Environment Impact Assessment – Copper Smelter Plant – Prevention of Pollution Board – Air Pollution – Water Pollution – Green Belt – Employment – Public Interest – Revenue – Ancillary Industries Etc.
Judgement rendered by: A.K. PATNAIK; H.L. GOKHALE, JJ.
Brief Note of the case:
Para 12. the appellants had initially proposed to establish the plant in Gujarat but this was opposed vehemently and the 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 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 set up the plant at Tuticorin in Tamil Nadu by somehow obtaining environmental clearance 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.
the first question which we will have to decide is whether the High Court could have interfered with the environmental clearances granted by the Ministry of Environment and Forests, Government of India, and the Government of Tamil Nadu, Department of Environment.(para 22)
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 before grant of environmental clearance, 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 environmental clearances.(para 24)
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. (para 30)
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 Certificate’ that the appellant-company has to develop a greenbelt of 250 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.
to decline relief to the appellants in this case would mean closure of the plant of the appellants. The plant of the appellants contributes substantially to the copper production in India and copper is used in defence, electricity, automobile, construction and infrastructure etc. The plant of the appellants has about 1300 employees and it also provides employment to large number of people through contractors. A number of ancillary industries are also dependent on the plant. Through its various transactions, the plant generates a huge revenue to Central and State Governments in terms of excise, custom duties, income tax and VAT. It also contributes to 10% of the total cargo volume of Tuticorin port. For these considerations of public interest, we do not think it will be a proper exercise of our discretion under Article 136 of the Constitution to refuse relief on the grounds of misrepresentation and suppression of material facts in the special leave petition.(para 40)
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.100crores with the Collector of Thoothukudi District, which will be kept in a fixed deposit in a Nationalized Bank for a minimum of five years, renewable as and when it expires, and the interest there from will be spent on suitable measures for improvement of the environment, including water and soil, of the vicinity of the plant of the appellants after consultation with TNPCB and approval of the Secretary, Environment, Government of Tamil Nadu. In case the Collector of Thoothukudi District, after consultation with TNPCB, finds the interest amount inadequate, he may also utilize the principal amount or part thereof for the aforesaid purpose after approval from the Secretary, Environment, and Government of Tamil Nadu. By this judgment, we have only set aside the directions of the High Court in the impugned common judgment and we make it clear that this judgment will not stand in the way of the TNPCB issuing directions to the appellant-company, including a direction for closure of the plant, for the protection of environment in accordance with law.
43. We also make it clear that the award of damages of Rs. 100Crores by this judgment against the appellant-Company for the period from1997 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.
I Point of Law discussed and Cases refered:
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(para 13)
1. Hari Narain v. Badri Das (AIR 1963 SC 1558),
2. G. Narayanaswamy Reddy(dead) by LRs. & Anr. v. Government of Karnataka & Anr. ((1991) 3 SCC 261)
4. Dalip Singh v. State of Uttar Pradesh & Ors. ((2010) 2 SCC 114)
5. Abhyudya Sanstha v. Union of India ((2011) 6 SCC 145)
II Point of Law Discussed and the the cases referred: a right to clean environment is part of the right to life guaranteed under Article 21 of the Constitution and has explained the precautionary principle and the principle of sustainable development in: Vellore 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)M.C. Mehta v. Union of India Ors. ((2009) 6 SCC 142). 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.
III Point of Law Discussed and the cases refered:
A public hearing was a must for grant of environmental clearance.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)
IV Point of Law discussed and the cases referred :
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 in: Lafarge Umiam Mining (P) Ltd. v. Union of India & Others ((2011) 7 SCC 338at 380). To quote Environmental Law edited by David Woolley QC, John Pugh-Smith, Richard Langham and William Upton,
Oxford University Press:
‘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.’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 there under, the High Court could quash the environmental clearance on the 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 Wednes bury unreasonableness and the High Court could interfere on the ground of irrationality. 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.
V Point of Law discussed and cases referred:
‘The Court must ensure that the steps in the Act are followed, but it must defer to the responsible authorities in 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.
In Belize Alliance of Conservation Non-governmental Organizations v. The Department of the Environment and Belize Electric Company Limited(supra) 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 Society v. Minister of Canadian Heritage (2001) 2 FC 461 at 494:that it is for the authorities under the Environment (Protection) Act, 1986, the Environment (Protection)Rules, 1986 and the notifications issued there under to determine the scope of the project, the extent of the screening and the assessment of the cumulative effects 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)
Naturalists Society v. Minister of Canadian Heritage (2001) 2 FC 461 at 494:
VI Point of Law discussed and case refered:
There were no other remedial measures to ensure that the industry maintains the standards of emission and effluent as laid down by law for safe environment: 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).(para 35)
VII. Point of Law discussed and case refered:
This Court observed that voluntary bodies deserve encouragement wherever their actions are found to be in furtherance of public interest. Very few would venture to litigate for the cause of environment, particularly against the mighty and the resourceful, but the writ petitioners before the High Court and the intervener before this Court not only ventured but also put in their best for the cause of the general public.(para 41)
Indian Council for Enviro-Legal Action and Others vs. Union of India and Others ((1996) 3 SCC 211)