Nishant Sirohi

| @nishantssirohi | February 21,2019

ON February 18, 2019, the Supreme Court set aside the National Green Tribunal (NGT) order for re-opening Thoothukundi Sterlite copper plant in Tamil Nadu’s Tuticorin. The Supreme Court held: “We are of the view that NGT has no general power of judicial review akin to that vested under Article 226 of the Constitution of India possessed by the High Courts of this country”.

The two-judge bench comprising Justices Rohinton F Nariman and Naveen Sinha held that NGT has no jurisdiction to entertain Vedanta appeals against Tamil Nadu Government’s decision to close down Sterlite copper plant. While refusing to allow the reopening of Vedanta’s Sterlite plant on the ground of maintainability, the Court asked Vedanta to approach Madaras High Court against Tamil Nadu government’s order to close down the Sterlite units.

 

Background​​

 

Vedanta’s Sterlite operated the largest copper smelter plant in India in Thoothukudi since 1998. The Thoothukudi copper plant has been long-opposed by the local residents for polluting the environment as well as causing a range of health problems.

In March 2018, Vedanta decided to set up a second smelting complex in the copper plant which was highly opposed by the local people living in Thoothukudi. On May 22, 2018, the protest by local residents intensified and the people marched to the Tuticorin Collectorate demanding the closure of the Sterlite copper plant over pollution fears.

The police to control the protestors opened fire at a group of nearly 20,000 protesters, in which 11 people were killed following which the Tamil Nadu Government ordered State Pollution Control board to seal the unit and close the plant permanently, citing a provision of the Water (Prevention and Control of Pollution) Act, 1974.

 

NGT-appointed panel

 

Appeal against the orders passed by the Tamil Nadu Pollution Control Board (TNPCB) was filed in the National Green Tribunal (NGT) principal bench in New Delhi. On August 20, 2018, NGT placed before all parties concerned the proposal to hand over the matter to an independent committee which can hold impartial and fair consideration of the matter afresh.

After the parties agreed to refer the matter to an independent committee, the bench headed by NGT Chairperson Justice A K Goel had appointed a three-member panel comprising Justice S J Vazifdar, former Chief Justice of Punjab and Haryana High Court, scientists Satish Chandra Garkoti and H D Varalaxmi, who are representatives from the Ministry of Environment, Forests and Climate Change and the Central Pollution Control Board. However, due to some personal reasons, Justice S J Vazifdar expressed his inability to accept the appointment by NGT on the panel. Thereafter, NGT substituted Justice S J Vazifdar by Justice Tarun Agrawala, former Chief Justice High Meghalaya High.

 

 

The three-member Committee, headed by Chairperson Justice Tarun Agrawala, in its report, submitted that the reasons cited in the Tamil Nadu government’s closure order were not “that grievous to justify permanent closure of the factory”. The Committee in its report also submitted that the orders of TNPCB and the Tamil Nadu Government were not maintainable as the company was not given an opportunity to defend itself.

The Committee in its report also recommended if the NGT decided to allow Sterlite to commence production, the pollution control norms such as slag disposal should be followed by the company and monitored by the state Pollution Control Board.

 

 

NGT order

 

Almost six months after the Tamil Nadu government ordered the permanent shutdown of the Sterlite copper plant in Tuticorin, the NGT on December 15, 2018, had set aside the closure order passed by the Tamil Nadu government and allowed the plant to re-open, saying it was “non-sustainable” and “unjustified”.

The bench headed by NGT chairpersons Justice A K Goel ordered “… We allow this appeal, set aside this impugned orders and direct the Tamil Nadu Pollution Contort Board to pass fresh order of renewal of consent and authorization to handle hazardous substances, in the light of above finding, subject to appropriate conditions for the protection of the environment in accordance with law within three weeks from today. The appellant will also be entitled to restoration of electricity for its operations”.

The NGT pulled up TNPCB and stated in its order that “so long as the establishment is complying with the Pollution Control norms and is willing to take further precautionary steps, the Pollution Control Board cannot arbitrarily close such establishments on hyper-technicalities, as has been done in the present case. We expect TNPCB to have a more focused and professional approach in performing its regulatory functions”.

 

 

The NGT in its order also halted the Tamil Nadu government for its “endorsement” of TNPCB’s order and noted that “it cannot be said to be an independent order, but relied on and endorsing the views of the TNPCB which is under challenge” and “that are not sufficient for ordering closure or refusal to grant even consent”. NGT also directed the Tamil Nadu government to restore electricity for the plant’s operations.

On the health impact from the plant, the NGT order stated that there is “no evidence” to show that it has caused “any health hazards in the locality and the pollution caused on account of the same to the environment is irreversible and irremediable”.

 

 

Supreme Court sets aside NGT Order, rejects leaf

 

The Tamil Nadu government appealed in the Supreme Court against the NGT order and sought to set aside the order on the ground of it being “erroneous”. The government in its appeal contended that the NGT failed to consider the data, documents, and evidence furnished by the TNPCB to show that Vedanta had irreversibly polluted the groundwater in and around Thoothukundi district.

The Supreme Court set aside the order passed by NGT peremptorily on the ground of maintainability. The question before the Supreme Court was whether NGT had jurisdiction to adjudicate on the appeal filed from the order passed under Water Act, 1974 and Air Act, 1981. The Supreme Court ordered that NGT does not have the jurisdiction in matters of appeal which is arising out of the order passed under Section 27 of the Water Act and Section 21 of the Air Act.

The Supreme Court observed “there is no doubt whatsoever that an appeal against an order made under Section 27 of the Water Act is appealable to the appellate authority under Section 28 of the said Act. Under Section 33B (a) of the said Act, if a person is aggrieved by an order or decision of the appellate authority under Section 28, it is then appealable to the NGT. This is made clear also by Section 16(a) of the NGT Act. Equally, an order refusing consent under Section 21 of the Air Act is appealable to the appellate authority under Section 31 of the Air Act, and thereafter, from the said appellate authority’s order, to the NGT, under Section 31B of the Air Act and Section 16(f) of the NGT Act”.

 

 

The Supreme Court further said, “while an appeal was still pending before the appellate authority, the NGT took up a matter directly against the original order dated 09.04.2018 which was challenged before the appellate authority even before the appellate authority could decide the same”. The Court asserted that “it is clear that an appeal was pending before the appellate authority when the NGT set aside the original order dated 09.04.2018. This being the case, the NGT’s order being clearly outside its statutory powers conferred by the Water Act, the Air Act, and the NGT Act, would be an order passed without jurisdiction”.

The Supreme Court observed that these are akin to leapfrog appeal provided under several Acts of the United Kingdom if a point of law of general public importance is involved. The Court said, “in fact, in the United Kingdom, there are several Acts under which a leapfrog appeal is permitted if a point of law of general public importance is involvedIt is; therefore, clear that no such provisions, as are contained in the U.K. Acts, being present in any of the Acts that we are concerned with, such leapfrog appeals to the NGT would necessarily be without jurisdiction”.

The Supreme Court in its judgment also reflected on the issues of the general power of judicial review of NGT. The Supreme Court observed that “section 33B(c) of the Water Act read with Section 16(c) of the NGT Act make it clear that directions issued under Section 33A of the Water Act are appealable to the NGT, directions issued under Section 31A of the Air Act are not so appealable. In fact, the statutory scheme is that directions given under Section 31A of the Air Act are not appealableThis being the case, all the aforesaid orders, being composite orders issued under both the Water Act and the Air Act, it will not be possible to split the aforesaid orders and say that so far as they affect water pollution, they are appealable to the NGT, but so far as they affect air pollution, a suit or a writ petition would lie against such orders”.

 

 

The Supreme Court observed “it is clear, therefore, that under the NGT Act, the Tribunal exercising appellate jurisdiction cannot strike down rules or regulations made under this Act. Therefore, it would be fallacious to state that the Tribunal has powers of judicial review akin to that of a High Court exercising constitutional powers under Article 226 of the Constitution of India. We must never forget the distinction between a superior court of record and courts of limited jurisdiction that was to argue that as against a writ court acting under Article 226 of the Constitution of India, the NGT is an expert body set up only to deal with environmental matters, again does not answer the specific issue before this Court”.

The Supreme Court further observed that “as we have held earlier, an appeal being a creature of statute, an order passed under Section 18 of the Water Act is either appealable or it is not. If it is not, no general argument as to the NGT being an expert body set up to hear environmental matters can be of any help”.

 

 

The Supreme Court observed “if an appellate authority is either not yet constituted, or not properly constituted, a leapfrog appeal to the NGT cannot be countenanced. As has been held by us supra, the NGT is only conferred appellate jurisdiction from an order passed in exercise of the first appeal. Where there is no such order, the NGT has no jurisdiction”.​

 

Read order.

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