Supreme Court of India
STER LITE INDUSTRIES (INDIA) LTD. ETC. ETC.versusUNION OF INDIA & ORS. ETC. ETC.
- Citation
- 2013 INSC 204
- Decided
- 2 April 2013
- Disposal
- Appeal(s) allowed
- Bench
- A K PATNAIK
Holding
The Supreme Court held that the High Court was not justified in setting aside the environmental clearance and consent orders as there was no breach of any mandatory procedural requirement, and while the plant must pay compensation, the closure order was set aside.
Summary
Sterlite Industries obtained environmental clearance and consent orders to set up a copper smelter in Tuticorin in 1995. The Madras High Court ordered its closure, citing lack of a mandatory public hearing, violation of a 25‑km distance condition from an ecologically sensitive area, and an inadequate green‑belt requirement. The Supreme Court held that the 1994 EIA notification did not make public hearings mandatory and that the clearance was granted in accordance with the law, so the High Court could not quash it. It also found that the consent order’s distance condition was not breached because the plant was permitted within the SIPCOT complex, and the reduction of the green belt was a lawful exercise of the TNPCB’s discretion. While setting aside the closure order, the Court directed Sterlite to pay Rs.100 crore as compensation for past environmental damage and operating without renewal, but left open the possibility of future remedial orders. The appeals were allowed, and the High Court’s judgment was set aside.
Issues considered
- The validity of the High Court's interference with the environmental clearance on the ground of alleged procedural impropriety, specifically the absence of a public hearing.
- Whether Sterlite violated the consent order condition requiring the plant to be located at least 25 km from an ecologically sensitive area.
- The lawfulness of the TNPCB's reduction of the mandated green‑belt width from 250 metres to 25 metres.
- Whether continued pollution by the plant justified its closure under Article 21 of the Constitution.
- The liability of Sterlite to pay compensation for environmental damage and for operating without a valid renewal of consents.
Legislation cited
Subjects
environmental clearanceprocedural improprietypublic hearingecologically sensitive areagreen beltcompensationjudicial reviewpollution controlArticle 21EIA
Judgment
[2013] 6 S.C.R. 573
STER LITE INDUSTRIES (INDIA) LTD. ETC. ETC. A
v.
UNION OF INDIA & ORS. ETC. ETC.
(Civil Appeal Nos. 2776-2783 of 2013)
APRIL 2, 2013
B
[A.K. PATNAIK AND H. L. GOKHALE, JJ.]
Environment (Protection) Act, 1986 - s. 3(2)(v) -
Environment (Protection) Rules, 1986 - r.5 - Environmental
clearance granted to appellant-company for setting up copper C
smelter plant- Interference with, by the High Court on ground
of procedural impropriety.,.. Justification - Held: On facts, not
justified -There was no breach of any mandatory requirement
in the procedure ·..: Environmental clearance was granted in
accordance with the procedure laid down in the Environment D
Impact Assessment (EIA) notification dated 27.01.1994 well
before issuance of the notification dated 10.04.1997 providing
for mandatory public hearing - Consequently, the High Court
could not have allowed the writ petitions challenging the
environmental clearances on the ground that no public E
hearing was conducted before grant of the environmental
clearances - So long as the statutory process is followed and
the EIA made by the authorities concerned is not found to be
irrational so as to frustrate the very purpose of EIA, the Court
will not interfere with the decision of the authorities in exercise F
of its powers of judicial review.
Environment (Protection) Act, 1986 - s. 3(2)(v) -
Environment (Protection) Rules, 1986 - r.5 - Environmental
clearance granted to appellant-company for setting up copper
smelter plant - Consent order granted by the State Pollution G
Control Board (TNPCB) under the Water Act - High Court
directed closure of the plant of appellants on the ground that
it was located within 25 kms. of an ecologically sensitive area
573 H
574 SUPREME COURT REPORTS (2013] 6 S.C.R.
A and thus the appellants violated the consent order -
Justification - Held: Not justified - While appellant-company
was given consent to establish its plant in the SIPCOT
Industrial Complex in Tuticorin, a condition was stipulated that
the appellants have to ensure that the location of the unit is
B 25 kms. away from ecological sensitive area - However, while
granting consent, the TNPCB apparently failed to note that
the said complex was within 25 kms. offour islands in the Gulf
of Munnar Marine National Park (an ecologically sensitive
area) - Since, the consent order was granted to appellant-
C company to establish its plant in the SIPCOT Industrial
Complex and the plant was in fact established therein, the
High Court could not have come to the conclusion that the
appellant-company had violated the Consent Order -
However, the plant of appellants can be directed to be shifted
0 in future, in case it becomes necessary for preseNation of
ecology of the said four islands which form part of the Gulf of
Munnar - As and when the Central Government issues order
u/r.5 of the Environment (Protection) Rules, prohibiting or
restricting the location of industries within and around the Gulf
E of Munnar, then appropriate steps may have to be taken by
all concerned for shifting the industry of the appellants from
the SIPCOT Industrial Complex depending upon the content
of the order or notification issued by the Central Government
under r.5 of the Environment (Protection) Rules, subject to
legal challenge by the industries - Water (Prevention and
F Control of Pollution) Act, 1974 - s.25.
Environment (Protection) Act, 1986 - s.3(2)(v) -
Environment (Protection) Rules, 1986 - r.5 - Environmental
clearance granted to appellant-company for setting up copper
G smelter plant - Consent order granted by the State Pollution
Control Board (TNPCB) under the Air Act - Condition
imposed by TNPCB in regard to development of green belt
around the battery limit of industry - High Court directed
closure of the plant of appellant-company on the ground that
H though originally the TNPCB stipulated a condition in the 'No
STERLITE INDUSTRIES (INDIA) LTD. ETC. v. UNION 575
OF INDIA & ORS.
Objection Certificate' that the appellant-company has to A
develop a green belt of 250 meters width around the battery
limit of the plant, later the TNPCB reduced the minimum width
of the green belt required to be developed by the appellants
to 25 meters - Held: If TNPCB after considering the
representation of the appellants reduced the width of the B
green belt from a minimum of 250 meters to a minimum of
25 meters around the battery limit of the industry of the
appellants and it is not shown that exercise of this power was
vitiated by procedural breach or irrationality, the High Court
in exercise of its powers of judicial review could not have c
interfered with the exercise of such power by the State
Pollution Control Board - It was for the TNPCB to take the
decision in that behalf and considering that the appellant's
plant was within a pre-existing industrial estate, the appellant
could not have been singled out to require a huge green belt 0
- Air (Prevention and Control of Pollution) Act, 1981 - s.21.
Environment (Protection) Act, 1986 - s.3(2)(v) -
Environment (Protection) Rules, 1986 - r.5 - Setting up of
industrial plant - Liability to pay compensation for damage
caused by the plant to the environment - Held: It is for the E
administrative and statutory authorities to consider and grant
environmental clearance and the conse11ts for setting up the
plant- Such decisions cannot be interfered with, by the Court
on ground that had the authorities made a proper
environmental assessment of the plant, the adverse F
environmental effects of the industry could have been
prevented - If, however, the industry continues to pollute the
environment so as to effect the fundamental right to life under
Article 21 of the Constitution, direction can be given for
closure of the industry if there are no other remedial measures G
to ensure that the industry maintains the standards of
emission and effluent - In the instant case, the plant of
appellant-company did not maintain the standards of
emission and effluent as laid down by the TNPCB - But
H
576 SUPREME COURT REPORTS (2013] 6 S.C.R.
A deficiencies in the plant of the appellants which affected the
environment now removed - Thus, impugned order of the
High Court directing closure of the plant of the appellants
liable to be set aside, particularly on considerations of public
interest, inasmuch as the plant of appellants contributes
B substantially to the copper production in India and provides
employment to large number of people - However, appellant-
company liable to pay compensation for causing damages
to environment from 1997 to 2012 and for operating its plant
without valid renewal for fairly long period - Considering the
c magnitude, capacity and prosperity of appellant-company, it
is held liable to pay compensation of Rs. 100 crores - Any
less amount, would not have. the desired deterrent effect on
appellant-company - Air (Prevention and Control of Pollution)
Act, 1981 - s.21 - Water (Prevention and Control of Pollution)
Act, 1974 - s.25 - Constitution of India, 1950 - Article 21.
0
The appellant-company applied and obtained 'No
Objection Certificate' on 01.08.1994 from the State
Pollution Control Board ('TNPCB') for setting up a copper
smelter plant in Tuticorin. On 16.01.1995, the Ministry of
E Environment and Forests, Government of India, granted
environmental clearance to the setting up of the plant and
on 17.05.1995, the Government of Tamil Nadu too granted
clearance. On 22.05.1995, the TNPCB granted its consent
under Section 21 of the Air (Prevention and Control of
F Pollution) Act, 1981 and under Section 25 of the Water
(Prevention and Control of Pollution) Act, 1974 to the
appellants to establish the plant.
Writ petitions challenging a) the environmental
G clearance granted by the Ministry of Environment and
Forests, Government of India, and the Government of
Tamil Nadu, Department of Environment; and b) the
consent orders granted under the Air Act and the Water
Act by the TNPCB were filed before the High Court. While
H the writ petitions were pending, the appellants set up the
STERLITi INDUSTRIES (!NOIA) l TD. ETC. v. UNION 577
OF INDIA & ORS.
plant and commenced production on 01.01.1997. Two A
other writ petitions were then filed - one praying for inter
alia a direction to the appellants to stop forthwith the
operation of the plant; and the other for directions to the
State of Tamil Nadu,_TNPCB and the Union of India to take
action against the appellant-company for its failure to take B
safety measures due to which there were pollution and
industrial accidents in the plant.
Allowing the writ petitions, the High Court directed
closure of the plant of the appellants on grounds:- 1) that C
prior to grant of environmental clearance, no public
hearing, as mandatorily required was conducted; 2) that
contrary to the stipulation made by TNPCB in its Consent
Order, the plant of appellant-company was located within
25 kms. of an ecologically sensitive area; 3) that the
TN PCB stipulated a condition in the Noc- that the D·
· appellants will develop a green belt of 250 meters width
around the battery limit of the industry as contemplated
under the Environmental Management Plan but
subsequently the TNPCB relaxed this condition and
stipulated that appellant-company will develop a green E
belt of minimum width of 25 meters; and 4) that the plant
of the appellants had caused severe pollution in the area.
Hence the present appeals.
Allowing the appeals, the Court F
HELD: 1.1. The environmental clearance for setting
up the plant was granted to the appellants under the
Environment (Protection) Act, 1986. In exercise of powers
under Section 3(2)(v) of the Environment (Protection) Act,
1986 and Rule 5(3) of the Environment (Protection) Rules, G
1986, the Central Government issued notification dated
27.01.1994. Para 2 of the notification dated 27.01.1994 lays
down the requirements and procedure for seeking
environmental clearance of projects, and clause (c) of
Para 2 provides that the Impact Assessment Agency H
578 SUPREME COURT REPORTS [2013] 6 S.C.R.
A could solicit comments of the public within thirty days of
receipt of proposal, in public hearings. The language of
this notification did not lay down that the public hearing
was a must. The notification dated 27.01.1994, however,
was amended by notification dated 10.04.1997 and it was
B provided in clause (c) of Para 2 of the notification that the
Impact Assessment Agency shall conduct a public
hearing and the procedure for public hearing was
detailed in Schedule IV to the notification by the
amendment notification dated 10.04.1997. Admittedly, in
c this case, the environmental clearance was granted by
the Ministry of Environment, Government of India, on
16.01.1995 in accordance with the procedure laid down
by notification dated 27.01.1994 well before the
notification dated 10.04.1997 providing for mandatory
0 public hearing in accordance with the procedure lald
down in Schedule IV to the notification. Consequently,
the High Court could not have allowed the writ petitions
challenging the environmental clearances on the ground
that no public hearing was conducted before grant of the
E environmental clearances. [Paras 23, 24] [601-D, H; 602-
B-H; 603-A]
1.2. The High Court further erred in allowing the writ
petitions on the ground that environmental clearance
was issued to the appellant-company on the basis of
F inadequate Rapid Environmental Impact Assessment
(EIA), particularly when the Union of India in its affidavit
had clearly averred that the environmental clearance was
granted after detailed examination of Rapid EIA/EMP,
filled in Questionnaire for industrial projects, NOC from
G State Pollution Control Board and Risk Analysis in
accordance with the procedure laid down in EIA
notification dated 27.01.1994 (as amended on 04.05.1994).
[Para 25] [603-F-G; 604-A]
1.3. The High Court failed to appreciate that the
H
STERLITE INDUSTRIES (INDIA) LTD. ETC. v. UNION 579
OF INDIA & ORS.
decision of the Central Government to grant A
environmental clearance to the plant of the appellants
could only be tested on the anvil of well recognized
principles of judicial review. Where the challenge to the
environmental clearance is on the ground of procedural
impropriety, the High Court could quash the B
environmental clearance only if it is satisfied that the
breach was of a mandatory requirement in the procedure.
In absence of a mandatory requirement in the procedure
laid down under the scheme under the Environment
(Protection) Act, 1986 at the relevant time requiring a c
mandatory public hearing and a mandatory
comprehensive EIA report, the High Court could not have
· interfered with the decision of the Central Government
granting environmental clearance on the ground of
procedural impropriety. Further, no material was placed D
to show that the decision of the Ministry of Environment
and Forests to accord environmental clearance to the
plant of the appellants at Tuticorin was wholly irrational
and frustrated the very purpose of EIA. [Paras 26, 27 &
28] [604-8-C, H; 603-A, E-H; 604-C]
E
1.4. It is for the authorities under the Environment
(Protection) Act, 1986, the Environment (Protection)
Rules, 1986 and the notifications issued thereunder to
determine the scope of the project, the extent of the
screening and the assessment of the cumulative effects F
and so long as the statutory process is followed and the
EIA made by the authorities is not found to be irrational
so as to frustrate the very purpose of EIA, the Court will
not interfere with the decision of the authorities in exercise
of its powers of judicial review. [Para 29] [606-G-H; 607- G
A-8]
Lafarge Umiam Mining (P) Ltd. v. Union of India & Others
(2011) 7 SCC 338: 2011 (7) SCR 954 - referred to.
Hari Narain v. Badri Das AIR 1963 SC 1558: 1964 SCR H
580 SUPREME COURT REPORTS [2013] 6 S.C.R.
A 203; G. Narayanaswamy Reddy (dead) by LRs. & Anr. v.
Government of Karnataka & Anr. (1991) 3 SCC 261: 1991
(2) SCR 563; Dalip Singh v. State of Uttar Pradesh & Ors.
(2010) 2 SCC 114: 2009 (16) SCR 111; Abhyudya Sanstha
v. Union of India (2011) 6 SCC 145: 2011 (7) SCR 611;
B Ve/lore Citizens Welfare Forum v. Union of India & Ors.
(1996) 5 SCC 647: 1996 (5) Suppl. SCR 241; Tirupur
Dyeing Factory Owners' Association v. Noyyal River
Ayacutdars Protection Association (2009) 9 SCC 737: 2009
(14) SCR 1051; M.C. Mehta v. Union of India Ors. (2009) 6
c SCC 142 and East Coast Railway & Anr. v. Mahadev Appa
Rao & Ors. (2010) 7 SCC 678: 2010 (7) SCR 908 - cited.
Belize Alliance of Conservation Non-governmental
Organizations v. The Department of the Environment and
Belize Electric Company Limited (2004) 64 WIR 68 and Bow
D Valley Naturalists Society v. Minister of Canadian Heritage
(2001) 2 FC 461 - referred to. ·
The Northern Jamaica Conservation Association v. The
Natural Resources Conservation Authority [Claim No. HCV
E 3022 of 2005 decided by Supreme Court of Judicature of
Jamaica] - cited.
Environmental Law edited by David Woolley QC, John
Pugh-Smith, Richard Langham and William Upton, Oxford
University Press - referred to.
F
2.1. The Consent Order dated 22.05.1995 issued by
the TNPCB under Section 25 of the Water Act makes it
clear that while on the one hand, the appellant-company
was given consent to establish its plant in the SIPCOT
G Industrial Complex in Tuticorin, which as per the NEERI
report is within 25 kms. of four of the twenty one islands
in the Gulf of Munnar (an ecologically sensitive area), on
the other hand, a condition was stipulated in the consent
order that the appellants have to ensure that the location
H of the unit is 25 kms. away from ecological sensitive area.
STERLITE INDUSTRIES (INDIA) LTD. ETC. v. UNION 581 .
OF INDIA & ORS.
It thus appears that the TNPCB while granting the A
consent under the Water Act for establishment of the
plant of the appellants in the SIPCOT Industrial Complex
added the above requirement without noting that the
SIPCOT Industrial Complex was within 25 kms. from
ecological sensitive area. Since, however, the Consent s
Order was granted to the appellant-company to establish
its plant in the SIPCOT Industrial Complex and the plant
has in fact been established in the SIPCOT Industrial
Complex, the High Court could not have come to the
conclusion that the appellant-company had violated the c
Consent Order and directed closure of the plant on this
ground. [Para 31 and 32] [607-F; 608-F-H; 609-A-B]
2.2. This is not to say that in case it becomes
necessary for preservation of ecology of the aforesaid
four islands which form part of the Gulf of Munnar, the D
plant of the appellants cannot be directed to be shifted
in future. The Gulf of Munnar is an ecological sensitive
area and the Central Government may in exercise of its
powers under clause (v) of sub-section (1) of Rule 5 of
the Environment (Protection) Rules, 1986 prohibit or E
restrict the location of industries and carrying on
processes and operations to preserve the biological
diversity of the Gulf of Munnar. As and when the Central
Government issues an order under Rule 5 of the
Environment (Protection) Rules, 1986 prohibiting or F
restricting the location of industries within and around
the Gulf of Munnar Marine National Park, then appropriate
steps may have to be taken by all concerned for shifting
the industry of the appellants from the SIPCOT Industrial
Complex depending upon the content of the order or G
notification issued by the Central Government under the
aforesaid Rule 5 of the Environment (Protection) Rules,
1986, subject to the legal challenge by the industries.
[Para 33] [609-C-E, F-H]
3. From a reading of the No Objection Certificate H
582 SUPREME COURT REPORTS [2013] 6 S.C.R.
A issued by the TNPCB, it is clear that various conditions
have been imposed on the industry of the appellants to
ensure that air pollution control measures are installed
for the control of emission generated from the plant and
that the emission from the plant satisfies the ambient
B area quality standards prescribed by the TNPCB.
Development of green belt contemplated under the
environmental management plan around the battery limit
of the industry of the appellants was an additional
condition that was imposed by the TNPCB in the No
c Objection Certificate. If the TNPCB after considering the
representation of the appellants has reduced the width
of the green belt from a minimum of 250 meters to a
minimum of 25 meters around the battery limit of the
industry of the appellants and it is not shown that this
0 power which has been exercised was vitiated by
procedural breach or irrationality, the High Court in
exercise of its powers of judicial review could not have
interfered with the exercise of such power by the State
Pollution Control Board. The High Court in the impugned
E judgment has not recorded any finding that there has
been any breach of the mandatory provisions of the Air
Act or the Rules thereunder by the TNPCB by reducing
the green belt to 25 meters. Nor has the High Court
recorded any finding that by reducing the width of the
green belt around the battery limit of the industry of the
F appellants from 250 meters to 25 meters, it will not be
possible to mitigate the effects of fugitive emissions from
the plant. It was for the TN PCB to take the decision in that
behalf and considering that the appellant's plant was
within a pre-existing industrial estate, the appellant could
G not have been singled out to require such a huge green
belt. [Para 34] [610-C-H; 611-B]
4.1. It is for the administrative and statutory
authorities empowered under the law to consider and
H grant environmental clearance and the consents to the
-
STERLITE INDUSTRIES (INDIA) LTD. ETC. v. UNION 583
OF INDIA & ORS.
appellants for setting up the plant and where no ground A
for interference with the decisions of the authorities on
well recognized principles of judicial review is made out,
the High Court could not interfere with the decisions of
the authorities to grant the environmental clearance or the
consents on the ground that had the authorities made a B
proper environmental assessment of the plant, the
adverse environmental effects of the industry could have
been prevented. If, however, after the environmental
clearance under the Environment (Protection) Act, 1986,
and the Rules and the notifications issued thereunder c
and after the consents granted under the Air Act and the
Water Act, the industry continues to pollute the
environment so as to effect the fundamental right to life
under Article 21 of the Constitution, the High Court could
still direct the closure of the industry by virtue of its D
powers under Article 21 of the Constitution if it came to
the conclusion that there were no other remedial
measures to ensure that the industry maintains the
standards of emission and effluent. [Para 35] [611-D-H;
612-A]
E
4.2. In the instant case, the National Engineering and
Research Institute (NEERI) report of 2005 did show that
the emission and effluent discharge affected the
environment but the report read as whole does not
warrant a conclusion that the plant of the appellants F
could not possibly take remedial steps to improve the
environment and that the only remedy to protect the
environment was to direct closure of the plant of the
appellants. [Para 36] [616-E-F]
4.3. From the joint inspection carried out by Central G
Pollution Control Board (CPCB) and TNPCB pursuant to
orders passed by this Court, 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 H
584 SUPREME COURT REPORTS [2013] 6 S.C.R.
A 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. [Para 37] [616-G; 617-G-H; 618-A]
B
4.4. Further, 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
C 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
D tax and VAT. It also contributes to 10% of the total cargo
volume of Tuticorin port. For these considerations of
public interest, it will not be a proper exercise of
discretion under Article 136 of the Constitution to refuse
relief to the appellants. [Para 40] [621-B-D]
E
4.5 . However, the NEERI reports of 1998, 1999, 2003
and 2005 show that the plant of the appellant did pollute
the environment through emissions which did not
conform to the standards laid down by the TNPCB under
F the Air Act and through discharge of effluent which did
not conform to the standards laid down by the TNPCB
under the Water Act. On account of some of these
deficiencies, TNPCB also did not renew the consent to
operate for some periods and yet the appellants
G continued to operate its plant without such renewal. This
is evident from the extracts from the NEERI report of 2011.
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 is
H liable to compensate by paying damages. Considering
STERLITE INDUSTRIES (INDIA) LTD. ETC. v. UNION 585
OF INDIA & ORS.
the magnitude, capacity and prosperity of the appellant- A
company, it 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. Any less amount, would not have the B
desired deterrent effect on the appellant-company. [Para
39] [618-B-D; 619-E; 620-D-E]
M. C. Mehta v. Union of India and others (1987) 4 SCC
463: 1988 (1) SCR 279; M.C. Mehta and Another vs. Union c
of India and Others (1987) 1 SCC 395: 1987 (1) SCR 819
and Indian Council for Enviro-Legal Action and Others v.
Union of India and Others (1996) 3 SCC 211 - referred to.
5. However, it is made clear that by this judgment,
this Court has only set aside the directions of the High D
Court in the impugned common judgment, and 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. It is also made clear. that the E
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. F
[Paras 42, 43] [622-D-F]
Case Law Reference:
1964 SCR 203 cited Para 13
G
1991 (2) SCR 563 cited Para 13
2009 (16) SCR 111 cited Para 13
2011 (7) SCR 611 cited Para 13
1996 (5) Suppl. SCR 241 cited Para 14 H
586 SUPREME COURT REPORTS [2013] 6 S.C.R.
A 2009 (14) SCR 1051 cited Para 14
(2009) 6 sec 142 cited Para 14
2010 (7) SCR 908 cited Para 17
B (2004) 64 WIR 68 referred to Para 17, 29
2011 (7) SCR 954 referred to Para 26
(2001) 2 FC 461 referred to Para 29
1988 (1) SCR 279 referred to Para 35
c
1987 (1) SCR 819 referred to Para 40
(1996) a sec 211 referred to Para 41
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.
D 2776-2783 of 2013.
From the Judgment & Order dated 28.09.201 O of the High
Court of Judicature at Madras in WP No. 15501/1996, WP No.
15502/1996, WP No. 5769/1997, WP No. 16861/1998, WMP
E No. 8044/1999, WMP No. 8045/1999, WMP No. 8046/1999,
WP No. 15503/2006.
P.P. Malhotra, ASG., C.A. Sundaram, C.U. Singh, Raj
Panjwani, V. Prakash, S. Guru Krishna Kumar, MG., Rohini
Musa, Zafar lnayat, Yogsh V. Kotemath, S. Raghunathan,
F Mahesh Agarwal, Rishi Agarwal, E.C. Agrawala, Radhika
Gautam, Abhinav Agrawal, Rashmi Nandakumar, Rahul
Chowdhury, Anitha Shenoy, Vimla Sinha, Yasser Rauf, B.
Krishna Prasad, Subramonium Prasad, Manju Jana, Shivaji M.
Jahdhav, Vijay Panjwani G. Devadoss, M.S.M. Asaithambi, G.
G Ananthaselvam, M. Yogesh Kanna, R. Veeramani, A. Prasanna
Venkat, S. Beno Bencigar, P. Somasundaram, Abhay Kumar,
V.N. Subramaniam, V. Senthila Kumar, K. Krishna Kumar, M.A.
Chinnasamy for the appearing parties, Vaiko @ V.
Gopalswamy respondent-in-person.
H The Judgment of the Court was delivered t>y
STERLITE INDUSTRIES (INDIA) LTD. ETC. v. UNION 587
OF INDIA & ORS.
A.K. PATNAIK, J. 1. Leave granted. A
FACTS:
2. The relevant facts very briefly are that the appellant-
company applied and obtained 'No Objection Certificate' on
01.08.1994 from the Tamil Nadu Pollution Control Board (for 8
short 'the TNPCB') for setting up a copper smelter plant (for
short 'the plant') in Melavittan village, Tuticorin. On 16.01.1995,
the Ministry of Environment and Forests, Government of India,
granted environmental clearance to the setting up of the plant
of the appellants at Tuticorin subject to certain conditions C
including those laid down by the TNPCB and the Government
of Tamil Nadu. On 17.05.1995, the Government of Tamil Nadu
grar.ted clearance subject to certain conditions and requested
the TNPCB to issue consent to the proposed plant of the
appellants. Accordingly, on 22.05.1995, the TN PCB granted its D·
consent under Section 21 of the Air (Prevention and Control of
Pollution) Act, 1981 (for short 'the Air Act') and under Section
25 of the Water (Prevention and Control of Pollution) Act, 1974
(for short 'the Water Act') to the appellants to establish the plant
in the SIPCOT Industrial Complex, Melavittan village, Tuticorin E
Taluk.
3. The environmental clearance granted by the Ministry of
Environment and Forests, Government of India, and the consent
orders under the Air Act and the Water Act granted by the
TN PCB were challenged before the Madras High Court in W.P. F
Nos.15501, 15502 and 15503 of 1996 by the National Trust for
Clean Environment. While these writ petitions were pending, the
appellants set up the plant and commenced production on
01.01.1997. Writ Petition No.5769 of 1997 was then filed by
V. Gopalsamy, General Secretary, MDMK Political Party, G
Thayagam, praying for inter alia a direction to the appellants
to stop forthwith the operation of the plant. Writ Petition No.
16861 of 1991 was also filed by Shri K. Kanagaraj, Secretary,
CITU District Committee, District Thoothukudi, for directions to
the State of Tamil Nadu, TN PCB and the Union of India to take H
588 SUPREME COURT REPORTS [2013) 6 S.C.R.
A suitable action against the appellant-company for its failure to
take safety measures due to which there were pollution and
industrial accidents in the plant. A Division Bench of the High
Court heard Writ Petition Nos. 15501 to 15503 of 1996, Writ
Petition No.5769 of 1997 and Writ Petition No.16861 of 1998
B and by the common judgment dated 28.09.2010, allowed and
disposed of the writ petitions with the direction to the appellant-
company to close down its plant at Tuticorin. By the common
judgment, the High Court also declared that the employees of
the appellant-company would be entitled to compensation
c under Section 25FFF of the Industrial Disputes Act, 1947 and
directed the District Collector, Tuticorin, to take all necessary
and immediate steps for the re-employment of the workforce
of the appellant-company in some other companies/factories/
organizations so as to protect their livelihood and to the extent
D possible take into consideration their educational and technical
qualifications and also the experience in the field. Aggrieved,
the appellant has filed these appeals against the common
judgment dated 28.09.2010 of the Division Bench of Madras
High Court and on 01.10.2010, this Court passed an interim
order staying the impugned judgment of the High Court.
E
CONTENTIONS ON BEHALF OF THE APPELLANTS:
4. Mr. C.A. Sundaram, learned senior counsel appearing
for the appellants, submitted that one of the grounds stated in
the impugned judgment of the High Court for directing closure
F of the plant of the appellants was that the TN PCB had stipulated
in the Consent Order dated 22.05.1995 that the appellant-
company has to ensure that the location of the unit should be
25 kms. away from the ecologically sensitive area and as per
the report of NEERI (National Environmental Engineering and
G Research Institute) of 1998 submitted to the High Court, the
plant is situated within 25 kms. from four of the twenty one
islands in the Gulf of Munnar, namely, Vanthivu, Kasuwar,
Karaichalli and Villanguchalli, which are at distances of 6 k.m.,
7 k.m. and 15 k.m. respectively from Tuticorin where the plant
H is located. He submitted that there is no notificat!on issued by
STERLITE INDUSTRIES (INDIA) LTD. ETC. v. UNION 589
OF INDIA & ORS. [AK. PATNAIK, J.]
the Central Government under Rule 5(1) of the Environment A
(Protection) Act, 1986 prohibiting or restricting the location of
an industry in Tuticorin area. He submitted that the Government
of Tamil Nadu, however, had issued a notification dated
10.09.1986 notifying its intention under Section 35(1) of the
Wildlife (Protection) Act, 1972 to declare the twenty one islands B
of the Gulf of Munnar as a Marine National Park, but no
notification has yet been issued by the Government of Tamil
Nadu under Section 35(4) of the aforesaid Act declaring the
twenty one islands of the Gulf of Munnar as a National Park.
He explained that prior to the Environment (Protection) Act, c
1986 and the Environment (Protection) Rules, 1986, some
environmental guidelines had been issued by the Ministry of
Environment and Forests, Department of Environment,
Government of India, in August, 1985 and one of the guidelines
therein was that industries must be located at least 25 kms. D
away from the ecologically sensitive areas and it is on account
of these guidelines that the TN PCB in its Consent Order dated
22.05.1995 under the Water Act had stipulated that the plant
of the appellants should be situated 25 kms. away from
ecologically sensitive areas. He submitted that this stipulation E
was made in the Consent Order under the Water Act because
the plant was likely to discharge effluent which could directly or
indirectly affect the ecological sensitive areas within 25 kms.
of the industry, but in the Consent Order issued on 14.10.1996
-I
to operate the industry, this stipulation was removed and
instead it was stipulated in clause (20) that the unit shall re-use F
the entire quantity of treated effluent in the process and ensure
that no treated effluent is discharged into inland surface water
or on land or sewer or sea as proposed by the unit. He
submitted that in any case the consent for establishment issued
under the Water Act by the TNPCB would show that the G
appellant-company was given the consent to establish its
copper smelter project in SIPCOT Industrial Complex
irrespective of the distance at which the SIPCOT Industrial
Complex was located from any ecological sensitive area and
in the SIPCOT Industrial Complex, many other chemical H
590 SUPREME COURT REPORTS [2013] 6 S.C.R.
A industries are located and the High Court appears to have lost
sight of this aspect of the consent given by the TNPCB to
establish the plant.
5. Mr. Sundaram submitted that the second ground given
by the High Court for directing closure of the plant of the
8
appellants was that this being a project exceeding Rs.50/-
crores, environmental clearance was required to be obtained
from the Ministry of Environment and Forests, Government of
India, after a public hearing which was a mandatory
requirement but no materials were produced before the High
C Court to show that there was any such public hearing conducted
before the commencement of the plant of the appellant-
company. He submitted that when the environmental clearance
was granted to the appellant-company the Environmental Impact
Assessment {for short 'EIA') notification dated 27.01.1994 was
D in force and this notification did not make public hearing
mandatory and only stated that comments of the public may be
solicited if so recommended by the Impact Assessment
Agency within 30 days of the receipt of the proposal. He
submitted that the High Court, therefore, was not correct in
E taking a view that a public hearing was mandatory during EIA
before environmental clearance was given by the Ministry of
Environment and Forests, Government of India. He clarified that
by a subsequent notification dated 10.04.1997, a public hearing
was made compulsory but by the time this notification came
F into force environmental clearance had already been granted
to the plant of the appellants on 16.01.1995.
6. Mr. Sundaram submitted that the High Court also took
the view in the impugned judgment on the basis of the report
G of the NEER! of 1998 that there was undue haste on the part
of the governmental authorities in granting permissions and
consents to the appellant-company. He submitted that in an
Explanatory Note to the EIA notification dated 27.01.1994 the
Central Government has clarified that Rapid EIA could also be
conducted for obtaining environment clearance for any new
H
STERLITE INDUSTRIES (INDIA) LTD. ETC. v. UNION 591
OF INDIA & ORS. (A.K. PATNAIK, J.]
project/activity and therefore the State Government while A
granting No Objection Certificate by its letter dated 01.08.1994
asked the appellants to conduct Rapid EIA based on one
season data and the appellants carried out Rapid EIA study
based on the data collected by the Mis. Tata Consultancy
Service (TCS). He relied on the affidavit dated 01.12.1998 filed B
on behalf of the Ministry of Environment and Forests,
Government of India to submit that Rapid EIA before granting
clearance to the plant of the appellant was conducted in
accordance with the guidelines.
7. Mr. Sundaram submitted that the third ground on which C
the High Court directed closure of the plant of the appellants
was that the TNPCB stipulated a condition in clause No.20 of
the No Objection Certificate that the appellants will develop a
green belt of 250 meters width around the battery limit of the
industry as contemplated under the Environmental Management D
Plan but subsequently the appellant-compa'ny submitted a
representation to TNPCB requesting TNPCB to reduce the
requirement of green belt from 250 meters to the width of 10-
15 meters as development of the green belt of 250 meters
width requires a land of around 150 acres and TNPCB in its E
meeting held on 18.08.1994 relaxed this condition and
stipulated that the appellant-company Will develop a green belt
of minimum width of 25 meters. He sut-mitted that the land
allocated by SIPCOT to the appellants was not sufficient to
provide a green belt of 250 meters width around the plant and F
hence this was an impossible condition laid down in the No
Objection Certificate and for this reason the appellants
approached the TNPCB to modify this condition and the
TNPCB reduced the width of the green belt to 25 meters. He
further submitted that generally, the TNPCB and the Ministry of G
Environment and Forests, Government of India, have been
insisting on a green belt of 25% of the plant area and the
appellants could not be asked to provide a green belt of more
than 25% of the plant area.
H
592 SUPREME COURT REPORTS [2013) 6 S.C.R.
A 8. Mr. Sundaram submitted that the last ground, on which
the High Court directed closure of the plant of the appellants is
that the plant of the appellants has caused severe pollution in
the area as has been recorded by NEERI in its report of 2005
submitted to the High Court and the groundwater samples
B taken from the area indicate that the copper, chrome, lead
cadmium and arsenic and the chloride and fluoride content is
too high when compared to Indian drinking water standards. He
referred to the reports of NEERI of 1998, 1999, 2003 and 2005
submitted to the High Court and the report of NEERI of 2011
C and also the joint inspection report of TNPCB and CPCB of
September 2012 submitted to this Court, to show that the
finding of the High Court that the plant of the appellants had
caused severe pollution in the area was not correct. He
vehemently submitted that though there were no deficiencies in
the plant of the appellants, the TNPCB in its affidavit has
D referred to its recommendations as if there were deficiencies.
He submitted that the recommendations made by the TNPCB
were only to provide the best of checks in the plant against
environmental pollution with a view to ensure that the plant of
the appellants becomes a model plant from the point of view
E of the environment, but that does not mean that the plant of the
appellants had deficiencies which need to be corrected. He
submitted that the reports of NEERI of 2005 and 2011 referred
to accumulation of gypsum and phospho gypsum, which come
out from the plant of the appellants as part of the slag but the
F opinion of CPCB in its letter dated 17.11.2003 to the TNPCB
is that such slag is non-hazardous and can be used in cement
industries, for filling up lower level area and as building/road
construction material, etc. and has no adverse environmental
effects.
G
9. Mr. Sundaram finally submitted that since none of the
grounds given by the High Court in the impugned judgment for
directing closure of the plant of the appellants are well-founded,
it is a fit case in which this Court should set aside the impugned
H judgment of the High Court and allow the appeals. He submitted
STERLITE INDUSTRIES (INDIA) LTD. ETC. v. UNION 593
OF INDIA & ORS. [A.K. PATNAIK, J.)
that the plant of the appellants produces 2,02,000 metric tones A
of copper which constitute 39% of the total of 5, 14,000 metric
tones of copper produced in India and that 50% of the copper
produced by th~ plant of the appellants is consumed in the
domestic market and the balance 50% is exported abroad. He
also submitted that the plant provides direct and indirect B
employment to about 3000 people and yields a huge revenue
to both the Central and State Governments. He submitted that
closure of the plant of the appellants, therefore, would also not
be in the public interest.
CONTENTIONS ON BEHALF OF THE WRIT c
PETITIONERS-RESPONDENTS:
10. Mr. V. Gopalsamy, who was the writ petitioner in Writ
Petition No.5769 of 1997 before the High Court, appeared in-
person and supported the impugned judgment of the High D
Court. He submitted that the TNPCB in its No Objection
Certificate dated 01.08.1994 as well as in its Consent Ordi:ir
dated 22.05.1995 under the Water Act clearly stipulated that
the appellant-company shall ensure that the location of its unit
should be 25 kms. away from ecological sensitive area and the E
Government of Tamil Nadu in their affidavit dated 27.10.2012
have stated that all the 21 islands including the four near
Tuticorin in the Gulf of Munnar Marine National Park are
ecologically sensitive areas. He submitted that NEER! in its
report of 1998 has observed that four out of twenty one islands, F
namely, Vanthivu, Kasuwar, Karaichalli and Villanguchalli, are
at distances of 6 kms., 7 kms. and 15 kms. respectively from
Tuticorin. He further submitted that merely because a condition
has been subsequently imposed on the appellant-company by
TN PCB not to discharge any effluent to the sea, the restriction
of minimum 25 kms. distance from ecological sensitive area G
from location of the unit of the appellants cannot be lifted
particularly when the Government of Tamil Nadu as well as the
Central Government are treating the Gulf of Munnar as a Marine
. National Park and extending financial assistance for the
development of its ecology. He submitted that the proposal for H
594 SUPREME COURT REPORTS (2013] 6 S.C.R.
A issuance of a declaration under Section 35(4) of the Wildlife
(Protection) Act, 1972 is pending for concurrence of the
Central Government and, therefore, the ecological balance in
the area of Gulf of Munnar would be disturbed if the plant of
the appellants continues at Tuticorin and the High Court was
B right in directing closure of the plant of the appellants located
at Tuticorin.
11. Mr. V. Gopalsamy submitted that the High Court was
similarly right in directing closure of the plant of the appellants
on the ground that the appellants did not develop a green belt
C of 250 metres width around their plant as stipulated in the No
Objection Certificate dated 01.08.1994 of the TNPCB and
instead represented to the TNPCB and got the green belt
reduced to only 25 metres width. He submitted that considering
the grave adverse impact on the environment by the plant of
D the appellants, a 250 metres width of green belt was absolutely
a must but the TNPCB very casually reduced the green belt
from 250 metres width to 25 metres. He submitted that it will
be seen from the joint report of TNPCB and CPCB filed
pursuant to the order dated 27 .08.2012 of this Court that as a
E condition of the renewal of the consent order, the appellant-
company has been asked to develop a green belt to an extent
of 25% of the total area of 172.17 hectares which works out to
43.04 hectares and yet the TNPCB has found development of
green belt of 26 hectares as sufficient compliance. He
F submitted that the appellants would, therefore, be required to
develop a green belt of 17.04 hectares more for compliance
of the condition for renewal of consent stipulated by the TN PCB.
12. Mr. V. Gopalsamy submitted that for their plant, the
appellants have been importing copper concentrate from
G Australian mines which are highly radioactive and contaminated
and contain high levels of arsenic, uranium, bismuth, fluorine
and experts of environment like Mark Chernaik have given a
report on the adverse impacts of the plant of the appellants at
Tuticorin on the environment. In this context, he also submitted
H
STERLITE INDUSTRIES (INDIA) LTD. ETC. v. UNION 595
OF INDIA & ORS. [AK. PATNAIK, J.]
that an American company, namely, the Asarco producing A
. copper had to be closed down on account ofsuch adverse
environmental effects. He submitted that the claim of the
appellants that their plant has no deficiencies and that it does
not have any impact on the environment is not correct and
different reports of the NEER! would show that the plant of the B
appellants is continuing to pollute the air and has also affected
the ground water of the area by discharging effluent and the High
Court, therefore, rightly directed the closure of the plant. He
submitted that the appellants had initially proposed to establish
the plant in Gujarat but this was opposed vehemently and the c
appellants decided to shift the establishment of the plant to Goa
but because of opposition the plant could not be established
in Goa. He submitted that the appellants thereafter intended to
set up the plant at Ratnagiri in Maharashtra and invested.
Rs.200 crores in construction activities after obtaining
0
environmental clearance but because of the opposition of the
farmers of Ratnagiri, the Maharashtra Government had to
revoke the licence granted to the appellants. He submitted that
the appellants have been able to sef up the plant at Tuticorin
in.Tamil Nadu by somehow obtaining environmental clearance E
from the Ministry of Environment and Forests, Government of
India, without a public hearing and the consents under the Water
Act and the Air Act from the TNPCB and the High Court rightly
allowed the writ petitions and directed closure of the plant of
the appellants.
F
13. Mr. V. Prakash, learned senior counsel appearing for
the writ petitioner, National Trust For Clean Environment, in Writ
Petition Nos. 15501 to 15503 of 1996 before the High Court,
submitted that the appellants had made a false statement in
the synopsis at page (B) of the Special Leave Petition that it G
has been consistently operating for more than a decade with
all necessary consents and .approvals from all the statutory
authorities without any complaint. He submitted that similarly in
ground no. IV at page 45 of the Special Leave Petitions the
appellants have falsely stated that the High Court has erred in H .
596 SUPREME COURT REPORTS (2013] 6 S.C.R.
A not appreciating tllat the appellants had got all the statutory
approvals/consent orders from the authorities concerned as also
the Central Government and the State Government. He
submitted that the report of NEERI of 2011 would show that the
appellants did not have valid consent during various periods
s including the period when it filed the Special Leave Petitions.
He submitted that the appellants did not also inform this Court
that when they moved this Court on 01.10.2010 to stay the
operation of the impugned order of the High Court, the plant of
the appellants had already stopped operation. He vehemently
c argued that due .to misrepresentation of the material facts by
the appellants in the Special Leave Petitions as well as
suppression of the material facts, this Court was persuaded to
pass the stay order dated 01.10.2010. He argued that on this
ground alone this Court should refuse to grant relief to the
appellants in exercise of its discretion under Article 136 of the
0
Constitution. He relied on the decisions of this Court in Harl
Narain v. Badri Das [AIR 1963 SC 1558), G. Narayanaswamy
Reddy (dead) by LRs. & Anr. v. Government of Kamataka &
Anr. [(1991) 3 SCC 261) and Dalip Singh v. State of Uttar
Pradesh & Ors. [(2010) 2 SCC 114) and Abhyudya Sanstha
E v. Union of India [(2011) 6 SCC 145] for the proposition that
this Court can refuse relief under Article 136 of the Constitution
where the appellants have not approached this Court with clean
hands and have made patently false statements in the special
leave petition.
F
14. Mr. Prakash next submitted that the main ground that
was taken in the writ petitions before the High Court by National
Trust For Clean Environment was that the Ministry of
Environment and Forests, Government of India, and the TNPCB
G had not applied their mind to the nature of the industry as well
as the pollution fall out of the industry of the appellants and the
capacity of the unit of the appellants to handle the waste without
causing adverse impact on the environment as well as on the
people living in the vicinity of the plant. He submitted that this
H Court has already held that a right to clean environment is part
STERLITE INDUSTRIES (INDIA) LTD. ETC. v. UNION 597
OF INDIA & ORS. [A.K. PATNAIK, J.)
-,_
of the right to life guaranteed under Article 21 of the Constitution A
and has explained the precautionary principle and the principle
of sustainable development in Ve/lore Citizens Welfare Forum
v. Union of India & Ors. ((1996) 5 SCC 647), Tirupur Dyeing
Factory Owners' Association v. Noyyal River Ayacutdars
Protection Association ((2009) 9 SCC 737) and M. C. Mehta B
v. Union of India Ors. ((2009) 6 SCC 142). He submitted that
these principles, therefore, have to be borne in mind by the
authorities while granting environmental clearance and consent
under the Water Act or the Air Act, but unfortunately both the
Ministry of Environment and Forests, Government of India, and c
the TNPCB have ignored these principles and have gone ahead
and hastily granted environmental clearance and the consent
under the two Acts. He submitted that, in the present case, the
.appellants have relied on the Rapid EIA done by Tata
Consultancy Service, but this Rapid EIA was based on the data
0
which is less than the month's particulars and is inadequate for
making a proper EIA which must address the issue of the nature
of the manufacturing process, the capacity of the manufacturing
facility and the quantum of production, the quantum and nature
of pollutants, air, liquid and solid and handling of the waste.
E
15. Mr. Prakash referred to the report of NEERI of 1998
submitted to the High Court to show that the inspection team
of NEERI collected waste water samples from the plant of the
appellants and an analysis of the waste water samples indicate
that the treatment plant of the appellants was operating F
inefficiently as the levels of arsenic, selenium and lead in the
treated effluent as also the effluent stored in the surge ponds
were higher than the standards stipulated by the TNPCB. He
also referred to the report of NEER! of February 1999 in which
NEERI has stated that the treated effluent quality did not G
conform to the standards stipulated by the TNPCB.
16. Mr. Prakash further submitted that the counter affidavit
of the Union of India filed on 01.12.1998 before the High Court
also does not disclose whether, apart from the Rapid EIA of
Tata Consultancy Services, there was any independent H
598 SUPREME COURT REPORTS [2013] 6 S.C.R.
A evaluation of the Rapid EIA by the environmental impact
assessment authority, namely, the Ministry of Environment and
Forests. He submitted that the TNPCB in its No Objection
Certificate dated 01.08.1994 has stipulated in Clause 18 that
the appellants have to carry out Rapid EIA (for one season other
B than monsoon) as per the EIA notification dated 27 .01.1994
issued by the Ministry of Environment and Forests, Government
of India, and furnish a copy to the TNPCB and this clause itself
would show that TN PCB had not applied its mind as to whether
there was a sufficient rational analysis of the nature of the
C industry, nature of pollutants, quantum of fall out and the plan
or method for handling the waste. He submitted that since there
was no application of mind by either the Ministry of Environment
and Forests, Government of India, before granting the
environmental clearance or by the TNPCB before granting the
consents under the Water Act and the Air Act, the environmental
0 clearance and the consent orders are liable to be quashed.
17. In support of his submissions, Mr. Prakash ·cited East
Coast Railway & Anr. v. Mahadev Appa Rao & Ors. [(2010)
7 sec 678], for the proposition that for a valid order there has
E to be application of mind by the authority, and in the absence
of such application of mind by the authority, the order is
arbitrary and is liable to be quashed. He cited the decision of
the Lords of the Judicial Committee of Privy Council in Belize
Alliance of Conservation Non-governmental Organizations v.
F The Department of the Environment and Belize Electric
Company Limited [(2004) 64 WIR 68 para 69] in which it has
been observed that EIA is expected to be comprehensive in
treatment of the subject, objective in its approach and must
meet the requirement that it alerts the decision maker to the
G effect of the activity on the environment and the consequences
to the community. He also relied on the judgment of the
Supreme Court of Judicature of Jamaica in The Northern
Jamaica Conservation Association v. The Natural Resources
Conservation Authority [Claim No. HCV 3022 of 2005] to .
H argue that a public hearing was. a must for grant of
STERLITE INDUSTRIES (INDIA) LTD. ETC. v. UNION 599
OF INDIA & ORS. [A.K. PATNAIK, J.]
environmental clearance and submitted that as there was np A
public hearing in this case and there was inadequate EIA
before the grant of the environmental clearance for the plant of
the appellants, the High Court has rightly directed closure of the
plant of the appellants.
B
18. Finally, Mr. Prakash submitted that the finding of the
High Court that the plant of the appellants continues to pollute
the environment has been substantiated by the inspection report
which has been filed in this Court by the NEER! as well as the
TN PCB from time to time. In particular, he referred to the joint
inspection report of the TNPCB and CPCB to show that the C
directions issued by the TNPCB to improve solid waste
disposal has not been complied with. He submitted that one
of the conditions of the consent order of the TNPCB was that
no slag was to be stored in the premises of the plant but huge
quantity of slag has been stored in the premises of the plant D
and the direction to dispose at least 50% more than the monthly
generation quantities of both slag and gypsum has not been
complied with. He vehemently argued that unless the plant is
shut down, the appellants will not be able to clear the huge
quantity of slag and gypsum lying in the plant premises. He E
submitted that it is not correct as has been submitted on behalf
of the appellants that the slag is not a hazardous waste
containing arsenic and will certainly jeopardize the environment.
He argued that there was therefore no other option for the High
Court but to direct closure of the plant of the appellants to F
ensure clean environment in the area.
CONTENTIONS ON BEHALF OF THE AUTHORITIES:
19. Mr. S. Guru Krishna Kumar, learned counsel appearing
for the TNPCB as well as the State of Tamil Nadu, relying on G
the affidavit filed on behalf of the State of Tamil Nadu on
29.10.2012 submitted that the Gulf of Munnar consisting of 21
islands in 4 groups was notified under Section 35(1) of the
Wildlife (Protection) Act, 1972 on 10th September 1986 as this
group of islands consisted of territorial waters between them H
600 SUPREME COURT REPORTS [2013] 6 S.C.R.
A and the proposal to declare Gulf of Munnar as a Marine
National Park under Section 35(4) of the said Act was sent by
the Chief Wild Life Warden to the State Government for approval
on 30.04.2003 but the declaration under Section 35(4) of the
said Act has not been finally made. He further submitted that
B all the 21 islands including the 4 islands in the Gulf of Munnar
are therefore ecological sensitive areas. He submitted that
notwithstanding the fact that four of the islands were near
Tuticorin, the TN PCB gave the consent under the Water Act to
the appellants to set up the plant at Tuticorin because the plant
C has a zero effluent discharge. He also referred to the
compliance affidavit of the TN PCB filed on 08.10.2012 to show
that the TNPCB is monitoring the emissions from the plant of
the appellants to ensure that the National Ambient Air Quality
Standards are maintained.
D 20. Mr. Vijay Panjwani, learned counsel appearing for
CPCB, made a reference to Sections 3, 16 and 18 of the
Water Act which relate to the CPCB and submitted that it was
not for the CPCB but for the TNPCB to issue No Objection
Certificate and consent in respect of the plant set up in the State
E of Tamil Nadu. He submitted that under Rule 19 of the
Manufacture, Storage and Import of Hazardous Chemical Rules,
1989, however, improvement notices can be issued by the
CPCB to any person to remedy the contravention of the Rules.
F CONTENTIONS ON BEHALF OF THE INTERVENER:
21. Mr. Raj Panjwani, learned counsel for the intervener,
submitted that a marine biosphere is an ecological sensitive
area and if in the consent order a condition was stipulated that
the plant of the appellants has to be situated beyond 25 kms.
G from ecological sensitive area, this condition has to be complied
with. He further submitted that in any case the appellants are
liable to compensate for having damaged the environment.
H
STERLITE INDUSTRIES (INDIA) LTD. ETC. v. UNION 601
OF INDIA & ORS. [AK. PATNAIK, J.]
FINDINGS OF THE COURT: A
22. Writ Petition No.15501of1996, Writ Petition No.15503
of 1996 and Writ Petition No.5769 of 1997 had been filed for
quashing the environmental clearances dated 16.01.1995 and
17 .05.1995 granted by the Ministry of Environment and Forests, B
Government of India, to the appellants for setting up the plant
at Tuticorin and by the impugned judgment, the High Court has
not quashed the environmental clearance but has allowed the
three writ petitions. Hence, the first question which we will have
to decide is whether the High Court could have interfered with C
the environmental clearances granted by the Ministry of
Environment and Forests, Government of India, and the
Government of Tamil Nadu, Department of Environment.
23. The environmental clearance for setting up the plant
was granted to the appellants under the Environment D
(Protection) Act, 1986. Sub-section (1) of Section 3 of the
Environment (Protection) Act, 1986 provides that subject to the
provisions of the Act, the Central Government shall have the
power to take all such measures as it deems necessary or
expedient for the purpose of protecting and improving the quality E
of the environment and preventing, controlling and abating
environmental pollution. Sub-section (2) of Section 3 further
provides that in particular, and without prejudice to the generality
of the provisions of sub-section (1), such measures may
include measures with respect to all or any of the matters
specified therein. One such matter specified in clause (v) of F
sub-section (2) is restriction of areas in which any industries,
operations or processes or class of industries, operations or
processes shall not be carried out or shall be carried out subject
to certain safeguards. Rule 5(3) of the Environment (Protection)
Rules, 1986 accordingly empowers the Central Government to G
impose prohibitions or restrictions on the location of an industry
or the carrying on processes and operations in an area, by
notification in the Official Gazette. In exercise of these powers
under Section 3(2)(v) of the Environment (Protection) Act, 1986
and Rule 5(3) of the Environment (Protection) Rules, 1986, the H
602 SUPREME COURT REPORTS [2013] 6 S.C.R.
A Central Government has issued a notification dated 27.01.1994
imposing restrictions and prohibitions on the expansion and
modernization of any activity or new projects being undertaken
in any part of India unless environmental clearance has been
accorded by the Central Government or the State Government
B in accordance with the procedure specified in the said
notification.
24. Para 2 of the notification dated 27.01.1994 lays down
the requirements and procedure for seeking environmental
clearance of projects, and clause (c) of Para 2 provides that
C the Impact Assessment Agency could solicit comments of the
public within thirty days of receipt of proposal, in public hearings,
arranged for the purpose, after giving thirty days notice of such
hearings in at least two newspapers, and after completion of
public hearing, where required, convey its decision. The
D language of this notification did not lay down that the public
hearing was a must. The Impact Assessment was done by Tata
Consultancy Services as per the requirements then existing and
the Government of India has granted the Environmental
Clearance on 16.01.1995. The notification dated 27.01.1994,
E however, was amended by notification dated 10.04.1997 and
it was provided in clause (c) of Para 2 of the notification that
the Impact Assessment Agency shall conduct a public hearing
and the procedure for public hearing was detailed in Schedule
IV to the notification by the amendment notification dated
F 10.04.1997. Admittedly, in this case, the environmental
clearance was granted by the Ministry of Environment,
Government of India, on 16.01.1995 in accordance with the
procedure laid down by notification dated 27.01.1994 well
before the notification dated 10.04.1997 providing for
G mandatory public hearing in accordance with the procedure laid
down in Schedule IV. As there was no mandatory requirement
in the procedure laid down under the Environment (Protection)
Act, 1986 and the Environment (Protection) Rules, 1986 and
the notifications dated 27 .01.1994 as amended by notification
dated 04.05.1994 that a public hearing has to be conducted
H before grant of environmental clearance, the High Court C?Uld
STERLITE INDUSTRIES (INDIA) LTD. ETC. v. UNION 603
OF INDIA & ORS. [AK. PATNAIK, J.)
not have allowed the writ petitions challenging the environmental A
clearances on the ground that no public hearing was conducted
before grant of the environmental clearances.
25. An Explanatory Note regarding the EIA notification
dated 27.01.1994 was also issued by the Central Government
8
and Para 5 of the Explanatory Note clarified that project
proponents could furnish Rapid EIA report to the Impact
Assessment Agency based on one season data, for
examination of the project and Comprehensive EIA report may
be submitted later, if so asked for by the Impact Assessment C
Agency and this was permitted where Comprehensive EIA
report would take at least one year for its preparation. In Para
5 of the affidavit filed by the Union of India before the High Court
in Writ Petition Nos.15501 to 15503 of 1996, the allegation of
the writ petitioner that the Ministry of Environment and Forests
have accorded environmental clearance without applying its D
mind and without making any analysis of the adverse impacts
on the marine ecological system has been denied and it has
been further stated that after detailed examination of Rapid EIN
EMP, filled in Questionnaire for industrial projects, NOC from
State Pollution Control Board and Risk Analysis, the project was E
examined as per the procedure laid down in the EIA notification
dated 27.01.1994 (as amended on 04.05.1994) and the project
was accorded approval on 16.01.1995 subject to specific
conditions. As the procedure laid down under the Environment
(Protection) Act, 1986 and the Environment (Protection) Rules, F
1986 and the notifications dated 27.01.1994 as amended by
notification dated 04.05.1994 and as explained by the
Explanatory Note issued by the Government of India permitted
Rapid EIA in certain circumstances, the High Court could not
have allowed the writ petitions on the ground that environmental G
clearance was issued to the appellant-company on the basis
of inadequate Rapid EIA, particularly when the Union of India
in its affidavit had clearly averred that the environmental
clearance was granted after detailed examination of Rapid EIN
EMP, filled in Questionnaire for industrial projects, NOC from H
604 SUPREME COURT REPORTS [2013] 6 S.C.R.
A State Pollution Control Board and Risk Analysis in accordance
with the procedure laid down in EIA notification dated
2701.1994 (as amended on 04.05.1994).
26. The High Court has noticed some decisions of this
B Court on Sustainable Development, Precautionary and Polluter
Pays Principles and Public Trust Doctrine, but has failed to
appreciate that the decision of the Central Government to grant
environmental clearance to the plant of the appellants could only
be tested on the anvil of well recognized principles of judicial
review as has been held by a three Judge Bench of this Court
C in Lafarge Umiam Mining (P) Ltd. v. Union of India & Others
((2011) 7 SCC 338 at 380]. To quote Environmental Law edited
by David Woolley QC, John Pugh-Smith, Richard Langham and
William Upton, Oxford University Press:
D "The specific grounds upon which a public authority can
be challenged by way of judicial review are the same for
environmental law as for any other branch of judicial review,
namely on the grounds of illegality, irrationality, and
procedural impropriety."
E
Thus, if the environmental clearance granted by the competent
authority is clearly outside the powers given to it by the
Environment (Protection) Act, 1986, the Environment
(Protection) Rules, 1986 or the notifications issued thereunder,
the High Court could quash the environmental clearance on the
F ground of illegality. If the environmental clearance is based on
a conclusion so unreasonable that no reasonable authority
could ever have come to the decision, the environmental
clearance would suffer from Wednesbury unreasonableness
and the High Court could interfere on the ground of irrationality.
G And, if the environmental clearance is granted in breach of
proper procedure, the High Court could review the decision of
the authority on the ground of procedural impropriety.
27. Where, however, the challenge to the environmental
H clearance is on the ground of procedural impropriety, the High
STERLITE INDUSTRIES (INDIA) LTD. ETC. v. UNION 605
OF INDIA & ORS. [A.K. PATNAIK, J.]
Court could quash the environmental clearance only if it is A
satisfied that the breach was of a mandatory requirement in the
procedure. As stated in Environmental Law edited by David
Woolley QC, John Pugh-Smith, Richard Langham and William
Upton, Oxford University Press: ·
B
"It will often not be enough to show that there has been a
procedural breach. Most of the procedural requirements
are found in the regulations made under primary legislation.
There has been much debate in the courts about whether
a breach of regulations is mandatory or directory, but in
the end the crucial point which has to be considered in any C
given case is what the particular provision was designed
to achieve."
As we have noticed, when the plant of the appellant-company
was granted environmental clearance, the notification dated D
27.01.1994 did not provide for mandatory public hearing. The
Explanatory Note issued by the Central Government on the
notification dated 27.01.1994 also made it clear that the project
proponents may furnish rapid EIA report to the IAA based on
·one season data (other than monsoon), for examination of the E
project Comprehensive EIA report was not a must. In the
absence of a mandatory requirement in the procedure laid
down under the scheme under the Environment (Protection) Act,
1986 at the relevant time requiring a mandatory public hearing
and a mandatory comprehensive EIA report, the High Court F
could not have interfered with the decision of the Central
Government granting environmental clearance on the ground of
procedural impropriety.
28. Coming now to the ground of irrationality argued so
vehemently by Mr. V. Prakash, we find that no materials have G
been produced before us to take a view that the decision of
the Central Government to grant the environmental clearance
to the plant of the appellants was so unreasonable that no
reasonable authority could ever have taken the decision. As we
have already noticed. in Para 5 of the affidavit filed by the Union H
606 SUPREME COURT REPORTS [2013) 6 S.C.R.
A of India before the High Court in Writ Petition Nos.15501 to
15503 of 1996, it has been stated that the Ministry of
Environment and Forests have accorded environmental
clearance after detailed examination of rapid EINEMP, filled
in Questionnaire for industrial projects, NOC from State
B Pollution Control Board and Risk Analysis, and that the project
was examined as per the procedure laid down in the EIA
notification dated 27.01.1994 (as amended on 04.05.1994) and
only thereafter the project was accorded approval on
16.01.1995. No material has been placed before us to show
c that the decision of the Ministry of Environment and Forests to
accord environmental clearance to the plant of the appellants
at Tuticorin was wholly irrational and frustrated the very purpose
of EIA.
29. In Belize Alliance of Conservation Non-governmental
D Organizations v. The Department of the Environment and
Belize Electric Company Limited (supra) cited by Mr. Prakash,
the Lords of the Judicial Committee of the Privy Council have
quoted with approval the following words of Linden JA with
reference to the Canadian legislation in Bow Valley Naturalists
E Society v. Minister of Canadian Heritage [2001] 2 FC 461 at
494:
"The Court must ensure that the steps in the Act are
followed, but it must defer to the responsible authorities in
F their substantive determinations as to the scope of the
project, the extent of the screening and the assessment of
the cumulative effects in the light of the mitigating factors
proposed. It is not for the judges to decide what projects
are to be authorized but, as long as they follow the statutory
process, it is for the responsible authorities."
G
The aforesaid passage will make it clear that it is for the
authorities under the Environment (Protection) Act, 1986, the
Environment (Protection) Rules, 1986 and the notifications
issued thereunder to determine the scope of the project, the
H extent of the screening and the assessment of the cumulative
ST{::RLITE INDUSTRIES (INDIA) LTD. ETC. v. UNION 607
OF INDIA & ORS. [A.K. PATNAIK, J.]
effects and so long as the statutory process is followed and the A
EIA made by the authorities is not found to be irrational so as
to frustrate the very purpose of EIA, the Court will not interfere
with the decision of the authorities in exercise of its powers of
judicial review.
B
30. The next question that we have to decide is whether
the High Court was right in directing closure of the plant of the
appellants on the ground that the plant of the appellants is
located at Tuticorin within 25 kms. of four of the twenty one
islands in the Gulf of Munnar, namely, Vanthivu, Kasuwar,
Karaichalli and Villanguchalli. The reason given by the High C
Court in coming to this conclusion is that the TNPCB had
stipulated in the Consent Order dated 22.05.1995 that the
appellant-company has to ensure that the location of the unit
should be 25 kms. away from ecologically sensitive area and
as per the report of NEERI, the plant of the appellants was D
situated at a distance of 6 kms. of Vanthivu, 7 kms .. of Kasuwar
and 15 kms. of Karaichalli and Villanguchalli and these four
villages are part of the twenty one islands in the Gulf of Munnar.
Hence, the High Court directed closure of the plant because
the appellant-company has violated the condition of the Consent E
Order dated 22.05.1995 issued by the TN PCB under the Water
Act.
31. The Consent Order dated 22.05.1995 issued by the
TNPCB under Section 25 of the Water Act states as follows: F
"Consent to establish or take steps to establish is hereby
granted under Section 25 of the Water (Prevention and
Control of Pollution) Act, 1974 as amended in 1988)
(hereinafter referred to as 'The Act') and the rules and
orders made thereunder to G
The Chief Project Manage;,
Mis Sterlite Industries (India) Limited (Copper
Smelter Project)
H
608 SUPREME COURT REPORTS [2013] 6 S.C.R.
A SIPCOT Industrial Complex,
Meelavittam Village, Tuticorin Taluk,
V.O. Chidambaraner District
(hereinafter referred to as 'The applicant') authorizing him/
B her/them to establish or take steps to establish the industry
in the site mentioned below:
SIPCOT Industrial Complex,
Meelavittam Village, Tuticorin Taluk,
V.O. Chidambaraner District."
c
The aforesaid extract from the Consent Order dated 22.05.1995
of the TN PCB issued under .the Water Act makes it clear that
the appellant-company was given consent to establish its plant
in the SIPCOT Industrial Complex, Melavittan Village, Tuticorin
D Taluk. Along with the Consent Order under the Water Act,
special conditions were annexed and clause 20 of the special
conditions reads as follows:
"20. (i) 1 km away from the water resources specified in
E G.0.Ms. No.213 E&P Dept Dt. 30.3.89
(i) 25 km away from ecological/sensitive areas.
(i) 500 metres away from high tide line."
F 32. On the one hand, therefore, the appellants were given
consent to establish their plant in the SIPCOT Industrial
, Complex, which as per the NEER! report is within 25 kms. of
four of the twenty one islands in the Gulf of Munnar. On the other
G hand, a condition was stipulated in the consent order that the
appellants have to ensure that the location of the unit is 25 kms.
away from ecological sensitive area. It thus appears that the
TNPCB while granting the consent under the Water Act for
. establishment of the plant of the appellants in the SIPCOT
H
STERLITE INDUSTRIES (INDIA) LTD. ETC. v. UNION 609
OF INDIA & ORS. [A.K. PATNAIK, J.]
Industrial Complex added the above requirement without noting A
that the SIPCOT Industrial Complex was within 25 kms. from
ecological sensitive area. Since, however, the Consent Order
was granted to the appellant-company to establish its plant in
the SIPCOT Industrial Complex and the plant has in fact been
established in the SIPCOT Industrial Complex, the High Court B
could not have come to the conclusion that the appellant-
company had violated the Consent Order and directed closure
of the plant on this ground.
33. This is not to say that in case it becomes necessary C
for preservation of ecology of the aforesaid four islands which
form part of the Gulf of Munnar, the plant of the appellants
cannot be directed to be shifted in future. We find from the
affidavit filed on behalf of the State of Tamil Nadu on
29.10.2012 th.at the Gulf of Munnar consisting of 21 islands
including the aforesaid four islands have been notified under D
Section 35(1) of the Wildlife (Protection) Act, 1972 on 10th
September 1986 and a declaration may also be made under
Section 35(4) of the said Act declaring the Gulf of Munnar as
a Marine National Park. We have, therefore, no doubt that the
Gulf of Munnar is an ecological sensitive area and the Central E
Government may in exercise of its powers under clause (v) of
_ sub-section (1) of Rule 5 of the Environment (Protection) Rules,
1986 prohibit or restrict the location of industries and carrying
on processes and operations to preserve the biological
diversity of the Gulf of Munnar. As and when the Central F
Government issues an order under Rule 5 of the Environment
(Protection) Rules, 1986 prohibiting or restricting the location
of industries within and around the Gulf of Munnar Marine
National Park, then appropriate steps may have to be taken
by all concerned for shifting the industry of the appellants from G
the SIPCOT Industrial Complex depending upon the content of
the order or notification issued by the Central Government
under the aforesaid Rule 5 of the Environment (Protection)
Rules, 1986, subject to the legal challenge by the industries.
H
610 SUPREME COURT REPORTS [2013) 6 S.C.R.
A 34. The next question with which we have to deal is
whether the High Court could have directed the closure of the
plant of the appellants on the ground that though originally the
TNPCB stipulated a condition in the 'No Objection Cer1ificate'
that the appellant-company has to develop a green belt of 250
B meters width around the battery limit of the plant, the appellants
made representation to the TNPCB for reducing the width of
the green belt and the TNPCB in its meeting held on 18.08.1994
relaxed this condition and required the appellants to develop
the green belt with a minimum width of 25 meters. We find on
c a reading of the No Objection Certificate issued by the TN PCB
that various conditions have been imposed on the industry of
the appellants to ensure that air pollution control measures are
installed for the control of emission generated from the plant
and that the emission from the plant satisfies the ambient area
quality standards prescribed by the TNPCB and development
0
of green belt contemplated under the environmental
managi:iment plan around the battery limit of the industry of the
appellants was an additionai condition that was imposed by the
TNPCB in the No Objection Certificate. If the TNPCB after
E considering the representation of the appellants has reduced
the width. of the green belt from a minimum of 250 meters to a
mm1mum of 25 meters around the battery limit of the industry
of the appellants and)t is. not shown that-ttiis power which has.
been exercised was vitiated by procedural breach or
irrationality, the High Court in exercise of its powers of judicial
F review could not have interfered with the exercise of such power
by the State Pollution .Control. Board, The. High Court.in the
impugned judgment has riot recorded any finding that there has
been any breach of the mandatory provisions of .the Air Act or
the Rules thereunder by the TN PCB by reducing the green.belt
G to 25 meters. Nor has the High Court record~d any finding that
by reducing the width of the green belt around the battery limit
of the industry of the appellants from 250 meters to 25 meters,
it will not be possible to mitigate the effects of fugitive
emissions from the plant. The High Court has merely held that
H the TNPCB should not have taken such a generous attitude and
STERLITE INDUSTRIES (INDIA) LTD. ETC. v. UNION 611
OF INDIA & ORS. [A.K. PATNAIK, J.]
should not have in a casual way dealt with the issue permitting A
the appellant-company to reduce the green belt particularly
when there have been ugly repercussions in the area on
account of the incidents which took place on 05.07.1997
onwards. It was for the TN PCB to take the decision in that behalf
and considering that the appellant's plant was within a pre- B
existing industrial estate, the appellant" could not have been
singled out to require such a huge green belt.
35. This takes us to the argument of Mr. Prakash that had
the Ministry of Environment and Forests, Government of India,
applied its mind fully before granting the environment clearance C
and had the TNPCB applied its mind fully to the consents under
the Air Act and the Water Act and considered all possible
environmental repercussions that the plant proposed to be set
up by the appellants would have, the environmental problems
now created by the plant of the appellants would have been · D
prevented. As we have already held, it is for the administrative
and statutory authorities empowered under the law to consider
and grant environmental clearance and the consents to the
appellants for setting up the plant and where no ground for
interference with the decisions of the authorities on well E
recognized principles of judicial review is made out, the High
Court could not interfere with the decisions of the authorities
to grant the environmental clearance or the consents on the
ground that had the authorities made a proper environmental
assessment of the plant, the adverse environmental effects of F
the industry could have been prevented. If, however, after the
environmental clearance under the Environment (Protection) Act,
1986, and the Rules and the notifications issued thereunder and
after the consents granted under the Air Act and the Water Act,
the industry continues to pollute the environment so as to effect G
the fundamental right to life under Article 21 of the Constitution,
the High Court could still direct the closure of the industry by
virtue of its powers under Article 21 of the Constitution if it came
to the conclusion that there were no other remedial measures
to ensure that the industry maintains the standards of emission H
612 SUPREME COURT REPORTS [2013] 6 S.C.R.
A and effluent as laid down by law for safe environment (see M. C.
Mehta v. Union of India and others [(1987) 4 SCC 463] in
which this Court directed closure of tanneries polluting the
waters of Ganga river).
36. We have, therefore, to examine whether there were
8
materials before the High Court to show that the plant of the
appellants did not maintain the standards of emission and
effluent as laid down by the TNPCB and whether there were
no remedial measures other than the closure of the industry of
C the appellants to protect the environment. We find on a reading
of the impugned judgment of the High Court that it has relied
on the report of NEERI of 2005 to hold that the plant site itself
is severely polluted and the ground samples level of arsenic
justified classifying the whole site of the plant of the appellant
as hazardous waste. We extract hereinbelow the relevant
D observations of NEERI in its report of 2005 relating to air, water
and soil environment in the Executive Summary:
"Air Environment:
The emission factors of S02 from sulphuric acid
E
plant - I (SAP-I) and sulphuric acid plant - II (SAP-
11) were 0.55 kg/MT of H2S04 manufactured which
is well within the TN PCB stipulated limit of 2kg/MT
of H2S04 manufactured.
F The acid mist concentration of SAP-I was 85 mg/
Nm3, which exceeds the TNPCB limit of 50 mg/
Nm3. The acid mist concentration from SAP-II was
42 mg/Nm3, Which is well within the TNPCB limit.
In view of the exceedance of TNPCB limit for acid
G mist, it is recommended that the performance of
acid mist eliminators may be intermittently checked.
It is further recommended to install a tail gas
treatment plant to take care of occasional upsets.
Out of the seven D.G. sets, one (6.3 MW) was
H
STERLITE INDUSTRIES (INDIA) LTD. ETC. v. UNION 613
OF INDIA & ORS. [A.K. PATNAIK, J.)
monitored for particulate matter (PM) emissions. A
The level of PM was 115 mg/Nm3 (0.84 gm/kWh)
which is within the TNPCB stipulated limit of 150
mg/Nm3 for th~rmal power plants of 200 MW and
higher capacity (165 mg/Nm3) but higher than that
stipulated for diesel engines I Gen sets up to 800 B
KW capacity (0.3 gm/kWh). Therefore TNPCB may
decide whether the present PM emissions from the
DG sets of 6.3 MW capacity is within the limit or
otherwise.
The fugitive emissions were monitored at four sites C
to assess the status of air quality with respect of
S02, N02 and SPM. The results of analysis at all
fugitive emission monitoring sites indicate that the
levels of gaseous pollutants S02 and N02, were
below the respective NIOSH/OSHA standards for D
work place environment. The levels of SPM were
also within the stipulated TNPCB standards for
industrial areas.
Impact of stack and fugitive emissions on E
surrounding air quality was also assessed by
monitoring S02, N02 and SPM levels at five
monitoring locations. The levels of SPM, S02 and
N02 at all the five sites were far below the TNPCB
standards of 120 ig/Nm3 for S02 as well as N02 F
and 500 ig/Nm3 for SPM for industrial zone.
Water Environment
Surface water samples were collected and
analyzed for physico-chemical, nutrient demand G
parameters. The physico-chemical characteristics
and nutrient demand parameters, i.e. with special
reference to pH (7.9-8.0), TDS (120-160 mg/L),
COD (11-18 mg/L) and levels of heavy metals viz.
Cd, Cr, Cu, Pb, Fe, Mn, Zn and As in surface water, H
614 SUPREME COURT REPORTS [2013) 6 S.C.R.
A were found within the prescribed limits of drinking
water standards (IS: 10500-1995).
Total eight groundwater samples were collected
(seven from hand pumps and one from dug well) to
assess the groundwater quality in the study area.
B
The analysis on physico-chemical characteristics of
groundwater samples collected from various
locations showed high mineral contents in terms of
dissolved solids (395-3020mg/L), alkalinity (63-210
mg/L), total hardness (225-2434 mg/L), chloride
c (109-950 mg/L), sulphate (29-1124 mg/L) and
sodium (57-677 mg/L) as compared to the drinking
water standards (IS:10500-1995). Thus, it could be
concluded that water in some of the wells
investigated is unfit for drinking. The concentrations
D of nutrient demand parameters revealed that
phosphate was in the range 0.1-0.3 mg/L while
nitrate was in the range 1-7.5 mg/Lat all sampling
locations which is within the limits stipulated under
drinking water standards (IS:10500-1995). Levels
E of Chromium, Copper and lead were found to be
higher in comparison to the parameters stipulated
under drinking water standards (IS:10500-1995),
other heady metal concentrations, viz. iron,
manganese, zinc and arsenic were found in the
F range 0.01-0.05 mg/L, ND-0.01 mg/Land ND-0.08
mg/L respectively which are within the drinking
water standards (IS:10500-1995).
To assess the impact on groundwater quality due
to secured and fill sites and other waste disposal
G
facilities, five samples were collected from
monitoring wells (shallow bore wells located around
the waste disposal sites). The Physico-Chemical
characteristics of well water around secured land
fill site and gypsum pond showed mineral contents
H
STERLITE INDUSTRIES (INDIA) LTD. ETC. v. UNION 615
OF INDIA & ORS. [A.K. PATNAIK, J.]
higher then the levels stipulated in IS: 10500-1995 A
in terms of dissolved solids (400-3245 mg/L),
alkalinity (57-137 mg/L), hardness (290-1280 mg/
!..), chloride (46-1390 mg/L), sulphate (177-649 mg/
L) and sodium (9-271 mg/L). The results of nutrient
demand parameters showed phosphate in the B
range 0.1-0.5 mg/L while nitrate was in the range
0.8-11.7 mg/Lat all sampling locations, which are
within the levels stipulated in IS:10500-1995,
whereas level of arsenic was found in the range of
ND-0.08 mg/Las against the stipulated limit of 0.05 C
. mg/L under drinking water standards (IS:10500-
1995). Levels of cadmium, chromium, copper and
lead were also found to exceed the drinking water
· , standards in some of the wells:
The hourly composite w;;istewater samples were D
collected at six locations. D.uring the sample
collection, flow 'monitoring was also carried out at
the i.nlet arid final outlet of the effluent treatment plant
(ETP). 'The concentraiions•of total dissolved solid
(TDS) and sulphate exceed the limit stipulated by E
· 1he TNPCB for treated effluent. All the other
parameters· are ·with.in the consent conditions
prescribed by, TN PCB: The treated effluent is being
:ecycled back in the process to achieve zero
dlscha·rge. F
Soil Environment
Soil samples were also analyzed for level of heavy
metals. The soil samples at the plant site showed
presence of As (132.5 to 163.0 mg/kg), Cu (8.6 to G
163.5 mg/kg), Mn (283 to 521.0 mg/kg) and Fe
(929.6 to 1764.6 mg/kg). Though there is no
prescribed limit for heavy metal contents in soil, the
occurrence of these heavy metals in the soil may
be attributed to fugitive emission, solid waste H
616 SUPREME COURT REPORTS [2013) 6 S.C.R.
A dumps, etc."
It will be clear from the extracts from the Executive Summary
of NEERI in its report of 2005, that while some of the emissions
from the plant of the appellants were within the limits stipulated
by the TNPCB, some of the emissions did not conform to the
8
standards stipulated by TNPCB. It will also be clear from the
extracts from the Executive Summary relating to water
environment that the surface water samples were found to be
within the prescribed limits of drinking water (IS:10500-1995)
C whereas ground water samples showed high mineral contents
in terms of dissolved solids as compared to the drinking water
standards, but concentrations of nutrient demand parameters
revealed that the phosphate and nitrate contents were within
the limits stipulated under drinking water standards and levels
of chromium, copper and lead were found to be higher in
D comparison to the parameters stipulated under drinking water
standards, whereas the heavy metal concentrations, namely,
iron, manganese, zinc and arsenic were within the drinking
water standards. Soil samples also revealed heavy metals.
Regarding the solid waste out of slag in the plant site, the
E CPCB has taken a view in its communication dated 17.11.2003
to TNPCB that the slag is non-hazardous. Thus, the NEERI
report of 2005 did show that the emission and effluent discharge
affected the environment but the report read as whole does not
warrant a conclusion that the plant of the appellants could not
F possibly take remedial steps to improve the environment and
that the only remedy to protect the environment was to direct
closure of the plant of the appellants.
37. In fact, this Court passed orders on 25.02.2011
G directing a joint inspection by NEERI (National Engineering and
Research Institute) with the officials of the Central Pollution
Control Board (for short 'the CPCB') as well as the TNPCB.
Accordingly, an inspection was carried out during 6th April to
8th April, 2011 and 19th April to 22nd April, 2011 and a report
H was submitted by NEERI to this Court. On 18.07.2011, this
STERLITE INDUSTRIES (INDIA) LTD. ETC. v. UNION 617
OF INDIA & ORS. {A.K. PATNAIK, J.]
Court directed the Tamil Nadu Government and the TNPCB to A
submit their comments with reference to the NEER! report. On
25.08.2011, this Court directed TNPCB to file a synopsis
specifying the deficiencies with reference to the NEER! report
and suggest control measures that should be taken by the
appellants so that this Court can consider the direction to be B
issued for remedial measures which can be monitored by the
TNPCB. Accordingly, the TNPCB filed an affidavit dated
30.08.2011 along with the chart of deficiencies and measures
to be implemented by the appellants and on 11.10.2011, this
Court directed the TNPCB to issue directions, in exercise of c
its powers under the Air Act and the Water Act to the appellants
to carry out the measures and remove the deficiencies
indicated in the chart. Pursuant to the order dated 11.10.2011,
· the TNPCB issued directions to the appellants and on
17.01.2012, the appellants claimed before the Court that they D
have removed the deficiencies pointed out by the TNPCB and
on 27.08.2012, this Court directed that a joint inspection be
carried out by TNPCB and CPCB and completed by 14th
September, 2012 and a joint report be submitted to this Court.
38. The conclusion in the joint inspection report of CPCB E
_and TNPCB is extracted hereinbelow:
·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 F
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 TN PCB, the G
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 NEER! have now been
removed, the impugned order of the High Court directing H
618 SUPREME COURT REPORTS [2013] 6 S.C.R.
A 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
8 NEER! reports of 1998, 1999, 2003 and 2005 show that the
plant of the appellant 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
C 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 NEER! report of 2011:
D
"Further, renewal of the Consent to Operate was issued
vide the following Proceedings Nos. and validity period:
TNPCB Proceeding Validity Upto
E No. T7fTNPCB/F.22276/RUTTN/W/2007
dated 07.05.2007
'
No.T7fTNPCB/F.22276/RUTTN/N2006 30-09-2007
dated 07.05.2007
F No.T7fTNPCB/F.22276/URUTTN/W/2008
dated 19.01.2009
No.T7fTNPCB/F.22276/URUTTN/N2008 31-03-2009
dated 19.01.2009
G No.T7fTNPCB/F.22276/URUTTN/W/2009
dated 14.08.2009
No.T7fTNPCB/F.22276/URUTTN/N2009 31-12-2009
dated 14.08.2009.
H
STERLITE INDUSTRIES (INDIA) LTD. ETC. v. UNION 619
OF INDIA & ORS. [A.K. PATNAIK, J.)
Thereafter, the TNPCB did not renew the Consents due A
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 B
the Board, including BIS clearance before arriving
at disposal to cement industries, marine impact
study before arriving at disposal for landfill in
abandoned quarries.
c
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 D
to ensure that no secondary fugitive emission is
discharged at any stage, including at the points of
material handing and vehicle movement area."
For such damages caused to the environment from 1997 to E.
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:
F
"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 G
compensate for such harm and it should be no answer to
the enterprise to say that it had taken all reasonable care
and that the harm occurred without any negligence on its
part."
H
620 SUPREME COURT REPORTS [2013] 6 S.C.R.
A 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
B 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, ,
C 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.·
D 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
E 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
F improving the environment, including water and soil, of the
vicinity of the plant after consultation with TN PCB and approval
of the Secretary, Environment, Government of Tamil Nadu.
40. We now come to the submission of Mr. Prakash that
G we should not grant relief to the appellants because of
misrepresP.ntation 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
H the special leave petition that the plant was closad at the time
STERLITE INDUSTRIES (INDIA) LTD. ETC. v. UNION 621
OF INDlA & ORS. [AK. PATNAIK, J.]
the special leave petition was moved and a stay order was A
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 B
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 fo large number
of people through contractors. A number of ancillary industries c
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 D
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 E
- 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 F
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 G
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.
H
622 SUPREME COURT REPORTS (2013] 6 S.C.R.
A 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
B a Nationalized Bank for 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
c 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
D 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.
E
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
F other period in a civil court or any other forum in accordance
with law.
B.B.B. Appeals allowed.
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