Supreme Court of India
M/S ARAVALI POWER CO PVT LTDversusVEDPRAKASH AND ANOTHER
- Citation
- 2022 INSC 547
- Decided
- 10 May 2022
- Disposal
- Disposed off
- Bench
- D Y CHANDRACHUD
Holding
The Supreme Court set aside the NGT orders as they were based on notifications that had been superseded by the 31 December 2021 notification, and directed the Ministry to revisit the latter for compliance with the 2016 hazardous waste rules.
Summary
The Supreme Court examined appeals filed by M/s Aravali Power Co. Pvt. Ltd. challenging National Green Tribunal (NGT) orders that imposed environmental compensation on thermal power plants for non‑compliance with earlier Ministry of Environment notifications on fly‑ash utilization. The NGT had based its orders on the 1999, 2003 and 2016 notifications, which required 100% utilization of fly ash by 31 December 2017. While the appeals were pending, the Ministry issued a new notification on 31 December 2021 superseding the earlier ones and providing a ten‑year timeline for utilization of legacy ash along with detailed monitoring and audit provisions. The Court held that the NGT orders were rendered untenable because they were predicated on a statutory framework that had been replaced, and therefore set them aside. It directed the Ministry to revisit the 2021 notification to address identified deficiencies, especially concerning loading, transport, storage and disposal of ash in accordance with the Hazardous and Other Wastes Rules, 2016. The appeals were disposed of, and the Court clarified that its judgment does not endorse the validity of the 2021 notification, leaving parties free to challenge it in appropriate forums.
Issues considered
- Whether the NGT orders imposing environmental compensation based on the 2016 notification remain valid after the issuance of the superseding 2021 notification.
- Whether the Supreme Court can set aside NGT orders that are founded on a statutory regime later replaced by a new notification.
- Whether the 2021 notification complies with the Hazardous and Other Wastes (Management and Transboundary Movement) Rules, 2016 and requires further modification.
Legislation cited
- Environment (Protection) Act, 1986s. 3
- Hazardous and Other Wastes (Management and Transboundary Movement) Rules, 2016s. 3(17), s. 3(23), s. 3(33), s. 3(34)
Subjects
fly ash utilizationenvironmental compensationNational Green Tribunalnotification supersessionprecautionary principlehazardous waste rulesmonitoring and audit
Judgment
[2022] 4 S.C.R. 753 753
M/S ARAVALI POWER CO PVT LTD A
v.
VEDPRAKASH AND ANOTHER
(Civil Appeal Nos. 1692-1693 of 2020)
MAY 10, 2022 B
[DR. DHANANJAYA Y CHANDRACHUD AND
PAMIDIGHANTAM SRI NARASIMHA, JJ.]
Environment (Protection) Act 1986: s. 3 – Environmental
Compensation – Utilization and disposal of accumulated fly ash at
C
the units of thermal power producers – Statutory notification by the
Ministry of Environment and Forest and Climate Change-MoEF&CC
requiring manufacturers of clay to mix 25% of Ash which was
amended by notification requiring construction agencies to use
100% of the fly ash in a phased manner up to 03.08.2007; and by
further notification time period extended until 31.12.2017 – National D
Green Tribunal held that the Thermal Power Plants-TPPs failed to
take adequate steps for the scientific disposal of fly ash in
accordance with the statutory notifications issued by the Ministry –
Direction by NGT that for non-compliant TPPs’, the environmental
compensation to be determined with effect from 31.12.2017 – During
E
pendency, the Ministry by Notification dated 31.12.2021 granted
extension of ten years to TPPs to comply with the requirement of
100% utilization of accumulated legacy fly ash, subsuming the
earlier notifications – Sustainability of the order passed by the NGT
– Held: NGT found fault with the TPPs due to their failure to comply
with the notification dated 25.01.2016 and the extended deadline F
which was fixed for the utilization of fly ash – In view of the
subsequent development, the basis of the order of the NGT altered
– Thus, in view of the notification dated 31.12.2021, the orders of
the NGT set aside – Furthermore, having noticed certain deficiencies
in the notification dated 31.12.2021, as regards the loading,
G
unloading, transport, storage and disposal of fly ash in an
environmentally sound manner, MoEF&CC to revisit whether the
parameters prescribed by the notification dated 31.12.2021 –
Hazardous and Other Wastes (Management and Transboundary
Movement) Rules 2016 – rr. 3(17), 3(23), 3(33), 3(34).
H
753
754 SUPREME COURT REPORTS [2022] 4 S.C.R.
A CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1692-
1693 of 2020.
From the Judgment and Order dated 24.10.2019 of the National
Green Tribunal, Principal Bench, New Delhi in Original Application
No.834 of 2018 and Order dated 22.11.2019 in M.A. No.231 of 2019 in
B Original Application No. 834 of 2018.
With
Civil Appeal Nos. 3236, 3171-3172, 3231, 3229-3230, 2947, 3235,
3237, 3398, 2838, 3040, 2713, 2760, 2803, 3232-3233, 2946, 3038-3039,
3234 of 2020, 4489 of 2022, 3173, 3575 of 2020, 4487-4488 of 2022,
C 3971-3972 of 2020, 225 of 2021 and 4265 of 2022.
Ms. Aishwarya Bhati, ASG, Anil Grover, Sr. AAG, Tapesh Kumar
Singh, Saurabh Mishra, AAGs, Ashok K. Gupta, Sajan Poovayya, Bharat
Sangal, Manish Singhvi, Dr. Manish Singhvi, S.C. Verma, Sr. Advs.,
Ms. Noopur Singhal, Rahul Khurana, Satish Kumar, Sanjay Kumar Visen,
D Ms. Ritu Rastogi, Suresh Kumar Bhan, Ms. Madhumita Bhattacharjee,
Deep Rao Palepu, Ms. Prerna Priyadarshini, Ms. Priyashree Sharma
PH, Arjun Agarwal, Ms. Syed F. Alam, Abhishek Gupta, Ms. Ikshita
Singh, Kapil Raghav, Ms. Sunita Sharma, Dishant Bhati, Shri Venkatesh,
Ms. Nishtha Kumar, Suhael Buttan, V. N. Kannan, Ms. Raksha Agrawal,
E Shailesh Madiyal, Sudhanshu Prakash, Ms. Babita Kushwaha, Nagarkatti
Kartik Uday, Kaustubh Shukla, Ms. Ranjana Roy Gawai, Ms. Vasudha
Sen, Vineet Wadhwa, Ms. Divya Roy, Sanjay Ghalawat, Kedar Nath
Tripathy, Kartik Seth, Ms. Shriya Gilhotra, Ms. Garima Saxena, Sahil
Nagpal, M/s. Chambers of Kartik Seth, Mahesh Agarwal, Rishi
Agrawala, Aniket Prasoon, Ms. Parul Shukla, Nishant Rao, Ms. Shweta
F Vashisth, E. C. Agrawala, Adarsh Tripathi, Vikaran Singh Baid, Saurabh
Yadav, Gaurav, Mahfooz Ahsan Nazki, Polanki Gowtham, Ms. Rajeswari
Mukherjee, Mukesh Kumar Maroria, Rajat Nair, Udai Khanna, Sughosh
Subramaniyam, Udit Khanna, Ms. Deepabali Dutta, Amrish Kumar,
Ms. Ruchi Kohli, Siddhant Kohli, Ms. Suhasini Sen, Shantanu Sharma,
G Athulesh Kumar, Harish Pandey, Ajay Kumar Singh, Rahul G. Tanwani,
Rustam Singh Chauhan, Manvendra Singh, Sarad Kumar Singhania,
Gurmeet Singh Makker, Vardhman Kaushik, Ms. Manika Tripathy
Pandey, Ashutosh Kaushik, Shubham Hasija, Manish Vashist, Neeraj
H
M/S ARAVALI POWER CO PVT LTD v. VEDPRAKASH AND 755
ANOTHER
Kumar Gupta, Ranjeet Kumar Singh, Ms. Anjali Mishra, Ms. Pallavi A
Kumari, Ms. Arti Prasad, Abhishek Kumar, Nikilesh Ramachandran,
Shubham Seth, Ms. Mrinal Chaudhry, Ms. Neha Jain, Prateek Samjpati,
Rajan Parmar, Raj Bahadur Yadav, Pradeep Misra, Daleep Dhyani,
Manoj Kr. Sharma, Praveen Swarup, Ms. Payal Swarup, Kaushik
Chaudhary, Mrs. Archana Sharma, Nishit Agrawal, Harsh Mishra, Azmat
B
Hayat Amanullah, Ms. Nitya Sharma, Ms. Aswathi M.K., Ms. Shirin
Khajuria, Abhishek Atrey, Ms. Deepanwita Priyanka, Kumar Anurag
Singh, Ms. Tulika Mukherjee, Ms. Aastha Shrestha, Beenu Sharma,
Sachin Patil, Rahul Chitnis, Aaditya A. Pande, Geo Joseph, Ms. Shewtal
Shepal, Sunny Choudhary, Ms. Mrinal Gopal Elker, Manish Yadav,
Ms. Pratibha Yadav, Prafull Singh Chandel, Sibo Sankar Mishra, Rajesh C
Kumar Nayak, M. Yogesh Kanna, Ajay Vikram Singh, Ms. Priyanka
Singh, Ms. Himanshi, Narendra Rana, Abhimanyu Tewari, Ms. Eliza
Bar, Pashupathi Nath Razdan, Susheel Tomar, Prakhar Srivastava,
Ms. Sneh Bairwa, Arpit Parkash, D. K. Devesh, Upendra Pratap Singh,
Harsh Singh Rawat, Abhinav S. Raghuvanshi, Suprabh Kumar Roshan,
D
Ms. Aparna Rohatgi Jain, Mahesh Kasana, S.K. Verma, Avijit Roy, Manish
Kumar Choudhary, Ms. Namita Choudhary, Ms. Raj Lakshmi Singh,
Sumeer Sodhi, Prannoy Joe Sebastian, G.M. Kawoosa, Ms. Taruna
Ardhendumauli Prasad, V. N. Raghupathy, Apzal Ansari, Prakash Jadav,
Arjun Garg, Shibashish Misra, Chirag M. Shroff, Amandeep Mehta,
Suvendu Suvasis Dash, Kunal Chatterji, Ms. Maitrayee Banerjee, Rohit E
Bansal, Rupesh Kumar, Ms. Pankhuri Shrivastava, Ms. Neelam Sharma,
Firdouse Qutb Wani, Akshay Verma, Pawan, Ms. Uttara Babbar,
Ms. Binu Tamta, Nitin Mishra, Ashwani Kumar, Anshay Dhatwalia,
Ms. Kumud Nijhawan, Alok Gupta, Ms. Richa Kapoor, Kunal Anand,
Ms. Jyoti Zongluju, Prateek Bhandari, Ms. Asha Gopalan Nair,
F
Ms. Nivedita Nair, Anjani Kumar Singh, Arun Gopalan Nair, Siddhesh
Kotwal, Ms. Ana Upadhyay, Ms. Manya Hasija, Ms. Preeti Singh, Akash
Singh, Nirnimesh Dube, Shri Venkatesh, Ms. Kanika Chugh, Nitin Saluja,
V. M. Kannan, Jatin Ghuliani, Suhael Buttan, Ms. Priyanka, Yashish
Chandra, Ramakant Rai, Somesh Srivastava, Sandeep Devashish Das,
Ms. Mehak Sood, Deep Roy, Rony Oommen John, Piyush Swami, G
Arshdeep Singh, Dr. Joseph Aristotle S., Ms. Nupur Sharma, Shobhit
Dwivedi, Sanjeev Kumar Mahara, Advs. for the appearing parties.
H
756 SUPREME COURT REPORTS [2022] 4 S.C.R.
A The Judgment of the Court was delivered by
DR DHANANJAYA Y CHANDRACHUD, J.
1. Permission to file the civil appeal is granted.
2. This batch of connected appeals has arisen from the judgments
B of the National Green Tribunal1 pertaining to the utilization and disposal
of fly ash by thermal power plants. Among the orders of the NGT are
orders dated 24 October 2019, 22 November 2019, 12 February 2020,
21 August 2020, 16 September 2020 (rejecting a review of the order
dated 21 August 2020) and 28 September 2020 (rejecting a review of
the order dated 12 February 2020). A tabulated chart indicating the civil
C appeals and the corresponding orders of the NGT is set out below:
D
E
F
G
H 1
“NGT”
M/S ARAVALI POWER CO PVT LTD v. VEDPRAKASH AND 757
ANOTHER [DR DHANANJAYA Y CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
758 SUPREME COURT REPORTS [2022] 4 S.C.R.
A
B
C
D
E
F
G
H
M/S ARAVALI POWER CO PVT LTD v. VEDPRAKASH AND 759
ANOTHER [DR DHANANJAYA Y CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
760 SUPREME COURT REPORTS [2022] 4 S.C.R.
A
B
C
D
E
F
G
H
M/S ARAVALI POWER CO PVT LTD v. VEDPRAKASH AND 761
ANOTHER [DR DHANANJAYA Y CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
762 SUPREME COURT REPORTS [2022] 4 S.C.R.
A
B
C
3. The NGT was seized of the issue pertaining to the handling of
D
accumulated fly ash at the units of several thermal power producers. In
the course of its analysis in the above orders, the NGT came to the
conclusion that the Thermal Power Plants2 had failed to take adequate
steps for the scientific disposal of fly ash in accordance with the statutory
notifications issued by the Ministry of Environment and Forest and Climate
E Change3 under the provisions of the Environment Protection Act 1986.
4. The MoEF & CC issued a Notification dated 14 October 1999
requiring manufacturers of clay bricks, tiles, blocks or construction
activities to mix at least 25% of ash. By a notification dated 27 August
2003, amendments were made to the above notification requiring
F construction agencies to use 100% of the fly ash in a phased manner up
to 3 August 2007. A further amendment was made by a notification
dated 27 January 2016 which extended the time period to achieve 100%
utilization of fly ash until 31 December 2017. The NGT directed that for
non-compliant TPPs’, the environmental compensation must be
determined with effect from 31 December 2017, which is the cut-off
G date stipulated in the Notification dated 27 January 2016. The Central
Pollution Control Board 4, was accordingly directed to compute
2
“TPP”
3
“MoEF & CC”
4
H “CPCB”
M/S ARAVALI POWER CO PVT LTD v. VEDPRAKASH AND 763
ANOTHER [DR DHANANJAYA Y CHANDRACHUD, J.]
environmental compensation in accordance with the formula accepted A
by the NGT and to report compliance. Consequential directions have
been issued in pursuance of the above directions.
5. During the pendency of the proceedings before this Court, a
notification was issued by the MoEF&CC on 31 December 2021 in
exercise of powers conferred by Section 3 of the Environment (Protection) B
Act 1986.5 This notification was issued in supersession of Notification
No 763(E) dated 14 September 1999. By the notification, the Union
Government has formulated parameters for ash utilization from coal or
lignite thermal power plants. Paragraph A(5) of the said notification
provides a timeline for the utilization of ‘legacy ash’, that is unutilized
accumulated ash which was stored before the publication of the C
notification:
“The unutilized accumulated ash i.e. legacy ash, which is stored
before the publication of this notification, shall be utilized
progressively by the thermal power plants in such manner that
the utilization of legacy ash shall be completed fully within ten D
years from the date of publication of this notification and this will
be over and above the utilization targets prescribed for ash
generation through current operations of that particular year:
Provided that the minimum quantity of legacy ash in percentages
as mentioned below shall be utilized during the corresponding year E
and the minimum quantity of legacy ash is to be calculated based
on the annual ash generation as per installed capacity of thermal
power plant.
F
Provided further that the legacy ash utilisation shall not be required
where ash pond or dyke has stabilised and the reclamation has G
taken place with greenbelt or plantation and the concerned State
Pollution Control Board shall certify in this regard. Stabilisation
and reclamation of an ash pond or dyke including certification by
the Central Pollution Control Board (CPCB) or State Pollution
5
Notification No. 5481(E) H
764 SUPREME COURT REPORTS [2022] 4 S.C.R.
A Control Board (SPCB) or Pollution Control Committee (PCC)
shall be carried out within a year from the date of publication of
this notification. The ash remaining in all other ash ponds or dykes
shall be utilised in progressive manner as per the above mentioned
timelines.
B Note: The obligations under sub-paragraph (4) and (5) above for
achieving the ash utilisation targets shall be applicable from 1st
April, 2022.
[…]”
6. The consequence of the notification dated 31 December 2021
C is that the earlier notifications would get subsumed by the terms of the
notification. The NGT in the impugned orders had found fault with the
TPPs due to their failure to comply with the notification dated 25 January
2016 and the extended deadline which was fixed for the utilization of fly
ash. In view of the subsequent development which has taken place, the
D basis of the order of the NGT would be fundamentally altered by the
modalities and time-lines which are prescribed by the notification dated
31 December 2021. In view of the latest notification, the orders of the
NGT would have to be set aside together with the imposition of the
measure of compensation as directed in the impugned orders.
E 7. During the course of the hearing, counsel appearing on behalf
of some of the contesting parties have fairly alluded to certain deficiencies
in the notification dated 31 December 2021, particularly in the context of
the loading, unloading, transport, storage and disposal of fly ash in an
environmentally sound manner to ensure that it does not cause air and
water pollution. Mr Tapesh Kumar Singh, learned AAG who appears
F for the State of Jharkand submitted a note of submissions to assist the
court, in his personal capacity as an officer of the court. In this context,
reliance has been placed on an order dated 24 September 2013 of a
two-Judge Bench of this Court in SLP(C) No 30381 of 2011 when the
Court was seized of a tender dispute relating to transportation of fly ash.
G While dealing with the dispute, the following directions were issued by
the Court:
“Allotment of the contract and transportation work shall, however,
be subject to the following further conditions:
1. The contractor shall abide by the directions issued by the
H Government of India, if any, under Section 5 of the Act, or the
M/S ARAVALI POWER CO PVT LTD v. VEDPRAKASH AND 765
ANOTHER [DR DHANANJAYA Y CHANDRACHUD, J.]
requirement of any Rules that may be framed by the A
Government of India under Section 6 of the Act, or instructions/
circulars, if any, issued by the Central Pollution Control Board
as to nuisance free transportation of ash, including Pond Ash
from the Thermal Power Stations to abandoned mines and to
other destinations, as the case may be;
B
2. Pending issue of any directions or framing of any Rules by the
Government of India or issuance of any instructions/circulars
by the Central Pollution Control Board, the transportation work
shall be undertaken by the contractors who emerge successful
only by using mechanized steel covered container trucks which
would ensure that after the Pond Ash is loaded into the truck, C
it has no opportunity to fly out of the container to cause any
kind of environmental hazard. We leave the details of
specifications, if any, of such trucks to the Corporation and its
Engineers to be specified in the course of negotiations to be
conducted with the bidders.” D
8. By an earlier order dated 13 August 2013 in the above
proceedings, this Court had impleaded CPCB in order to ascertain
whether it had prescribed any standards or framed any rules regarding
the loading, unloading, utilization and nuisance free transportation of all
types of ash including fly ash, bottom ash and pond ash generated by E
TPPs. During the pendency of those proceedings, certain steps were
taken by this Court to scrutinize whether any standards or measures
have been prescribed by the CPCB. However, on 22 January 2016,
SLP(C) No 30381 of 2011 and the connected matters were dismissed
on the ground that they had been rendered infructuous.
F
9. Apart from the above proceedings, during the course of the
hearing, this Court has been apprised of the regulatory provisions contained
in the Hazardous and Other Wastes (Management and Transboundary
Movement) Rules 20166 including rules 3(17), 3(23), 3(33) and 3(34) of
the Rules. In this context, it has been submitted that the Union Government
is duty bound to formulate rules to guarantee that the loading, unloading, G
utilization and transportation of fly ash takes place in a manner to prevent
environmental hazards.
6
“Rules of 2016” H
766 SUPREME COURT REPORTS [2022] 4 S.C.R.
A 10. At this stage, it would be material to note the provisions of
paragraph A(7) of the notification dated 31 December 2021 which reads
as follows:
“(7) Every coal or lignite based thermal power plant shall ensure
that loading, unloading, transport, storage and disposal of ash is
B done in an environmentally sound manner and that all precautions
to prevent air and water pollution are taken and status in this
regard shall be reported to the concerned State Pollution Control
Board (SPCB) or Pollution Control Committee (PCC) in Annexure
attached to this notification.”
C 11. Paragraph E of the notification deals with enforcement,
monitoring, audit and reporting. Paragraphs (3) and (5) of paragraph E
are extracted below:
“(3) For the purpose of monitoring the implementation of the
provisions of this notification, a committee shall be constituted
under the Chairperson, Central Pollution Control Board
D
(CPCB) with members from Ministry of Power, Ministry
of Coal, Ministry of Mines, Ministry of Environment, Forest
and Climate Change, Ministry of Road Transportation and
Highways, Department of Heavy Industry as well as any
concerned stakeholder(s), to be nominated by the Chairman
E of the committee. The committee may make
recommendations for effective and efficient implementation
of the provisions of the notification. The committee shall
meet at least once in six months and review annual
implementation reports and the committee shall also hold
stakeholder consultations for monitoring of ash utilisation
F
as mandated by this notification by inviting relevant
stakeholder(s) at least once in six months. The committee
shall submit the six monthly report to Ministry of
Environment, Forest and Climate Change (MoEFCC).
(5) The compliance audit for ash disposal by the thermal power
G plants and the user agency shall be conducted by auditors,
authorised by Central Pollution Control Board (CPCB) and
audit report shall be submitted to Central Pollution Control
Board (CBCB) and concerned State Pollution Control
Board (SPCB) or Pollution Control Committee (PCC) by
H 30th November every year. Central Pollution Control Board
M/S ARAVALI POWER CO PVT LTD v. VEDPRAKASH AND 767
ANOTHER [DR DHANANJAYA Y CHANDRACHUD, J.]
(CPCB) and concerned State Pollution Control Board A
(SPCB) or Pollution Control Committee (PCC) shall initiate
action against non-compliant thermal power plants within
fifteen days of receipt of audit report.”
12. In view of the above background, it would be necessary for
the MoEF&CC to revisit whether the parameters which have been B
prescribed by the notification dated 31 December 2021 must be modified
taking into account the provisions of the Rules of 2016, to the extent to
which the applicability of the Rules is attracted to the utilization,
transportation and disposal of fly ash. Besides conducting this exercise,
MoEF&CC shall ensure that the enforcement, monitoring, audit and
reporting mechanism which is envisaged in paragraphs E(3) and E(5) of C
the notification dated 31 December 2021 is duly put into place and
enforced scrupulously. Unless steps have already been taken to enforce
the precautionary steps envisaged in the notification, MoEF&CC shall
do so within a period of three months from the date of this judgment. In
doing so the precautionary principle shall be followed. The MoEF&CC D
shall also determine upon due analysis whether any further modification
of the notification is necessary to comply with the provisions of the Rules
of 2016 noticed above and other cognate legislation, including subordinate
legislation bearing on the utilization, transport and disposal of fly ash in
an environmentally sustainable manner.
E
13. In view of the above discussions, and having regard to the
notification dated 31 December 2021, the impugned orders of the National
Green Tribunal shall stand set aside.
14. The appeals shall stand disposed in terms of the above
directions.
F
15. We clarify that this judgment shall not be construed as a decision
on merits upholding the validity of the notification dated 31 December
2021. Any party aggrieved by the terms of the notification would be at
liberty to pursue the remedies which are available in law before the
appropriate forum.
G
16. IA No 111919 of 2020 in Civil Appeal Nos 3171-3172 of 2020
for impleadment stands allowed.
17. Pending applications, if any, stand disposed of.
Nidhi Jain Appeals disposed of. H
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