Vedanta's Sterlite copper smelting plant in Tamil Nadu would remain locked as the Supreme Court on Monday set aside the National Green Tribunal's (NGT) December 15 order directing its re-opening, on the grounds of jurisdiction. The NGT had directed the Tamil Nadu Pollution Control Board (TNPCB) to give its consent for the re-opening of the plant at Thoothukudi, subject to the satisfaction of certain conditions by Vedanta.
Setting aside the NGT order on "maintainability", a bench of Justice Rohinton Fali Nariman and Justice Navin Sinha asked Vedanta to approach the Madras High Court and since the plant has been locked up for quite some time, the company could urge its Chief Justice for an expeditious hearing and for interim relief. On the facts of the present case, Justice Nariman, speaking for the bench, said, that "it is clear that an appeal was pending before the appellate authority when the NGT set aside the original order dated April 9, 2018. This being the case, the NGT's order being clearly outside its statutory powers conferred by the Water Act, the Air Act, and the NGT Act, would be an order passed without jurisdiction."
"We have given you more than what you had expected," Justice Nariman said as lawyer Roshini Musa, appearing for Vedanta, sought clarifications. "If an appellate authority is either not yet constituted, or not properly constituted, a leapfrog appeal to the NGT cannot be countenanced," the court said rejecting the NGT holding by its August 8, 2013 order that the "doctrine of necessity" would take over if an appellate authority under the Air or Water Act is not properly constituted and no appeal can be effectively preferred before it.
"The NGT is only conferred appellate jurisdiction from an order passed in exercise of first appeal. Where there is no such order, the NGT has no jurisdiction," the court said making it clear that NGT can't hear appeal against the pollution control board's original order under the Water and Act Act respectively. "Obviously, since no order or decision had been made by the appellate authority under either the Water Act or the Air Act, any direct appeal against an original order to the NGT would be incompetent."
Saying that it was cognizant of the fact that Vedanta's Copper smelting plant in under shut down since April 9, 2018, the court said that Vedanta could file a writ petition in the High Court against the TNPCB's January 22, 2019 order. If such petition is filed, the court said that it would be open to Vedanta to apply for interim relief. Also, since their plant has been so shut down for a long period, and they are exporting a product which is an important import substitute, they may apply to the Chief Justice of the High Court for expeditious hearing of the writ petition, which will be disposed of on merits.
The plant - engaged in the production of blister copper and sulphuric acid - was shut down permanently on May 28, 2018, when the state government had ordered the TNPCB to seal and "permanently" close the plant in the wake of protests over pollution concerns. The protests had turned violent, resulting in the death of 13 people in police firing on May 22-23 in Thoothukudi.
The top court verdict came on the TNPCB's plea against the NGT's December 15, 2018 order. The TNPCB had, in the course of arguments, asserted that the copper smelting plant was the cause of nearly irreversible groundwater pollution and thus could not be allowed to resume operation.
On the other hand, Vedanta had described as "political" the decision to close the plant. It had contended that the high-level groundwater pollution was not limited just to Thoothukudi alone and that similar situation existed in other parts of the state.
(With inputs from agencies.)