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IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 24/7/2019
CORAM
THE HON'BLE MR.JUSTICE S.MANIKUMAR
AND
THE HON'BLE MR.JUSTICE SUBRAMONIUM PRASAD
Writ Petition Nos.20839, 21086 & 21021 of 2019
1. R.L.Srinivasan ... Petitioner in WP.No.20839 & 21021/2019
2. K. Saravanan ... Petitioner in WP.No.21086/2019
Vs
1. Union of India,
rep. By its Secretary
The Ministry of Environment, Forest, and
Climate Change, Jorbagh,
New Delhi.
2. North Chennai Thermal Power Station
rep. By its Chief Engineer
Athipattu
Chennai
Thiruvallur District 600 120.
3. The Tamil Nadu Pollution Control Board
rep. By its Member Secretary
Anna Salai, Guindy
Chennai. ... Respondents in WP.Nos.20839 & 21021 of 2019
1. The Tamil Nadu Pollution Control Board
rep. By its Member Secretary
http://www.judis.nic.in
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Anna Salai, Guindy
Chennai.
2. Tamil Nadu Generation and Distribution
Corporation (TANGEDCO)
rep. By its Chairman-cum-Managing Director
10th Floor, NPKRR Maaligai
144 Anna Salai
Chennai 600 002.
3. North Chennai Thermal Power Station
rep. By its Chief Engineer
Athipattu
Chennai
Thiruvallur District 600 120. ... Respondents in WP.No.21086 of 2019
Prayer in WP.No.20839 of 2019: Petition filed under Article 226 of the
Constitution of India praying for the issuance of a writ of mandamus to
direct the first, second and third respondents to forthwith remove and
evacuate the ash illegally dumped by the second respondent in the
unlined ash pond at Ennore and Puzhudivakkam, Thiruvallu District, Tamil
Nadu without impervious lining, restore the area to its previous pristine
state, including restoration of mangroves, drainage pattern
For petitioner ... Mr.A.Yogeshwaran
Prayer in WP.No.21086 of 2019: Petition filed under Article 226 of the
Constitution of India praying for the issuance of a writ of mandamus to
direct the first respondent to initiate prosecution against the second and
http://www.judis.nic.in
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third respondents for violation of the Air (Prevention and Control of
Pollution) Act, 1981.
For petitioner ... Mr.A.Yogeshwaran
Prayer in WP.No.21021 of 2019: Petition filed under Article 226 of the
Constitution of India praying for the issuance of a writ of mandamus to
direct the first and third respondents to effect closure of the 2nd
respondent thermal power plant for failure to develop a green belt and
operating in violation of the Environment (Protection) Act,1986, Air
(Prevention and Control of Pollution) Act, 1981, the Water (Prevention
and Control of Pollution) Act, 1974.
For petitioner ... Mr.A.Yogeshwaran
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COMMON ORDER (Order of the Court was made by Subramonium Prasad, J) All the Writ petitions are disposed of by this common order for the reason that, the averments in all the petitions is that the National Chennai Thermal Power Station, Athipattu, Thiruvallur District, Chennai is causing environmental pollution by violating the various provisions of the Environmental Protection Act, 1986, Air (Prevention and Control of Pollution) Act,1981, Water (Prevention and Control of Pollution) Act, 1974 and the various conditions imposed on them, while granting consent http://www.judis.nic.in 4 to establish and operate.
Facts in Writ Petition No.20839 of 2019:-
2. Instant writ Petition has been filed, to direct the Union of India, Ministry of Environment, Forests and Climate Change, New Delhi; North Chennai Thermal Power Station, Thiruvallur District and Tamil Nadu Pollution Control Board, Chennai, respondents 1 to 3 respectively, to forthwith remove and evacuate the ash illegally dumped by the North Chennai Thermal Power Station, Thiruvallur District, second respondent, in the unlined ash pond, at Ennore and Puzhudhivakkam, Thiruvallur District, Tamil Nadu, without impervious lining, restore the area to its previous pristine state, including restoration of mangroves, drainage pattern.
3. Alleging violations committed by North Chennai Thermal Power Station, second respondent herein, by discharging bottom ash and fly ash in its unlined ash pond, located at Ennore and Puzhudhivakam villages, petitioner has contended that the second respondent has not complied with fly-ash Notification. Second respondent has not achieved 100% fly ash utilisation and is in fact, increasing the holding capacity of its ash http://www.judis.nic.in 5 pond by increasing the height of the bunds, without getting clearances from the Ministry of Environment, Forests and Climate Change and the Tamil Nadu Pollution Control Board, respondents 1 and 3, respectively.
4. Petitioner states that Thermal plant generates electricity by burning coal. It is stated that ash generated in the process of generating electricity is collected and transported in a slurry form (mixed with sea water) to the ash pond which has been created to store ash. It is stated that ash generated by the power plant, i.e., fly ash and bottom ash, are serious pollutants, apart from containing Nickel (Ni), Cadmium (Cd), Antimony (Sb), Arsenic (AS), Chromium (Cr), Lead (Pb), Mercury and they are also radioactive, depending on the source of coal. It is stated that, storing this ash on plain earth would result in seepage of contaminants into earth, which will result in contaminating ground water and soil. It is submitted that since the contamination caused by the metals mentioned above are dangerous, the first and third respondents have consistently mandated lining of ash ponds with impervious materials such as High Density Poly Ethylene lining.
5. It is further stated that the Thermal Power Plant, second http://www.judis.nic.in 6 respondent, has been dumping fly ash and bottom ash in Buckingham canal, flood plains of Kosasthalaiyar and Kosasthalaiyar river for more than a decade and the entire region has been severely contaminated. It is stated that the Hon'ble National Green Tribunal, in O.A.No.8 of 016, on 4/8/2017, constituted a Committee, consisting of Dr.Sultan Ahmed Ismail, Soil Biologist; Prof.D.Narasimhan, Botanist and Dr.Balaji Narasimhan, Department of Hydrology, IIT Madras, to study the area and submit a report. Report reveals toxic levels of contamination. Petitioner has placed reliance on the relevant paragraphs of the said report to substantiate his contentions.
6. Petitioner states that the Hon'ble Tribunal has taken note of the report filed by the Committee, vide its order, dated 21/12/2017, in O.A.No.8 of 2016, and taken note of the illegalities committed by the second respondent and directed remediation of the area and replacing of the existing ash pipelines. No status report was filed by the respondents, to indicate the action taken, in accordance with the directions issued, by the Tribunal. Tribunal has constituted another Committee, to inspect the unit of the second respondent Unit and to ascertain the present status of http://www.judis.nic.in 7 the unit and assess the damage caused to the environment, on account of the illegal activities committed by the second respondent, Thermal Power Plant.
7. In view of the fact that serious contaminants are being dumped in the unlined pond, and therefore the petitioner has prayed for a mandamus, directing the respondents, to forthwith remove and evacuate the ash illegally dumped by the second respondent, in the unlined ash pond, at Ennore and Puzhudhivkkam, Thiruvallur District, Tamil Nadu, without impervious lining, restore the area to its previous pristine state, including restoration of mangroves, drainage pattern.
Facts in Writ Petition No.21086 of 2019:-
8. Instant writ petition has been filed, to direct the Tamil Nadu Pollution Control Board, represented by its Member Secretary, Chennai/first respondent to initiate prosecution against the Tamil Nadu Generation and Distribution Corporation (TANGEDCO) and North Chennai Thermal Power Station, second and third respondents, respectively, for violation of the Air (Prevention and Control of Pollution) Act, 1981.
9. Petitioner is a member of Fishermen Community. The petitioner http://www.judis.nic.in 8 states that being a Right to Information activist, he has unearthed information, regarding violations by North Chennai Thermal Power Station and states that Tamil Nadu Pollution Control Board, first respondent has failed to perform its duties, under Air (Prevention and Control of Pollution) Act, 1981, by failing to initiate criminal prosecution against the officials of the TANGEDCO and third respondent Power plant for violations of the Air (Prevention and Control of Pollution) Act, 1981, the clearances issued to the third respondent Power Plant under the Environment (Protection) act, 1986, and the consent issued under Air (Prevention and Control of Pollution) Act, 1981.
10. Petitioner states that North Chennai Thermal Power Station, third respondent has been emitting particulate matter, sulphur-di-oxide, oxides of nitrogen and other harmful substances through its stacks into the air, far in excess of the permissible limits prescribed under the Environment (Protection) Rules, 1989 and the NAAQ (National Ambient Air Quality Standards).
11. It is alleged that the Thermal plant is not operating its http://www.judis.nic.in 9 electrostatic precipitators and is not using air pollution control equipments, which is mandatory under law and the emissions which have been recorded are far in excess of the norms.
12. Petitioner further states that North Chennai Thermal Power Station, third respondent generates electricity by burning coal. It is stated that coal combustion wastes contain a variety of toxic compounds such as arsenic, cadmium, chromium, cobalt, lead, mercury, selenium, thorium and uranium as well as di-oxin and poly-aromatic hydrocarbons (PAHs).
13. Petitioner has given a chart showing the emission from the power plant and shown as to how the emissions are much higher than the standards prescribed under the statute. Petitioner states that Pollution Control Board has issued two show cause notices, dated 20/5/2015 and 17/6/2015, pointing out the violations of emission standards by the third respondent. It is stated that, the Tamil Nadu Pollution Control Board, represented by its Member Secretary, Chennai/first respondent has failed to proceed ahead on the two show cause notices. It is also stated that, http://www.judis.nic.in 10 the National Green Tribunal, in O.A.No.8 of 2016 has passed an order, directing initiation of criminal action against the officials of second respondent, TANGEDCO. Though the petitioner has not filed the copy of the order, dated 31/5/2017, petitioner has quoted the relevant portion of the two orders. Petitioner states that representation was given on 27/6/2019 to the Pollution Control Board, to initiate prosecution against the second and third respondents, respectively. Though the representation, dated 27/6/2019, has not been enclosed in the typed set of papers, but the gist given in the form of submission, reads as under:-
“It is submitted that the TPP continues to emit pollutants far in excess of the permitted levels even today. The first respondent Board's CARE AIR centre monitors stack emission levels real time but the website of the TNPCB centre at http:\\117.232.97.121/REaltime_tnpcb_cac/index.html does not have historical data but only real time 15 minute readings for a specialised time block. The air quality monitors in the stack (chimney) are connected real time to this centre and relays readings of various parameters like particulate matter 2.5 microns (Respirable particulate matter) and 10 microns, Sulphur di oxide (SO2), Nitrous Oxide (NOX), Carbon Monoxide (CO) etc., and sends 15 minute readings to the care air centre and also 24 hour average values. Data obtained from the website of the first respondent on 8/7/2019 is filed as an example to show how particulate matter http://www.judis.nic.in 11 levels emitted were far in excess. The first respondent ought to produce the 15 minute and 24 hour readings of the subject TPP, which will demonstrate constant and repeated violations.”
14. Gist of the complaint of the petitioner is that emission by the North Chennai Thermal Power Station is in excess of the norms prescribed and for the abovesaid reasons the petitioner has prayed for a writ of mandamus to initiate prosecution against the officers of the TANGEDCO and North Chennai Power Station.
Facts in Writ Petition No.21021 of 2019:-
15. Instant writ petition has been filed, to direct the Union of India, Ministry of Environment, Forests and Climate Change, New Delhi and Tamil Nadu Pollution Control Board, Chennai, respondents 1 and 3 respectively, to effect closure of the North Chennai Thermal Power Station, Thiruvallur District, second respondent, to develop a green belt and operating in violation of the Environment (Protection) Act, 1986, Air (Prevention and Control of Pollution) Act, 1981, the Water (Prevention and Control of Pollution) Act, 1974 and permissions issued thereunder, remediate the region.
16. The petitioner is serving as the President of Kaatukuppam http://www.judis.nic.in 12 Village Fishermen's Co-operative Society. The petitioner states that he is an active member of Ennore Anaithu Minava Grama Kootamaipu (Ennore All Fishing Villages Association), and has raised substantial questions about the deteriorating Ennore Creek. Second respondent, power Station is a 1,830 megawatt (MW) coal-fired power station in Tamil Nadu. The Power Station comprises three 210 megawatt coal-fired units which were commissioned between 1994 and 1996, as well as two 600 MW units commissioned in 2013. Two more units have also been granted clearance by the first respondent and construction is underway.
17. Petitioner has submitted the cumulative impact of all these plants have not been considered by the authorities while granting permission for expansion of the plant and the same has been permitted without taking into account violations such as operating without green belt or a lined ash pond and dumping of ash into the Ennore creek.
18. It is stated that the North Chennai Thermal Power Station, represented by its Chief Engineer, Chennai/the second respondent has failed to perform its duties, under Air (Prevention and Control of http://www.judis.nic.in 13 Pollution) Act, 1981, Air (Prevention and Control of Pollution) Act, 1981 and Environment (Protection) Act, 1986, and despite the fact that, violations have been noticed repeatedly by the Pollution Control Board, third respondent. But no action has been taken till date.
19. Industry has to ensure that minimum three varieties (Eucaluptus, Subabul and any other suitable variety) are planned at the density of not less than 1000 trees per acre of land. The plantation is stipulated over and above the bulk plantation of trees in that area and maintains them.
20. It is stated that there are various conditions in the consent orders issued to the second respondent specifying that the unit shall develop a green belt in and around the unit premises at the rate of 400 trees/hectare. Industry has to ensure that minimum three varieties (Eucalyptus, Subabul and any other suitable variety) are planned at the density of not less than 1000 trees per acre of land.
21. It is the contention of the petition that without having the http://www.judis.nic.in 14 green belt as mandated, second respondent is operating and is also expanding. Petitioner states that he has given representations to the Pollution Control Board, but no action has been taken.
22. Heard Mr.A.Yogeshwaran, learned counsel for the petitioner and perused the materials available on record.
23. Material on record discloses that issue regarding pollution caused by the North Chennai Thermal Power Station is before the National Green Tribunal.
24. The petitioner has filed the copy of the orders dated 21.12.2017 and 20.05.2019, passed by the Learned National Green Tribunal. The entire orders are being extracted hereunder:-
Dated 21.12.2017 "It is pointed out that there is a clerical error in the penultimate paragraph of the order dated 14.12.2017 that it is not respondent no.4 but respondent no.4 who has to treat the Experts. The order dated 14.12.2017 is therefore corrected as follows: “Instead of respondent no.4 in the first sentence of the penultimate paragraph of the order it shall be respondent no.2” The learned counsel appearing http://www.judis.nic.in 15 for the applicant submitted that some interim order is warranted, as the report submitted by the Experts discloses a very serious environmental problem which has to be addressed ugently. The learned counsel pointed out that the report shows that heavy metals including Chromium and Mercury are detected not only in the river water and underground water but also even in the vegetables planted in the households. It is submitted that in such circumstances, when the report shows that the even the drinking water is contaminated with heavy metals like Mercury and Chromium, a direction is to be issued to supply drinking water to the nearby residents.
The learned counsel also argued that the existing ash ponds are constructed without proper lining and as a result it is contaminating the land and the ground water and if the fly ash removed from the area is dumped in the existing pond, it would aggravate the position. The learned counsel also argued that Kosathalaiyar Main River which is reported to be heavily silted need to be desilted to enable free flow of water and a direction is to be issued to that effect. It was also submitted that respondents 2 and 3 are to be directed to construct adhoc ash ponds with required lining. Mr. Abdul Saleem, the learned counsel appearing for respondents 2 and 3 submitted that they intend to get analysis of the water, including the ground water alone from another laboratory and also the fly ash, as the presence of the heavy metals noted in the report is not correct and in any case presence of heavy metals is not due to the activity of the respondents 2 and 3 alone as it is also caused by the nearby polluting industries. The learned counsel also submitted that a http://www.judis.nic.in 16 proposal is being sent to the government to use the fly ash in preparing bricks, making it mandatory to use such bricks in all government buildings. The learned counsel also submitted that drinking water is to be supplied by the local civic bodies and in any case the pollution is not caused solely by the respondents 2 and 3. The learned counsel also submitted that there is sufficient space in the existing ash pond to enable the deposit of the fly ash which would be removed from the area. On going through the report submitted by the Experts, it is seen that there is high contamination of heavy metals, not only in the water collected but even on the fish and vegetables. As against the prescribed standard of Mercury viz., 0.01 mg/l, the river water sample analysis of Kosasthalaiyar River shows that presence of Mercury was 23.18 mg/l, 29.1 mg/l, 18.19 mg/l, 22.11 mg/l and 18.18 mg/l. So also presence of Mercury detected in the samples collected from the backwater shows the percentages as 30.28 mg/l, 16.55 mg/l, 24.66 mg/l, 24.99 mg/l and 22.18 mg/l. The river water samples analysis also shows that presence of Mercury detected are 16.95 mg/l and 18.11 mg/l. The fly ash sample analysis also shows that 3 out of 20 samples contained Selenium and all the samples contained Copper with maximum concentration of 40.18 and 13 out of 20 fly ash samples contained Chromium with a maximum recorded concentration of 13.71 mg/kg, as against the prescribed standard of 2 mg/l. 6 out of 20 samples contained Cadmium, with a maximum recorded concentration of 0.54 mg/kg as against the prescribed standard of 2 mg/l. 6 out of 20 samples contained Lead with the maximum recorded concentration of 6.61 mg/kg, http://www.judis.nic.in 17 as against the prescribed standard of 0.1 mg/l. Even the analysis of fish, crab and prawn establish the presence of alarming percentage of heavy metals. All the 5 samples of home grown vegetables also found presence of Chromium and Lead. Chromium levels ranging from 1.12 to 5.56 mg/kg. It is thus clear that even the ground water there is not fit for consumption. It would be dangerous to consume such highly contaminated water. In such circumstances, some arrangement necessarily has to be made with regard to the drinking water. Though the learned counsel appearing for the respondents 2 and 3 submits that pollution is not caused by the respondents and as per the report of the Board, there are more than 1,000 industries, included in the „red" category operating there causing pollution and it is the duty of the local body to supply the drinking water. Considering the fact that the main pollutant is the fly ash produced by the respondents 2 and 3, the principle of „polluter pays" shall necessarily to be applied with regard to supply of drinking water to the people of the locality. The people of the area cannot be directed to drink contaminated water and suffer the consequences, which would adversely affect not only the existing generation but also the future generations to come. In such circumstances, the respondents 2 and 3 are directed to provide sufficient drinking water to all the nearby residents, if the local bodies are not supplying sufficient drinking water to them. It is made clear that the water to be supplied should be of drinking water, quality and every household should be supplied with drinking water, in case there is no supply of sufficient quantity of potable drinking water by the local body. It is made clear http://www.judis.nic.in 18 from the report and the admitted facts that the existing ash pond is not lined. In such circumstances, adding further fly ash removed from the area into that pond would only aggravate the position. The respondents 2 and 3 are directed to provide properly lined ash pond on adhoc or permanent basis, so that the fly ash to be removed could be accommodated there. Even if the government mandates that the fly ash is to be used for all brick manufacturing units and such bricks shall be used for construction of all government buildings, it will take time and till then they are to be stored also. In such circumstances, respondents 2 and 3 shall provide ash pond permanent or adhoc with proper lining. The report also shows that the Kosasthalaiyar River Main Channel is heavily silted with fly ash and that is to be desilted for free flow of water. The respondents 2 and 3 are directed to dredge the Kosasthalaiyar Main Channel to remove the fly ash with the aid of respondent no.8. The respondent no.8 shall take steps to desilt the fly ash at the expense of respondents 2 and 3. It is also made clear that once the fly ash is dredged, its removal shall be by the respondents 2 and 3 and it shall be kept in a ash pond with proper lining. The report also shows that the workers engaged in the removal of fly ash, pursuant to the order of this Tribunal, continue to work without adequate respiratory or dermal protection. It is also suggested that considering the fact that most of the workers are youngmen with life ahead, exposure could seriously harm their economic prospects and lifespan. The learned counsel appearing for the respondents 2 and 3, on instructions from the officers present, submitted that sufficient protection is provided.
http://www.judis.nic.in 19 But admittedly no dermal protection is provided. The respondents 2 and 3 are therefore directed to provide all the required protection to the workers both respiratory and dermal, who remove the fly ash, as otherwise it would cause danger to their life. The respondents 2 and 3 are also directed to take steps to remediate, based on the findings in the report, after conducting proper study. The respondents 2 and 3 shall expedite the process of replacing the existing ash pipeline. List the matter on 5.2.2018."
Dated 20.05.2019 "1. These Applications were filled by the persons affected by the operation of Respondent No. 3 North Chennai Thermal Power Station at Athipattu, Thiruvallur, District. According to the applicant the said Power Station is located on the Katupalli-Ennore Island and between the island and main land is covered with expansive backwaters and Kosastalairar river drains into the backwaters. The Buckingam canal is a deeper channel cutting through this backwaters. The backwaters is contiguous to the Pulicat Lagoon system. The backwaters referred to as Paraval in Tamil along with the Ennore Creek and the Pulicat lagoon is of great ecologically importance and serves as flood sink. Reclaiming this wetland by filling with fly ash and dredged material, according to the applicant, will adversely affect a large portion of North Chennai. Since in time of high flooding and cyclone. This expansive water spread is essential for reducing the impact of flooding in Manali Industrial Area and Residential areas. 2. The Unit of Respondents No. 3 http://www.judis.nic.in 20 started its commissioning between 1994 and 1996 with capacity of 600 MW units. Thereafter it has been expanded from time to time. The power plant is dumping ash slurry into Buckingham Canal and the backwaters for several years. Though it was brought into notice of the Pollution Control Board several times, no action was taken in this regard. According to the applicant, the ash generated by the Thermal Power Plant (fly ash and bottom ash) are serious pollutants apart from containing metals like Nickel, Cadmum, Antimony, Arsenic, Chromium, Lead, Mercury etc. As per the environmental clearance granted to such units, there is a responsibility caused on the Thermal Power Plant to utilise and dispose of the fly ash in a scientific manner without causing pollution in that area but that is being violated by the unit in this case. On account of unscientific manner in which fly ash is being handled by the unit, it affects not only the area within which the unit is situated but also affect the entire area and extends upto the mangroves situated in the CRZ I. 3. These applications are being filed seeking the following reliefs: Interim Reliefs
1. Direct closure of the 2nd Respondent run 3rd respondent Thermal Power plant for the illegal dumping of ash into the Buckingham canal and backwater
2. Direct respondent 1, 5, 6 to ensure immediate stoppage of discharge of ash from the 3rd Respondent into the canal and the backwater
3. Direct Respondents 1, 2, 3, 5, 6, 7, 8 to immediately clean up the canal and remove the ash illegally dumped into the canal.
4. Injunct the 4th Respondent, its agent, contractors etc http://www.judis.nic.in 21 from dumping soil or any material in the Bukingham Canal or any water body.
5. Direct the respondents 4, 5, 6, 7 and 8 to immediately remove the illegally dumped soil in the Buckingham canal at athipattu and restore status quo ante.
6. Pass such order or orders as may be necessary in the facts and circumstances of the case and thus render justice.
Prayer A. Direct closure of the 2nd respondent run 3rd respondent Thermal power plant for the illegal dumping of ash into the Buckingham canal.
B. Respondent 1 to commission a study into the damage caused by the 2nd and 3rd respondents by continued dumping of ash into the environment.
C. Direct the 2nd, 3rd and 4th respondent to pay compensation for the environmental harm caused. D. Direct respondent No.8 to maintain the canal and the backwaters free of any filling in or encroachment E. Direct respondents 1,5,6 to maintain the Buckingham Canal, Creek, Kosasthalayar and backwaters free of contamination or pollution.
F. And pass such further order or orders as may be fit, proper and necessary in the facts and circumstances of the case and thus render justice.
4. After considering the report dated 02.08.2017 submitted by the advocate commissioner in this regard, this Tribunal by order dated 04.08.2017 had come to a conclusion that vast extent to ash is settled in water bodies affecting the environment and ecology and 4 TANGEDCO has not taken effective steps for proper http://www.judis.nic.in 22 disposal of ash for all these years. From the report made by the advocate commissioner it is noted that the mangroves are being affected and it cause serious concern for the ecology of the area. So in order to ascertain the factual and also the remediation method to be adopted following terms of reference have been formulated by the Tribunal:
1. Location of ash ponds, their storage capacity, present storage levels, their present condition and steps taken to avoid leakage and consequent pollution from the ash ponds.
2. Quantity of fly ash generated by both the units from the beginning of the production in the units, present quantity stored in the ash ponds and quantity utilized duly verifying the records.
3. Unaccounted quantity of fly ash.
4. Quantity of fly lash that leaked/discharged/dumped into the water bodies and present approximate quantity lying in the water bodies.
5. Environmental impacts resulting from the leakage/discharge/dumping of fly ash on the following: ? Effect on flora and fauna and local biodiversity including Mangroves ? Effect on rare and endangered species, if any ? Reduction in species diversity, habitat loss ? Transformation of natural landscape ? Effect on human health ? Effect on use of land and resources for traditional purposes by local community ? Pollution of the water bodies i.e. rivers/streams/canals ? Effect on ground water ? Effect on hydrology in the area and it’s surroundings ? Percolation of hazardous materials from the fly ash and consequent damage to the soil and land degradation http://www.judis.nic.in 23
6. Social and economic impact if any, on the local fishermen community
7. Method of Restitution/remediation, technology to be adopted time required approximate cost involved to restore the environment
8. Any afforestation is required to be undertaken in the affected areas, if so species, methodology extent of area and technique.
9. Present position of transport of fly ash slurry and condition of the pipelines transporting fly ash and action taken by the TANGEDCO in preventing leakage and replacing the pipelines.
10.Implementation of MoEF & CC Notification dated 14th September, 1999 amended in 2003, 2009 and 2016 on utilization of fly lash with present position with full particulars. Thereafter this Tribunal constituted a Committee consisting of the following persons.
1) Dr. Sultan Ahmed Ismail, Director, Ecoscience Research Foundation, Chennai. (Mobile No.9384898358)
2) Dr. Narasimhan, Retired Professor of Madras Christian College, Tambaram and Expert in bio diversity. (Mobile No.9840231967)
3) Dr. Balaji Narasimhan, Professor, IIT, Madras, Department of Hydrology.(Mobile No.9962466161)
4) Mr. K. Elangovan, Executive Engineer, PWD (WRD), Chennai (Mobile No.7299712746) and directed the committee to submit its report.
6. The committee had submitted its report which is filed on 14th December, 2017 wherein they have noted serious irregularities in managing the fly ash situation in that unit and also its impact on ecology. They also came to the http://www.judis.nic.in 24 conclusion that the sample taken from the Kosastalaiar River, the backwater and the secondary pond contained elevated level of several toxic metals and noted as follows:
“The sample from secondary fly ash pond contained elevated levels of Barlum, Sulphide (as Hydrogen Sulphide), Copper, 6 Maganese, Mercury, Cadmium, Lead, Zinc, Molybdenum and Nickel.
Both borewell samples taken from Seppakkam, the village west of the Ash Pond, were severly contaminated with the following heavy metals – Copper, Maganese, Cadmium, Mercury, Selenium, Lead, Chromium and Nickel. One of the samples was additionally contaminated with Molybdenum. These metals were found at levels in excess of Indian drinking water standards.
Kosasthalal River samples were more contaminated than even legally permitted treated effluent quality. All 5 samples taken from Kosasthalal River had Lead, Mercury, Selenlum and Arsenic in excess of standards for discharge of environment pollutants into inland water bodies 2 out of 5 samples had above standards levels of Zinc and 1 out of 5 had Manganese in excess of standard for discharge into water bodies.
Backwater samples too were more contaminated that even legally permitted treated effluent quality. All 5 samples that mercury levels in excess of standards for discharge of environmental pollutants into inland water bodies 4 out of 5 Lead and Copper levels in excess of prescribed standards. 3 out of 5 had above standard levels of Manganese 2 out of 5 had above standard levels of Arsenic and Selenium, 1 out 5 had above standard http://www.judis.nic.in 25 levels of Nickel and Zinc.
River water samples taken far from the flyash spread area too were contaminated but to a lesser extent and with fewer metals. 2 out of 3 samples had mercury in excess of standards for discharge of environmental Pollutants into inland water bodies 1 out of 3 samples had Copper and Lead in excess of standards.” They also noted several deficiencies in managing the fly ash in the unit and also its effect on the water bodies and surrounding. They also opined that detail study will have to be done for the purpose of assessing the damage caused to the environment and also the remedial measures to be resorted to will be done.
7. This report was considered by the Bench in the order dated 21st December, 2017, where it is observed as follows: “The learned counsel appearing for the applicant submitted that some interim order is warranted, as the report submitted by the Experts discloses a very serious environmental problem which has to be addressed ugently. The learned counsel pointed out that the report shows that heavy metals including Chromium and Mercury are detected not only in the river water and underground water but also even in the vegetables planted in the households. It is submitted that in such circumstances, when the report shows that the even the drinking water is contaminated with heavy metals like Mercury and Chromium, a direction is to be issued to supply drinking water to the nearby residents. The learned counsel also argued that the existing ash ponds are constructed without proper lining and as a result it is contaminating the land and the ground water and if the http://www.judis.nic.in 26 fly ash removed from the area is dumped in the existing pond, it would aggravate the position. The learned counsel also argued that Kosathalaiyar Main River which is reported to be heavily silted need to be desilted to enable free flow of water and a direction is to be issued to that effect. It was also submitted that respondents 2 and 3 are to be directed to construct adhoc ash ponds with required lining. Mr. Abdul Saleem, the learned counsel appearing for respondents 2 and 3 submitted that they intend to get analysis of the water, including the ground water alone from another laboratory and also the fly ash, as the presence of the heavy metals noted in the report is not correct and in any case presence of heavy metals is not due to the activity of the respondents 2 and 3 alone as it is also caused by the nearby polluting industries. The learned counsel also submitted that a proposal is being sent to the government to use the fly ash in preparing bricks, making it mandatory to use such bricks in all government buildings. The learned counsel also submitted that drinking water is to be supplied by the local civic bodies and in any case the pollution is not caused solely by the respondents 2 and 3. The learned counsel also submitted that there is sufficient space in the existing ash pond to enable the deposit of the fly ash which would be removed from the area. 8 On going through the report submitted by the Experts, it is seen that there is high contamination of heavy metals, not only in the water collected but even on the fish and vegetables. As against the prescribed standard of Mercury viz., 0.01 mg/l, the river water sample analysis of Kosasthalaiyar River shows that presence of Mercury was 23.18 mg/l, 29.1 mg/l, http://www.judis.nic.in 27 18.19 mg/l, 22.11 mg/l and 18.18 mg/l. So also presence of Mercury detected in the samples collected from the backwater shows the percentages as 30.28 mg/l, 16.55 mg/l, 24.66 mg/l, 24.99 mg/l and 22.18 mg/l. The river water samples analysis also shows that presence of Mercury detected are 16.95 mg/l and 18.11 mg/l. The fly ash sample analysis also shows that 3 out of 20 samples contained Selenium and all the samples contained Copper with maximum concentration of 40.18 and 13 out of 20 fly ash samples contained Chromium with a maximum recorded concentration of 13.71 mg/kg, as against the prescribed standard of 2 mg/l. 6 out of 20 samples contained Cadmium, with a maximum recorded concentration of 0.54 mg/kg as against the prescribed standard of 2 mg/l. 6 out of 20 samples contained Lead with the maximum recorded concentration of 6.61 mg/kg, as against the prescribed standard of 0.1 mg/l. Even the analysis of fish, crab and prawn establish the presence of alarming percentage of heavy metals. All the 5 samples of home grown vegetables also found presence of Chromium and Lead. Chromium levels ranging from 1.12 to 5.56 mg/kg. It is thus clear that even the ground water there is not fit for consumption. It would be dangerous to consume such highly contaminated water. In such circumstances, some arrangement necessarily has to be made with regard to the drinking water. Though the learned counsel appearing for the respondents 2 and 3 submits that pollution is not caused by the respondents and as per the report of the Board, there are more than 1,000 industries, included in the „red" category operating there causing pollution and it is the duty of the local body http://www.judis.nic.in 28 to supply the drinking water. Considering the fact that the main pollutant is the fly ash produced by the respondents 2 and 3, the principle of "polluter pays” shall necessarily to be applied with regard to supply of drinking water to the people of the locality. The people of the 9 area cannot be directed to drink contaminated water and suffer the consequences, which would adversely affect not only the existing generation but also the future generations to come. In such circumstances, the respondents 2 and 3 are directed to provide sufficient drinking water to all the nearby residents, if the local bodies are not supplying sufficient drinking water to them. It is made clear that the water to be supplied should be of drinking water, quality and every household should be supplied with drinking water, in case there is no supply of sufficient quantity of potable drinking water by the local body. It is made clear from the report and the admitted facts that the existing ash pond is not lined. In such circumstances, adding further fly ash removed from the area into that pond would only aggravate the position. The respondents 2 and 3 are directed to provide properly lined ash pond on adhoc or permanent basis, so that the fly ash to be removed could be accommodated there. Even if the government mandates that the fly ash is to be used for all brickmanufacturing units and such bricks shall be used for construction of all government buildings, it will take time and till then they are to be stored also. In such circumstances, respondents 2 and 3 shall provide ash pond permanent or adhoc with proper lining. The report also shows that the Kosasthalaiyar River Main Channel is heavily silted with fly ash and that is to be desilted for http://www.judis.nic.in 29 free flow of water. The respondents 2 and 3 are directed to dredge the Kosasthalaiyar Main Channel to remove the fly ash with the aid of respondent no.8. The respondent no.8 shall take steps to desilt the fly ash at the expense of respondents 2 and 3. It is also made clear that once the fly ash is dredged, its removal shall be by the respondents 2 and 3 and it shall be kept in a ash pond with proper lining. The report also shows that the workers engaged in the removal of fly ash, pursuant to the order of this Tribunal, continue to work without adequate respiratory or dermal protection. It is also suggested that considering the fact that most of the workers are young men with life ahead, exposure could seriously harm their economic prospects and lifespan. The learned counsel appearing for the respondents 2 and 3, on instructions from the officers present, submitted that 10 sufficient protection is provided. But admittedly no dermal protection is provided. The respondents 2 and 3 are therefore directed to provide all the required protection to the workers both respiratory and dermal, who remove the fly ash, as otherwise it would cause danger to their life. The respondents 2 and 3 are also directed to take steps to remediate, based on the findings in the report, after conducting proper study.”
8. According to the applicants, the situation has not improved and no remediation methods have been taken by the polluting unit to remediate the situation as well. There is an direction in the order dated 21.12.2017 directing the Respondents No. 2 & 3 to take steps to remediate based on the finding for the report after conducing proper studies. They were also directed to http://www.judis.nic.in 30 resort to process of replacing the existing ash pipelines as well.
9. So far no further report has been filed in this case either by the Pollution Control Board or by the Project Proponent regarding further action taken in respect of the present status of disposal of fly ash generated in that unit, remedial measures taken to restore the damage caused to the environment etc. 10. So under such circumstances in order to dispose of the case, we feel it necessary to get the present status and also a study to be conducted by an expert body regarding the present status, the manner in which the fly ash is being disposed of by the polluting unit and assessment of the damage caused to the environment in that area & its surrounding area and remedial measures to be taken for restoring the damage caused to the environment. So in order to exercise this aspect, we constitute a committee of:
1. Central Pollution Control Board
2. IIT Chennai
3. Tamil Nadu Pollution Control Board 11 The above Committee shall inspect the unit and ascertain the present status of the unit in respect of fly ash disposal, the damage caused to the environment, to the area in question and its surrounding, cost of restitution and assess the damage caused to the environment on account of illegal act committed by the above unit. The committee shall also consider the earlier report submitted by another expert committee appointed by the Tribunal for the purpose of guidance for doing the exercise in the manner in which it has to be done directed by us in this order. The expense of conducting the study has to be met by http://www.judis.nic.in 31 polluting unit, the power plant in this case and they shall also give all logistic support to the members of the Committee in conducting the inspection and preparation of the report. The CPCB is at liberty to co-opt any other expert person where they feel necessary for the purpose of complying the direction of this Tribunal in assessing the compensation and also for course of remedial measures for restoration of damage caused to the environment. The CPCB may direct the project proponent to deposit probable expense which they anticipate for conducting the inspection and submit the report. If such direction is given, they are directed to deposit the amount within a week of receipt of such direction with them.
11. The applicant is at liberty to submit his points or suggestion to be noted by the Committee in this regard. The Committee shall consider those points also and address the same in the Report. The committee shall complete this exercise and submit a report to the Tribunal within a period of three months from today. TNPCB shall be the nodal agency for coordination of the inspection and other aspects. 12. The Committee shall send the report to this Tribunal by email within a period of three months as directed above.
13. The Registry is directed to communicate this order to the concerned officials mentioned above. 14. List this matter on 11th September, 2019, for consideration of the report."
25. The issues which are now being sought to be raised in the three http://www.judis.nic.in 32 writ petitions also deal with the pollution by the North Chennai Thermal Power Station. Since the National Green Tribunal considering certain aspects regarding pollution caused by the North Chennai Thermal Power Station, it would be proper that the National Green Tribunal deals with the issue regarding pollution caused by the North Chennai Thermal Power Station in its entirety.
26. It is not proper that two forums deal with the issue of Pollution caused by one industry, simultaneously. National Green Tribunal is dealing with the issue regarding pollution caused by North Chennai Thermal Power Station/second respondent the and this issue can be raised only before the the National Green Tribunal.
27. Parliament has enacted the National Green Tribunal Act. The said act was brought into force to provide for the establishment of a National Green Tribunal for the effective and expeditious disposal of cases, relating to environmental protection and conservation of forests and other natural resources, including enforcement of any legal right, relating to environment and giving relief to compensation for damages to http://www.judis.nic.in 33 persons and property and for matters connected therewith or incidental thereto.
28. Statement of objections and reasons, reads as under:-
The rapid expansion in industrial, infrastructure and transportation sectors and increasing urbanisation in recent years have given rise to new pressures on our natural resources and environment. There is a commensurate increase in environment related litigation pending in various courts and other authorities. The risk to human health and environment arising out of hazardous activities has also become a matter of concern.
2. India is a party to the decisions taken at the United Nations Conference on the Human Environment held at Stockholm in June, 1972, in which India participated, calling upon the States to take appropriate steps for the protection and improvement of the human environment. The United Nations Conference on Environment and Development held at Rio de Janeiro in June, 1992, in which India participated, has also called upon the States to provide effective access to judicial and administrative proceedings, including redress and remedy, and to develop National laws regarding liability and compensation for the victims of pollution and other environmental damage.
3. The right to healthy environment has been construed as a part of the right to life under article 21 of the Constitution in the judicial pronouncement in India.
4. The National Environment Tribunal Act, 1995 was enacted to provide for strict liability for damages arising out of any accident occurring while handling any hazardous substance and for the establishment of a National Environment Tribunal for effective and expeditious disposal of cases arising from such accident, with a view to giving relief and compensation for damages to persons, property and the environment.
http://www.judis.nic.in 34 However, the National Environment Tribunal, which had a very limited mandate, was not established. The National Environment Appellate Authority Act, 1997 was enacted to establish the National Environment Appellate Authority to hear appeals with respect to 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 under the Environment (Protection) Act, 1986. The National Environment Appellate Authority has a limited workload because of the narrow scope of its jurisdiction.
5. Taking into account the large number of environmental cases pending in higher courts and the involvement of multidisciplinary issues in such cases, the Supreme Court requested the Law Commission of India to consider the need for constitution of specialised environmental courts. Pursuant to the same, the Law Commission has recommended the setting up of environmental courts having both original and appellate jurisdiction relating to environmental laws.
6. In view of the foregoing paragraphs, a need has been felt to establish a specialised tribunal to handle the multidisciplinary issues involved in environmental cases. Accordingly, it has been decided to enact a law to provide for the establishment of the National Green Tribunal for effective and expeditious disposal of civil cases relating to environmental protection and conservation of forests and other natural resources including enforcement of any legal right relating to environment.
7. Accordingly, it has been decided to introduce the National Green Tribunal Bill, 2009 which inter alia provide:—
(a) for establishment of a the National Green Tribunal which shall consist of a Chairperson and such number of Judicial and Expert Members as the Central Government may notify;
(b) that a person who is or has been a Judge of the Supreme Court or a Chief Justice of a High Court shall be eligible for appointment as the Chairperson or Judicial Member of the Tribunal;
(c) that a person who is or has been a Judge of a High Court shall also be eligible for appointment as a Judicial http://www.judis.nic.in 35 Member;
(d) that a person who is either an expert in physical sciences or life sciences or engineering, or who has administrative experience in dealing with environmental matters shall be qualified for appointment as an Expert Member;
(e) that the Tribunal shall have the jurisdiction over all civil cases where a substantial question relating to environment (including enforcement of any legal right relating to environment), is involved and such question arises out of the implementation of the enactments specified in the Schedule I to the Bill and to grant relief and compensation to the victims of pollution and other environmental damage arising under the enactments specified in the Schedule I to the Bill and to hear appeals under certain enactments specified in the Schedule III to the Bill;
(f) The repeat of the ‘National Environmental Tribunal Act, 1995’ and the ‘National Environment Appellate Authority Act, 1997’.
8. The Bill seeks to achieve the aforesaid objectives.
29. Chapter III of the National Green Tribunal Act, 2010 deals with jurisdiction, powers and proceedings of the Tribunal. Sections 14, 15, 16 and 17 deals with the powers and jurisdiction of the National Green Tribunal.
“Section 14 – Tribunal to settle disputes -
(1) The Tribunal shall have the jurisdiction over all civil cases where a substantial question relating to environment (including enforcement of any legal right relating to environment), is involved and such question arises out of the implementation of the enactments specified in Schedule I.
http://www.judis.nic.in 36 (2) The Tribunal shall hear the disputes arising from the questions referred to in sub-section (1) and settle such disputes and pass order thereon.
(3) No application for adjudication of dispute under this section shall be entertained by the Tribunal unless it is made within a period of six months from the date on which the cause of action for such dispute first arose: Provided that the Tribunal may, if it is satisfied that the applicant was prevented by sufficient cause from filing the application within the said period, allow it to be filed within a further period not exceeding sixty days.
Section 15 - Relief, compensation and restitution. -
(1) The Tribunal may, by an order, provide,-
(a) relief and compensation to the victims of pollution and other environmental damage arising under the enactments specified in the Schedule I (including accident occurring while handling any hazardous substance);
(b) for restitution of property damaged;
(c) for restitution of the environment for such area or areas, as the Tribunal may think fit.
(2) The relief and compensation and restitution of property and environment referred to in clauses (a), (b) and (c) of sub-section (1) shall be in addition to the relief paid or payable under the Public Liability Insurance Act, 1991 (6 of 1991).
(3) No application for grant of any compensation or relief or restitution of property or environment under this section shall be entertained by the Tribunal unless it is made within a period of five years from the date on which the cause for such compensation or relief first arose: Provided that the Tribunal may, if it is satisfied that the applicant was prevented by sufficient cause from filing the application within the said period, allow it to be filed within a further period not exceeding sixty days.
(4) The Tribunal may, having regard to the damage to public health, property and environment, divide the compensation or relief payable under separate heads specified in Schedule II so as to provide http://www.judis.nic.in 37 compensation or relief to the claimants and for restitution of the damaged property or environment, as it may think fit.
(5) Every claimant of the compensation or relief under this Act shall intimate to the Tribunal about the application filed to, or, as the case may be, compensation or relief received from, any other court or authority.
Section 16 - Tribunal to have appellate jurisdiction. -
Any person aggrieved by,-
(a) an order or decision, made, on or after the commencement of the National Green Tribunal Act, 2010, by the appellate authority under section 28 of the Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974);
(b) an order passed, on or after the commencement of the National Green Tribunal Act, 2010, by the State Government under section 29 of the Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974);
(c) directions issued, on or after the commencement of the National Green Tribunal Act, 2010, by a Board, under section 33A of the Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974);
(d) an order or decision made, on or after the commencement of the National Green Tribunal Act, 2010, by the appellate authority under section 13 of the Water (Prevention and Control of Pollution) Cess Act, 1977 (36 of 1977);
(e) an order or decision made, on or after the commencement of the National Green Tribunal Act, 2010, by the State Government or other authority under section 2 of the Forest (Conservation) Act, 1980 (69 of 1980);
(f) an order or decision, made, on or after the commencement of the National Green Tribunal Act, 2010, by the Appellate Authority under section 31 of the Air (Prevention and Control of Pollution) Act, 1981 (14 of 1981);
http://www.judis.nic.in 38
(g) any direction issued, on or after the commencement of the National Green Tribunal Act, 2010, under section 5 of the Environment (Protection) Act, 1986 (29 of 1986);
(h) an order made, on or after the commencement of the National Green Tribunal Act, 2010, granting environmental clearance in the area in which any industries, operations or processes or class of industries, operations and processes shall not be carried out or shall be carried out subject to certain safeguards under the Environment (Protection) Act, 1986 (29 of 1986);
(i) an order made, on or after the commencement of the National Green Tribunal Act, 2010, refusing to grant environmental clearance for carrying out any activity or operation or process under the Environment (Protection) Act, 1986 (29 of 1986);
(j) any determination of benefit sharing or order made, on or after the commencement of the National Green Tribunal Act, 2010, by the National Biodiversity Authority or a State Biodiversity Board under the provisions of the Biological Diversity Act, 2002 (18 of 2003), may, within a period of thirty days from the date on which the order or decision or direction or determination is communicated to him, prefer an appeal to the Tribunal:
Provided that the Tribunal may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed under this section within a further period not exceeding sixty days.
17 Liability to pay relief or compensation in certain cases. -
(1) Where death of, or injury to, any person (other than a workman) or damage to any property or environment has resulted from an accident or the adverse impact of an activity or operation or process, under any enactment specified in Schedule I, the person responsible shall be liable to pay such relief or compensation for such death, injury or damage, under all or any of the heads specified in Schedule II, as may be determined by the Tribunal.
(2) If the death, injury or damage caused by an accident or the adverse impact of an activity or operation or process under any enactment specified in Schedule I cannot be attributed to any single http://www.judis.nic.in 39 activity or operation or process but is the combined or resultant effect of several such activities, operations and processes, the Tribunal may, apportion the liability for relief compensation amongst those responsible for such activities, operations and processes on an equitable basis.
(3) The Tribunal shall, in case of an accident, apply the principle of no fault
30. Complaint of the petitioner is that provisions of the Air (Prevention and Control of Pollution) Act, 1981, and Environment (Protection) Act, 1986, Environment Protection Rules, 1986, which are mentioned in Schedule I of National Green Tribunal Act, 2010, are violated. This issue therefore, squarely lies within the jurisdiction of the National Green Tribunal. Composition of the National Green Tribunal is given in Section 4 of the National Green Tribunal Act, 2010. Tribunal consists of
(a). a full time Chair person,
(b). not less than ten but subject to maximum of twenty full time Judicial Members as the Central Government may, from time to time, notify
(c). not less than ten but subject to maximum of twenty full time Expert Members, as the Central Government may, from time to time, notify.
31. Section 5 (2) of the said Act, states that Qualifications for appointment of a Chairperson, Judicial Member and Expert Member, which reads as under:-
http://www.judis.nic.in 40 A person shall not be qualified for appointment as an Expert Member, unless he-
(a) has a degree in Master of Science (in physical sciences or life sciences) with a Doctorate degree or Master of engineering or Master of Technology and has an experience of fifteen years in the relevant field including five years practical experience in the field of environment and forests (including pollution control, hazardous substance management, environment impact assessment, climate change management, biological diversity management and forest conservation) in a reputed National level institution; or
(b). has administrative experience of fifteen years including experience of five years in dealing with environmental matters in the Central or a State Government or in a reputed National or State level institution.
32. Proceedings before the National Green Tribunal is conducted before the Bench consisting of the Judges and experts. Examination of complaints regarding violation of Air (Prevention and Control of Pollution) Act, 1981, would require expertise.
33. Section 19 of the National Green Tribunal Act, 2010 bars the jurisdiction of Civil Courts, from entertaining disputes which are covered under the National Green Tribunal Act. Section 19 of the said Act, reads as under:-
“Procedure and powers of Tribunal – (1) The Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by the principles of natural justice.
(2). Subject to the provisions of this Act, the Tribunal shall have power to regulate its own procedure.
http://www.judis.nic.in 41 (3). The Tribunal shall also not be bound by the rules of evidence contained in the Indian Evidence Act, 1872 (1 of 1872). (4). The Tribunal shall have, for the purposes of discharging its functions under this act, the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely -
a. summoning and enforcing the attendance of any person and examining him on oath;
b. requiring the discovery and production of documents c. receiving evidence on affidavits d. subject to the provisions of Sections 123 and 124 of the Indian Evidence Act, 1872, (1 of 1872), requisitioning any public record or documents or copy of such record or document from any office;
e. issuing commissions for the examination of witnesses or documents f. reviewing its decision g. dismissing an application for default or deciding its ex parte h. setting aside any order of dismissal of any application for default or any order passed by its ex parte
(i). pass an interim order (including granting an injunction or stay) after providing the parties concerned an opportunity to be heard, on any application made or appeal filed under this Act.
(j). pass an order requiring any person to cease and desist from committing or causing any violation of any enactment specified in Schedule I.
(k). any other matter which may be prescribed. (5). All proceedings before the Tribunal shall be deemed to be the judicial proceedings within the meaning of Sections 193, 219 and 228 for the purposes of Section 196 of the Indian Penal Code (45 of 1860) and the Tribunal shall be deemed to be a civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).
34. Though the powers of High Court, while exercising the jurisdiction under Article 226 of the Constitution of India is not http://www.judis.nic.in 42 restricted, under Section 19 of the said Act, but Section 19 gives an indication that it was the intention of the Legislature that a specialised Tribunal viz., National Green Tribunal must deal with all the issues, relating to questions dealing with the Environment. It is well settled that when there is an alternate remedy available to the petitioner, he can approach the National Green Tribunal which is a specialised body to deal only with the issues relating to substantial questions relating to environment and violations of Acts specified in Schedule I, the High Courts while exercising its jurisdiction under Article 226 of the Constitution of India must refrain from entertaining such disputes.
35. Learned counsel for the petitioner would contend that at present there is no effective sitting in Southern Bench of the National Green Tribunal and that the petitioner would have to go to Delhi to conduct the case. Efficacious remedy does not mean convenience of the parties. It does not mean that all the questions relating to violations of the Acts, mentioned in the first schedule in the National Green Tribunal Act, in southern India which cannot be dealt by the National Green Tribunal, and writ petitions should be entertained by the respective High http://www.judis.nic.in 43 Courts. The very purpose of having a National Green Tribunal would be defeated, if such an approach is taken. On the aspect of alternative and efficacious remedy reference can be made to few decisions:-
(i) The Hon'ble Supreme Court of India in United Bank of India v.
Satyawati Tondon, 2010 (8) SCC – 110, wherein the Hon'ble Supreme Court has observed as under:-
“42. There is another reason why the impugned order should be set aside. If Respondent 1 had any tangible grievance against the notice issued under Section 13(4) or action taken under Section 14, then she could have availed remedy by filing an application under Section 17(1). The expression “any person” used in Section 17(1) is of wide import. It takes within its fold, not only the borrower but also the guarantor or any other person who may be affected by the action taken under Section 13(4) or Section 14. Both, the Tribunal and the Appellate Tribunal are empowered to pass interim orders under Sections 17 and 18 and are required to decide the matters within a fixed time schedule. It is thus evident that the remedies available to an aggrieved person under the Sarfaesi Act are both expeditious and effective.
43. Unfortunately, the High Court overlooked the settled law that the High Court will ordinarily not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person and that this rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions.
In our view, while dealing with the petitions involving challenge to the action taken for recovery of the public dues, etc. the High Court must keep in mind that the legislations enacted by Parliament and State Legislatures for recovery of such dues are a code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasi-judicial bodies for redressal of the grievance of any aggrieved person. Therefore, in all such cases, the High Court must insist that before availing remedy under Article 226 of the Constitution, a person must exhaust the remedies available under the relevant http://www.judis.nic.in 44 statute.
44. While expressing the aforesaid view, we are conscious that the powers conferred upon the High Court under Article 226 of the Constitution to issue to any person or authority, including in appropriate cases, any Government, directions, orders or writs including the five prerogative writs for the enforcement of any of the rights conferred by Part III or for any other purpose are very wide and there is no express limitation on exercise of that power but, at the same time, we cannot be oblivious of the rules of self- imposed restraint evolved by this Court, which every High Court is bound to keep in view while exercising power under Article 226 of the Constitution.
45. It is true that the rule of exhaustion of alternative remedy is a rule of discretion and not one of compulsion, but it is difficult to fathom any reason why the High Court should entertain a petition filed under Article 226 of the Constitution and pass interim order ignoring the fact that the petitioner can avail effective alternative remedy by filing application, appeal, revision, etc. and the particular legislation contains a detailed mechanism for redressal of his grievance.
46. It must be remembered that stay of an action initiated by the State and/or its agencies/instrumentalities for recovery of taxes, cess, fees, etc. seriously impedes execution of projects of public importance and disables them from discharging their constitutional and legal obligations towards the citizens. In cases relating to recovery of the dues of banks, financial institutions and secured creditors, stay granted by the High Court would have serious adverse impact on the financial health of such bodies/institutions, which (sic will) ultimately prove detrimental to the economy of the nation. Therefore, the High Court should be extremely careful and circumspect in exercising its discretion to grant stay in such matters. Of course, if the petitioner is able to show that its case falls within any of the exceptions carved out in Baburam Prakash Chandra Maheshwari v. Antarim Zila Parishad [AIR 1969 SC 556], Whirlpool Corpn. v. Registrar of Trade Marks [(1998) 8 SCC 1] and Harbanslal Sahnia v. Indian Oil Corpn. Ltd. [(2003) 2 SCC 107] and some other judgments, then the High Court may, after considering all the relevant parameters and public interest, pass an appropriate interim order.” http://www.judis.nic.in 45
(ii) Similarly, the Hon'ble Supreme Court in Thansingh Nathmal v.
Supdt. of Taxes (AIR 1964 SC – 1419), at page 1423, held as under:-
“7. Against the order of the Commissioner an order for reference could have been claimed if the appellants satisfied the Commissioner or the High Court that a question of law arose out of the order. But the procedure provided by the Act to invoke the jurisdiction of the High Court was bypassed, the appellants moved the High Court challenging the competence of the Provincial Legislature to extend the concept of sale, and invoked the extraordinary jurisdiction of the High Court under Article 226 and sought to reopen the decision of the Taxing Authorities on question of fact. The jurisdiction of the High Court under Article 226 of the Constitution is couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restrictions which are expressly provided in the Articles. But the exercise of the jurisdiction is discretionary: it is not exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain self-imposed limitations. Resort that jurisdiction is not intended as an alternative remedy for relief which may be obtained in a suit or other mode prescribed by statute. Ordinarily the Court will not entertain a petition for a writ under Article 226, where the petitioner has an alternative remedy, which without being unduly onerous, provides an equally efficacious remedy. Again the High Court does not generally enter upon a determination of questions which demand an elaborate examination of evidence to establish the right to enforce which the writ is claimed. The High Court does not therefore act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up.
36. We can take judicial notice of the contention of the learned http://www.judis.nic.in 46 counsel for the petitioner that National Green Tribunal, Southern Bench is virtually closed and hearings are only done, through video conferencing. It is the responsibility of the Government of India to make appointments to the National Green Tribunal, Southern Bench as expeditiously as possible, keeping in mind the spirit of the National Green Tribunal Act, which is to provide establishment of the National Green Tribunal for the effective and disposal of cases relating to environment.
37. In view of the settled decisions, we are of the opinion that distance factor alone cannot persuade us to entertain the writ petition, in the presence of an expert body like the National Green Tribunal, which has been set up only to entertain substantial questions, pertaining to the environmental issues and more particularly, issues relating to violations of the Acts mentioned in the First Schedule.
38. Writ petitions therefore, fails and the same are dismissed. No costs. Consequently, the connected Miscellaneous Petitions are closed.
http://www.judis.nic.in 47 (S.M.K.,J) (S.P.,J) 24th July 2019 mvs/pkn.
Index: Yes Internet: yes http://www.judis.nic.in 48 To
1. The Secretary Union of India The Ministry of Environment, Forests and Climate Change Jorbagh New Delhi.
2. The Chief Engineer North Chennai Thermal Power Station Athipattu Chennai Thiruvallur District 600 120
3. The Member Secretary Tamil Nadu Pollution Control Board Anna Salai, Guindy Chennai.
4. The Chairman-cum-Managing Director Tamil Nadu Generation and Distribution Corporation (TANGEDCO) th 10 Floor, NPKRR Maaligai 144 Anna Salai Chennai 600 002.
5. The Chief Engineer, North Chennai Thermal Power Station Athipattu Chennai Thiruvallur District 600 120 http://www.judis.nic.in 49 S.MANIKUMAR,J AND SUBRAMONIUM PRASAD,J mvs/pkn.
Writ Petition Nos.20839, 21086 & 21021 of 2019 24/7/2019 http://www.judis.nic.in