1. Dispute over the maintainability of appeals before the National Green Tribunal against orders of closure and refusal of consent to operate under the Water Act and Air Act. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10 )
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2019 Supreme(SC) 176
SUPREME COURT OF INDIA
R.F. Nariman, Navin Sinha, JJ.
TAMIL NADU POLLUTION CONTROL BOARD – APPELLANT(S)
VERSUS
STERLITE INDUSTRIES (I) LTD. & ORS. – RESPONDENT(S)
CIVIL APPEAL NOS.4763-4764 OF 2013 WITH CIVIL APPEAL NOS. 8773-8774 OF 2013 CIVIL APPEAL NOS. 9542-9543 OF 2013 CIVIL APPEAL NO. 5782 OF 2014 CIVIL APPEAL NOS. 1552-1554 OF 2019 CIVIL APPEAL NO. 23 OF 2019 CIVIL APPEAL NO. 1582 OF 2019
Decided On : 18-02-2019
Important Points
IMPORTANT POINT
Appellate Tribunal has to act strictly within domain prescribed by statute.
Appellate Tribunal has to act strictly within domain prescribed by statute.
Subject
Environmental Law - Pollution Control
Act Referred
ADMINISTRATIVE TRIBUNALS ACT: S.14, S.28
AIR PREVENTION AND CONTROL OF POLLUTION ACT: S.31(a), S.9, S.21, S.28(4)
COMPETITION ACT: S.53(b)
CONSTITUTION OF INDIA: Art.323(a), Art.136, Art.48(a), Art.226, Art.324(1)
CUSTOMS ACT: S.129(d)
EMPLOYEES PROVIDENT FUNDS AND MISCELLANEOUS ACT: S.7(i), S.7(a), S.7(q)
ENVIRONMENT PROTECTION ACT: S.5
FOREST CONSERVATION ACT: S.2
JUDICATURE ACT: S.3
MAHARASHTRA SECONDARY AND HIGHER SECONDARY BOARDS REGULATIONS: Reg.104
MOTOR VEHICLES ACT: S.64
NATIONAL GREENS TRIBUNAL ACT: S.16, S.14, S.15, S.29, S.33, S.3, S.16(f), S.16(a), S.16(c)
TELECOM REGULATORY AUTHORITY OF INDIA ACT: S.14, S.29
TRADE AND MERCHANDISE MARKS ACT: S.105
WATER PREVENTION AND CONTROL OF POLLUTION ACT: S.28, S.33(a), S.18(1)(b), S.29, S.13, S.27
AIR PREVENTION AND CONTROL OF POLLUTION ACT: S.31(a), S.9, S.21, S.28(4)
COMPETITION ACT: S.53(b)
CONSTITUTION OF INDIA: Art.323(a), Art.136, Art.48(a), Art.226, Art.324(1)
CUSTOMS ACT: S.129(d)
EMPLOYEES PROVIDENT FUNDS AND MISCELLANEOUS ACT: S.7(i), S.7(a), S.7(q)
ENVIRONMENT PROTECTION ACT: S.5
FOREST CONSERVATION ACT: S.2
JUDICATURE ACT: S.3
MAHARASHTRA SECONDARY AND HIGHER SECONDARY BOARDS REGULATIONS: Reg.104
MOTOR VEHICLES ACT: S.64
NATIONAL GREENS TRIBUNAL ACT: S.16, S.14, S.15, S.29, S.33, S.3, S.16(f), S.16(a), S.16(c)
TELECOM REGULATORY AUTHORITY OF INDIA ACT: S.14, S.29
TRADE AND MERCHANDISE MARKS ACT: S.105
WATER PREVENTION AND CONTROL OF POLLUTION ACT: S.28, S.33(a), S.18(1)(b), S.29, S.13, S.27
Headnote
National Green Tribunal Act, 2010 – Section 16 – Air (Prevention and Control of Pollution) Act, 1981 – Section 31A – Water (Prevention and Control of Pollution) Act, 1974 – Section 18 – Copper smelting plant – Environmental clearance – Appeal is a creature of statute – Appellate Tribunal has to act strictly within domain prescribed by statute – Appeal would lie from an order or decision of appellate authority under Section 28 of Water Act to NGT only under Section 33B(a) of Water Act read with Section 16(a) of NGT Act – Similarly, appeal would lie from an order or decision of appellate authority under Section 31 of Air Act to NGT only under Section 31B of Air Act read with Section 16(f) of NGT Act – Under NGT Act, Tribunal exercising appellate jurisdiction cannot strike down rules or regulations made under this Act – It would be fallacious to state that Tribunal has powers of judicial review akin to that of a High Court exercising constitutional powers under Article 226 of Constitution of India – NGT is only conferred appellate jurisdiction from an order passed in exercise of first appeal – Where there is no such order, NGT has no jurisdiction. (Paras 33, 42 to 45)
Facts of Case:
Copper smelting plant. TNPCB granted its consent under Air (Prevention and Control of Pollution) Act, 1981 and Water (Prevention and Control of Pollution) Act, 1974 on 22.05.1995. After obtaining requisite permissions, consent to operate plant was issued on 14.10.1996 by TNPCB. Production commenced on 01.01.1997. However, environmental clearances that were granted were challenged before Madras High Court in Writ Petition Nos.15501-15503/1996, 5769/1997, and 16961/1998. On 20.05.1999, TNPCB granted its consent for production of two more products, namely, phosphoric acid and hydrofluorosilicic acid. On 21.09.2004, a Supreme Court Monitoring Committee was constituted to verify compliance status of hazardous waste management. It recommended to MoEF that environmental clearance for proposed expansion should not be granted, and if granted, should be revoked. On 19.04.2005, TNPCB issued consent to operate, subject to fulfillment of various conditions for the expanded capacity. Meanwhile, the Madras High Court, on 28.09.2010, allowed the various writ petitions that had been filed and quashed environmental clearances granted to respondent and directed TNPCB to close down plant.
Findings of Court:
We are cognizant of the fact that respondent’s plant has been shut down since 09.04.2018. Since we have set aside impugned judgments of NGT on the ground of maintainability, order dated 22.01.2019 passed by TNPCB, being a consequential order, is also set aside. Respondents are relegated to the position that six orders impugned before NGT, dealt with by impugned judgment dated 15.12.2018, and order dated 29.03.2013, dealt with by final judgment dated 08.08.2013, are alive and operative.
Result : Appeals disposed of with observations.
Legal Category Hierarchy
- administrative law
- environmental law
Advocates Appeared:
For the Parties: Mr. C.S. Vaidhyanathan, Sr. Adv. Mr. K.V. Vishwanathan, Sr. Adv. Mr. Guru Krishna Kumar, Sr. Adv. Mr. Balaji Srinivasan, AAG Mr. M. Yogesh Kanna, AOR Mr. Dinesh Kr. Tiwary, Adv. Mr. Chandan Kumar, Adv. Jaya Kumari, Adv. Shama Sharma, Adv. Mr. Santosh Kumar Tripathi, AOR Ms. Rohini Musa, AOR Mr. G.sivabalamurugan, AOR Mr. vivek Bharti, Adv. Ms. Vandhana, Adv. Mr. Anandha Selvam, Adv. Mr. Deepak Goel, AOR Mr. Ashutosh Kr. Sharma, Adv. Mr. Rajeev Dubey, Adv. Mr. Kamlendra Mishra, Adv. Mrs. Rachna Gupta, AOR Mr. Vinodh Kanna B., AOR Ms. S. Valarmathi, Adv. Mr. Nikhil Nayyar, Adv. Ms. K. V. Bharathi Upadhyaya, AOR Mr. Beno Bencigar, Adv. Mr. Parijat Kishore, AOR
For the Parties: Mr. C.S. Vaidhyanathan, Sr. Adv. Mr. K.V. Vishwanathan, Sr. Adv. Mr. Guru Krishna Kumar, Sr. Adv. Mr. Balaji Srinivasan, AAG Mr. M. Yogesh Kanna, AOR Mr. Dinesh Kr. Tiwary, Adv. Mr. Chandan Kumar, Adv. Jaya Kumari, Adv. Shama Sharma, Adv. Mr. Santosh Kumar Tripathi, AOR Ms. Rohini Musa, AOR Mr. G.sivabalamurugan, AOR Mr. vivek Bharti, Adv. Ms. Vandhana, Adv. Mr. Anandha Selvam, Adv. Mr. Deepak Goel, AOR Mr. Ashutosh Kr. Sharma, Adv. Mr. Rajeev Dubey, Adv. Mr. Kamlendra Mishra, Adv. Mrs. Rachna Gupta, AOR Mr. Vinodh Kanna B., AOR Ms. S. Valarmathi, Adv. Mr. Nikhil Nayyar, Adv. Ms. K. V. Bharathi Upadhyaya, AOR Mr. Beno Bencigar, Adv. Mr. Parijat Kishore, AOR
Table of Contents
2. Appellants challenge NGT's jurisdiction over original orders and non-appealable directions; Respondent argues NGT's expert status and judicial review powers justify the appeals. (Para 12 , 13 )
3. The court found that statutory appeals must follow the prescribed hierarchy; directions under Section 31A Air Act and Section 18 Water Act are not appealable to NGT. (Para 21 , 22 , 23 , 31 , 35 , 39 , 41 , 42 , 44 )
4. Right of appeal is a creature of statute; leapfrog appeals to NGT are impermissible where a statutory first appeal to an appellate authority is provided. (Para 24 , 25 , 26 , 27 , 28 , 29 , 30 , 31 , 34 )
5. NGT judgments set aside on maintainability; original closure and refusal orders restored; respondent permitted to file writ petitions in the High Court. (Para 45 )
6. Is a direct appeal to the NGT maintainable against an original order when a statutory appeal to an appellate authority is provided?
No. An appeal is a creature of statute. Where the law provides for a first appeal to an appellate authority, a direct leapfrog appeal to the NGT is incompetent and without jurisdiction. (Para 24 , 25 , 26 , 27 , 28 , 29 , 30 , 31 , 34 )
7. Are directions issued under Section 31A of the Air Act appealable to the NGT?
No. Unlike directions under Section 33A of the Water Act, directions under Section 31A of the Air Act are not appealable to the NGT under the statutory scheme. (Para 35 )
8. Does the NGT possess general powers of judicial review similar to a High Court under Article 226?
No. The NGT is a statutory tribunal of limited jurisdiction, not a superior court of record. It cannot exercise general judicial review powers to strike down non-appealable administrative orders. (Para 40 , 41 , 42 )
9. Can the NGT entertain a direct appeal based on the doctrine of necessity if the statutory appellate authority is not properly constituted?
No. The non-existence or improper constitution of a statutory appellate authority does not confer jurisdiction upon the NGT to hear a leapfrog appeal. (Para 44 )
10. Are orders issued by the State Government under Section 18 of the Water Act appealable to the NGT?
No. Such orders are not appealable to the NGT under the Water Act or NGT Act and can only be challenged via a civil suit or writ petition. (Para 39 )
JUDGMENT
R.F. NARIMAN, J.
1. The present appeals arise out of orders that have been passed by the National Green Tribunal [“NGT”] dated 31.05.2013, 08.08.2013, and 15.12.2018. The brief facts necessary to appreciate the controversy raised in the present case are as follows.
2. The respondent, Sterlite Industries (India) Ltd. / Vedanta Ltd., was operating a copper smelter plant at the State Industries Promotion Corporation of Tamil Nadu Ltd. (SIPCOT) Industrial Complex at Thoothukudi, Tamil Nadu. On 01.08.1994, the respondent received a No-Objection Certificate [“NOC”] from the Tamil Nadu Pollution Control Board [“TNPCB”] for the production of blister copper and sulphuric acid. The environmental clearance to the project by the Ministry of Environment, Forest, and Climate Change [“MoEF”] followed on 16.01.1995. On 17.05.1995, the State MoEF also granted environmental clearance to the respondent. The TNPCB granted its consent under the Air (Prevention and Control of Pollution) Act, 1981 [“Air Act”] and Water (Prevention and Control of Pollution) Act, 1974 [“Water Act”] on 22.05.1995. After obtaining the requisite permissions, the consent to operate the plant was issued on 14.10.1996 by the TNPCB. Production commenced on 01.01.1997. However, the environmental clearances that were granted were challenged before the Madras High Court in Writ Petition Nos.15501-15503/1996, 5769/1997, and 16961/1998. On 20.05.1999, the TNPCB granted its consent for production of two more products, namely, phosphoric acid and hydrofluorosilicic acid. On 21.09.2004, a Supreme Court Monitoring Committee was constituted to verify the compliance status of hazardous waste management. It recommended to the MoEF that the environmental clearance for the proposed expansion should not be granted, and if granted, should be revoked. On 19.04.2005, the TNPCB issued consent to operate, subject to fulfillment of various conditions for the expanded capacity. Meanwhile, the Madras High Court, on 28.09.2010, allowed the various writ petitions that had been filed and quashed the environmental clearances granted to the respondent and directed the TNPCB to close down the plant.
3. Meanwhile, on 23.03.2013, the residents of nearby areas started complaining of irritation, throat infection, severe cough, breathing problem, nausea etc. due to emissions from Sterlite Industries. Reports were obtained after inspection of the premises by the TNPCB. Based on these reports, the TNPCB issued a show-cause notice dated 24.03.2013 and directed closure of the unit under Section 31A of the Air Act on 29.03.2013. This order was stayed by the NGT on 31.05.2013, allowing the respondent to commence production subject to certain conditions. Against this, the TNPCB filed Civil Appeal Nos.4763-4764 of 2013, which will be disposed of by the judgment delivered in this case. Finally, on 08.08.2013, the NGT set aside the TNPCB order dated 29.03.2013, against which, Civil Appeal Nos. 8773-8774 of 2013 were filed, which again will be disposed of by this judgment. It is important to note that the appellants herein raised the issue of maintainability of the respondent’s appeal before the NGT, stating that an appeal should have been filed first before the appellate authority under the Air Act / the National Green Tribunal Act, 2010 [“NGT Act”]. This ground of maintainability was decided against the appellants by the impugned order dated 08.08.2013.
4. Owing to various interim orders passed by the NGT, the respondent continued to operate its plant. On 13.04.2016, the TNPCB granted consent to operate the plant for one year subject to certain conditions. Post inspection of the unit of the respondent in March 2017, the TNPCB issued a show-cause notice dated 14.03.2017 for violations under the Air Act and the Water Act which, apparently, was not pursued. On 06.09.2017, an inspection report by the TNPCB was made, and an order passed on 07.09.2017, granting renewal of consent to operate only till 31.03.2018 subject
