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BEFORE THE NATIONAL GREEN TRIBUNAL, PRINCIPAL BENCH, NEW DELHI Appeal No. 57 of 2013 [Appeal No. 22 of 2013 (SZ)] And Appeal No. 58 of 2013 [Appeal No. 23 of 2013 (SZ)] In the matter of M/s Sterlite Industries (India) Ltd. SIPCOT Industrial Complex, Madurai Bypass Road, T.V. Puram P.O., Thoothukudi-628002 ......... Appellant Versus 1. Tamil Nadu Pollution Control Board, Rep by: its Chairman, 76, Mount Salai, Chennai-600032. 2. District Collector, Thoothukudi District, Thoothukudi-628101 3. Superintending Engineer, Tamil Nadu Electricity Board [Presently: Tamil Nadu Generation & Distribution Company (TANGEDCO)] 4. Fatima Babu D/o M.G. Rodriguez, No.77, Periakadai Street, Tuticorin-628001 5. Mr. Vaiko, General Secretary, Marumalarchi Dravida Munnetra Kazhagam Thayagam, No. 12, Rukmani Lakshmipathi Salai, Egmore, Chennai-600008 6. National Trust for Clean Environment Rep. by its Secretary, No.149, IV Floor,C.J.Complex,Thambu Chetty Street, Chennai-600001 .......Respondents Counsel for Appellant: Mr. Pinaki Misra, Sr. Advocate, Ms. Rohini Musa and Mr. Prashanto Sen, Advocates. 1 Counsel for Respondents: Mr. Raju Ramachandran, Sr. Advocate and Mr. Yogesh Kanna, Mr. Subramonium Prasad, Mr. M.K. Subramanium, Mr. Varun Tandon, Mr. Yogesh Kanna, Advocates, for Respondents No.1 to 3 Mr. Vaiko, present in person Respondent No.5 Mr. Raj Panjwani, Sr. Advocate along with Ms. Srilekha Sridhar, Advocate for Respondent No.6 JUDGMENT
PRESENT :
Hon'ble Mr. Justice Swatanter Kumar (Chairperson) Hon'ble Dr. D.K. Agrawal (Expert Member) Hon'ble Dr. G.K. Pandey (Expert Member) Hon'ble Dr. R.C.Trivedi (Expert Member) Dated : August 8, 2013 JUSTICE SWATANTER KUMAR, (CHAIRPERSON):
1. Vide order dated 29th March, 2013, the Tamil Nadu Pollution Control Board (for short 'the Respondent Board'), in exercise of its powers under Section 31-A of the Air (Prevention and Control of Pollution) Act, 1981, (for short the 'Air Act'), directed closure of M/s. Sterlite Industries (India) Ltd. (for short the 'appellant-company') with immediate effect. On that very day, it also, by a separate communication, again in exercise of its powers under Section 31-A of the Air Act, directed the Superintending Engineer, Tamil Nadu Electricity Board, Thoothukudi, to disconnect the electricity supply to the appellant company. The correctness and legality of this order have been challenged by the appellant-company, primarily on the ground that it is arbitrary, discriminatory and has been passed in an 2 undue haste without proper application of mind, non-grant of appropriate opportunity and by taking into consideration irrelevant materials, while ignoring the substantive and relevant considerations. It is also stated that the order is based upon no scientific study or data. The respondents, besides refuting the above contentions, have raised a preliminary objection with regard to the maintainability of the present appeal on the ground that the Government of Tamil Nadu constituted an appellate authority, vide notification dated 8th May, 2013, which is functional, and hence the present appeal, in terms of the provisions of the Air Act, would lie before that appellate authority. Therefore, the present appeal is not maintainable.
2. In order to examine the merits or otherwise of the contentions raised above, we have to notice the facts that have resulted in filing of the present appeal.
FACTS:
3. The appellant-company is a public listed company, registered under the Companies Act, 1956. The appellant- company has been operating a copper smelter plant (for short 'the plant') since 1996 at SIPCOT Industrial Complex, Thoothukudi, Tamil Nadu. The plant has been operating with requisite approvals and consents issued by the regulatory authorities during all this period. The appellant-company is engaged in the manufacture of copper cathodes and copper rods. These are manufactured by a process - smelting copper 3 concentrate - which is the main raw material (copper ore), containing approximately 30% copper, 30% sulphur, 30% iron and balance 10% as other impurities. The copper concentrate along with other raw materials is fed into the smelter to produce copper anode, which is copper of 98.6% purity, which then is refined to produce copper cathode i.e. copper of 99.9% purity. From this copper cathode, copper rods are manufactured. During the smelting process, the sulphur contained in the copper concentrate is converted into sulphur dioxide (SO2), which is collected and sent to sulphuric acid plants through a closed duct system. Thereafter, the SO2 gas is cleaned in the gas cleaning plant comprising gas cooling tower, scrubber system and wet electrostatic precipitators. The cleaned SO2 gas is then oxidized using vanadium pentoxide catalyst to form sulphur tri-oxide (SO3) gas which is absorbed in water and converted to sulphuric acid. The residual gas from the sulphuric acid plant is further treated in the tail gas scrubber to meet the prescribed environmental standards and then routed through the stack. Emissions of SO2 from the stacks are being monitored by online SO2 analysers. Furthermore, it is stated that an analyser is connected to the stack to analyse the extent of SO2 that is released into the atmosphere. The data collected by the analyser is then sent to both the Distributed Control System (DCS) within the plant and to the CARE Air Centre at the premises of Respondent No.1 in Chennai. The software that is to be used along with the analyser has been the one recommended by the 4 Respondent Board and is a tamper-proof system. The prescribed emission standard of SO2 is 477.53 ppm at the tip of the stack and 80 µg/m3 (micro grams per cubic meter) for the ambient air. The analyser installed at the end of the appellant-company can be run in two different modes i.e. 'Actual Mode' and 'Maintenance Mode'. It is the case of the appellant-company that in order to ensure accuracy of SO2 emission, it undertakes calibration checks of the analyser. Such calibration checks are carried out periodically as also before restarting the smelting plant where such plant has been shut down either for scheduled maintenance or due to unscheduled breakdowns. For calibration, typically a gas having a known concentration is fed into the analyser directly to remove the drift errors spotting the higher (unrealistic) emissions and to test whether the analyser is capable of reading accurate values. After being tested/analysed, such gas having excess SO2 concentration is not directed to the stack and is not released in to the atmosphere; rather it is released within the caustic absorber analyser-room by trained personnel, wearing necessary safety equipment. When the calibration checks of the analyser are being performed, it is run on 'maintenance mode' and is depicted by the letter 'M' alongside the relevant data. The appellant-company claims to be very particular about adhering to the highest standards of environment, health and safety practices in its operations, adding that the unit has been continuously upgraded in terms of environmental performance from time to time based on 5 international best practices. Considering adherence to maintain quality in its processes and its compliance to international practices, the appellant-company claims to have been awarded ISO 9001 for quality management systems and the same has been renewed periodically and it has also been conferred with ISO 14001 for environment management systems, which continues till date. In addition, the appellant-company also possesses an OHSAS 18001 certificate in respect of safety management systems apart from an ISO 50001 certificate for energy management systems.
4. The National Environmental Engineering Research Institute (for short the 'NEERI') had submitted a report in the year 2005 showing that the emission levels of the plant of the appellant- company were within the stipulated limits while some emissions did not conform to the standards prescribed. It had also made some recommendations. Regarding the solid waste released out of slag in the plant site, the Central Pollution Control Board had taken a view in its communication dated 17th November, 2003 to the Respondent-Board that the slag was non-hazardous. The NEERI, in its report had indicated as many as 30 deficiencies and had pointed out what the appellant-company was required to do to rectify the deficiencies. On these recommendations, the Respondent Board had given 30 directions out of which, according to the appellant-company, it had completed all the 30 improvements/measures. However, in the judgment of the Supreme Court in the case of Sterlite Industries (India) Limited v. 6 Union of India & Ors.[ (2013) 5 SCALE 202], it has been noticed that the appellant-company had complied with 29 of the 30 directions. Thus, according to the appellant-company, its plant was running without any violations and with the approval and sanction of the competent authorities.
5. On the morning of 23rd March, 2013, the appellant- company was informed that certain complaints of eye irritation and throat suffocation were received from the people of New Colony, Keela Shanmuga Puram and other areas of Thoothukudi town. The appellant-company's plant was, therefore, inspected by the District Environmental Engineer, Thoothukudi (for short the 'DEE') of Respondent-Board at 8.00 a.m. on that date. Some other officials including the SDM, and the Deputy Chief Inspector of Factories, Thoothukudi, were present. They probably came to inspect the premises and check the environmental parameters of the plant. They were informed that the plant was taken for maintenance shut down at around 3.20 a.m. on 21st March, 2013 to attend to certain repairs and was taken for start up at around 2.00-2.45 p.m. on 23rd March, 2013. It was also informed to the Inspecting Team that the system was taken up for calibration of the analyser during the start up process. At that time and as per the directions of the DEE, the calibration process was again carried out. The observed values during such requested calibration were in the range of 675 ppm to 1123 ppm, which was found to be normal and it was assessed that the analyser was working normally and that the emission levels were 7 within the prescribed norms. According to the appellant- company, the DEE, Thoothukudi, also submitted a report to the Collector of that District mentioning that the plant was functioning normally and the environmental parameters were within the limits. In fact, the Collector issued a press release to the effect that the emissions of SO2 were found within overall limits and that it was not the case that the public had been affected by it.
6. After having taken all these steps, suddenly and to the surprise of the appellant-company, it received a notice dated 24th March, 2013 wherein it was alleged that the appellant-company had contravened the provisions of Section 21 of the Air Act while referring to eye irritation and throat suffocation complaints received from various residents. It was also stated that SO2 trend graph of ambient air quality indicated that the value shot up suddenly from 20 µg/m3 to 62 µg/m3 and that the SO2 emission monitor was not connected with the CARE Air Centre of Respondent Board. On these allegations, the appellant-company was required to submit a reply to the show cause notice within 3 days as to why action, including closure of the unit, stoppage of power supply, water supply, etc. might not be taken against it. At this stage, it may be useful to reproduce below the notice dated 24th March, 2013, served upon the appellant-company, by the Joint Chief Environmental Engineer (M), Respondent Board, Madurai:
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"......Tamil Nadu Pollution Control Board serves this notice on you as the occupier of M/s Sterlite Industries (I) Ltd., (Copper Smelter Division), SIPCOT Industrial Complex, Meelavittan, Thoothukudi Taluka, Thoothukudi District (hereinafter referred to as the 'unit') for contravening the conditions imposed in the consent issued under Section 21 of the Air (Prevention and Control of Pollution) Act, 1981, as amended in 1987 (hereinafter referred to as the 'Act') vide reference 1st cited above.
During inspection of your unit on 23.03.2013 by the officials of Tamil Nadu Pollution Control Board, Thoothukudi, the unit official reported that on 21.03.2013 around 3:20 A.M. the smelter was shut down to attend a puncture in furnace roof cooling jacket tube and the smelter was again put into service from 23.03.2013 at 3.30 A.M.
During this time, Sulphuric acid plant bed was maintained at required temperature using Furnace oil and the emission was routed through Tail Gas Scrubber. Around 4:40 A.M. copper concentrate at the rate of 26.77 t/hr was fed as a trial for few minutes.
On 23.03.2013 public complaints were received around 7.00 A.M. about eye irritation, throat suffocation in New Colony, Keela Shanmugapuram and other areas of Thoothukudi Town.
It was noticed from SO2 trend graphs of Ambient Air Quality, the value was shot up suddenly from 20 µg/m3 to 62 µg/m3 in the Sterlite Industries (I) Ltd., Thoothukudi Colony located in the East direction around 6:00 A.M. The value was immediately reduced to 10 µg/m3 around 6:35 am. At that time the wind direction was from NW to SE i.e. towards Thoothukudi Town and the wind speed at that time was 1.224km/hour as per the records maintained by the unit.
Further it was noticed from the data of the on line monitoring system connected with the CARE Air Center of the TNPC Board, Chennai the SO2 emission monitor was not connected with the CARE Air Centre of TNPC Board, Chennai during that time.
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Hence it reveals that the APC measures were not properly operated and also the SO2 emission monitor was not connected with the CARE Air Centre of the TNPC Board, Chennai.
Thereby you are violating the conditions issued to the unit under the provisions of Section 21 of the 'Act' which is an offence punishable under Section 37 of the Act read with Section 31A of the Act 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 and in case the failure continues with an additional fine which may extend to five thousand rupees for every day during which such failure continues after the conviction for the first such failure.
Hence, you are directed to show-cause within 3 days from the date of receipt of this notice as to why penal action for offences punishable under Section 37 read with Section 31A of the 'Act' should not be initiated against you as occupier of the unit and also to show-cause as to why directions under Section 31A of the 'Act' shall not be issued for closure of the unit, stoppage of power supply, water supply etc. to the unit.
It is informed that non-receipt of any reply within the prescribed period will be construed that you have no satisfactory explanation to offer for the above said contravention and action will be taken on the merits in accordance with law...."
7. The appellant-company claims that the period of three days for filing of the reply was extremely short but still it submitted a reply dated 27th March, 2013 supplemented by another reply dated 28th March, 2013. In these two replies, the appellant- company pointed out, inter alia, that the smelting plant had been shut down from 3.20 a.m. on 21st March, 2013 till the early hours of 23rd March, 2013 for repairing of a puncture in the 10 furnace roof cooling jacket tube. The process of start-up of the smelting plant was restarted on 23rd March, 2013 and that before and during the start-up process, as per the Standard Operating Procedure (SOP), calibration of the Analyser had been performed. As per the SOP, the gas used for calibration was not released into the atmosphere and the values of SO2 concentration during calibration done at 2.00 a.m. were virtually equal to the values of such concentration during the calibration done as per the request of the officials of the Respondent Board at 9.00 a.m. It was also stated that the Analyser had always been connected to the appellant Company's DCS as also to the Respondent Board CARE Air Centre and though the appellant-company had inadvertently not switched the Analyser from the 'Maintenance Mode' back to the 'Actual Mode' after the calibration at 2.00 a.m. was concluded, the entire data would be available with the CARE Air Centre provided the option to view both the 'Maintenance Mode' data and the 'Actual Mode' data was chosen. It was also specifically emphasised that Analyser readings during the calibration process, i.e. the analyser readings with 'M' tag are not a true representation of the actual emission during operation of the smelting plant since it denoted only the calibration gas values fed to the Analyser. The appellant-company also submitted that on earlier occasions the CARE Air Centre data confirmed that during the calibration process (software in maintenance mode) the values of SO2 had gone up to 1000 ppm range. The appellant-company reiterated the above submissions 11 and also craved leave to adopt the entire replies dated 27th March, 2013 and 28th March, 2013 as part and parcel of this appeal. There was no evidence of the fact that the alleged throat irritations were caused by gas emitted from the appellant company's plant. In fact, the notice dated 24th March, 2013 issued by the Collector had categorically stated that the report in regard to gas emitted from the appellant company's plant was being examined. If that be so, then the question of holding the appellant-company responsible for alleged complaints of throat irritation etc. did not arise. Moreover, not a single case was reported in any of the hospitals and that is the best proof of the fact that the allegations lacked verisimilitude.
8. In terms of the show cause notice, complaints had been received from New Colony and Keela Shunmuga Puram at around 7.00 a.m. which are around 7 kms and 8.1 kms respectively from the plant. It is averred by the appellant- company that the average wind speed during the complaint period was 0.79 km/hr and even on hypothetical basis of assuming that 1000 ppm was emitted from the stack at 0.79 km/hour the approximate time taken by the pollutant to reach the complainant area could be 9.22 and 10.23 hours respectively. This would show that the high emission should have been emitted 9-10 hours before the complaint-time, i.e. 7.00 a.m. During the said period there was no operation at the appellant-company's factory as the plant was under start-up 12 process and the analyzers had recorded that all the emissions were within the regulatory standards.
9. Not only this, the appellant-company had also informed that the officials of the Respondent Board were at the plant premises during the whole day of 23rd March, 2013 (Saturday) till late in the evening and even on 24th March, 2013 when various officials of the government visited the site. Furthermore, according to the appellant-company, no written guidelines/SOP were issued by Respondent Board for CARE Air Centre explaining the procedure to be followed during the maintenance including information during calibration of analyzers. Based upon the complaints that had been received, the officials of Respondent Board inspected the unit within 15 minutes and found that all the parameters were in normal condition and reported the same to the District Collector on 23rd March, 2013. It is also the case of the appellant-company that keeping in view the contents of the complaints and particularly the complaints with regard to the throat and eye irritation, it had sought information under the RTI Act from Tuticorin General Hospital, if there were cases of in- patient/out-patient reported in the hospital with such complaints and were treated by that hospital. The answer received, which has been placed on record, is in the negative. Despite the above, Respondent Board vide its order dated 29th March, 2013 directed closure of the unit and also required the Tamil Nadu Electricity Board to disconnect the power supply to the unit with immediate effect, as already noticed. 13
10. At this stage, we may also notice that under Section 31(1) of the Air Act "Any person aggrieved by an order made by the State Board under this Act may, within thirty days from the date on which the order is communicated to him, prefer an appeal to such authority (hereinafter referred to as the Appellate Authority) as the State Government may think fit to constitute...." The State Government issued notification to constitute an authority of three persons in terms of Section 31(2) of the Air Act. However, at the relevant time, there was only one Member of the said authority in position and according to the appellant- company, it could not have filed an appeal which could be effectively heard by the appellate authority, keeping in view the law stated by a Bench of this Tribunal in the case of Gurdial Singh and Another v. State of Punjab and Ors., [Application No. 4/2013, (THC)] decided by Principal Bench at New Delhi on 30th April, 2013. In terms of Section 31B of the Air Act, an order passed under Section 31 by the appellate authority is appealable to this Tribunal. In the normal course, under Section 31 of the Air Act, the appellant-company should have preferred an appeal before the said appellate authority. Since the State Government had not constituted the complete State Appellate Authority for want of quorum, the appellant-company could not prefer the appeal before that authority particularly keeping in view the urgency of the case. Thus, it filed an appeal before this Tribunal.
11. Before we refer to the stands of the respective respondents in relation to the case put forward by the appellant company, we 14 must refer to one more significant event. The environmental clearance (for short "the EC") granted by the Government of India and the consent orders passed by the Board under the Air Act and the Water (Prevention and Control of Pollution) Act, 1974, (for short the 'Water Act') respectively, permitting the appellant- company to establish and commence its plants, were challenged by the National Trust for Clean Environment by way of a writ petition in the Madras High Court. The Division Bench of the High Court of Madras vide its judgment dated 29th September, 2010 allowed and disposed of the writ petition with the direction to the appellant-company to close down its plants at Tuticorin. By the writ petitions filed before it, the High Court also settled certain industrial disputes between the appellant-company and the workmen. Against this judgment special leave petitions were preferred before the Supreme Court of India which came to be registered as Appeal Nos. 2776-2783/2013, M/s. Sterlite Industries India Ltd. v. Union of India and Ors. and were finally decided on 2nd April, 2013. The Supreme Court accepted the appeals while setting aside the judgment of the High Court and permitted the appellant-company to carry on its business. It specifically left certain contentions of the parties open in relation to compensation and other matters. It will be useful to refer to the relevant part of the judgment at this stage: -
"38. The conclusion in the joint inspection report of CPCB and TNPCB is extracted hereinbelow:15
"Out of the 30 Directions issued by the Tamil Nadu Pollution Control Board, the industry has complied with 29 Directions. The remaining Direction No.1(3) under the Air Act on installation of bag filter to converter is at the final stage of erection, which will require further 15 working days to fully comply as per the industry's revised schedule."
From the aforesaid conclusion of the joint inspection report, it is clear that out of the 30 directions issued by the TNPCB, the appellant- company has complied with 29 directions and only one more direction under the Air Act was to be complied with. As the deficiencies in the plant of the appellants which affected the environment as pointed out by NEERI have now been removed, the impugned order of the High Court directing closure of the plant of the appellants is liable to be set aside.
39. We may now consider the contention on behalf of the interveners that the appellants were liable to pay compensation for the damage caused by the plant to the environment. The NEERI reports of 1998, 1999, 2003 and 2005 show that the plant of the appellant-company did pollute the environment through emissions which did not conform to the standards laid down by the TNPCB under the Air Act and through discharge of effluent which did not conform to the standards laid down by the TNPCB under the Water Act. As pointed out by Mr. V. Gopalsamy and Mr. Prakash, on account of some of these deficiencies, TNPCB also did not renew the consent to operate for some periods and yet the appellants continued to operate its plant without such renewal. This is evident from the following extracts from the NEERI report of 2011:
"Further, renewal of the Consent to Operate was issued vide the following Proceedings Nos. and validity period:
TNPCB Proceeding Validity Upto No.T7/TNPCB/F.22276/RL/TTN/W/2007 30-09-2007 dated 07.05.2007 No.T7/TNPCB/F.22276/RL/TTN/A/2006 dated 07.05.2007 No.T7/TNPCB/F.22276/URL/TTN/W/20 31-03-2009 16 08 dated 19.01.2009 No.T7/TNPCB/F.22276/URL/TTN/A/200 8 dated 19.01.2009 No.T7/TNPCB/F.22276/URL/TTN/W/20 31-12-2009 09 dated 14.08.2009 No.T7/TNPCB/F.22276/URL/TTN/A/200 9 dated 14.08.2009 Thereafter, the TNPCB did not renew the Consents due to non-compliance of the following conditions:
Under Water Act, 1974 i. The unit shall take expedite action to achieve the time bound target for disposal of slag, submitted to the Board, including BIS clearance before arriving at disposal to cement industries, marine impact study before arriving at disposal for landfill in abandoned quarries.
ii. The unit shall take/expedite action to dispose the entire stock of the solid waste of gypsum.
Under Air Act, 1981 i. The unit shall improve the fugitive control measure to ensure that no secondary fugitive emission is discharged at any stage, including at the points of material handling and vehicle movement area."
For such damages caused to the environment from 1997 to 2012 and for operating the plant without a valid renewal for a fairly long period, the appellant-company obviously is liable to compensate by paying damages. In M.C. Mehta and Another vs. Union of India and Others [(1987) 1 SCC 395], a Constitution Bench of this Court held:
"The enterprise must be held to be under an obligation to provide that the hazardous or inherently dangerous activity in which it is engaged must be conducted with the highest standards of safety and if any harm results on account of such activity, the enterprise must be absolutely liable to compensate for such harm and it should be no answer to the enterprise to say that it had taken all reasonable care and 17 that the harm occurred without any negligence on its part."
The Constitution Bench in the aforesaid case further observed that the quantum of compensation must be co-related to the magnitude and capacity of the enterprise because such compensation must have a deterrent effect and the larger and more prosperous the enterprise, the greater must be the amount of compensation payable by it. In the Annual Report 2011 of the appellant-company, at pages 20 and 21, the performance of its copper project is given. We extract hereinbelow the paragraph titled Financial Performance:
"PBDIT for the financial year 2010-11 was Rs.1,043 Crore, 40% higher than the PBDIT of Rs.744 Crore for the financial year 2009-10. This was primarily due to higher LME prices and lower unit costs at Copper India and with the improved by-product realization."
Considering the magnitude, capacity and prosperity of the appellant- company, we are of the view that the appellant-company should be held liable for a compensation of Rs. 100 crores for having polluted the environment in the vicinity of its plant and for having operated the plant without a renewal of the consents by the TNPCB for a fairly long period and according to us, any less amount, would not have the desired deterrent effect on the appellant-company. The aforesaid amount will be deposited with the Collector of Thoothukudi District, who will invest it in a Fixed Deposit with a Nationalized Bank for a period of five years. The interest therefrom will be spent for improving the environment, including water and soil, of the vicinity of the plant after consultation with TNPCB and approval of the Secretary, Environment, Government of Tamil Nadu.
40. We now come to the submission of Mr. Prakash that we should not grant relief to the appellants because of misrepresentation and suppression of material facts made in the special leave petition that the appellants have always been running their plant with statutory consents and approvals and misrepresentation and suppression of material facts made in the special leave petition that the plant was closed at the time the special leave petition was moved and a stay 18 order was obtained from this Court on 01.10.2010. There is no doubt that there has been misrepresentation and suppression of material facts made in the special leave petition but to decline relief to the appellants in this case would mean closure of the plant of the appellants. The plant of the appellants contributes substantially to the copper production in India and copper is used in defence, electricity, automobile, construction and infrastructure etc. The plant of the appellants has about 1300 employees and it also provides employment to large number of people through contractors. A number of ancillary industries are also dependent on the plant.
Through its various transactions, the plant generates a huge revenue to Central and State Governments in terms of excise, custom duties, income tax and VAT. It also contributes to 10% of the total cargo volume of Tuticorin port. For these considerations of public interest, we do not think it will be a proper exercise of our discretion under Article 136 of the Constitution to refuse relief on the grounds of misrepresentation and suppression of material facts in the special leave petition.
41. Before we part with this case, we would like to put on record our appreciation for the writ petitioners before the High Court and the intervener before this Court for having taken up the cause of the environment both before the High Court and this Court and for having assisted this Court on all dates of hearing with utmost sincerity and hard work. In Indian Council for Enviro-Legal Action and Others vs. Union of India and Others [(1996) 3 SCC 211], this Court observed that voluntary bodies deserve encouragement wherever their actions are found to be in furtherance of public interest. Very few would venture to litigate for the cause of environment, particularly against the mighty and the resourceful, but the writ petitioners before the High Court and the intervener before this Court not only ventured but also put in their best for the cause of the general public.
42. In the result, the appeals are allowed and the impugned common judgment of the High Court is set aside. The appellants, however, are directed to deposit within three months from today a compensation of Rs.100 crores with the Collector of Thoothukudi District, which will be kept in a fixed deposit in a Nationalized Bank for 19 a minimum of five years, renewable as and when it expires, and the interest therefrom will be spent on suitable measures for improvement of the environment, including water and soil, of the vicinity of the plant of the appellants after consultation with TNPCB and approval of the Secretary, Environment, Government of Tamil Nadu. In case the Collector of Thoothukudi District, after consultation with TNPCB, finds the interest amount inadequate, he may also utilize the principal amount or part thereof for the aforesaid purpose after approval from the Secretary, Environment, Government of Tamil Nadu. By this judgment, we have only set aside the directions of the High Court in the impugned common judgment and we make it clear that this judgment will not stand in the way of the TNPCB issuing directions to the appellant-company, including a direction for closure of the plant, for the protection of environment in accordance with law.
43. We also make it clear that the award of damages of Rs. 100 Crores by this judgment against the appellant-Company for the period from 1997 to 2012 will not stand in the way of any claim for damages for the aforesaid period or any other period in a civil court or any other forum in accordance with law."
12. It is commonly conceded position before us that the incident of 23rd March, 2013 was mentioned and brought to the notice of the Hon'ble Supreme Court of India, a day prior to pronouncement of judgment, on behalf of the Respondent Board. However, the Supreme Court of India while setting aside the judgment of the High Court and permitting the appellant- company to carry on its production, made it clear that the judgment of the Supreme Court will not stand in the way of the Respondent Board to issue appropriate directions to the appellant-company, including directions for closure of the plant for the protection of environment, in accordance with law. 20
13. The appellant-company submits that the Tribunal has jurisdiction to entertain the present appeal inasmuch as at the relevant time, the appellate authority of requisite quorum under the law did not exist in the State of Tamil Nadu and keeping in view the urgency of the matter and the fact that the appellant had no effective remedy available to it, the appeal had been filed before this Tribunal. There was no urgency or emergency existing as the alleged leakage or emission took place on 23 rd March, 2013 while the impugned order was passed on 29th March, 2013. The respondents have exercised their authority in an arbitrary and unfair manner. In fact, the use of expressions like "'unidentified gas' or 'undefined gas' emitted from some source, probably M/s Sterlite", gives sufficient indication that it was an ambiguous and uncertain allegation that was made the basis for taking the action against the appellant-company. The symptoms suffered by the alleged 12 individuals were non- specific and could be attributable to leakage of any other gas including ammonia, chlorine, nitrogen oxide, etc. which are also the gases found in the ambient air, and not merely to sulphur dioxide. The appellant-company has been denied the opportunity to a free, fair and unbiased inquiry into the veracity of the complaints to find out whether there was actually any emission from its plant or not. On 23rd March, 2013, the DEE of the Respondent Board had visited the plant and submitted his inspection report confirming that the sulphuric acid plant's stack emissions and ambient air quality were within the prescribed 21 limits of 1250 mg/m3 and 80 µg/Nm3. The appellant-company is fully aware of the welfare of the public and had taken all the measures to ensure that there was no pollution. The press release made on 24th March, 2013, was not merely to bring out the preliminary details of the accident and, in fact, after due consideration of the ground realities, it did not put any blame on the appellant-company. According to the appellant-company, the action taken against it was only at the behest of a handful of people with vested interests and political association, mobilised from the districts around Thoothukudi and who had participated in the alleged protest. The order of closure is based on surmises and assumptions. There are a large number of other units carrying on their manufacturing activities in and around the unit of the appellant-company. One M/s Ramesh Flowers, which were carrying on the business of dyeing and bleaching could have caused the problem and even the Committee appointed by the Govt. of Tamil Nadu, after a detailed investigation, concluded that the SO2 emission from the appellant-company's unit in and around the area in question was well within the prescribed limits. There is heavy vehicular traffic owing to diesel run vehicles and such vehicles also emit SO2, nitrogen oxide etc. In addition, other gases such as ammonia, chlorine etc. may also emanate from the industries around Tuticorin, which have similar effects on the environment. None of the inspection reports have fixed any direct responsibility on the appellant-company's unit.
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14. On this factual premise, the appellant-company submits that the impugned orders are in violation of the principles of natural justice as adequate opportunity of showing cause to the proposed action of closure was not provided to it. This has led to an action being taken by the respondents in undue haste and without proper application of mind. The unit of the appellant- company has never caused any pollution. It was only in the normal process of calibration that the higher values of SO2 had been noticed and its emission from the plant of the appellant- company had never exceeded the prescribed parameters. The data collected from the Analyser as well as the Ambient Air Quality monitoring stations clearly demonstrates that the appellant-company has never caused any pollution, much less any health hazard to the residents in the vicinity. The complaints against the company are engineered and motivated. It was not possible that persons staying 8 kms away would have eye and throat irritation as a result of alleged discharge of SO2 from the appellant-company's unit while no complaints were received from the residents of the areas near and even adjacent to the premises of the appellant-company. Further, it is the case of the appellant-company that the Chairman of the respondent- Board was not competent to pass the impugned order and in any case, it is an arbitrary exercise of power. The present appeal is maintainable and the appellant-company is entitled to carry on its manufacturing activities in accordance with law. 23
15. We may now notice the stand taken by the Respondent Board. Two affidavits dated 8th April, 2013 and 20th May, 2013 were filed on behalf of this respondent. According to the Respondent Board, the appellant-company had obtained its consent to operate on 15th October, 1996 and had actually commissioned the manufacturing activity on 1st January, 1997. Subsequently, it expanded the copper manufacturing capacity in the years of 2005 and 2006 and installed diesel based power plant in 2002. Again, the consent and the EC had been obtained from the Respondent Board and the Ministry of Environment & Forests, Government of India respectively. The consents granted under the Air Act and the Water Act were challenged before the Madras High Court. Subsequently, the plant of the appellant- company was ordered to be closed. Operation of that judgment was stayed by the Hon'ble Supreme Court vide an interim order dated 28th September, 2010 and the final judgment passed by the Supreme Court has already been referred to. On 23 rd March, 2013 at 7.00 a.m., according to the Respondent Board, several complaints of eye irritation, continuous cough, throat constriction and breathing difficulties, due to presence and inhalation of obnoxious gas in the atmosphere, were received from the people of New Colony, Keela Shamuga Puram, which is situated at a distance of 5 kms away from the appellant- company's unit. Based on the complaints, the DEE had immediately inspected the appellant company's plant and had made certain observations. It was stated that the unit had been 24 shut down on 21st March, 2013 to attend to the puncture in the furnace roof cooling jacket tube. The smelter was again put into operation from 23rd March, 2013. According to the Respondent Board, no such intimation in advance was sent to it and its permission was not sought. The Respondent Board CARE Air Centre at Guindy, Chennai, logged in data pertaining to sulphuric acid plant-I (SAP-1) of appellant-company from 2.15 a.m. to 2.45 a.m. on 23rd March, 2013 which showed that the Sulphur Dioxide (SO2) in the stack emission was in the range of 2103.23 mg/Nm3 to 2939.33 mg/Nm3 (803.5 ppm to 1123.6 ppm) as against the emission standards of 1250 mg/Nm3 (477.53 ppm) prescribed by the Ministry of Environment & Forests in the Notification published in the gazette. Thereafter, the inspection was carried out on 24th March, 2013 which also confirmed accident of SO2 emissions at the online continuous monitoring system in the SAP-1 of the unit. Keeping in view the gravity of the situation, a show cause notice dated 24th March, 2013 was issued to the appellant-company. It is specifically mentioned that the appellant-company had submitted its reply on 27th-28th of March, 2013 informing that during the period of calibration between 9.00 a.m. to 11.15 a.m. on 23rd March, 2013, higher values had been recorded which were similar to the values experienced during the earlier calibration period, which in turn shows that it was not operational. It is submitted that the Ambient Air Quality Monitor available at the factory site, not having recorded higher values cannot be adduced as a reason for 25 the 80 µg/Nm3 upper limit being not breached, as the monitor in the factory which is located 500 metres away within the factory, is not in the line of stack emission. The fact that eye irritations and throat suffocation were felt by the people at a distance of 5 kms away, once again leads to the irrevocable conclusion that there was emission of obnoxious gas at higher parameters than those laid down. SO2 is a toxic gas and can not only cause the problems complained of but may also damage vegetation, soil and water content in the locality. According to this affidavit, the plant had been operated without observing the due precautions and safety norms leading to dangerously high levels of SO2, which could not be controlled by the existing Air Pollution Control measures provided in the plant.
16. In paragraph 24, the said respondent has referred to a table showing emissions in excess of the standard parameters and there are stated to be 84 such instances. The copper smelters are infamous for their extensive public health and environmental impacts both in Western countries and in countries where the environmental standards are much less rigorous.
17. In view of the excessive emissions, it is contended that the appellant-company is only looking after its own economic interests and not the public interest. Merely providing employment to 3000 people is not a justifiable cause for such emissions. The prevention of deterioration of environment has to be of paramount consideration. Permitting the appellant- 26 company to commence its operations will cause irreparable injury and hardship to the public as there is an imminent threat and danger of a chemical disaster.
18. In its affidavit dated 20th May, 2013, the Board has primarily reiterated the above averments but has also further attempted to counter the contentions/documents that have been placed on record by the appellant-company. To such reply- affidavit, even a rejoinder was filed by the appellant-company placing further documents on record.
19. The District Collector, Thoothukudi, had informed the DEE of the complaints received and upon receiving such complaints, the DEE had inspected the appellant-company's unit. The report, thereafter, has been placed as Annexure 'A'. It is further submitted that the appellant-company is situated in SIPCOT Industrial Complex Thoothukudi, and there are about 64 industries in the campus, out of which only 54 are functioning and only the appellant Company emits toxic gases which are injurious to health. It is averred that the contention of the appellant-company that excessive emissions were during calibration process is false. The analyser is connected to stack and it shows the measure of SO2 gas emitted at the stack level. Calibration exercise is to ascertain whether the analyser is working properly and recording the emissions correctly or not. As per experts of the Respondent Board, the readings recorded by the analyser are not due to calibration exercise but in fact are 27 actual emissions. Calibration approximately takes 20 minutes while excessive gases have been recorded in excess thereto as well as on different times. The emissions recorded on 23 rd March, 2013 at 0145 hours to 0245 hours show a gradual increase, from 0146 hours to 0201 hours, of about 16 minutes. Emission levels reached a maximum readable range of the analyser of 1123 ppm, from 0202 hours to 0240 hours i.e. for 39 minutes. Later there was a gradual decrease of emission levels in five minutes from 0241 hours to 0245 hours. Had this been due to calibration then the reading would have demonstrated a sudden spurt of 30 seconds in the graph. This exceedence indicates that this spurt in the value of SO2 is not due to calibration process but due to the emissions with high concentration levels of SO2 from the process. Similarly, from October 2012 till March 2013, 84 such occurrences of exceedence were reported for every 15 minutes of recorded values. It is submitted on behalf of the Respondent Board that even if concentration of SO2 in the stack is at any level beyond 1123 ppm, the analyser would show concentration at only 1123 ppm as the analyser cannot record any figure which is beyond the readable figure. The Ambient Air Quality Monitor is not always correctly reflective of the fact as to whether there were excessive emissions or not. It is contended that the data submitted by the appellant-company is an average of 24 hours of the Ambient Air Quality recorded in the seven stations. This 28 data cannot and will not reflect any sudden spurt in the emission during the period of the said emissions.
20. It is also averred by the Respondent Board that the appellant-company's plant was connected to CARE Air Centre, Respondent Board for two stack parameters, i.e. SAP 1 and 2 for SO2 only from 12th March, 2012. Three more stacks, i.e. ISA Furnace Stack, SGS (Secondary Gas Scrubber) 1 & 2 stacks were connected only from 1st March, 2013. No Continuous Ambient Air Quality Monitoring Stations (CAAQM) of the appellant- company is connected by the CARE Air Centre, Respondent Board. There are seven CAAQM stations available at the appellant-company and the same data is not connected to the CARE Air Centre of the Respondent Board. According to this respondent, the appellant-company is guilty of suprressio veri suggestio falsi and therefore, not entitled to any relief.
21. Thus, according to the respondent-Board, the issuance of a show cause notice on 24th March, 2013 and the order of closure dated 29th March, 2013 was correctly passed.
22. Respondent No.2, at the very outset, has taken an objection with regard to the maintainability of the present appeal on the ground that the appellant-company has a statutory remedy under Section 31 of the Air Act of filing an appeal before the duly constituted Appellate Authority. As such entertaining the present appeal would allow the appellant-company to jump the statutory appeal, which is not permissible in law. It was required 29 of the appellant-company to exhaust all the remedies available to it in law before filing an appeal before the National Green Tribunal (for short the "NGT"). It is averred by this respondent that complaints were received over the phone from the public of Thoothukudi town and nearby areas stating that an unidentified gas was emitted from some source, probably M/s Sterlite Industry, Thoothukudi, around 6.30 a.m. on 23rd March, 2013 which led to various health problems like eye irritation, throat infection, severe cough, breathing problem and nausea to the people of Thoothukudi town and particularly in the areas of Anna Nagar, Toovipuram, Bryant Nagar and George Road. An urgent meeting was called by the District Collector at 11.00 a.m. on that day and a number of officers of the government participated in that meeting including the police authorities. It was decided by the District Administration to proceed against the appellant- company for causing public nuisance under Section 133 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') and a notice dated 24th March, 2013 in Form 20 was issued to the appellant-company. Demonstrations were held by various bodies, including the General Secretary, MDMK, along with a large number of workers against the appellant-company. Nearly 70% of the shops in Thoothukudi town were closed. Finally, the orders for closure in terms of Section 31A of the Air Act were issued on 29th March, 2013 for violation of rules and standards. Thereafter, even the electricity supply to the premises was disconnected on 30th March, 2013. The appellant-company is 30 stated to have operated its unit without observing all due precautions and safety norms leading to dangerously high rise in levels of Sulphur Dioxide emissions which could not be controlled by the existing air pollution control measures. Moreover, the SO2 exposure threatened the public with both short-term and chronic effects on its health. The sub-Divisional Magistrate and Revenue Divisional Officer, Thoothukudi, had conducted a detailed enquiry under Section 133 Cr.P.C. On 24 th March, 2013, a press release was issued by the District Administration to bring out the preliminary details of the incident and its effects on the people and in this release, it was mentioned that as per the inspection report of the DEE, the SO2 emission from the appellant-company were in high quantity. At the same time, it is stated that the press release had not given any clean chit to the appellant-company and they cannot take any shelter under the said submission. A number of persons had taken medical treatment in AVM Hospital. Though there were no in-patients in the hospital but the fact is that a number of persons were affected as a result of the emission of pungent gases on 23rd March, 2013. Lastly, it is submitted that in view of the past experience, it will not be in the public interest to permit the appellant-company to operate its plant.
23. Respondents No.4 and 5, who were subsequently ordered to be impleaded as respondents have also filed separate replies. Besides taking up an objection with regard to the maintainability of the appeal, the respondents have contended that the 31 jurisdiction, which has been conferred upon the Appellate Authority under the Air Act, cannot be exercised by this Tribunal and thus, the appeal is not maintainable for want of jurisdiction. Referring to the process adopted by the appellant-company in its plant, it is stated that the SO2 is a by-product of the copper smelting process. SO2 gas is run through the catalytic converter for conversion into Sulphur Trioxide (SO3) and Sulphuric Acid (H2SO4). The SO2 levels in the off gases during start-up and shut down modes are usually lean and the conditions are not stable enough to provide a safe flow of SO2 rich gases. Thus, the concentration of SO2 in the gas is not high enough to warrant running the gases through the catalytic converter for conversion into SO3 and H2SO4. The standard operating procedure is that during the start-up and shut down the tail gas scrubbers should necessarily and compulsorily be operated. Gases should not bypass the scrubber. Only after the plant reaches a steady-state and conditions stabilise, a steady stream of SO2 gas will emerge from the furnaces with percentage of SO2 that is high enough to make it viable to operate the converter. At this stage, the gas is cooled, scrubbed and fed to the catalytic converter. Here it undergoes conversion from SO2 to SO3. It is mandatory for the gases to be sent to tail end gas scrubber to reduce the concentration of SO2 to permissible levels.
24. Inhalation of Sulphur Dioxide is associated with symptoms of increased respiratory ailments, difficulty in breathing and premature death. In 2008, American Conference of 32 Governmental Industrial Hygienists reduced the short-term exposure limit from 5 ppm to 0.25 ppm.
25. The respondents specifically denied that the identical mechanism readings of 1123.6 ppm were there because of calibration events. On the contrary, there was variable high emissions discharge of Sulphur Dioxide from the appellant- company's unit as a result of manufacturing process rather than calibration. According to these respondents, there is an overwhelming evidence that there was a serious incident on 23rd March, 2013 and there was a gas leakage, which itself was not an isolated incident but there were repeated similar incidences. It is also denied that the unit of the appellant-company was running and operating with requisite approvals and consents issued by the regulatory authorities. The appellant-company is importing copper concentrate from its two Australian mines and this imported copper concentrate is said to contain not only copper but also toxic and radioactive substances such as Arsenic, Bismuth, Flouride and Uranium. Thus, the appellant- company is only making profit while exposing people to a great risk.
26. It is contended by these respondents that the emissions on 23rd March, 2013 at 6.00 a.m. were not within the permissible limits. The concentration of sulphur dioxide graph of Ambient Air Quality on that day shows abnormal increases. Even after the lapse of 15 years, the appellant-company has not complied 33 with the requirements as indicated by NEERI and the Respondent-Board. The appellant-company cannot be allowed to pollute the atmosphere repeatedly under the garb of providing employment to people and claiming compliance with the defects pointed out by NEERI and the Respondent-Board.
27. Therefore, all the respondents while oppugning the contentions raised on behalf of the appellant-company have contended that the incident of 23rd March, 2013 was a clear case of emission of SO2 in violation of the prescribed standards and not calibration. The data reflected in the graph shows that the increase and decrease in emission of SO2, is gradual and not sudden. A gradual increase or decrease is opposed to the very concept of calibration. There has to be a rapid fall in case of calibration. Further, it is contended that it was in the public interest and public health to meet the environmental exigencies that the impugned orders were passed directing closure of the appellant-company's plant. It was a punitive measure. There were large number of defects noticed in the functioning of the appellant-company's plant and persistence of excessive emission of SO2 for considerable period compelled the authorities to pass the order in question. The Respondent Board has provided adequate opportunity to the appellant-company to reply to the show cause notice dated 24th March, 2013 while the order of closure was passed on 29th March, 2013. Thus, there is no violation of the principles of natural justice. Moreover, the consent granted to the appellant-company had come to an end 34 on 31st March, 2013 and as such the industry in any case cannot operate.
28. Emission of SO2, in violation of the prescribed standards, resulted in health hazards to the residents in furtherance to which the complaints were received. Owing merely to the fact that there are economic stakes of the appellant-company, it is neither desirable nor permissible to let the appellant-company operate. The impugned orders have not been passed in an arbitrary or unjust manner. The orders have been passed by the Chairman who is competent, has been delegated with the requisite authority and has passed such orders in bona fide exercise of such authority. The orders do not suffer from the vice of arbitrariness or otherwise.
29. In any case, the present appeal is not even maintainable and thus, the appeal should be dismissed.
30. Rejoinders to the reply of the respective respondents have been filed by the appellant-company mainly reiterating the averments made in its appeal. Further, it is stated that the show cause notice did not mention any exceedance of SO2 emission from the appellant company's unit. The impugned order and the show cause notice are contradictory in terms.
31. The appellant-company has also averred in its rejoinder that Mr. Vaiko, Respondent No.5, is closely associated with one Mr. Nityanand, who is intentionally working against the appellant-company for personal vendetta. The recommendations 35 given by NEERI and the Board were only further improvements suggested in the environmental protection as the appellant- company's unit was already having the necessary plant, machinery and technology to comply with the prescribed limits and in fact, all monitoring reports during the said period confirmed the same with respect to air, water and land environment. It is also specifically denied that at any point of time, there was any emission of sulphur dioxide above the prescribed limits. The alleged stack emission figures in the range of 2103.23 mg/Nm3 to 2939.33 mg/Nm3 are based on imagination of Respondent No.5.
32. In the joint inspection report conducted by the Central Pollution Control Board and the Respondent Board before the Supreme Court such emissions were not mentioned. A contrario, it was stated by the Respondent Board that considering the compliance made by the appellant-company, the Respondent Board had issued renewal consent orders for copper smelting project, copper rod plant and power division vide its proceeding dated 5th October, 2012 with validity upto 31st March, 2013. The Respondent Board also specifically stated that as per the performance report, the ambient air quality inside the plant and outside its premises met the national ambient air quality standards. The impugned order, thus, has been passed on mere assumptions. NEERI, in its report of May 2011, had also confirmed that the appellant-company's unit was meeting the environmental standards and there was nothing in the report 36 stating that the operation of the appellant-company's unit was a threat or concern to the environment. Moreover, an email of the Respondent Board was received from CARE Air Centre, Chennai, beyond its normal working hours at about 2042 hours on 23rd March, 2013 informing that SAP-1, Sulphur Dioxide parameters were showing the values in excess of the standards provided, and the same should be checked and its reason informed. The appellant-company had informed that the value of 1080.5 ppm - 1123.4 ppm at 9.15 a.m. was recorded on account of calibration carried out at the request of the DEE. The DEE had visited the unit of the appellant-company at 0800 hours on 23rd March, 2013, had taken the field trends from the commencement of shutdown till that time as also the details from the tail gas scrubber. The appellant-company had informed this to the Respondent-Board on various occasions, including on 23rd March, 2013 and 24th March, 2013 when the officers of the Board had come for inspection, and had also written in their reply dated 25th March, 2013 and thereafter in the explanation dated 27th - 28th March, 2013. Thus, it was not all of a sudden that the appellant-company had taken the stand that there was excessive emission as a result of calibration. All the suggestions and directions made by the Central Pollution Control Board, the Respondent-Board and NEERI including providing of Flue Gas Desulphurisation System along with bag filters in primary smelter and bag filter alone in the secondary smelter for handling the fugitive emissions and particulate emissions were 37 implemented by the appellant-company at a cost of more than Rs.100 crores. Thus, it is stated that the industry is working with all necessary precautions and within the prescribed parameters.
33. The present appeal was initially instituted before the Southern Bench of the National Green Tribunal at Chennai and was heard by that Bench. Vide its order dated 12th April, 2013, that Bench had appointed an Expert Committee to visit the plant of the appellant-company at Thoothukudi and submit its report to the Tribunal. The Committee was expected to file its report by 29th April, 2013. However, before the said report could be filed on record, the Southern Bench of NGT, Chennai, recused itself from hearing the matter any further and that is how, the matter came up for hearing before the Principal Bench of NGT.
34. The Expert Committee appointed by that Bench consisted of Prof. P.S.T. Sai, Department of Chemical Engineering, I.I.T., Madras, as Chairman and Prof. Ligy Philip, Department of Civil Engineering, I.I.T., Madras, as a Member of the Committee. This Committee had visited the plant of the appellant-company at Thoothukudi district on 23rd April, 2013. Before the visit, the Committee had directed the Respondent Board to resume power and water supply from 9.00 a.m. on 21st April, 2013 to 9.00 a.m. on 4th May, 2013. This was done to attain the normal working conditions of the plant as it needed five working days for that purpose. The schedule of operations was given by the appellant- 38 company in advance to the Expert Committee and to the Respondent Board officials. The Committee visited the unit of the appellant-company in the presence of the representatives of the Respondent Board and the appellant-company. The Committee, upon due examination of the analysers, found that instruments were calibrated properly and were working well. The Committee also visited the ambient air quality monitoring stations, maintained both by the appellant-company and the Respondent Board, on 23rd April, 2013 itself. The Committee instructed the appellant-company to start the feed to the smelter on Friday, 26th April, 2013 at 8.28 p.m. so that the process attained steady state by Saturday morning. The Committee revisited the premises on 27th April, 2013 at 9.00 a.m. and the process attained steady state at 7.30 a.m. on the same day with a feed rate of 152 Tons per hour. The Committee inspected the readings of all the online SO2 monitors from 5 different stacks (SAP1, SAP2, SGS1, SGS2, ISA1). The Committee also conducted manual stack monitoring for all the 5 stacks to cross check the on-line results. The manually measured data and online data were compared and it was found that the SO2 emissions from all the stacks were well within the permissible limits. The Committee also examined the routing of gas from the stack to the analysers, flow rate, leakage in the sampling tubes and sensitivity of the sensors. The ambient air quality was monitored in 13 stations maintained by the appellant-company and 3 NAAQMS maintained by the Respondent Board.
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35. All the sampling and analyses were independently carried by both the appellant-company and the Respondent Board. The analyses results by both the parties were almost similar and were well within the permissible limit of 80µg/m3. The Committee's report filed before the Tribunal concluded as under:
"In summary, all the online SO2 analysers for stack gas in SIL (Sterlite Industries Limited) are in working condition. The emissions from all the stacks were well within the permissible limit prescribed by Central Pollution Control Board (CPCB), when the plant was in normal operation.
In addition to this, the ambient SO2 concentrations in all the 16 monitoring stations were within the permissible limit, when the plant was in normal operation."
36. The above report of the Expert Committee dated 28th April, 2013 was filed before the Tribunal and received by the Registry of the Principal Bench of the Tribunal on 29th April, 2013 and was placed before the Tribunal on 8th May, 2013. Thereafter and with reference to the above factual matrix of the report on record, lengthy arguments were advanced over a long period. The arguments were concluded on 31st May, 2013 on which date the Tribunal, while reserving the matter for judgment, passed an interim order and also appointed another Expert committee, in whose presence the appellant-company was permitted to carry on its business and which was to submit its report before the Tribunal by 10th July, 2013. The Tribunal passed the following interim order on 31st May, 2013:
"At the outset, we may notice that all the learned counsel appearing for various parties specifically 40 agreed not to raise any objection to the constitution of this Bench and proceeded to argue the matter.
This is an Appeal filed against the Order dated 29thMarch, 2013 passed by Tamil Nadu Pollution Control Board.
Initially, the Appeal was instituted before the Chennai Bench of the National Green Tribunal. The Bench dealing with the matter did not grant any interim relief at the initial stage. However, the Bench directed that the Appeal be heard on merits. Vide order dated 12th April, 2013 the Bench appointed an Expert Committee to visit the plant of the Appellant at Tuticorin and took up the matter for final hearing. The Committee so appointed was directed to file its Report by 29th April 2013. However, the Bench dealing with the matter recused itself that is how the matter came to be listed before the Principal Bench for hearing. The Principal Bench also did not grant any interim order but continued with the final hearing in the matter from 14th May, 2013 to 31st May, 2013. The matter has been argued by the learned counsel appearing for the respective parties at 8 effective hearings. Various contentions have been raised before us including the very maintainability of the present appeal. The lengthy arguments and voluminous records have been referred during the prolonged hearings before the Tribunal. While reserving the case for judgment and as prayed, we have also to decide the question of interim orders. Thus, we will be passing a detailed judgment in due course and primarily because of the intervening vacations, we consider it appropriate to pass interim order in the peculiar facts and circumstances of the case.
At the outset, we hold that the appeal is maintainable in terms of the provisions of the Air (Prevention and Control of Pollution) Act, 1981, particularly because when the appeal was instituted before the Chennai Bench of the Tribunal, admittedly, the appellate authority under the Air Act had neither been constituted nor was it functional. In fact during the course of arguments before us, it was argued that the Govt. of Tamil Nadu has constituted the appellate authority and is functional on 8th May, 2013, when the appeal has been instituted. The appeal thus, is substantially progressed before the Tribunal. In any case, it is the time of the institution of the appeal that would be determinative. Another aspect in this regard which deserves to be noticed is 41 that the order of the said appellate authority is appealable before this Tribunal. The matter has been pending before the Tribunal and has been heard for quite some time. Thus, it would not even be in the interest of justice to reject the memorandum of appeal requiring the appellant to file the appeal before the said appellate authority. Thus, we hold that the present appeal in the facts of the case is maintainable.
In order to examine whether or not we should pass some interim directions, it is necessary for us to record the reasons which have weighed with us for permitting the appellant to carry on its manufacturing activity. The reasons are the following:-
(i) The judgment of the Supreme Court in the case of Sterlite Industries & Ors. Vs. Union of India & Ors. [(2013)5 SCALE 202 ] puts quietus to a number of contentions raised before us in this petition. It is not disputed that the incident of 23rd March, 2013 was mentioned by the State Pollution Control Board, Tamil Nadu, before the Supreme Court prior to pronouncement of the judgment. However, Supreme Court still permitted the appellant industry to carry on its manufacturing activity subject to the conditions stated in the judgment. However, the Supreme Court had granted leave to the Pollution Control Board to proceed in accordance with the law. Thus, the judgment of the Supreme Court, besides being a binding precedent has raised a number of contentions raised on behalf of the respondents.
(ii) The main controversy between the parties revolves around whether on 23rd March, 2013, the higher values reflected in the analyser's data of the appellant-industry was a result of calibration or excess emission as a result of leakage of SO2. Before passing the impugned order, it was obligatory upon the Board to satisfy itself as to the fact that it was a case of actual leakage of gas and it was imperative to shut down the industry. Such opinion ought to have been backed by scientific data and analysis report. In our opinion, the Board has failed to discharge such onus and has passed the impugned order on an apprehension which was not supported by any scientific data.
(iii) The closure of an industry is in fact a 'civil death' of a company and has very serious consequences. Thus, application of mind, existence of actual scientific data and actual nexus between 42 the leakage of gases and activity of the industry is a sine qua non. We are afraid that these ingredients have not been satisfied by the Board. The industry was inspected by the Board just before 23rd March, 2013 as well as on 23rd and 24th March, 2013. In another inspection report, neither anything significant or any wrong in the functioning of the plant was noticed nor was any stack or ambient air quality samples collected from and around the premises of the industry, thus, erring to provide any scientific support to the apprehension of the Board that the gas had leaked from the plant of the industry.
(iv) We may notice that in the inspection carried out by the officers of the Pollution Control Board on 24 th March, 2013 at 4.30 pm, it was noticed "presently all remains normal and the plant is operating at its full capacity".
(v) The team of experts appointed by the Tribunal vide its order dated 12th April, 2013 in its report made no adverse comments in relation to the functioning of the plant and in fact, found that largely the functioning of the plant is in consonance with the scientific requirements and notified parameters.
(vi) It is undisputed that the area in question is an industrial cluster and a number of other industries which deal with different gases like sulphur dioxide (SO2), ammonia and chlorine are carrying on their activities. There are even power units located at a short distance from that area which are bound to release SO2. The Board has not placed on record any determinative scientific evidence by way of analysis, its reports or reading of analyser or continuous ambient air quality mechanism to show that it is the appellant-industry alone responsible for the alleged excessive emission of SO2.
(vii) Another aspect which must be noticed is that the complaints with regard to injury to public health that were being received were from a village nearly 8 km away from the unit of the appellant. In normal case, if it was a case of excessive emission from stack of the appellant industry and it contained impermissible emissions of SO2, then the persons living near the village would get more affected by release of such gas as by the time it reaches 8 km away from the industry, its impact and consequences adverse to human health would stand diluted considerably. This certainly cannot be stated to be 43 the determinative factor but can be an indicator of the possibility of no offence being committed by the appellant industry. We may also notice that from the records before us, the timing of complaints of the public against the excessive release of emissions from the industry of the appellant are not compatible to draw the conclusion that the industry in question was an offending industry.
(viii) It is not disputed before us that the emission standards during calibration of the Analyser of the industrial plant of the appellant under supervision or otherwise was maintained at 1113 ppm as against the limit of 477 ppm.
(ix) The Board has exercised its power with a primary reference to the 'precautionary principles'. According to the Board, the industry was shut down as a precautionary measure following the incident of 23rd March, 2013. In the facts and circumstances of the case, it is difficult for us to accept this contention. Admittedly, the incident had taken place on 23rd March, 2013 and for a continuous period of six days, the industry was permitted to function. It was only on 29th March, 2013 that an order was passed directing closure of the industry. No scientific data or analytical report either from the records of the Board or that of the appellant has been placed before us to show that either the emissions continued during this period or they were in excess of the prescribed parameters.
(x) Incidentally, on 25th March, 2013 itself, the District Collector had constituted a sub-committee to examine the complaints of the public in relation to the release of gases from the area in question. Strangely, this report has still to see the light of the day. Thus, this Committee was to inspect not only the appellant-industry but all the industries located in that area. If no report of this committee has so far been submitted, we fail to understand what weighed with the Board in passing the impugned order. In our considered view, this was not a precautionary step but was per se a 'punitive' order. The action of the Board would suffer from the vice of arbitrariness if it collected no data whatsoever during the period of 23rd to 29th March, 2013 and passed the impugned order in an abrupt manner. This appears to be correct from the records before us.
(xi) Another aspect which has weighed with the Board is that the impugned order dated 29th March, 2013 has been passed by the Chairperson of the 44 Tamil Nadu Pollution Control Board. In terms of Section 15 read with Section 31A of the Air (Prevention and Control of Pollution) Act, it is the Board which is vested with the power to pass such orders and directions. However, the Board could have delegated its functions and powers to the Chairperson of the Board for which a resolution is stated to have been passed. The Board had passed a resolution on 24th February, 1994. In terms of this resolution, the power was supposed to be vested with the Chairperson as a measure of emergency and inasmuch as the Board was not likely to meet for some time. The resolution was further restricted to a polluting industry contravening the provisions of the Air (Prevention and Control of Pollution) Act, 1981, in short the Air Act, and Water (Prevention and Control of Pollution) Act, 1974 in short the Water Act, particularly Section 31A and Section 33A of the respective Acts, thus, liable to closure. It was in these circumstances that the power was delegated to the Chairperson. The delegation of powers contemplated satisfaction of certain conditions i.e. existence of emergency as well as satisfaction of the Chairperson in regard to the industry being a polluting industry and the necessity for passing the directions, as contemplated under Section 33A of the Water Act and Section 31A of the Air Act. Further, it has to satisfy that the offence was likely to continue. As evident from the TNPCB's inspection report, which showed as everything was normal and the plant was working to its capacity. The bare analysis of the above would show that it is nobody's case that the offence in relation to the industry was likely to continue. Secondly, what was the emergency and lastly why the matter has not been placed before the Board till today. Besides all this, what is of greater significance is that in the impugned order, it has been noticed as follows:
"The Board after deep consideration of the above facts and your reply to the show cause notice has taken a serious view of the matter. It is the statutory duty of the Board to prevent any incident as narrated above."
The matter was expected to be dealt with by the Board objectively while it is an admitted case that till today, the matter has not been placed even for rectification before the Board.
(xii) At best, it was the apprehension of the Board that SO2 has been emanated from the industry of the 45 appellant and has caused prejudice to the public health. This apprehension would in normal course be not sufficient to pass such a drastic order unless there was definite and scientific evidence available to the Board that the emission from the unit of the appellant was in excess of the prescribed norm and this in turn has a direct nexus to the adverse effects on human health of the persons living in the vicinity of the industry. During the course of hearings, it was pointed out before us that the continuous ambient air quality monitor belonging to the Board, which is in the vicinity of this industrial area, is not functional for the last more than two years. It is anticipated that adequate data would be collected by the monitoring station provided by the Pollution Control Board as well as by the appellant-company for measuring accurately the excessive emission of SO2 or any other gases. Another relevant factor is that gases like ammonia, chlorine can have serious physical effect on the human beings like SO2. Furthermore, large number of units in and around the industrial area are releasing all these three gases and therefore, it ought to be pointed out as to which industry was responsible for excessive release of the prescribed parameters. Thus, a mere apprehension would not be sufficient for passing of such a drastic order. Keeping in view the large public interest, which in fact was noticed by the Supreme Court in paragraph 40 of the judgment in the case of Sterlite Industries, needs to be referred to by us even at the cost of repetition.
(xiii) It is not disputed that the appellant-company before us is one of the largest manufacturers of copper in the country. Obviously, it is also the case of the appellant that before it came into production, a huge quantity of copper was being imported by India. Thus, they play a significant role in the economy not only at the national level but even at the international level. They are employing a large number of persons and are contributing towards economic growth and industrial development, particularly in the field of manufacture of copper. The value of copper in the country is largely dependent upon the manufacture of copper by the appellant industry. It is the contention of the appellant that they are manufacturing 55% of the total production of copper in the country. It was expected of the Board to examine adverse effects of their order on the economy and pricing of copper in comparison to the pollution that the industry was alleged to be causing. 46
It was also contended before us and remains undisputed that the copper manufactured by the appellant is also used in the defence services of the country. These are not determinative considerations but certainly relevant considerations. Considering the role the industry plays, a balance has to be attained between environmental interest and the principle of sustained development. Even if we apply the principle of comparative hardship and balance between the requirements of environment and sustained development, the Tribunal must strike balance which would protect the environment on the one hand beyond any reasonable threat as well as to ensure production of an essential product like copper. The Board essentially should have considered options available to it unless the Board came to a conclusion that no other solution could be found to the problem except closure and it was not possible to take recourse to certain methodology like providing appropriate checks and balances including early warning system while permitting the industry to function. It is always expected of a statutory public authority to consider all these balancing factors before it comes to the conclusion of passing such a drastic order.
For these reasons, we pass the following order:
(i) We permit the appellant-industry to commence its production and operate its industry subject to certain condition hereunder.
(ii) We hereby constitute a committee consisting of (a) the Member Secretary, Central Pollution Control Board, New Delhi and the Member Secretary and the Environmental Engineer of the Tamil Nadu Pollution Control Board and two members from the IIT, Madras, who had been members of the Committee constituted by the Tribunal, vide its order dated 18th April, 2013.
(iii) The appellant-industry shall start its production only in the presence of this Committee.
(iv) Before commencement of production, if the unit requires calibration, it will be done only in the presence of the above committee. No calibration of the plant shall be permitted to take place except on weekly basis unless otherwise specifically permitted by the above Committee.
(v) The Committee shall visit the industry at least three times in a month and prepare its report in regard to the functioning of the plant, functioning of anti- pollution control equipments and more particularly 47 the analysers. The Committee shall submit its report to this Tribunal by 10th July, 2013.
(vi) It shall be the responsibility of the appellant-industry to ensure that all its monitoring stations as well as analysers are functioning properly and are not to be put into maintenance mode without the leave of the Committee.
(vii) The Committee shall inspect the unit while it is operating to its optimum capacity and shall collect stacks and ambient samples and prepare a comparative data report during all its visits.
(viii) The Committee shall co-relate the ambient air quality data with on-line SO2 analyser data using appropriate models. It will also co-relate the raw material data with excessive emission data. It will collect on-line available SO2 data from the thermal power plant of the area.
(ix) The Committee shall, before the industry is permitted to operate, take ambient air quality samples around and at a distance of 7-8 km point of the industry.
(x) The Committee shall also examine the emergency action plan in and outside the industry in question and its efficacy.
(xi) In its report to the Tribunal, the Committee may suggest whether the appellant industry requires to improve its system for better maintenance and ensuring that it strictly operates within the specified parameters which do not infringe environmental interest of the town and people living therein.
(xii) The Committee shall also consider that SAP I is brought in line with SAP II in terms of monitoring system.
(xiii) The first meeting of the Committee shall take place at the site within one week from today.
We also direct the Tamil Nadu Pollution control Board to immediately put in order its ambient air quality automatic system and ensure that the requisite data is collected from such system. The Board shall carry out a study relating to the causes of ill-health of the people who are living around the industrial pockets and the various thermal power plants which are running in the town of Tuticorin and submit a report to the Tribunal. If the appellant- industry has applied for consent, the Board shall deal with the same expeditiously.
For the reasons afore-stated, we pass this order which shall remain in force until vacated or altered by the Tribunal. We direct that the Committee shall submit its report by 10th July, 2013 and the matter 48 would be placed for consideration of the report before the Tribunal on 10th July, 2013 itself."
37. In terms of our order dated 31st May, 2013, the Unit of the appellant-company was permitted to operate under the strict control and supervision of the Special Expert Committee appointed by the Tribunal as per that order. The Special Expert Committee was further directed to submit its report by 10th July, 2013 on which date the case was directed to be listed for that limited purpose. When the matter came up for hearing on 10th July, 2013, the report on behalf of the Committee was filed before the Tribunal by the Counsel appearing for the Respondent Board. As the report had been filed in the Court and copies thereof had not been furnished to the counsel appearing for the respective respondents, the Tribunal listed the matter on 15th July, 2013 making it clear that the arguments already concluded will not be reopened and the matter would be heard limited to the submissions in relation to the report of the Committee dated 10th July, 2013 itself. On 15th July, 2013 we had heard the learned counsel appearing for the respective parties in relation to the submissions with regard to the report of the Special Expert Committee and its effect on the running of the Unit by the appellant-company in future.
38. We will deal with this aspect in some detail in the later part of the judgment but at this stage, we must notice the contents of the report dated 10th July, 2013.
49
39. Under the control and supervision of the Special Committee, the industry could start its operation only on 23rd June, 2013 when the third meeting was held. As per this report, the Air quality data was collected over a period of eight days. There were 13 automatic and 13 mobile ambient air quality monitoring systems and the stack emissions were also continuously kept under check. No excessive emission of SO2 or any other pollutant problem was noticed by the Expert Committee. The ambient air quality remained between 4 to 46µg/m3 as against the permissible limit of 80µg/m3. As far as the stack samples were concerned, the reading was found to be around 129.5 mg/NM3 as against 1250 mg/NM3 or 49 ppm as against the permissible limit of 477 ppm were observed. It may be noticed that these were the highest values recorded during the operation of the industry, right from 23rd June, 2011 to the date of preparation of the report. The mass emission of sulphuric acid was 0.79 kg/tonne of sulphuric acid as against the permissible limit of one kilogram sulphuric acid per tonne of sulphuric acid.
40. Various parameters collected during the inspection of the Special Expert Committee do not indicate that any pollution, much less a health hazard, is likely to result from the activity of the appellant-company. However, the Committee has, in its report, made certain observations/recommendations in relation to safety measures, emergency preparedness and disaster 50 management plan. Observations have also been made in regard to:
a. Monitoring b. Stack Monitoring c. Inter-locking system
41. Even a draft report has been submitted with regard to the direction pertaining to co-relate Ambient Air Quality with online analyser data using models apart from co-relating data to the raw material feed data of industry and emission data from other thermal power plants. In relation to the environmental control measures adopted by the industry under the head "Air, Water and Solid Waste", no adverse comments were made by the Committee. On the contrary, it noticed, with approval, the functioning of the Unit as well as additional improved environmental measures that had been taken by the appellant- company. The cumulative effect of the report is that the appellant-company's unit has been found non-polluting and non- health hazardous during the considerably long period of operation over which the Special Expert Committee controlled and supervised the operation.
42. It is even relevant to mention here that in this Committee, the Member Secretary of the Respondent Board was a Member along with the DEE of the Respondent Board who, except with regard to the pendency of the petition before this Tribunal and 51 the Supreme Court of India, expressed no reservation with regard to the findings and recommendations made in the said report. TRUSTWORTHINESS AND RELIABILITY OF THE INCIDENT OF 23RD MARCH, 2013 :
43. The very foundation of the order dated 29th March, 2013 is the alleged incident of 23rd March, 2013. It is stated that certain complaints were received from the residents of Therku Veerapandi Puram, Vadakusilikanpatti Sourispuram, Korampallam etc. in regard to burning of eyes, irritation in the throat and heaviness in breathing. All these complaints are dated 23rd March, 2013 and had been made in somewhat identical language and content. According to these complaints, between 5.45 a.m and 7.30 a.m., smoke came from the appellant-company causing breathing difficulty. Requests were made in these reports to inspect the appellant company's site and take necessary steps. In one of the complaints it was stated that when the complainant reached the Bryant Nagar main road, there was sudden smoke, which resulted in eye irritation. Another complainant claims to have reached Annanagar main road when he suddenly realized that there was some obnoxious gas in the air which caused irritation. Another complaint was made by one Mr. M.Thomas. According to him while he was going to church, he suddenly experienced suffocation, eye irritation and giddiness, which happened due to mixing of poisonous gas in the air. He specifically states that there are no 52 other factories which can emit smoke in the area and the smoke must have come from the appellant company.
44. It was the case of the appellant-company before the Tribunal that no one suffered such eye irritation, suffocation and throat irritation as none went to the hospital or the doctors for getting treated for the same. The appellant-company also claims to have filed an RTI application for seeking information from the Government Medical Hospital, Thoothukudi on 25th March, 2013. This was responded to by the authorities at the college on 28th March, 2013 wherein they stated that on 23rd March, 2013 no patient was admitted in the Medical College hospital as 'in- patient' or 'out-patient', who was affected by leakage of gas, none was admitted and given treatment to as per records of the hospital. The respondents had relied upon the two affidavits filed by Dr. Dorus and Dr. Pethukkani. They, in their affidavits, have stated that they had reliably learnt that Sterlite Industries had contended before the Tribunal that no complaints were made by the people alleging to be suffering from eye, throat irritation etc. In these affidavits it was also stated that the deponents had no way of ascertaining whether or not the gas leak happened from Sterlite Industries but there was a marked increase in the number of patients coming in with the complaints of breathing difficulty on 23rd March, 2013. According to one of the doctors, he sees 60-70 patients in a day. He is not a general practitioner but specializes in antenatal cases and he has got regular patients. On 23rd March, 2013, he had noticed 53 disproportionately high number of patients who came complaining of breathing difficulties. The other doctor is an Obstetrician and Gynaecologist and stated that many newly married couples had come to him in the last six years and many pregnancies had ended up in abortion, sometimes reasons for the same remained unexplained. By implication, the doctor intends to connect it to the gas leak.
45. In the case of a past event that is alleged to have happened, normally it is legally impermissible to rely upon a mere suspicion. There should be cogent evidence to support such a serious occurrence. May be not by the standards of 'beyond reasonable doubt' under the criminal jurisprudence but it should be of such evidentiary value which in the normal course would be sufficient to hold the appellant-company responsible for tortuous liability or violation of the law and its consequences. These are matters of serious consequences and cannot be founded on surmises and conjectures. The various complaints or the affidavits filed do not state in definite terms that the gas leak was from appellant-company. In fact, the doctor stated and probably rightly so, that he did not have any means of ascertaining as to whether the gas leaked from the appellant company. Admittedly, SIPCOT is an industrial cluster within which the appellant-company's plant is also located. It is also now clear from the records before us that there are a large number of industries, including ones categorized as 'red industries' which emit different types of gases. It is further 54 undisputable that different kinds of gases can cause eye and throat irritation and can lead to suffocation as well. The severity of such health hazards can even be of a much higher grade by release of other gases in the air.
46. As we have already noticed, the District Collector, Thoothukudi had constituted a Committee to examine the matter, in the proceedings dated 25th March, 2013 and for conducting everyday audit/inspection at the industries such as SPIC, TAC, Sterlite, Kilburn Chemicals, Madura Coats, Ramesh Flowers, Nila Sea Food, DCW, IND Bharath Coastal Energen and Loyal Textiles, amongst others. This obviously means that all these industries were suspected of having emitted gaseous substances into air, in excess of the prescribed limits. It was expected of the Committee and the Respondent Board to place on record before the Tribunal as to whether after the inspection or collecting evidence, the finger pointed towards none else but the appellant company. That certainly is not the case herein. Any of the industries located at SIPCOT and surrounding areas could be responsible for emission of obnoxious gases in the process of its manufacturing activity. Thus, the only question which the authorities/Board was expected to answer and establish before the Tribunal by cogent evidence was as to which one of these large numbers of industries had emitted what gas and in violation of the prescribed standards on the fateful day. It can be usefully noticed at this stage that even the Special Expert Committee, appointed by the Tribunal, in its report dated 10th 55 July, 2013 has stated that besides the appellant company there are large and medium scale industries located in and around the SIPCOT area and has named the said industries, which were also mentioned in the order of the District Magistrate. It noticed the major industries in the red category, the emission sources and the pollution load in terms of SO2 emission per tonne per day in Annexure 'E' to the Report. Thus, there is no evidence, much less cogent and reliable evidence, which could persuade this Tribunal to accept the allegations of the Respondent Board as a fact rendering the appellant-company solely liable for consequential actions, much less its closure.
47. There are no medical records to show that the people had actually suffered eye irritation, throat irritation and suffocation on 23rd March, 2013 in the morning hours, as a result of release of SO2. It is a mere assumption on the part of the doctors. Even if we assume for the sake of arguments that people had suffered as a result of release of obnoxious gases in the air, then also, there has to be a definite link between the plant of the appellant company at that relevant time and emission of excessive gases from the said plant during that hour. This had to be established by ocular, documentary and scientific data by collecting samples of the stack and Ambient Air Quality at the relevant time, which again has not been done in the present case. In fact, the Special Expert Committee has observed in its report 'the cross wind levels having an impact on ambient SO2 levels contributed by nearby industries.' 56
48. Another aspect of this issue is that the wind direction at the relevant time was found to be towards the villages. If the release of excessive emission was from the appellant-company's plant then after the release of excessive emission, it would have affected the people living in the nearby areas as well. The villages from where the complaints have been received are stated to be six to eight kilometres away from the plant of the appellant- company. This is somewhat strange. One patent improbability in regard to these complaints is that the impact of excessive emissions because of higher mixture concentration would have been much more serious in the surrounding areas than the far flung areas located more than 6-8 kms away. Admittedly, no complaints from the vicinity, adjacent or within six kilometres of appellant-company's premises, had been received. Even this reasoning creates a little doubt in the story put up by the Respondent Board for closing the unit, particularly in face of the allegation made by the appellant-company that the complaints are engineered and motivated ones.
49. On the cumulative analysis of the above facts, circumstances and evidence, we are of the considered view that the alleged incident of leak or excessive emission of SO2 from the premises of the appellant-company's plant is founded on a mere suspicion and the allegation that it resulted in a health hazard is based upon a mere apprehension or unfounded suspicion and is certainly not supported by any cogent evidence. The Respondent Board has certainly not placed before the Tribunal any study in 57 consonance with the scientific methodologies for the entire period from 23rd March, 2013 to 29th March, 2013 to substantiate their plea of excessive emission released by the appellant-company resulting in serious health hazards to the residents.
50. Having noticed the factual matrix of the case, pleadings of the parties and the Expert Committee reports, we shall now proceed to discuss the merits or otherwise of the various contentions raised before us in this matter. EFFECT OF THE JUDGMENT OF SUPREME COURT DATED 2 ND APRIL, 2013 IN THE CASE OF THE APPELLANT-COMPANY ITSELF
51. As already noticed, the grant of consent to the appellant- company by the Respondent Board under the provisions of the Air Act and the Water Act was challenged before the Madras High Court and even the EC granted by the Ministry of Environment and Forests was questioned in different Writ Petitions filed before that Court. The Division Bench of the Madras High Court, by a common judgment dated 28th September, 2010, had allowed and disposed of the writ petition with the direction to the appellant- company to close down its plant at Thoothukudi. This judgment of the High Court was challenged in an appeal before the Supreme Court by filing a Special Leave Petition. The Supreme Court granted leave and all the related matters were heard by the Supreme Court as Civil Appeal. One of the main grounds raised against the appellant-company was that the unit was not located 25 km or more away from the ecological sensitive areas and this 58 was not in consonance with the guidelines issued. Thus, the consent granted was not in accordance with the law. The EC had not been granted to the appellant-company in accordance with the provisions of the notification. The public hearing was made mandatory vide the notification dated 10th April, 1997 while the appellant-company had been granted EC on 16th January, 1995 in terms of the notification dated 7th January, 1994. The area of the appellant-company was located in an industrial complex, SIPCOT, and it was at a similar distance from any ecologically sensitive area as the other chemical and other industries in the same area. In terms of environmental management of the plant, it was contemplated that the industries will develop a green belt of 250 metre width around the factory limits. In terms of the guidelines issued by the Ministry of Environment and Forests, the green belt could be of 25% of the plant area which the appellant-company had provided. The last contention against the appellant-company was that the plant of the appellant-company had caused severe pollution in the area and it was recorded in NEERI's report of 2005, submitted to the High Court and that the ground water samples taken indicated heavy metals therein. According to the appellant-company, it had corrected the deficiencies in accordance with the reports of NEERI of 2005 and 2011.
52. Thus, various contentions in regard to the activities of the appellant-company were taken up before the Supreme Court, including that it was causing air, water and environmental 59 pollution. The Supreme Court, as is evident from the referred paragraphs of the judgment, clearly noticed that out of the 30 directions issued by the Respondent Board and the deficiencies pointed out by NEERI and as was evident from the joint inspection report, 29 directions had been complied with by the appellant-company, and therefore, the order of the High Court directing closure of the appellant-company's plant was liable to be, and was in fact, set aside by the Supreme Court. The consent, for some time, had not been renewed by the Respondent Board, yet the appellant-company had continued with its manufacturing activities. Considering the magnitude, capacity and the prosperity of the appellant-company, the Supreme Court, after considering various facets, more importantly the possible pollution resulting from carrying on of its manufacturing activities, while permitting it to carry on its commercial and manufacturing activities, directed the appellant-company to pay a compensation of Rs.100 crores for having polluted the environment in the vicinity of the plant.
53. The Supreme Court, while granting this relief to the appellant, had clearly noticed that it was only setting aside the direction of the High Court in its judgment under appeal and made it clear that the judgment would not stand in the way of the Respondent Board issuing any direction to the appellant- company including the direction for closure of the plant in the interest of protection of environment in accordance with law. 60
54. As is evident from the above, the Supreme Court had taken note of the respective contentions raised on behalf of the parties in relation to environmental pollution, grant of consent and environmental clearance given to the appellant-company. The Supreme Court then proceeded to discuss and answer all the issues, which findings of the Supreme Court attained finality, except the specific leave granted therein. The doctrine of finality has two purposes to serve - it should decide finally the rights and obligations between the parties to a lis and, more importantly, a public purpose i.e. to avoid multiplicity of litigation. There should be an end to litigation by attaching finality to the judgment of the courts which itself has attained finality. Some issues cannot be permitted to be agitated or re- agitated time and again. Such an approach would frustrate the very basic rule of law and would encourage endless litigation. Thus, the issues to the exclusion of the specific leave granted by the Supreme Court itself must operate as quietus to its conclusions and they ought not be re-agitated or re-argued before any other forum after its adjudication by the highest court of the land.
55. It is also unambiguously clear and is an admitted position that the incident of 23rd March, 2013 was mentioned to the Supreme Court one day prior to the pronouncement of the judgment of 2nd April, 2013. Despite such mentioning, the Supreme Court proceeded to pronounce its judgment on all the issues and did not pass any other order in regard to the events of 61 23rd March, 2013. For that purpose, it granted specific leave to the Respondent Board to act in accordance with the law even while giving it freedom to direct closure of the appellant company's unit. To that extent, these specific issues have neither been argued, discussed nor adjudicated upon by the Supreme Court in its judgment dated 2nd April, 2013. The matters relating to all facets of environmental pollution and grant of environmental clearance, as contended before the Supreme Court, thus, would stand finally concluded by the judgment of the Supreme Court and cannot be permitted to be re-agitated before this Tribunal in the present appeal. The findings recorded by the Supreme Court in its judgment dated 2nd April, 2013 are binding on this Tribunal, and therefore, have to be followed and would stare the parties in their face in relation to the conclusions of facts and law both. The very material finding that has been returned by the Supreme Court in the judgment of 2nd April, 2013 is that subject to deposit of Rs.100 crores, the appellant- company has been permitted to continue its manufacturing activities. This dictum of the Supreme Court would have to be given due weightage by the Tribunal while determining the present controversy within the limited jurisdiction carved out by the judgment itself.
OBJECTIONS TO THE MAINTAINABILITY OF THE PRESENT APPEAL:
56. A 'statutory right to appeal' is a right which is provided under a specific statute. Such statutory right to appeal is 62 controlled by the limitations imposed under that statute. Neither expansion nor contraction of such a right is permissible. The appeal has to be filed and dealt with in accordance with the provisions of the statute providing for such right to appeal. This is a known principle, but being a part of the procedural law, is not free of exceptions. Exceptions could arise as a result of the 'doctrine of necessity' or the principle that 'none can be rendered remediless'. The right to appeal has to be effective and purposeful, though within the framework of the law governing such right.
57. The objection to the maintainability of the present appeal is on the ground that an order passed under Section 31A of the Air Act by the Respondent Board is appealable to the appellate authority constituted by the State Government under Section 31 of the Air Act. Thus, a direct appeal against the order passed by the Respondent Board in exercise of its powers under Section 31A of the Air Act to the National Green Tribunal is not contemplated. Reliance in this regard is also placed upon the provisions of Section 31B of the Air Act. In terms of Section 31A of the Air Act, a Board may, in exercise of its powers and performance of its functions under the Act, issue any directions in writing to any person, officer or authority. Such person, officer or authority shall be bound to comply with such directions under the mandate of this provision. In the present case, vide its order dated 29th March, 2013, the Respondent Board had issued directions with regard to the closure of the appellant-company. It 63 further directed disconnection of water and electricity supplies to the appellant-company's unit. Section 31 of the Air Act empowers any person aggrieved by an order made by the State Board to prefer an appeal to such authority (the appellate authority) as the State Government may think fit to constitute, within 30 days from the date of communication of the order. Section 31 of the Air Act not only provides for an appeal against an order passed by the Board, obviously including an order passed under Section 31A of the Air Act, but also specifies that the appellate authority shall consist of a single person or three persons, as the State Government may think fit to appoint in terms of Section 31(2) of the Air Act. It is not in dispute before us that the State Government of Tamil Nadu had issued a gazette notification specifying that the appellate authority, in terms of Section 31 of the Air Act, shall consist of three persons. This notification was issued on 15th September, 2000 and the second notification was issued on 24th January, 2012. Under this second notification, the appellate authority was to consist of three persons out of which only a single person had been appointed. The appellate authority remained presided by a single Member, particularly during the period of February, 2013 to May, 2013. During the pendency of the present appeal, a notification (dated 8th May, 2013) had been issued by the State Government of Tamil Nadu constituting an appellate authority of three Members and it had started functioning as such. In other words, right from February, 2013 till 8th May, 2013, the appellate authority contemplated under 64 Section 31 of the Air Act, had not been constituted in accordance with law and was not functional. At this stage, it could be useful to notice that in terms of Section 31 of the Air, it is the option of the State Government whether to constitute the appellate authority consisting of one Member or three Members but once it exercises such an option and issues a notification, then the appellate authority has to consist essentially of three Members, as has been decided by the State Government, which should dispose of the appeal in accordance with law. Of course the appeal could not be filed before, heard and disposed of by the appellate authority consisting of one Member, in face of the notification of the State Government to constitute an appellate authority consisting of three Members. This issue need not detain us any further as it has been squarely answered by a judgment of this Tribunal in the case of Gurdial Singh v. State of Punjab [Application No.4 of 2013 (THC)] decided on 30th April, 2013, where a 4-Member Bench of this Tribunal answered this question as follows:
"18. The Sub-clause (2) of Section 31 of the Air Act and Sub- clause (2) of Section 28 of the Water Act make it explicit that the Appellate Authority shall consist of a single Member or three Members appointed by the State Government. It does not mention a two Member Authority to function as Appellate Authority. The intention of legislature appears that the decision can be taken either by a single Member or by three Members. If a decision is taken by single member authority, then it becomes final decision of the authority. If it is the decision of a three member authority, there is inherent provision to mitigate any difficulty arising due to difference of opinion, i.e. if one of the members disagrees the opinion of the rest of the two Members will prevail 65 and can be treated as a majority decision of the Appellate Authority. This is not possible if only two members are appointed because if there is a divergence of opinion among them, there is no third member to overcome the difficulty. Under the above circumstances, the meeting of the authority attended by two members is one more reason as to why the impugned order is liable to be quashed."
58. Similar issue was also dealt with by the Supreme Court in the case of A.P. Pollution Control Board v. Prof. M.V. Nayadu (Retd.) & Others, (1999) 2 SCC 718, where it impressed upon the Government to appoint expert and professional judges to hear such matters together. The Court held, "In other words, this Court not only contemplated a combination of a judge and technical experts but also an appeal to the Supreme Court from the Environmental Court." Similarly in another case, the Supreme Court directed that the Central Government should constitute an authority under Section 3(3) of the Environment (Protection) Act, 1986, headed by a retired Judge of High Court and it may have other Members - preferably with expertise in the field of pollution control and environmental protection - to be appointed by the Central Government. In the light of the above judgment, it is clear that the appellate authority, once constituted of judicial and expert Members, has to hear the cases collectively and the strength of the notified appellate authority cannot be altered contrary to the notification issued by the State Government. The relevant question that calls for consideration of the Tribunal is as to whether at the relevant point of time the appellate authority had been constituted by the State 66 Government of Tamil Nadu; whether it was functional thereof; and if it provided an effective, efficacious and purposeful right to appeal to an aggrieved person from the order of the Respondent Board. The order, in the present case, was passed on 29 th March, 2013 and admittedly, it was communicated to the appellant- company immediately thereupon. Thus, the limitation of 30 days, as prescribed under the provisions of Section 31 of the Air Act, expired on 29th April, 2013. The appellate authority was not consisting of three Members and admittedly was not functional in the prescribed manner, right from February, 2013 to 8th May, 2013 when the notification was issued. The appellant-company could not have availed of the right of statutory appeal in terms of Section 31 of the Air Act effectively, efficaciously and purposefully. The very purpose of filing of appeal before the appellate authority would have stood frustrated as the same could neither be heard nor decided by a single Member of the appellate authority, constituted by the State Government. In order to avail of its right in accordance with the law, the appellant-company filed an appeal with the aid of Section 31B of the Air Act before the Southern Bench of the NGT, Chennai, on 1st April, 2013 within the period of limitation. Thus, it can hardly be stated that institution of the appeal as on 1st April, 2013 was barred in law.
59. The relevant date for considering such objection is the date on which the right to file an appeal arises and the date on which 67 the appeal is actually filed. The maintainability of the appeal has to be essentially examined as on the date of filing the same.
60. The Supreme Court, in the cases of Rajahmundry Electric Supply Company Ltd. v. A. Nageswara Rao & Ors. [AIR 1956 SC 213] and Zonal Manager, Central Bank of India v. Devi Ispat Ltd. & Ors. [(2010) 11 SCC 186] has taken the view that the date of presentation of the petition is the relevant date for examining the maintainability of the petition as well as the scope of cause of action. Subsequent events to the date of institution of the appeal are not material considerations for adjudicating upon the maintainability of the petition as well as to the cause of action that had arisen in favour of the appellant. The law applicable as on the date of institution of the application is the relevant law for determining the question of maintainability. Certain events subsequent thereto cannot alter the framework of such petition, particularly in relation to the procedural law.
61. Cause of action is one of the factors which requires to be examined by the Tribunal while dealing with such question. The expression 'cause of action' has acquired a judicially settled meaning. In the restricted sense, cause of action means the circumstances forming infraction of the right or the intermediate occasion for action. In wider sense, it means the necessary conditions for maintenance of the suit, including not only the infraction of the right, but the infraction coupled with the right itself. The invocation of the right or the objection in regard to 68 maintainability of the appeal would hardly be of any consequence. Herein, the notification, on the strength of which objection in regard to maintainability is being raised, was issued on 8th May, 2013 which itself indicates that a proper appellate authority in accordance with the notification of the State Government was not in existence when the cause of action in favour of the appellant company arose or even on the date when the appellant company was expected to avail or actually availed of its right to file an appeal.
62. Another aspect that would support the view that we are taking is the doctrine of necessity. Wherever in the facts and circumstances of the case, it is absolutely inevitable for a person to exercise another right available to it under the statute and where it is unable to exercise the preliminary right of appeal because of non-existence or non-proper constitution of the appellate authority and for its effective and efficacious exercise of right, it becomes necessary for the appellant-company to invoke another remedy, then the same would be permitted unless it was so specifically barred by law governing the subject and the rights of the parties. It was upon the appellant-company, particularly keeping in view the emergent situation created by issuance of the order dated 29th March, 2013, to avail of its right to appeal without any undue delay and as was rightly done by it within two days of the passing of the order. The unit of the appellant- company had been directed to be shut down and the appellant- company obviously could not have taken recourse to the remedy 69 under Section 31 of the Air Act as the authority itself was not properly constituted and was not functional. Besides the aid of the doctrine of necessity, the appellant-company has also placed its reliance on Section 31B of the Air Act. An appeal against the order passed by the appellate authority in exercise of its powers under Section 31 of the Air Act lies to the NGT in terms of Section 31B of the Air Act. In other words, the appellate order passed by the proper authority under Section 31 of the Air Act is appealable to the NGT in terms of Section 31B. Thus, the NGT is the appellate authority of the appellate authority constituted under Section 31 of the Air Act by the State Government. The appellant-company has itself given up its right of first appeal before the appellate authority in view of the peculiar facts and circumstances of the case. The respondents have placed reliance upon the judgment of the Supreme Court in Manohar Lal v. Union of India 2010 (11) SCC 557 where the Court had taken the view that no higher authority in the hierarchy or an appellate or revisional authority can exercise the power of the statutory authority nor the superior authority can mortgage its wisdom and direct the statutory authority to act in a particular manner. Firstly this judgment on facts and law has no application to the present case. Secondly, the non-constitution of the authority itself would bring the present case outside the application of the judgment of the Supreme Court in the case of Manohar Lal (supra).
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63. We are unable to contribute ourselves to the contention raised that a direction passed under Section 31A of the Air Act is not covered under the expression 'order' used in Section 31 of the Air Act. Any direction essentially would contain an element of order as it requires and calls upon the parties to comply with the same. 'Direction' itself means an order; an instruction how to proceed, like the judge's direction to the jury, while 'Order' is defined as a command, direction or instruction. This is how the Black's Law Dictionary, 9th Edition, refers to these two expressions. In other words, they can be used as synonyms. They are not conflicting terms and one can be read into the other. Thus, we find no substance in this contention raised on behalf of the respondents.
64. An appellate authority, which is constituted under the statute, is completely distinct and different from an administrative authority constituted otherwise even to deal with adjudicatory proceedings. In the case of an appellate authority, it must satisfy the existence de facto and must function de jure, in accordance with law. If the appellate authority itself was not in conformity with the notification, it cannot be said that it could function in accordance with law without constitution of the three Member appellate authority. The cumulative effect of this discussion is that the objection in regard to maintainability is without any substance and is liable to be rejected. In view of this finding, it is not necessary for us to examine whether this could be treated as a petition under Section 14 of the National Green 71 Tribunal Act (for short 'the NGT Act') even if it was not maintainable in view of the objection taken by the respondent in regard to maintainability of the present appeal. OBJECTIONS IN REGARD TO THE TERMS OF REFERENCE IN TERMS OF THE COURT ORDER DATED 12TH APRIL, 2013:
65. During the course of the arguments, an objection was also raised on behalf of the respondents to the terms of reference (for short the "TOR"), as contained in the order of the Court dated 12th April, 2013 and its impact on the report dated 28th April, 2013 submitted by the Expert Committee. Vide order dated 9th April, 2013, the Southern Bench of the Tribunal had noticed that Shri Vaiko, a senior politician and also the General Secretary of the Marumalarchi Dravida Munnetra Kazhagam (MDMK) Party had been actively campaigning for the closure of the unit of the appellant-company and had effectively participated in the proceedings against it before the Madras High Court. Treating him to be an aggrieved person within the meaning of Section 16 of the NGT Act, it impleaded the said Shri Vaiko as Respondent No.5. Even the Secretary of the National Trust for Clean Environment was also impleaded as Respondent No.6. Thus, the matter was hotly contested by all the respondents before the Tribunal when it came up for hearing before the Bench on 12th April, 2013 when the Tribunal passed the following order:
"When the matter is taken up for enquiry this day, the counsel led by the learned Senior counsel for the appellant/company, also the counsel for all the respondents are present. Shri Vaiko, newly impleaded respondent R-4 and R-5 in the Appeal Nos. 23 and 22 72 of 2013(SZ), respectively, is present in person. The counsel for the newly impleaded respondent No.4 in Appeal No. 22 of 2013(SZ) is present. The junior counsel for the newly impleaded R5 and R-6 in Appeal Nos. 22 and 23 of 2013 (SZ) is also present. The junior counsel for R-5 and R-6 in Appeal Nos. 22 and 23 of 2013 (SZ), respectively would submit that his senior could not be present due to some inconvenience and would file the counter in the next hearing.
The counters for the respondents have been filed except the newly impleaded Trust in the Appeal Nos. 22 and 23 of 2013 (SZ). Shri Vaiko, 4th and 5th respondent in the respective appeals files press clippings and photographs after serving copies to the other side. The appellant-company has filed rejoinder to the counters filed by the respondents.
The Tribunal heard the arguments advanced by all the counsel. From the submissions made, it could be seen that the 1st respondent/Tamil Nadu Pollution Control Board, issued a show cause notice to the appellant/ Sterlite Industries (India) Limited, on 24.03.2013 alleging that an incident of emission of SO2 exceeding the permissible limit had taken place in the plant and in violation of section 21 of the Air (Prevention and Control of Pollution) Act, 1981 and the appellant/company was called upon to tender its explanation within three days. Accordingly, a reply was sent on 27.03.2013 and a supplemental reply was also sent on 29.03.2013 by the appellant/company. Not satisfied with the explanation tendered, the first respondent/Board passed two orders, (1) with directions to the appellant/company to close the unit forthwith and (2) directing the Tamil Nadu Electricity Board, Thoothukudi to disconnect the power supply. While the matter stood thus, the appellant-company preferred the appeals and all the respondents entered appearance and filed counters except the newly impleaded National Trust for Clean Environment. Heard the representing counsel except the newly impleaded Trust.
From the time of admission of the appeals, the appellant/company is pressing for an interim relief for stay of operations for the first respondent's order under challenge. The matter was adjourned for filing of counters by the respondents this day. The arguments advanced by the learned counsel for the respondents and also the appellant-company are part heard. At this juncture, it is pertinent to point out 73 that while the first respondent/Board, issued show cause notice to the appellant/company alleging that there was an incident of emission of SO2 in excess of the prescribed limit in the early morning hours of 23.03.2013, the said allegation was flatly denied by the appellant/company and hence a question would arise whether there was an incidence of SO2 emission in excess of permissible limit on 23.03.2013 as alleged by the first respondent/Board and if so what were the consequences brought about? In so far as the question is concerned, the counsel for the appellant-company and also for the respondents except for 6th respondent have adduced their contentions and they also relied on the documents filed by them in support of their contentions and hence, it remains to be decided. Next, it is contended by the respondent's side that the machines and also the instruments that are attached to the plant are not working properly and this led to the emission of SO2 and caused all health hazards. In answer to his, it is submitted by the senior counsel for the appellant- company that all the machinery and instruments are in perfect working condition. Hence, the Tribunal is of the considered opinion that it is fit and proper and the circumstances also warrant the appointment of an Expert Committee:
(1) To assess and appraise the actual working condition of SO2 analyser, its current status, the routing of gas and the current actual emission values, when the plant is in operation during the study.
(2) To measure the emission of SO2 from all applicable stacks in SIL.
(3) To oversee the process of calibration of the analyser.
(4) To find out the location, the working condition and data record system of monitoring stations under the National Ambient Air Quality Monitoring Programme.
(5) The Expert Committee shall consist of a Chairman and a Member.
(6) The names of the members who constitute the Committee will be made known on the adjourned date.
(7) The Committee shall be assisted by two representatives, one from respondent-1/Tamil Nadu Pollution Control Board, and the other from the Appellant/company.
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(8) Both the first respondent and the Appellant/Company are directed to furnish the names of their nominees who will assist the Expert Committee on the adjourned date.
At the time of the inspection and study by the Expert Committee, the Appellant/company is permitted to operate the unit precisely for inspection and study as per the Standard Operating Practice. The duration of this exercise shall be as per the requirement of the Committee.
The remuneration for the Chairman and Expert Member of the Committee is fixed at Rs.25,000/- (Rupees twenty five thousand) only each payable by the Appellant/company. The experts are required to issue notice of inspection to the appellant-company and also the respondents.
The Appellant/company is directed to make arrangements for the transport, accommodation and local hospitality to the Expert Committee.
The Committee shall submit a report to the Tribunal on or before 29.04.2013. The matter is posted to 18.04.2013 for filing counter of the newly added respondent National Trust for Clean Environment in both the appeals."