view, this decision would be of relevance with regard to the submission made by the petitioner with regard to the extent of land held by them, when they sought for environmental clearance for the expanded capacity. Had the MoEF been rightly informed by the petitioner about their land holding, in all probabilities, environmental clearance for the increased capacity would not have been granted. In fact, the report of the Committee, Page http://www.judis.nic.in 370 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 which inspected the petitioner's plant pursuant to the directions of the Hon'ble Supreme Court, noted the conduct of the petitioner and also the extent of land held by them and in no uncertain terms stated that it is not conducive to consider the petitioner's application for expansion. We have also found that the petitioner did not give a straight forward answer to the query raised by the MoEF with regard to the actual holding. Therefore, we can safely conclude that the act of the petitioner was deliberate as a result of which, they stood to gain and it needs to be construed as a deliberate deception and anything obtained out of it, should necessarily to be vitiated.
326.In our understanding of the judgment of the Hon’ble Supreme Court, the “conviction” of the petitioner has been affirmed and the “sentence” imposed on the petitioner, viz., closure was interfered and an opportunity was given to remedy the breach. Therefore, the respondents would be entitled to take note of the events which had occurred prior to the decision of the Hon’ble Page http://www.judis.nic.in 371 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 Supreme Court dated 02.04.2013 and the principles of res judicata cannot be made applicable in the instant case, equally so the theory of “washing off” cannot not be applied.
327. Next we move on to consider the issue regarding the power of TNPCB and Government to order closure/permanent sealing.
328.The TNPCB by order dated 09.04.2018, rejected the petitioner’s application for renewal of consent under the Water Act and Air Act. In the said order, the TNPCB pointed out that the petitioner has not complied with the following conditions, which were imposed when the consent was renewed on the previous occasion, they being
(i) Ground water analysis report taken from borewells within the unit premises as well as surrounding areas have not been furnished to ascertain the impact on ground water quality;
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(ii) The unit has not removed the copper slag dumped/stored along with river Uppar and patta land, thereby obstructing the flow. It has also not constructed any physical barrier between river Uppar and slag land fill area of patta land so as to prevent slag from reaching the river;
(iii) Authorization issued to the unit on 10.07.2008, got expired on 09.07.2013 but the unit continues to generate & dispose the hazardous waste without valid authorization under Hazardous and Other Waste (Management & Transboundary Movement) Rules, 2016. The application submitted by the unit was returned for want of additional details and the unit has not resubmitted the same;
(iv) As per renewal condition, the unit should have analysed the parameters of heavy metals such as Arsenic in the ambient air through Board's laboratory as done for the other parameters such as NOx, PM10 and SO2. As the Board Laboratory does not have this facility, the unit should have engaged the services of MoEF & CC/NABL accredited laboratories and furnished report to Board. The Page http://www.judis.nic.in 373 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 unit has not complied with the same and as such there is no authenticated reporting on the presence of Arsenic in the ambient air; and
(v) During the inspection on 22.02.2018, the unit has been directed to construct a gypsum pond as per CPCB guidelines. But the unit has not complied till 31.03.2018.
329.Consequential order dated 12.04.2018 was passed issuing directions under Section 33A of the Water Act and Section 31A of the Air Act to stop production operations. The petitioner was directed not to resume production without obtaining prior approval/renewal of consent from the Board. On 23.05.2018, the TNPCB issued direction for disconnection of power supply. On 28.05.2018, the Government by G.O.Ms.No.72, after referring to Article 48A of the Constitution of India, ordered that under Section 18(1)(b) of the Water Act, in the larger public interest, the Government endorsed the closure direction of TNPCB and also directed the TNPCB to seal the unit and close the plant permanently. Consequent upon the Page http://www.judis.nic.in 374 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 Government Order in G.O.Ms.No.72, TNPCB issued directions by order dated 28.05.2018 to seal the premises of the petitioner’s unit with immediate effect. These orders are impugned in W.P.Nos.5772, 5756, 5801, 5708, 5792 and 5793 of 2019 respectively.
330.The petitioner’s contention is that the direction for closure and permanent sealing of the petitioner’s unit under Section 18(1)(b) of the Water Act read with Article 48A of the Constitution is beyond the 'powers and functions' of TNPCB as enumerated in Section 17 of the Act. By referring to the preamble of the Water Act, emphasis is laid to the words “powers and functions” appearing therein, the statement of objects and reasons, which refer to establishment of unitary agency in the Centre and State to provide for prevention, abatement and control of pollution and referring to the preamble to the Amendment Act 53 of 1988, it is submitted that Section 17 falls within Chapter-IV of the Water Act dealing with “powers and functions of Board”; Page http://www.judis.nic.in 375 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 whereas Section 33A falls within Chapter-V dealing with “prevention and control of water pollution”, because, Chapter-IV refers to “powers of the Board” owing to the fact that Section 18 deals with “powers of the Central Board” to give direction, which also falls within Chapter-IV.
331.It is further submitted that Sections 24 to 27 and 32 of the Water Act deal with prohibitions, restrictions and obligations of the operator/occupier to comply with conditions. However, a perusal of Section 17 would reveal that these are activities that the Water Act mandates on a State Board to comply with and therefore, in the nature of functions of the Board. Further, it is submitted that TNPCB has not specifically stated under which sub-Section of Section 17(1)(l) of the Water Act, could an order be passed under Section 33A. Thus, an order under Section 17(1)(l)(i) of the Water Act is in the nature of an order in rem such as orders passed in the other provision of the Section and when the legislature intended an order under this Page http://www.judis.nic.in 376 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 Section to be in personam, that is specific to an industry, it has specifically indicated the same in the exception under clause (ii) of Section 17(1)(l). Further, Section 17(1)(l) of the Water Act cannot be deemed to encompass the Board’s power to prohibit an industry. Further, to assert the submission that the function exercised under Section 17(1)(l)(i) is a function in rem, Section 16(1)(c) was referred to whereunder, the Central Board is required to provide technical assistance and guidance to State Board. Further, Section 18(1)(b) of the Water Act was also referred to, to state that the Central Board is equally empowered as the State Board to pass order under the said provision. Further, it is contended that under Section 33A, an order passed by a State Board is made subject only to direction, if any, issued by Central Government and not the State Government. In this regard, reference was made to Section 5 of the EP Act whereunder, the Central Government has been vested with the very same powers as are contained in Section 33A of the Water Act; the Water Act was amended in 1988 and Section 33A was inserted vesting similar power on Page http://www.judis.nic.in 377 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 a State Board only. Therefore, recognising the similar power granted to the Central Government under the EP Act, Section 33A states direction issued by the State Board subject to the direction, if any, of the Central Government and this is why the said Section contains a non obstante clause.
332.It is further contended that the fact that the State Government is not included in Section 33A is owing to the fact that under Section 23 of the EP Act, the Central Government has been granted power to delegate its function to the State Government, which has been done in the year 1988. Therefore, the State Government does not enjoy the power to issue direction under Section 33A of the Water Act, the very same powers have been delegated to the State Government under Section 23 read with Section 5 of the EP Act. Therefore, it is submitted that the State Government can also issue direction of closure, but the same would be in exercise of power under the EP Act and such power can be exercised after issuing due notice to the industry, Page http://www.judis.nic.in 378 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 which may be waived for reasons to be recorded in writing. Therefore, a direction issued by the State Government under Section 18(1)(b) of the Water Act cannot include a direction under Section 33A.
333.The contention of the State is that the functions of the Board have been distributed among various provisions of the Act and therefore, the contention raised by the petitioner is wholly unsustainable.
334.To have a clear picture of the object and intent of the Water Act, we need to consider the entire Act as a whole and examine as to whether the contentions raised by the petitioner are sustainable. The Water Act was enacted in the year 1974 and came into effect on 23.03.1974. The first amendment to the Act was during 1978 by Amendment Act 44 of 1978. The statement of objects and reasons of Amendment Act 44 of 1978 states that in the process of implementation of the 1974 Act, certain drawbacks have come Page http://www.judis.nic.in 379 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 to the notice of the Government and consequently it has become necessary to make certain amendment in the Act. Paragraphs 3 and 4 of the statement of objects and reasons would be relevant. In paragraph 3, it has been stated that certain States are finding it difficult to provide full time Chairman for the State Board and therefore, it proposes to amend the Act for appointment of a Chairman of the State Board either on full time or on part time depending on specific situation. Paragraph 4 of the statement of objects and reasons states that there should be an integrated approach for tackling the water and air pollution problem and therefore, proposed that the existing Board for the prevention and control of water pollution should authorize to perform functions relating to the prevention, control and abatement of air pollution. The amendment proposed and brought about by Act 44 of 1978 would clearly demonstrate that the State envisaged a plan to give requisite effect for effective implementation of prevention and control of water pollution. The next amendment was in the year 1988 by Amendment Act 53 of 1988, the Bill Page http://www.judis.nic.in 380 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 inter alia seeks to make the following amendments to the Act, viz.,
(i) the Central Board and State Board for the Prevention and Control of Water Pollution are proposed to be renamed as “Central State Pollution Control Board” as these Boards deal with both water and air pollution control;
(ii) the Central Board is proposed to be empowered to exercise the powers and perform the functions of the State Board in specific situations, particularly when a State Board fails to act and comply with the directions issued by the Central Board. It is also proposed to recover the cost of the exercise of such powers and the performance of such functions by the Central Board from the person or persons concerned, if the State Board is empowered to recover such costs under the provisions of the Act, as arrears of land revenue or of public demand;
(iii) it is proposed to make it obligatory on the part of a person to obtain the consent of the relevant Board for establishing or taking any steps to establish any industry, operation or process which is likely to cause pollution of water and also to empower the Boards to limit Page http://www.judis.nic.in 381 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 their consents for suitable periods so as to enable them to monitor observance of the prescribed conditions;
(iv) in order to effectively prevent water pollution, the penal provisions of the Act are proposed to be made stricter and bring them at par with the punishments prescribed in the Air (Prevention and Control of Pollution) Act, 1981 as amended by Act 47 of 1987;
(v) in order to elicit public co-operation, it is proposed that any person should be able to complain to the Courts regarding violations of the provisions of the Act after giving a notice of sixty days to the concerned Board or the officer authorised in this behalf;
(vi) it is proposed to empower the Boards to give directions to any person, officer or authority including the power to direct closure or regulation of offending industry, operation or process or stoppage or regulation of supply of services such as water and electricity;
(vii) for increasing the financial resources of the Boards, it is proposed to empower them to raise monies by means of loans and debentures.
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335.In the statement of objects and reasons, apart from other things, it has been mentioned that over the past few years (prior to 1988), the implementing agency (like TNPCB), have experienced administrative and practical difficulties in effectively implementing the provisions of the Water Act. The ways and means to remove the difficulties were thoroughly examined in consultation with the implementing agency. On taking into account the views expressed, it was proposed to amend certain provisions of the Act in order to remove such difficulties. Paragraph 3(iii) of the statement objects and reasons states that the amendment in the Act is proposed to make it obligatory on the part of the person to obtain the consent of the relevant Board for establishing or taking any steps to establish any industry, operation or process, which is likely to cause pollution of water and also to empower the Boards to limit their consents for suitable period so as to enable them to monitor observance of the prescribed condition. Paragraph 3(vi) states that the amendment is proposed to empower the Board to give directions to any Page http://www.judis.nic.in 383 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 person, officer or authority including the power to direct closure or regulation of the offending industry, operation or process or stoppage or regulation of supply of services, such as water and electricity. Thus, the Amendment Act 53 of 1988 was brought about on account of practical difficulties faced by the implementing agency, one among which is the TNPCB.
336.Bearing in mind the purpose of the amendment, we shall now proceed to examine the other provisions of the Act, which are as follows:-
“(i) Section 2(a) defines “Board” to mean the Central Board or a State Board;
(ii) Section 2(c) defines “member” to mean a member of a Board and includes a Chairman thereof;
(iii) Section 2(e) defines “pollution” to mean such contamination of water or such alteration of the physical, chemical or biological properties of water or such discharge of any sewage or trade effluent or of any other liquid, Page http://www.judis.nic.in 384 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 gaseous or solid substance into water, whether directly or indirectly, as may, or is likely to create a nuisance or render such water removal harmful or injurious to public health or safety or to domestic, commercial, industrial, agricultural or other legitimate uses, or to the life and health of animals or plants or of aquatic organisms;
(iv) Section 2(h) defines “State Board” to mean a State Pollution Control Board constituted under Section 4 of the Act; Section 2(j) defines “stream” to include river, water course, whether flowing or for the time being dry, inland water, whether natural or artificial, and sub-terranean waters, sea or tidal waters; and
(v) Section 2(k) defines “trade effluent” to include any liquid, gaseous or solid substance, which is discharged from any premises used for carrying on any industry, operation or process or treatment and disposal system, other than domestic sewage.” Page http://www.judis.nic.in 385 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019
337.(i) Chapter-II deals with “Central and State Boards” and it has 11 Sections viz., Sections 3 to 12 (including Section 11A);
(ii) Chapter-III deals with “Joint Boards” consisting of Sections 13 to 15;
(iii) Chapter-IV deals with “Powers and Functions of Boards” consisting of three Sections, viz., 16 to 18;
(iv) Chapter-V deals with “Prevention and Control of Water Pollution” consisting of Sections 19 to 33A;
(v) Chapter-VI deals with “Funds, Accounts and Audit”; Chapter- VII deals with “Penalties and Procedure”; and
(vi) Chapter-VIII deals with “Miscellaneous” - provisions such as Central Water Laboratory, State Water Laboratory, Analysts, Reports of Analysts, etc. Page http://www.judis.nic.in 386 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019
338.For the purpose of these writ petitions, it may not be necessary for us to deal with Chapters-II and III and we may straight away proceed to refer to Chapters-IV, V and VII. As mentioned, Chapter-IV deals with “Powers and Functions of Boards”. Section 16 deals with “Functions of the Central Board”. Section 17 deals with “Functions of the State Board”. Section 17(1) commences by stating that “subject to the provisions of the Act, the functions of a State Board shall” be as mentioned in sub-Clauses (a) to (o). Sub-Clause (l) of Section 17(1) would be relevant and the same is quoted hereunder: -
“Section 17(1)(l): - to make, vary or revoke any order –
(i) for the prevention, control or abatement of discharges of waste into streams or wells;
(ii) requiring any person concerned to construct new systems for the disposal of sewage and trade effluents or to modify, alter or extend any such existing system or to adopt such remedial measures as are necessary to prevent, control or abate water pollution.” Page http://www.judis.nic.in 387 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019
339.Thus, in terms of Section 17(1)(l), subject to the provisions of Water Act, the TNPCB is entitled to make, vary or revoke any order and such making or varying or revoking any order would be for the prevention, control or abatement or discharge of waste into streams or wells or to require any person to construct new systems for disposal of sewage and trade effluent or to modify, alter or extend any such existing system or to adopt such remedial measures as are necessary to prevent, control or abate water pollution.
340.The argument of the petitioner is that power exercised under Section 33A would not fall within Section 17(1)(l), because Section 17(1)(l)(i) is a power to pass a general order and sub-clause (ii) deals with contingencies pertaining to specific industries; the State having not spelt out clearly under which sub-Section of Section 17(1)(l) of the Water Act, an order under Section 33A would lie, the order is without jurisdiction. Page http://www.judis.nic.in 388 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019
341.Section 18 deals with “power to give directions”. Sub-Section (1) of Section 18 states that in the performance of its function under the Act, the Central Board shall be bound by such directions in writing, as the Central Government may give to it and every State Board shall be bound by such directions in writing, as the Central Government or the State Government may give to it. Proviso states that where a direction given by the State Government is inconsistent with the direction given by the Central Government, the matter shall be referred to the Central Government for its decision. However, such contingency does not arise in the case on hand.
342.Section 33A deals with “Power to give Directions” and the said provision starts with a non-obstante clause stating that notwithstanding anything contained in any other law, but subject to the provisions of the Water Act, and to any directions that the Central Government may give in this behalf, a Board may, in exercise of its powers and performance of its functions under Page http://www.judis.nic.in 389 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 the Water Act, issue any directions in writing to any person, officer or authority and such person, officer or authority shall be bound to comply with such directions. It is not disputed that the Central Government has delegated its power, therefore, the argument that only the Central Board can give directions under Section 33A, which would be binding, and not the State Government is an argument, which is not tenable.
343.As mentioned earlier, Amendment Act 53 of 1988 was brought about because there were practical difficulties in effective implementation of the provisions of the Act. The Amending Act made it obligatory on the person to obtain consent of the Board for establishing or taking steps to establish a polluting industry. The Amending Act also empowered the Board to limit an order of consent for suitable period. The Amending Act also proposed to empower the Board to give directions to any person including the power to direct closure of an offending industry. Thus, if the argument on behalf of the Page http://www.judis.nic.in 390 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 petitioner that Chapter-IV should be construed as a water tight compartment and the other provisions of the Act via., Sections 25, 27 and 33A cannot be looked into, is to be accepted, it would render the provisions of the Act redundant. At this juncture, it is to be seen as to what is the duty of the Court. The duty is to get the real intension and purpose of the legislature and what it seeks to achieve. It has to construe the statute as a whole, more particularly in Environment Laws. What is to be seen is the general object which the enactment seeks to secure. Therefore, Court has to necessarily examine the scope of the statute. The cardinal principle of statutory construction is to save and not to destroy.
344.To be noted that the petitioner had no fundamental right to establish a polluting industry, but for the order of consent granted under the provisions of the Act, the petitioner could not have established or commenced production of its industry. Under Section 24, there is a prohibition from Page http://www.judis.nic.in 391 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 establishing a polluting industry, this prohibition is modified by grant of orders of consent, which are subject to conditions. The conditions are sacrosanct, non-negotiable . A consent order issued by the Board is not a licence to pollute, it is incumbent upon the grantee to comply with the conditions in the consent order individually as well as collectively.
345.Bearing in mind the object of the enactment more particularly, the object of Amendment Act 53 of 1988, if one reads Sections 17(1) and 17(1)(l), it is abundantly clear that the State Board, viz., TNPCB, may vary or revoke any order, “any” order would include an order of consent, because it is an order passed under Section 25 of the Act falling under Chapter-V. Further, the position is clear, if one reads Section 41 of the Act, which falls in Chapter- VII dealing with “Penalties and Procedure”. Sub-Section (1) of Section 41 deals contingencies where there is failure to comply with directions under Sections 20(2) or 20(3) or an order issued under Section 32(1)(c) or a direction Page http://www.judis.nic.in 392 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 issued under Section 33(2) or Section 33A. Likewise, Section 44 which deals with “penalty for contravention of Section 25 or Section 26” states that whoever contravenes the provisions of Section 25 or Section 26 shall be punishable with imprisonment for a term which shall not be less than one year and six months, but which may extend to six years and with fine. Thus, on a conjoint and plain reading of the various provisions of the Water Act, as mentioned above, it is clear that the TNPCB may make, vary or revoke any order for prevention, control or abatement of discharges of waste into streams or wells. Section 2(j) defines “stream” to include river, water course, inland water, sub-terranean waters, sea or tidal waters, and the same being an inclusive definition, should be given the widest meaning.
346.The argument of the petitioner that sub-Clause (i) of Section 17(1)(l) deals with situation in rem and sub-Clause (ii) of Section 17(1)(l) deals with situation in personam is an artificial distinction, which is sought to Page http://www.judis.nic.in 393 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 be drawn and if accepted, would make the provision unworkable. Sub-Clause
(i) and sub-Clause (ii) of Section 17(1)(l) cannot be read in disjunction because, Section 17(1)(l) states that subject to the provisions of the Act, the Board may make, vary or revoke any order. Any order would mean an order of consent or a direction issued under Section 33A etc. The argument that sub-Clause (i) of Section 17(1)(l) speaks of only discharges of waste into streams or wells cannot be given a restrictive meaning, as stream has been defined in the widest possible term under the Water Act.
347.The objects of the Water Act are to empower the Board to give directions to any person, officer or authority including the power to direct closure or regulation of offending industry, operation or process or stoppage or regulation of supply of services such as, water and electricity. Therefore, the contention raised by the petitioner that the order is without jurisdiction is not tenable. Yet another argument was that under Section 18(1)(b), a direction is Page http://www.judis.nic.in 394 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 issued by the State to the TNPCB and not to the petitioner industry, which would imply that such a direction cannot be in personam.
348.A reading of the impugned Government Order in G.O.Ms.No.72 shows that the Government under Section 18(1)(b) of the Water Act, in the larger public interest, endorsed the closure direction of the TNPCB and also directed the TNPCB to seal the unit and close the plant permanently. There are three facets to the impugned Government Order. The first of which being, it is in exercise of power under Section 18(1)(b) by which, the State Government is empowered to issue directions to the State Board, which shall be bound by the direction. The second facet is that the Government thought fit to invoke such power under Section 18(1)(b) in larger public interest and precisely for such reason, in paragraph 2 of the impugned Government Order, Article 48A of the Constitution was referred to where under, the State shall endeavour to protect and improve the environment. The third facet has two Page http://www.judis.nic.in 395 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 limbs to it. The first of which being, a direction endorsing the closure direction of TNPCB. The second is a direction of the State Government to the TNPCB to seal the unit and close the plant permanently. Therefore, to state that the power under Section 18(1)(b) can be invoked only to issue direction in rem and not in personam is an argument, which does not merit acceptance.
349.Another submission made on behalf of the petitioner is that before such direction is issued, notice should have been issued to the petitioner. The petitioner applied for renewal of consent to operate the copper smelter plant. An inspection was conducted and report was submitted by the Joint Chief Environmental Engineer, Tirunelveli, dated 27.02.2018, who had noticed that the petitioner had defaulted in compliance of certain earlier directions. Therefore, the Board rejected the application for renewal of consent.
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350.The learned Senior Counsel appearing for the petitioner prefaced his submissions by contending that the order rejecting the application for renewal of consent was without notice to the petitioner and is in violation of the principles of natural justice, however, added a caveat by stating that without giving up such plea, the petitioner requests the Court to adjudicate the correctness of the impugned order on merits. Thus, the petitioner seeks for an adjudication on merits, hence it may not be necessary for us to elaborate on whether the order suffers from violation of principles of natural justice and whether the petitioner was entitled to a notice and opportunity before the impugned orders were passed etc.
351.The other argument was that an order under Section 18(1)(b) is not an appealable order and therefore, it is clear that such direction can be only in rem. This argument is also not tenable for the reason that the direction issued by the State Government is to the TNPCB endorsing the order of Page http://www.judis.nic.in 397 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 closure passed by TNPCB, which is a direction, which can be issued by the TNPCB in exercise of power under Section 33A. After the Government Order in G.O.Ms.No.72 was passed, TNPCB has passed an order under Sections 33A and 31A of the Water Act/Air Act dated 28.05.2018, which order is an appealable order. Therefore, the argument that direction can be issued under Section 18(1)(b) only in rem and not in personam is not tenable. That apart, the petitioner has been visited with earlier orders of closure and none of those orders were put to challenge by the petitioner on the ground now canvassed before us stating that the Board does not have power to issue such a direction under Section 17(1)(l), though it may fully not be right to say that the petitioner is estopped from raising such contentions, nevertheless the Court can take note of the conduct of the petitioner that the petitioner was aware of the legal position and precisely for such reason, such contention was not raised at any earlier point of time, when closure orders were passed. Thus, for the above reasons, it is held that the impugned Government Order does not suffer Page http://www.judis.nic.in 398 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 from the vice of lack of jurisdiction and the Board as well as the Government are entitled to exercise their power under Sections 17(1)(l) and 18(1)(B) read with Section 33A. Accordingly, the issues are answered against the petitioner.
352.As noticed above, Section 17 deals with 'functions of State Board'. Sub-Clause (f) of Section 17(1) states that subject to the provisions of the Water Act, a State Board shall inspect sewage or trade effluents, works and plants for the treatment of sewage and trade effluents and to review plans, specifications or other data relating to plants setup for the treatment of water, works for the purification thereof and the system for the disposal of sewage or trade effluents or in connection with the grant of any consent as required under the Act. Section 2(k) defines “trade effluent” to include any liquid, gaseous or solid substance which is discharged from any premises used for carrying on any industry, operation or process, or treatment and disposal system, other than domestic sewage. The definition being an inclusive definition has to be given wide connotation. Taking note of the definition of trade effluent, a Page http://www.judis.nic.in 399 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 careful reading of Section 17(1)(f) would show that it confers power on the Board to cause inspection not only the trade effluents, works and plants for treatment of sewage for its efficiency but also in connection with the grant of any consent as required under the Act. Thus, reading of Sections 17(1)(f) and
(l) would clearly indicate that the TNPCB has got power to cause inspection in connection with the grant of consent and may vary or revoke any order or consent which can be a consent to establish or a consent to operate. Further, Section 24 of the Water Act would also be a relevant provision. The said provision deals with prohibition on use of stream or well for disposal of polluting matter, etc. Section 24(1) states that subject to the provisions of the said Section, no person shall knowingly cause or permit any pollution. The mandate of the statute as rightly submitted by the learned Senior Counsel for the TNPCB, is a command, a duty cast upon the industry or the person. Therefore, the petitioner cannot wriggle out of the rigour of the statute. This aspect is amplified, if Section 25 is taken note of. Section 25 deals with Page http://www.judis.nic.in 400 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 restrictions on new outlets and new discharges. Sub-section (1) of Section 25 states that subject to the provisions of the said section, no person shall, without the previous consent of the State Board, establish or take any steps to establish any industry, operation or process, etc. Therefore, the petitioner cannot claim that they have a right to establish a polluting industry. There is no such right conferred on the petitioner, much less a fundamental right. Sub-section (4) of Section 25 deals with the power of the State Board with regard to the power to impose conditions while granting consent under Section 25(1) which states that the State Board may grant its consent, subject to such condition as it may impose and the rigour of the said provision is further amplified, if we peruse sub-Clauses (i) to (iii) in Section 25(4)(a). In terms of Section 25(4)(b), the State Board is entitled to refuse consent for reasons to be recorded in writing. The condition that may be imposed would vary depending upon the type of activity done by the concerned industry. The said conditions are binding on the industry.
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353.Section 27 of the Act deals with “refusal or withdrawal of consent by State Board”. Sub-section (1) of Section 27 states that a State Board shall not grant its consent under Section 25(4) for the establishment of any industry, operation or process, etc., unless the industry so established complies with the conditions imposed by the Board to enable it to exercise its right to take samples of the effluent. Sub-Section (2) of Section 27 gives power to the State Board to review from time to time any condition imposed under Section 25 or Section 26 and shall be subject to any variation made under sub-section (2) of Section 27 and shall continue in force until revoked under that sub-section. Section 33A commences with a non-obstante clause giving powers to the Board to issue directions to any person subject to the provisions of the Act and any direction that the Central Government may give in this behalf. The position becomes much clearer if read along with the statement of objects and reasons, more particularly, paragraph 4 which states Page http://www.judis.nic.in 402 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 about the need for integrated approach for tackling environmental problem relating to pollution, the object for establishing a Central Board.
354.The Air Act, which came into force on 29.03.1981, was amended by Amendment Act 47 of 1981 and from the statement of objects and reasons, more particularly, paragraph 3(v) which states that a bill seeks to make the amendment in order to elicit public cooperation, it was proposed that any person should be able to complain to the Court regarding violation of the provisions of the Act after giving a notice for 60 days to the Board or officer authorized in this behalf. As contained in the Amendment Act 58 of 1988 of the Water Act, in Amendment Act 47 of 1981 of the Air Act, paragraph 3(vii) proposes to empower the Board to give direction to any person, officer or authority including the power to direct closure or regulation of offending establishment or stoppage or regulation of supply of services such as water and electricity. Some of the important provisions of the Air Act are, Section Page http://www.judis.nic.in 403 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 2(a) which defines ‘air pollutant’ to mean any solid, liquid or gaseous substance including noise present in the atmosphere in such concentration as may be or tend to be injurious to human beings or other living creatures or plants or property or environment; Section 2(b) defines ‘air pollution’ to mean the presence in the atmosphere of any air pollutant; Section 2(h) defines ‘chimney’ to include any structure with an opening or outlet from or through which any air pollutant may be emitted; Section 2(i) defines ‘control equipment’ to mean any apparatus, device, equipment or system to control the quality and manner of emission of any air pollutant; Section 2(j) defines ‘emission’ to mean to any solid or liquid or gaseous substance coming out of any chimney, duct or flue or any other outlet. Chapter-III of the Air Act deals with the “powers and functions of Boards”. Section 16 falling under Chapter- III deals with 'functions of Central Board' and Section 17 deals with 'functions of State Boards'; Sub-section (1) of Section 17 states that subject to the provisions of the Air Act and without prejudice to the performance of its Page http://www.judis.nic.in 404 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 functions under the Water Act, the State Board shall carry out the functions enumerated in sub-Clauses (a) to (j) under Section 17(1); Sub-Clause (e) provides power to inspect, at all reasonable times, any control equipment and by order issue directions to take steps for prevention, control or abatement of air pollution; sub-Clause (f) to inspect air pollution control areas, assess the quality of air and take steps for prevention, control or abatement of air pollution; Section 18 which also falls in Chapter-III deals with 'power to give direction; which is pari materia to Section 18 of the Water Act. Section 21, which falls in Chapter-IV, deals with 'restrictions on use of certain industrial plants', which provision is in pari materia with Section 25 of the Water Act. The provision clearly shows that without the previous consent of the State Board, no person can establish or operate any industrial plant in an air pollution control area, the entire State of Tamilnadu; Sub-section (5) of Section 21 enumerates the conditions which are to be complied with by every person to whom consent has been granted by the State Board and one such Page http://www.judis.nic.in 405 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 condition being the specification of the chimney as mentioned in Section 21(5)(iv); Section 22 of the Air Act states that no person operating any industrial plant, in any air pollution control area shall discharge any air pollutant in excess of the standards laid down by the State Board under clause
(g) of Section 17(1) of the Air Act; Section 31A gives the power to give direction, which is in pari materia to Section 33A of the Water Act. In the light of the above discussion, it is held that the impugned orders do not suffer from any lack of jurisdiction.
355. The next enactment which we need to take note is the ‘EP Act’ which is an Act to provide for protection and improvement of environment and for matters connected therewith.
Section 2(a) defines ‘environment’ and it is an inclusive definition, includes water, air land etc. Clause (b) of Section 2 defines ‘environmental pollutant’ to mean any solid or gaseous substance present in such concentration which is injurious to environment; Page http://www.judis.nic.in 406 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 Section 2(d) defines ‘handling’, in relation to any substance to mean the manufacture, processing or treatment, etc;
Section 2(e) defines ‘ hazardous substance’ to mean any substance or preparation which by reason of its chemical or physic-chemical properties or handling is liable to cause harm to human beings, other living creatures, plants, micro-organism, property or the environment. Hazardous substance as defined under the EP Act has been given the widest meaning. The question, thus, would be whether it could be given a restrictive meaning as argued by the petitioner with regard to copper slag and gypsum, which we shall deal with in the later part of this order.
356. While we look at the provisions of the National Green Tribunal Act, 2010 [NGT Act] in particular, Section 20 of the said Act where under the principles which are to be applied by the Tribunal have been set out. Section 20 states that the Tribunal while passing any order or decision or award, apply Page http://www.judis.nic.in 407 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 the principles of sustainable development, the precautionary principle and the polluter pays principle. It is the submission of the learned Senior Counsel for TNPCB that the three principles set out under Section 20 of the NGT Act will equally apply to a proceedings under Article 226 of the Constitution of India.
357. In our considered view, the learned senior counsel is right in his submission for more than one reason. Firstly, these principles have been evolved by various decisions of the Hon’ble Supreme Court which had come to stay much prior to being made as part of the 2010 statute. Constitutional Courts exercising power under Article 226 have applied these three principles while deciding environmental issues. Therefore, we are required to apply these principles to the cases on hand. The second reason as to why these principles have to be applied is on account of the directions issues by the Hon’ble Supreme Court to decide the correctness of the order rejecting the application for grant of consent, ordering closure by the TNPCB exercising Page http://www.judis.nic.in 408 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 power as an appellate authority. Therefore, we shall in the later part of this order consider the applicability of these three principles.
358.The learned senior counsel appearing for the petitioner contended that to exercise power under Section 33A or Section 31A, there has to be pollution and in other words, the factum of pollution is absolutely necessary, the power under Section 33A is a power to be exercised when there is urgency, when situation arises suddenly, the act of pollution continues and following the normal course of action will delay matter and only to tide over such contingency, the power of the Chairman can be exercised and not otherwise.
359.TNPCB refers to the resolution in PB.Ms.No.9 dated 11.03.1994 by which power to issue direction had been delegated to the Chairman of the Board. It is submitted that none of the conditions/factors warranting exercise of such power has arisen in the case of hand for issuing Page http://www.judis.nic.in 409 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 the impugned direction. It is submitted that the refusing to renew the consent to operate is not final since upon compliance of the condition imposed, the consent can be renewed. It was further submitted that an inspection was said to have been conducted on 18.05.2018 and 19.05.2018, whereas there is nothing on record to show such inspection and assuming that there was such inspections, the alleged inspection report dated 23.05.2018 does not render any finding warranting direction under Section 33A/Section 31A. Further, there was no allegation that the petitioner had commenced production. The Taxi receipts which were relied on by the respondent to prove the inspection cannot be a valid document, the Taxi receipts would falsify the stand taken by the first respondent Board in the counter affidavit. That the respondent Board admits that the petitioner was allowed to retain access to the plant and cannot complaint about people going inside and coming outside the factory and this appears to be the only justification to allege that the petitioner resumed production.
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360.Thus, what is required to be considered is the effect of the resolution of the Board dated 11.03.1994 and whether the petitioner is right in contending that the Chairman of the Board can exercise his delegated powers only under emergent situation and not otherwise. On a careful reading of the resolution/order dated 11.03.1994, we find there is reference to the frequency during which the full Board meets and regarding the need to issue directions under Section 33A/Section 31A when urgency arises etc. Further, the resolution also mentions about cases of polluting industries contravening the provisions of the Water or Air Act and liable for closure and action getting delayed and till such time, the offence continues. The Board took note of the power under Section 12(3-B) of the Water Act which empowers the Board by general or special order and subject to such conditions and limitations, if any, as may be specified in the order, delegate to any officer of the Board such of its powers and functions under the Act as may be necessary. After taking note of the said provision, proposal was placed before the Board to delegate its Page http://www.judis.nic.in 411 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 powers to the Chairman for issue of necessary show cause notices and directions for closure, prohibition, etc., so as to ensure that prompt action could be taken to tackle any emergency. The Board after careful examination, vide resolution dated 24.02.1994 decided to delegate powers to the Chairman under Section 12(3-B) of the Water Act and to issue directions under Section 33A of the Water Act and under Section 15 of the Air Act to issue direction under Section 31A of the Air Act. The petitioner’s contention is that this delegated power of the Chairman is exercisable only in emergent situation and when there is an urgent need which cannot brook any delay. On a reading of the order in PB.Ms.No.9 dated 11.03.1994 one may get an impression that what weighed in the mind of the Board to decide to delegate its powers to the Chairman was to tackle emergent situations. Though certain paragraphs of the order refers to emergent contingency the delegation which has been done is under Section 12(3-B) of the Water Act and Section 15 of the Air Act, is absolute, the said provision does not distinguish between a delegation for Page http://www.judis.nic.in 412 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 emergent purposes and the delegation for all purposes. The Board while exercising power under Section 12(3-B) may make general order or a special order subject to conditions and limitations. However, on a reading of the order dated 11.03.1994, it is clear that the delegation is a general order and it is neither conditional nor any limitation has been imposed. Therefore, the learned Advocate General is right in his submission that the delegation made by the Board to its Chairman by invoking power under Section 12(3-B) is an absolute delegation though the Board proceedings sets out certain background facts . Therefore, we do not agree with the submission of the learned senior counsel for the petitioner that the Chairman can exercise his powers under Section 33A/Section 31A only under emergent situation. That apart, the delegation has been made in favour of the Chairman as could be seen is a general delegation and has been in vogue ever since 1994. Therefore, the argument put forth by the petitioner stands rejected. Page http://www.judis.nic.in 413 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019
361.The Board by order dated 09.04.2018, impugned in W.P.No.5772 of 2019, rejected the application for grant of renewal of consent to operate. In the said order, it has been pointed out that the petitioner has not complied with five conditions imposed in the previous renewal order. One of the reasons set out is on account of the petitioner not removing the copper slag dumped/stored along with the river Uppar and patta land, thereby obstructing the water course. Further, the petitioner had not constructed any physical barrier between river Uppar and slag land fill area of patta land so as to prevent the slag from reaching the river. The contentions advanced on behalf of the petitioner are two fold. Firstly that the copper slag is non hazardous and to substantiate the said contention, the petitioner refers to the slag taken by the CPCB, TNPCB and MoEF. It is submitted that the TNPCB permits sale of copper slag to private parties and pursuant to which the petitioner had entered into an agreement with a private party and sold the slag which is well within the knowledge of TNPCB. It is submitted that the slag purchased by the Page http://www.judis.nic.in 414 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 private party is stored in his patta land over which the petitioner has no control, that is why the District Administration and the TNPCB took action against the private party who purchased the slag. In spite of this being the factual position and the slag is stored in a land which is not owned by the petitioner but by the private party/purchaser, the petitioner took steps to erect a physical barrier. It is submitted that the slag is an inert material, it is non hazardous and the petitioner had not violated condition No.11 of the consent order dated 07.09.2017. The place where the slag has been stored by the private party is about 10kms away from the factory and the petitioner cannot be said to have violated the condition imposed in the consent order.
362.The learned senior counsel referred to the memorandum of understanding and sale agreement dated 25.09.2010 to emphasize the obligation of the buyer. It is further submitted that the District Collector issued notice dated 14.07.2016 alleging that there has been indiscriminate Page http://www.judis.nic.in 415 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 dumping of copper slag obstructing the free flow of water in the Odai and posing threat to the human life and property and the petitioner was directed to clear the dumped copper slag from the said lands immediately. The petitioner sent a reply dated 26.07.2016 stating that the buyer was solely responsible to spread the copper slag in such a way that it must not obstruct free flow of water. After reiterating their stand, the petitioner stated that since they have sold and supplied the copper slag on ex-work basis to the buyer, they have pursued the matter with the buyer for satisfactorily addressing the concern. Further, it was pointed out that the TNPCB and the CPCB have permitted to use the copper slag in the land fill and no further approval is required., however, as a responsible corporate, the petitioner will provide the details of copper slag disposed every month to the TNPCB. With this stand, the petitioner requested that the show cause notice be withdrawn. It is submitted that though the private party did not remove the slag, the TNPCB granted consent, therefore, the non-renewal of consent vide impugned order dated Page http://www.judis.nic.in 416 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 09.04.2018 cannot be for such reason or for default committed by the purchaser.
363.The first question which needs to be considered is whether copper slag is a pollutant, is slag hazardous. To get an answer to this question one has to necessarily refer to certain scientific material and publications of repute. In fact the submission of TNPCB before the NGT and before the Hon’ble Supreme Court earlier is that the slag is hazardous. The petitioner contended that TNPCB cannot refer to old reports and the stand taken by them is wrong, more particularly, when the HWM Rules has excluded slag from the category of hazardous waste.
364.The research papers which were referred to and placed before the Court [Volume R1B Page 339] states that slags are generally deposited on dumps and considered to be unreactive materials. Smelter copper sludge Page http://www.judis.nic.in 417 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 contains significant concentration of several potentially toxic elements including arsenic, lead, cadmium, barium, zinc and copper. These elements can be released into environment under natural weathering condition and cause pollution of soils, surface water and ground water. In a research paper submitted in the Anna University, it has been stated that copper slag contains highly toxic elements like arsenic, barium, cadmium, copper, lead and zinc. Copper slag can release these elements into the environment causing pollution of soils, atmospheric air, surface water and ground water and copper smelter releases copper selenium, they are highly toxic if present over abundant, they contaminate soil in the vicinity of smelter, destroying the vegetation. In a paper published in Stanford News Survey, it has been stated that the glassy material in the slag is the major source of potentially toxic metal release to the environment. In a paper published in the National Metallurgical Laboratory Journal, Jamshedpur, it has been stated that copper as a metal provides limited scope for environmental pollution, but the waste generated by the copper Page http://www.judis.nic.in 418 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 based industries with various toxic elements can pollute the environment. The granulated slag/slag after copper flotation are dumped near the smelters. However, the hazardous constituent in these slags, particularly, selenium, mercury, silver, arsenic, lead and copper may enter in the water stream due to weathering action and rain water. In a paper, which was published by the National Institute of Environmental Health Sciences regarding the other copper industries in the Country, namely, Hindustan Copper, KCC, Rajasthan, Birla Copper, Gujarat SWIL Limited it has been stated that in the solubility test it was found that the sludge [Acid plant sludge] and dusts leaks out copper, lead, zinc and cadmium in significant concentration and these sludges and dusts are therefore considered potentially hazardous. The petitioner would contend that there is uncertainty in the scientific opinion and therefore the stand taken by the CPCB that the slag is non-hazardous and is permissible to be used for laying roads, levelling, filling up of pits, etc should be taken note of and the same cannot be a reason for non-renewal of consent to operate. In Page http://www.judis.nic.in 419 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 the earlier round of litigation, which travelled up to the Hon’ble Supreme Court, on appeal by the petitioner, in its judgment dated 02.04.2013, the well recognized principles of judicial review were set out, which we have noted earlier. One among the three grounds on which the High Court could review the decision of the authority is on the ground that the decision was so unreasonable so as to suffer from Wednsbury unreasonableness. To be noted that the petitioner had sold about 3.5 lakh tonnes of slag, which was stored in a private patta land. The huge quantity which was stored had obstructed the flow of Uppar river and during rainy season, the Thoothukudi town was inundated. The scientific opinion shows that if huge quantity or abundant quantities are dumped, it would definitely cause pollution. The scientific opinion also shows that copper slag contains highly toxic elements. Therefore, to state that the CPCB/TNPCB has permitted certain usages of the slag can hardly be a reason to exonerate the petitioner. To be noted that from 2011 to December 2017 the petitioner has generated 3915901MT of copper slag and Page http://www.judis.nic.in 420 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 they are stated to have disposed of 7437327 MT which includes the old stock. It has been reported that copper slag has been dumped in ten places outside the premises and the quantity so dumped is 537765 MT. These sites are in Thoothukudi District. In such factual scenario, it has to be seen whether the petitioner has any responsibility on the slag upon sale of the same to third party. To get an answer, we refer to the Memorandum of Understanding and Sale Agreement dated 25.09.2010 entered into by the petitioner with one Mr.A.Paul. Clause 4 of the Memorandum of Understanding deals with usage of copper slag in which the buyer confirms to the petitioner that he will use the copper slag for land filling and not for any other purpose, if he does so, he has to get written permission from the seller (petitioner). Further, the buyer undertook to the petitioner that he will not sell or dispose of the slag to any other third party without the petitioner’s previous permission in writing. The buyer was required to ensure compliance of the following instructions for the land filling:-
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(a) Proper and uniform spreading of copper slag up to the height of 5 feet across the entire filling area;
(b) The copper slag should be spread in such a way that it must not obstruct the free flow of storm water, either partially or completely;
(c) No copper slag should be put on any water carrying or holding body including, and not limited to, Nallah/Odai;
(d) The copper slag must be filled and spread in such a manner so as to contain the entire copper slag within the periphery of the filling area. The copper slag area shall be contained within the landfill area by means of a compacted shoulder made of local soil or moorum etc;
(e) After completing the filling of slag up to desired height, a layer of 10-20 cm of moorum will be uniformly spread over the slag area on a daily basis;
(f) The area shall be put to use for any useful applications within 3 months of filling and not left exposed as such;
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(g) The slag is spread only at the designated areas indicated in the topo sketch attached with this MoU and also in the original patta land of the buyer; and
(h) The buyer shall also provide a 'No Objection Certificate' from the land owner(s) stating clearly that the owner(s) of the land do not have any objection in issuing the material for the purpose and scope stated in this MoU.
365.Reading of the above conditions will clearly show that the petitioner as the seller cannot disown responsibility. There is a duty cast upon them to ensure that the terms and conditions of the Memorandum of Understanding are scrupulously followed. The petitioner continues to have control over the material and in particular with regard to the manner of usage. Thus, if there is violation of the condition, the petitioner is liable to be proceeded against. Therefore to state that the liability of the petitioner ceases upon sale on ex-works basis is an argument which deserves to be rejected and stands rejected. In the instant case, it is evidently clear that though the sale Page http://www.judis.nic.in 423 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 took place in 2010 all that the purchaser did was to dump the huge quantity of slag in his private patta land did nothing to utilize the same in terms of the MoU and the petitioner woke up only after the District Collector issued show cause notice on 14.07.2016. The petitioner failed to enforce the terms of the MoU for six years for reasons best suited. The facts will clearly show that neither the TNPCB nor the District Administration took effective steps to abate the nuisance rather the slackness in the approach of TNPCB and the District Administration had lead to the flooding of Thoothukudi town on account of the obstruction of the river course. The District Administration cannot plead ignorance because the quantity of slag dumped is virtually a small hillock and visible to any passer-by. Therefore, this Court can safely conclude that the officials of the District Administration turned a blind eye to the illegality probably unable to do anything considering the magnitude of the petitioner. The officials of the TNPCB at the relevant time are also equally culpable. What needs to be done to these officers is a matter which requires Page http://www.judis.nic.in 424 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 serious consideration and to serve as a deterrent to the serving officers of the Board. Further more importantly, was there any political or official pressure on the Officials/District Administration to go slow, which may also be required to be probed to fix responsibility. It is hight time, the Government took action against those responsible at the earliest.
366.The District Collector, Thoothukudi filed a report before the Hon'ble Supreme Court in S.L.P.(C) Nos.28116-23/2010 during 2011, on the ground situation regarding the functioning of the petitioner pursuant to an inspection conducted in the petitioner's unit on 16.08.2011 along with the District Environmental Engineer, TNPCB, Health Authorities, Authorities from the Department of Geology, Ground water and Revenue Officials. During the inspection, the industry was in operation. The report sets out several observations of which, we note the observations made during the inspection of surrounding villages and interaction with the local public. The Page http://www.judis.nic.in 425 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 report states that after inspection of the petitioner's unit, an inspection of the peripheral villages of Meelavittan, Therkkuveerapandiyapuram and Sankaraperi was undertaken. The channel, adjoining the southern boundary of the petitioner's unit, was inspected as also the area around the factory and inspection in the surrounding villages to verify the effect on agriculture and animal husbandry. The team interacted with the villagers of Meelavittan in the Panchayat Village Office, which included senior citizens and women, who have expressed their views on issues of environmental pollution by the petitioner. Certain people have complained about increased discharge of gaseous emissions during early hours of the day, i.e., around 04.00 am to 06.00 am during which, they experienced irritation and mild breathing discomfort and women complained about itching while using the ground water from the borewells of the village. The report records that the problems have started after commencement of industrial activity in the area particularly, after starting of the petitioner's unit. Further, the villagers have complained that Page http://www.judis.nic.in 426 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 cattle rearing in the village has been affected due to pollution of rain water mixing with the waste water of the petitioner during rainy season and the cattle die after consuming the polluted water, which become greenish in colour once it get mixed with waste water of the petitioner's unit. Further, the public have stated that the pollution of rain water not only affects the health and growth of the cattle, but also the ground water. The villagers have showed a water body, where an open well and a borewell are situated. The villagers stated that the village has been using the water for drinking purposes from these wells till the year 2002, but after the establishment of the petitioner, the ground water of the tank and the borewells situated there have become unusable.
367.We have referred to this report to highlight that people have voiced their opinion, which has been recorded by the District Collector and filed as a report before the Hon'ble Supreme Court. The petitioner cannot Page http://www.judis.nic.in 427 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 discredit the views of the villagers by contending that they were tutored to say so. Thus, this report definitely is a material, which should be reckoned to hold that the continued operation of the petitioner has affected not only the quality of the air in the area, but as well as the ground water. The above conclusion, which we had arrived at based on public opinion, should be given due credence because, the defaults committed by the petitioner have been continuously indicated in various reports more particularly, of NEERI. The 1999 report of NEERI, which was submitted after an inspection was conducted on 17.11.1998, has pointed out the inadequacies in the Effluent Treatment Plant (ETP) and stated that the treated effluent quality does not confirm to the standards stipulated by the TNPCB and it was over all the ETP. The same position continued till May, 2011. In May, 2011 report, apart from pointing out inadequacies in the effluent treatment, it was observed that the capacity of the evaporation system is inadequate to handle the total quantity of rejects generated daily resulting in non-optimal capacity utilisation of the RO Page http://www.judis.nic.in 428 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 system and therefore, the RO system is operated at sub-optimal capacity. In the inspection conducted by TNPCB during March, 2017, it was pointed out that the petitioner has to maintain logbooks for ETPs and has to maintain separate logbooks for each ETP. The petitioner, in their reply dated 23.03.2017, stated that they are maintaining shift wise logbooks for ETPs in electronic form. The other defect, which was pointed out during the inspection such as pin hole leakage in the pipe carrying the treated effluent from the ETP to RO, was stated to be repaired immediately. The overflow of treated effluent, which was detected during inspection, was admitted by the petitioner, but would state that the overflow was immediately corrected. It is not clear as to how much was the overflow, was there any data available with TNPCB. The inspecting team found that the RO Plant No.3 was not in operation. The petitioner admitted the same and stated that they are in the initial stages of commissioning RO-3, which will be completed by the end of March, 2017.
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368.With regard to the copper slag, which was found dumped near the Uppar Odai, the petitioner stated that TNPCB and CPCB have permitted the use of copper slag for filling up low lying area and relevant approvals have been given by CPCB and TNPCB and they have entered into an agreement with Mr.A.Paul in 2010 for supply of copper slag on ex-work basis for developing his low lying patta land in Pudukottai for construction of a container yard. The petitioner would state that they supplied copper slag in the year 2010-2011 and the land owner has carried out the required land filling and levelling activities and compacted the same with gravel and enclosed photographs to support their stand. However, it appears that the mountain of slag still continues to remain, it has affected the free flow of water and caused damage to the public.
369.We have referred to the inspection report and the reply given by the petitioner by way of an illustration to show that the petitioner had been Page http://www.judis.nic.in 430 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 non-compliant continuously and each inspection had brought out various issues and the petitioner would accept the same and state that remedial measures have been taken. The question is as regards the impact that the non- compliance has had on the environment.
370.The TNPCB by order dated 07.09.2017 granted renewal of consent under Section 25 of the Water Act valid for the period ending 31.03.2018. The consent was subject to the provisions of the Act, the Rules and the orders made thereunder and the terms and conditions incorporated under the special and general condition stipulated in the consent order issued earlier and subject to the special conditions annexed to the order dated 07.09.2017. The renewal of consent was valid for operating the facility for the manufacture of products/by-products, namely, copper annode, copper cathode [from annode produced] and phosphoric acid. The quantity of copper annode authorized was 1200 TPD, copper cathode was 875 TPD and phosphoric acid was 800 TPD. The by-products details mentioned were sulphuric acid 4200 Page http://www.judis.nic.in 431 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 TPD and hydroflurosilicic acid 25 TPD. The immediate product detail from refinery was mentioned as annode slime of 1.75 TPD. The renewal of consent was also valid for operating the outlets for discharge of sewage/trade effluent, namely, sewage of 100 KLD and trade effluent of 4080.0 KLD. The additional conditions would be relevant. In condition No.11, it was mentioned that the unit shall have storage of solid waste of slag within the stipulated 10 hectares of land with a restricted stacking height of 12 meters throughout the storage area for adherence with a safe load bearing capacity of 25 MT per square meter of the underlying soil/land in that area. Condition No.13 stipulates that the unit shall maintain the generation and disposal ratio as 1:1 in respect of gypsum and copper slag and at any point of time available stock over the deadlock in the yard shall not be more than 15 days generation. Condition No.27 states that the Unit shall remove the heaped and dumped copper slag on the banks of river Uppar and patta land in Pudukottai village. Condition No.28 states that the Unit has to take action to construct physical Page http://www.judis.nic.in 432 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 barrier between the river Uppar and slag land fill area patta land so as to prevent slag from reaching river Uppar. A cumulative reading of the additional conditions mentioned above will show that the petitioner had indiscriminately dumped copper slag outside the Unit and in certain patta lands. Further, there appears to be excess storage of solid waste slag within the Unit thereby compelling TNPCB to stipulate as to the area where the slag has to be stored, the stacking height throughout the storage area. Further mention of the disposal ratio of 1:1 of gypsum and copper slag will also go to show that there was excess stock of production of more than 15 days necessitating a condition to be imposed on the petitioner. Further, responsibility was fixed on the petitioner for indiscriminately dumping copper slag near a water course and in patta land and the petitioner was directed to construct a physical barrier between the river and the slag land fill so as to prevent the slag from reaching the river. The petitioner argues that these are new conditions and therefore the same cannot be taken as a ground for closing Page http://www.judis.nic.in 433 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 the petitioner Unit. This argument cannot be accepted for the reason that the petitioner had violated the conditions stipulated earlier which had compelled the TNPCB to issue such additional conditions. We have noted that the petitioner's control over the slag continues though it is shown to be sold to a private party. Therefore, the petitioner cannot disown its responsibility in the safe disposal of slag and the fact that huge quantity of slag was dumped indiscriminately adjoining a river will go to show that the petitioner is a chronic defaulter. The plea raised by the petitioner that it has been stored in a patta land by the purchaser and the petitioner cannot be held responsible as the slag was sold on ex-factory basis is an argument which needs to be rejected. The slag can be sold subject to stringent conditions and facts clearly demonstrate that the purchaser did nothing with the slag though he is said to have purchased it for land filling and had kept in an area for several years. To be noted that in the consent order dated 22.05.1995 while granting consent for establishment under Section 25 of the Water Act, the condition was that the Page http://www.judis.nic.in 434 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 petitioner shall dispose of the solid waste generated from the plant like slag for sand blasting, for land filling and road building activities then and there to avoid accumulation of solid waste within the premises. In the proceedings of the District Collector dated 24.09.2016 which was issued when there was flooding in the Uppar river, a meeting was convened presided over by the District Collector and attended by the revenue officials as well as the top executives of the petitioner. In the said proceedings, it has been mentioned that near the Pudukottai Bridge in the Uppar river the copper slag has been dumped and notice under Section 133 Cr.P.C. has been issued by the Sub- Collector, Thoothukudi and legal proceedings have been initiated and final orders has been passed with direction to remove the copper slag as advised by the Revenue Divisional Officer, Thoothukudi. Further it was noted that the District Collector has sent notice dated 14.07.2016 to the petitioner stating that if the pattadar does not remove the copper slag to prevent flooding, the same to be removed by the Executive Engineer of the Water Resources Department Page http://www.judis.nic.in 435 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 apart from desilting the river. Further the petitioner was also directed to co- operate. It was argued that obstruction caused on account of the slag to the Uppa river is not pollution and therefore, the same cannot be a ground to refuse renewal of consent to operate. This argument has to be outrightly rejected for the simple reason that if slag has been indiscriminately dumped either within the factory premises or in other places in Thoothukudi District, the petitioner will be responsible and it would tantamount to violation of consent conditions. In other words, slag could not have been dumped in such huge quantities and allowed to lie over for nearly a decade, which goes to show that slag was not put to use for any beneficial purpose as stipulated in the consent conditions. Therefore, obstruction of the river amounts to violation of a consent condition and therefore, the petitioner is liable to be proceeded with. Apart from that, by obstructing the flow of water in a river or stream resulting in flooding and causing other consequences is also a form of pollution. Therefore, there is no substance in such contention advanced by the petitioner. Page http://www.judis.nic.in 436 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019
371.We are surprised to note as to why the District Collector in the year 2016 directed the Water Resources Organization of the Public Works Department to remove the slag when the petitioner was fully responsible. In all probabilities the petitioner would have been able to convince the officials that they have sold the slag and the purchaser has left it in the patta land. Unfortunately, the District Administration did not note the Memorandum of Understanding between the petitioner and the purchaser, held the petitioner responsible and they cannot divest themselves of the transaction like any other sale of goods. Surprisingly though the Assistant Engineer, TNPCB, Thoothukudi was a participant in the meeting, this vital fact was not placed before the District Collector in the meeting so as to fix responsibility on the petitioner. What emerges from these facts is that slag which is a waste generated during the manufacturing process is required to be stored and disposed of in a specified manner. The end usage of the slag cannot be a factor to consider whether the petitioner had violated the consent condition or Page http://www.judis.nic.in 437 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 not. The end use is totally a different subject. In other words, the order of consent permits production of certain products, recognizes certain by- products, one of which is slag and directs the slag to be stored in a particular manner and disposed of in a particular ratio. The mention in the consent order stating that the gypsum and copper slag shall be disposed of for sustainable application such as slag blasting, road building activities, cement industries and other relevant area of application with approval from concerned agencies. The disposal for such sustainable application should be with the approval from the concerned agencies. It is not disputed that the purchaser/pattadar, one Leelavathy, wife of Thangavel had kept the material stored in her patta land and this has obstructed the flow of water in the river and when notice was issued under Section 133 Cr.P.C., she agreed to immediately remove the copper slag and put a concrete bund to demarcate the boundary. The undertaking given by Leelavathy and subsequently by the petitioner who later on constructed the wall was not to remove the entire quantity of the dumped Page http://www.judis.nic.in 438 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 slag but that portion of the slag which obstructed the river. Therefore, the petitioner has to be held responsible for obstructing the river course for which separate proceedings need to be initiated and the damage caused due to the floods should be recoverable from the petitioner. The second aspect which flows from this is that the slag continued to remain dumped in the said land which is in violation of the consent condition. We have noted that the purchaser, one Mr.Paul appears to be a name lender. Therefore the petitioner cannot contend that because the slag was permitted to be disposed of, it is inert. That would not be the right test to determine the quality, the leachability and the hazardous nature of the substance. The question is did the TNPCB verify whether the petitioner had disposed of the slag for sustainable development. The facts show that the TNPCB did not examine this aspect because had it been done, there cannot be enormous mountain of slag dumped in and around Thoothukudi District. Therefore, viewed from any angle it has to be held that the petitioner has violated the consent condition and the default Page http://www.judis.nic.in 439 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 was chronic, the petitioner totally disregarded the condition which was imposed even in the year 1995 while granting consent to establish and therefore, no further indulgence needs to be given to the petitioner and rightly the respondents have taken a decision to close and permanently seal the petitioner's Unit.
372.The petitioner submitted a report to the MoEF on 03.01.2007 seeking ratification of 900 MTPD to 1200 MTPD copper production capacity, de-bottlenecking project. In the description of raw material under the head “composition of copper concentrate”, while giving its chemical composition, it was mentioned to contain mercury below deductible level. In paragraph 2.6 of the submissions, which deals with forces of pollution, a table containing the details of inputs and pollution outputs in copper smelter process has been given and in the column “other wastes”, mercury has been mentioned both during the process of copper smelting and copper conversion. From the Page http://www.judis.nic.in 440 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 pictorial diagram of gas cleaning plant, it is seen that there is no mercury removal tower mentioned. An Environmental Impact Assessment report was prepared by M/s.Vimta Labs Limited for the petitioner for their proposed copper smelter plant-II. In table 1.2, in the details of production capacity, mercury is shown as one of the products. In the flow diagram of continuous copper rod plant process, a mercury removal tower has been proposed. The report states that the mercury in the smelter and converter gases will be present in elemental form as mercury-vapour in the downstream of the wet electrostatic precipitator and this can be removed from the gas by means of th Aqueous Mercury-II-Chloride solution. The concern of the 9 respondent is that there is no explanation as to what happened to the mercury, which was generated in the process. It is stated that mercury moves with air and water and, it can be transported thousands of miles in the atmosphere. It is stated that while submitting the application for renewal of HWM authorisation, the presence of mercury was not mentioned. Referring to the Guidance on Best Page http://www.judis.nic.in 441 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 Available Techniques and Best Environmental Practices, published by the United Nations Environment, 2016 while explaining the process of smelting, it is stated that because of high temperature, the mercury will be volatilized and thus, be present in the exhaust gas and in the exhaust gas, mercury will be absorbed on particulate matter or present a soluble mercury compound and will also be present as elemental mercury. The oxidised species of mercury can normally be removed by using scrubbers and wet electrostatic precipitators. Particulate bound oxidised mercury can be removed by bag house filters. Elemental mercury, however passes all such standard gas cleaning equipment and therefore, secondary mercury removal stage may be needed to reduce the mercury to acceptable concentration, if it is present in the ore. The reason elemental mercury cannot be removed from the ambient temperature gas stream by scrubbing with water alone is its low solubility in water. It is also stated that mercury may also be present in the waste water produced by these processes and will require proper storage or management. Page http://www.judis.nic.in 442 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 The sludge containing mercury should be managed in a manner consistent with the relevant articles of the convention in an environmentally sound manner.
th
373.According to the 9 respondent, between 2004 and 2018, the petitioner should have generated a minimum quantity of 25.91 tonnes of mercury and they have gone scot free when the Hindustan Unilever Plant in Kodaikanal was shutdown for discharging 7.95 kgs of mercury. This aspect of the matter is of serious concern, which should have been examined by TNPCB, which appears to have not been done.
374.The petitioner would submit that TCLP procedure is used to evacuate leachability potential of a waste and it is a legally accepted procedure under the USEPA and the HWM Rules to characterise a waste as either hazardous or non-hazardous whereas, TNPCB has analysed the total Page http://www.judis.nic.in 443 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 constituent in copper slag instead of TCLP analysis that shall be followed mandatorily. The learned Senior Counsel for the petitioner elaborately explained the difference between the TCLP and total constituents analysis by referring to the procedure. It is further contended that M/s.Vimta Labs had carried out the TCLP test in 2017. The Chennai Testing Laboratory had conducted TCLP test of 11 slag sites. Third party water leachate analysis report was carried out at various copper slag landfill sites showing leachability of heavy metals present in copper slag in water leachate. Thus, it is the submission that the report of soil samples around slag dumps conducted by M/s.SGS on behalf of TNPCB without following the rules and conducting a total constituent analysis cannot be relied on. The TNPCB is the regulator and we have to presume that the regulator knows what is best, but the petitioner has been right through projecting that they are adopting better standards. If such is their stand, then what they apparently want to do is to regulate the regulator, which is not feasible both factually and legally. Therefore, if Page http://www.judis.nic.in 444 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 according to the petitioner whatever tests done by the regulator are wholly erroneous or on the other hand, if the procedures adopted by them or the procedures that need to be followed as they are as per global specifications, then nothing prevented the petitioner from approaching the regulator for a special set of condition or exemption. On the other hand, what we found was ever since the petitioner commenced production, every order of consent or direction issued by the regulator contained the very same directions, which if cumulatively considered, would show that there has been continued non- compliance. Therefore, we cannot accept the stand taken by the petitioner to disregard the reports submitted by TNPCB based on a study conducted by M/s.SGS.
375.It is admitted that there are only seven continuous AAQ monitoring stations, they are located in the entrance of the petitioner, AIR station, east of gypsum pond, petitioner's colony, SIPCOT office, west of Page http://www.judis.nic.in 445 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 gypsum pond and T.V.Puram village. As per the Expert Committee's report of 2013, monitoring stations are required to be established throughout the city. Out of the seven continuous AAQ monitoring stations, six are within and near the petitioner's unit and the only station outside is in T.V.Puram Village. From the documents filed, it is shown that they were connected only on 19.12.2014 and 09.07.2015. So far as the monitoring of CO and NOx is concerned, it was connected only on 12.06.2017 as also for PM10 and PM2.5.
th Therefore, the 9 respondent is right in contending that prior to the said dates, no data was available with the Care Air Centre. Another issue, which has been brought to our notice is that from 17.11.2017 to 20.11.2017, the value of 3 th SO2 remained as 0.3 ug/m . Thus, the 9 respondent would contend that either the meter has been tampered or it is a wrong calibration. Similarly, there are other occasions, where the values remained static for close to 8 hours and in the consolidated details, which have been filed, the reading of 0.3 has been repeated for 1348 times. It is the common knowledge that AAQ will never Page http://www.judis.nic.in 446 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 remained static, as there are several factors, which affect the quality of the air. Similarly, during 2015 and 2016, data has remained static. The larger question is as to what the regulator did in the matter. This is a very serious issue, as the AAQ had not been monitored as it is required to be done.
th
376.The learned counsel appearing for the 9 respondent drew out attention to the report submitted by M/s.Vimta Labs for Environmental Impact Assessment and the values given by the petitioner and the report of M/s.Vimta Labs shows that the data will not remain static between morning and night and it will vary. It is not clear as to why the regulator did not take any stringent action on this aspect of the matter. Had TNPCB noted that the values remained static for several hours, they should have alerted the station or made an inspection to ascertain as to whether the monitors were functioning properly, was there any technical glitch, or was there any other factor which led to such abnormal display. Therefore, to rely upon such data from the AAQ Page http://www.judis.nic.in 447 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 monitoring systems situated within the factory premises and in the near vicinity would be inadvisable and we can also go to the extent of drawing th adverse inference against the petitioner. It is commented by the 9 respondent that the monitoring station at T.V.Puram is not located in the predominant wind direction, villages of Meelavittan, Pandarampatti, Silvarpuram and other areas of Thoothukudi town, where the public have complained about pollution, do not have any monitoring mechanism. If such is the admitted factual position, then it has to be held that the monitoring mechanism has not been adequate and the results which are reflected from the existing seven systems will give a distorted picture. The analysis of the data available in the Care Air Centre for the years 2015 to 2018 shows that the values have remained static for varying period of time and certain readings were shown to be unrealistic, which will go to show that the air quality in the area was not monitored. In the th notes on submission submitted by the 9 respondent, annexures have been given showing the analysis of the CAAQ monitoring station data for the years Page http://www.judis.nic.in 448 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 2015-16, 2016-17 and 2017-18. On perusal of the analysis for the year 2017- 18, it is seen that the number of unvarying 15 minute readings for 8 hours or more is 7337 for NOx for PM10 it is 7115, for SO2 it is 10692, for PM2.5 it is 7.49. These are the data in the SIPCOT monitoring system. Thus, we conclude by saying that the regulator did not effectively monitor the AAQ in the area.
377.NEERI, in their environmental audit report of March, 2005 have specifically mentioned that the ground water does not meet the drinking water standards and also mentioned about the presence of arsenic above the stipulated limit and the levels of cadmium, chromium, copper and led were also found to exceed the drinking water standard in some wells. In Chapter- VII of the report, which deals with 'conclusions and recommendations', it has been clearly pointed out that water in the wells are unfit for drinking, high level of heavy metals have been found, the concentration of total dissolve Page http://www.judis.nic.in 449 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 solids and sulphates exceed the limits stipulated by TNPCB for treated effluent, the occurrence of heavy metals in the soil was attributed, fugitive emission and solid waste dumped etc. Though this was the factual position, the petitioner seeks to escape from the rigour by contending that there was no such charge against the petitioner. As pointed out earlier, the regulator failed to do their job and on account of their default, the petitioner cannot be exonerated.
378.In the conception note on ZLD and thermal power plant details, with regard to the petitioner, it has been pointed out that they have provided ZLD system only for the treatment of process effluent whereas, their main culprit of ground water pollutant being the leachate from the open dump such as gypsum pond, copper slag and leachate from SLF are not subjected to ZLD system including RO system. It has been stated that apart from heavy metals, which are pollutants generated by the petitioner, which are heavy metals, Page http://www.judis.nic.in 450 of 815 W.P.Nos.5756, 5764, 5771, 5772, 5773, 5774, 5776, 5792, 5793, 5801 and 21547 of 2019 organic pollutants are also generated from the manufacturing process and the sludge, which is generated from the ZLD system should also be considered as a pollutant and all the parameters are alarmingly present in the ground water collected in and around the petitioner's unit. Therefore, the petitioner cannot seek to exonerate themselves by contending that they cannot be held responsible for other pollutants, which are present except their marker pollutant.