M/s IL&FS Tamil Nadu Power Company Limited Versus T. Muruganandam & Others

M/s IL&FS Tamil Nadu Power Company Limited Versus T. Muruganandam & Others 

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 1811-1812 OF 2015

M/s IL&FS Tamil Nadu Power Company Limited …Appellant

Versus

T. Muruganandam & Others …Respondents

J U D G M E N T

M.R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgment

and order dated 23.05.2012 in Appeal No. 17/2011 and judgment and

order dated 10.11.2014 in Appeal No. 50/2012 passed by the National

Green Tribunal (Principal Bench), New Delhi (hereinafter referred to as

the ‘NGT’), M/s IL&FS Tamil Nadu Power Company Limited has

preferred the present appeals.

2. The facts leading to the present appeals in nutshell are as under:

The appellant herein has been incorporated in the year 2006 to

implement the Project for establishing a 2x600 MW and 3x800 MW

(aggregating to 3600 MW) imported coal based thermal power plant at

village Kottatai, Ariyagoshti, Villianallur and Silambimangalam in

Chidambram Taluk, District Cuddalore, Tamil Nadu. Now the appellant

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company is under the control of Government of India. The appellant

submitted Form I under EIA Notification, 2006 to obtain Terms of

Reference for the EIA study on 5.2.2008. The Terms of Reference

approval letter was issued by the Ministry of Environment, Forest and

Climate Change (hereinafter referred to as the ‘MoEF’) on 9.7.2008.

Public hearing was carried out for the project on 5.2.2010. The

appellant completed the EIA study in accordance with EIA Notification,

2006. That thereafter the Expert Appraisal Committee (for short, ‘EAC’)

considered the EIA study and directed the appellant to undertake certain

additional submissions to address specific points and directed that an

updated Form I be submitted. That thereafter the appellant submitted

updated Form I reflecting recommendations of EAC meeting dated

19.03.2010 to MoEF. The EAC meeting considered the project and

recommended the project for Environment Clearance (for short, ‘EC’),

subject to stipulation of specific conditions including project to keep

space for providing Flue Gas De-sulfurization (for short, ‘FGD’) system

with all the five units of the power plant to enable the system to be

installed whenever required. The appellant herein was granted the EC

in accordance with the recommendations of the EAC under EIA

Notification, 2006.

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2.1 The original petitioners claiming to be fishermen and persons

acting for welfare of fishermen filed appeals against the EC before

National Environment Appellate Authority being NEAA Appeal Nos. 19 &

20 of 2010. On the constitution of the NGT, Appeal No. 20/2010 filed

before the National Environment Appellate Authority came to be

transferred to the NGT, which was re-numbered as Appeal Nos. 16/2011

& 17/2011.

2.2 Vide order dated 23.05.2012 in Appeal No. 17/2011, the NGT

upheld the validity of the EC but directed the MoEF to review the EC

based on the cumulative impact assessment study and stipulate any

additional conditions, if required and directed that till then the EC shall

remain suspended. Instead of the cumulative impact assessment study,

the appellant completed the Rapid Cumulative Impact Assessment (for

short, ‘RCIA’) study and submitted a copy thereof to the MoEF. That

thereafter the EAC, after extensive deliberations on the RCIA and after

hearing the representative of the original petitioners and the

appellant/project proponent, recommended certain additional conditions

to be added to the EC including the requirement of installing a FGD

system as part of the power plant. At this stage, it is required to be

noted that as such neither the original petitioners nor even the appellant

challenged the first judgment and order dated 23.05.2012 passed in

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Appeal No. 17/2011 by which the NGT upheld the validity of the EC but

directed MoEF to review the EC based on the cumulative impact

assessment study and stipulate any additional conditions, if required.

That thereafter, on 14.08.2012, MoEF based on the recommendations of

the EAC, issued a corrigendum to the EC imposing additional conditions

to the EC. That thereafter the original petitioners who filed the earlier

appeal against the grant of EC, filed Appeal No. 50/2012 against the

corrigendum dated 14.08.2012 issued by the MoEF. By the impugned

judgment and order dated 10.11.2014, the NGT has disposed of Appeal

No. 50/2012, quashing the corrigendum dated 14.08.2012. The

judgment and order dated 23.05.2012 in Appeal No. 17/2011 and

subsequent judgment and order dated 10.11.2014 in Appeal No.

50/2012 passed by the NGT are the subject matter of present appeals.

3. By an interim order dated 10.02.2015, this Court stayed the

impugned order dated 10.11.2014 passed in Appeal No. 50/2012, which

has been continued till date. Pursuant to the interim order passed by

this Court, the appellant-company had commenced two power plants in

Phase-I, which are in operation since 2015.

4. Dr. Abhishek Manu Singhvi, learned Senior Advocate appearing on

behalf of the appellant-company has submitted that to close the power

plant now would not be in public interest. It is submitted that the

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appellant’s power plant is running since September 2015 in power deficit

State of Tamil Nadu. Appellant operates two units of 600MW each since

September, 2015 and April, 2016, which presently supply power to

approximately 40 lakhs households. The power plant is situated in an

energy deficient State (Tamil Nadu) and therefore closing the power

plant would adversely affect power sector of the State.

4.1 In support of his submission that to close the power plant now

would not be in public interest, it is submitted as under:

(i) That Appellant’s power plant is running since September 2015 in

power-deficit state of Tamil Nadu: Appellant operates two unit of

600MW each since September 2015 and April 2016, which presently

supply power to approximately 40 lakhs households. The power plant

is situated in an energy deficient State (Tamil Nadu), and closing the

plant would adversely affect power section of the State;

(ii) Plant running in compliance with EC and Corrigendum: That the

plant is in compliance with clearance conditions, and six-monthly

reports being submitted to Ministry of Environment, Forest & Climate

Change, latest report of April-September;

(iii) Plant uses imported coal with low sulphur and uses FGD system:

That Appellant uses imported coal from Indonesia for its thermal

power plant, which already has low sulphur content. Pursuant to

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MoEF Corrigendum, has spent Rs. 775 crores to install Flue Gas Desulphurisation (FGD) system. Report of Centre for Science and

Environment identifies Appellant’s plant as compliant with SO2

standards. All over India only 20 power plants have FDGs, of which

two units are the Appellant’s power plant;

(iv) Appellant part of IL&FS Group and value to be maximized: That

ITPCL/ Appellant is a group company of IL&FS which is under control

of Govt. of India and is undergoing restructuring. Larger public interest

is to realize value and recover PSU debt. Appellant’s restructuring

plan has been approved by Hon’ble NCLAT on 01.12.2021. Appellant

incurred expense of Rs. 11,000 crores (approx.) to build 2 x 600 MW

units, which are operational since September 2015 and April 2016. Of

this, Rs. 6,080 crore was through loans from public sector banks

(Punjab National Bank, Bank of Baroda, LIC, SBM Bank, SBI) and Rs.

4,560 crores in equity by IL&FS Energy Development (another IL&FS

group entity); and

(v) Appellant’s CSR initiatives: That till date approx. Rs. 30 crores

spent on CSR activities, including adopting several villages in the

surrounding areas. As of February, 2022, the Appellant has 1466

employees of which 87% are from Tamil Nadu. Overall, 69% (1005

persons) are from Cuddalore District itself.

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4.2 It is further submitted that instead of cumulative impact

assessment study, the appellant bonafidely and taking into consideration

the order passed by the NGT in Application No. 25/201

conducted/completed RCIA, a copy of which was submitted to MoEF

and after undertaking extensive deliberations on the RCIA and after

hearing the representative of the original petitioners and the

appellant/project proponent, the EAC recommended certain additional

conditions to be added to the EC including the requirement of installing

FGD system and pursuant to which and based on the

recommendations of the EAC, MoEF issued a corrigendum to the EC

imposing additional conditions to the EC.

4.3 It is further submitted that taking into consideration the additional

conditions imposed vide corrigendum dated 14.08.2012, the appellantcompany had installed FGD system at a cost of Rs. 775 crores, the only

thermal power plant in the country to commence operations with FGD

system.

4.4 Dr. Abhishek Manu Singhvi, learned senior counsel appearing on

behalf of the appellant has also made an elaborate submission on the

maintainability of Appeal No. 50/2012 before the NGT, filed by the

original petitioners against the corrigendum dated 14.08.2012 issued by

the MoEF. It is submitted that as such the first judgment dated

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23.05.2012 passed in Appeal No. 17/2011, by which the NGT

specifically upheld the validity of the EC but directed MoEF to deal with

the EC based on cumulative impact assessment study and stipulate any

additional conditions, was not challenged by the original petitioners. It is

submitted that the original petitioners had no locus and therefore the

original petitioners could not have challenged the subsequent

corrigendum dated 14.08.2012 by which certain additional conditions

were imposed to the original EC by the MoEF.

4.5 Dr. Abhishek Manu Singhvi, learned senior counsel has taken us

to the additional affidavits dated 20.09.2022 and 28.11.2022. He has

also taken us to the EC & CRZ Compliance Report dated 12.01.2022 as

well as the subsequent Compliance Report dated 20.09.2022 and the

copy of the response of the project proponent. He has stated at the Bar

that by and large all the conditions of the original EC as well as

corrigendum to the EC have been complied with by the appellant/project

proponent and few conditions are under continuous compliance. He has

stated that the conditions imposed while issuing the EC and the

corrigendum have been substantially complied with and there are no

fundamental breaches and/or non-compliance. He has stated at the Bar

that whichever conditions are not complied with and not complied with

fully and/or there are continuous compliance, the same shall be

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complied with within the time stipulated in the response of the project

proponent.

4.6 Making above submissions and praying for keeping the question

of law , if any, namely, “Whether for the project like this, a cumulative

impact assessment study is required or not” open and also the question,

“whether an appeal before the NGT against the corrigendum to the EC

and the additional conditions imposed as per the corrigendum to the EC

would be maintainable or not” and keeping the aforesaid questions(s) of

law open, it is prayed to dispose of the present appeals by permitting the

appellant to continue the power plants which are in operation since

2015.

5. Shri Shiv Mangal Sharma, learned counsel appearing on behalf of

the MoEF has submitted that as such the appellant had never

challenged earlier conditions imposed while issuing the EC and the first

judgment and order passed by the NGT dated 23.05.2012 and even the

corrigendum dated 14.08.2012 issued by the MoEF imposing additional

conditions and therefore the appellant is bound by the conditions

imposed while issuing the EC and corrigendum to the EC dated

14.08.2012 and the appellant has to comply with all the conditions

imposed while issuing EC as well as additional conditions imposed vide

corrigendum dated 14.08.2012. He has pointed out certain non9

compliances/part compliances of certain conditions and the response by

the appellant. Therefore, he has submitted that if this Court is inclined to

permit the appellant to continue with the power plants in the public

interest, in that case, the appellant may be directed to comply with all

the conditions imposed while issuing EC as well as additional

conditions imposed while issuing corrigendum dated 14.08.2012.

6. Ms. Srishti Agnihotri, learned counsel appearing on behalf of the

original petitioners has prayed that in case this Court is inclined to

permit the appellant to continue with the power plants as per the EC and

the corrigendum dated 14.08.2012 which are in operation since 2015, in

that case, the question of law, namely, “whether for the project like this

conducting a cumulative environment impact assessment study is must

or not”, may be kept open as so many other such projects may come

and that on conducting cumulative environment impact assessment

study, the Tribunal may consider the said issue in detail.

6.1 Insofar as maintainability of appeal before the NGT against the

order of corrigendum is concerned, it is submitted that against the

additional conditions imposed vide corrigendum dated 14.08.2012, an

appeal would be maintainable before the NGT against the corrigendum

to the EC.

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7. Having heard Dr. Abhishek Manu Singhvi, learned Senior Counsel

appearing on behalf of the appellant and the learned counsel appearing

on behalf of the MoEF and original petitioners and the facts narrated

hereinabove, it is to be noted that pursuant to the interim order passed

by this Court, the appellant has commenced two power plants in PhaseI, which are in operation since September, 2015. The appellant is

operating two units of 600MW since September, 2015 and April, 2016,

which presently supply power to approximately 40 lakhs households.

The power plants are situated in an energy deficit State (Tamil Nadu).

Thus, closing the power plants/units would adversely affect power sector

of the State and which shall not be in the larger public interest, more

particularly the power deficient State of Tamil Nadu.

7.1 However, at the same time, the appellant has to comply with all

the conditions imposed while issuing EC as well as the additional

conditions imposed vide corrigendum to the EC dated 14.08.2012.

From the compliance report dated 20.09.2022 (latest compliance report)

and the response of the project proponent, it appears that by and large

there is a substantial compliance of the conditions imposed while issuing

EC as well as the additional conditions imposed vide corrigendum to the

EC dated 14.08.2012. There do not appear to be any fundamental

breaches or non-compliance of the conditions imposed while issuing EC

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as well as additional conditions imposed vide corrigendum to the EC

dated 14.08.2012. However, some conditions are still partly complied

with, which have been responded by the appellant and has agreed to

comply with the same. The particulars of the specific conditions, part

compliances and the response to the same are as under:

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8. Considering the aforesaid facts and circumstances and subject to

compliance of the conditions imposed while issuing EC and the

additional conditions imposed vide corrigendum to the EC dated

14.08.2012 and subject to the conditions/additional conditions which are

partly complied with, to be complied with within the time suggested in

the response of the appellant/project proponent, reproduced

hereinabove and keeping the larger question of law, namely, “whether

for the project like this, a cumulative impact assessment study is

required or not”, open and to be decided in an appropriate case, we

dispose of the present appeals by permitting/allowing the

appellant/project proponent to continue with the power plants which are

in operation since September, 2015 and April, 2016 on the conditions as

above, i.e., subject to compliance of all the conditions mentioned in the

EC as well as additional conditions imposed vide corrigendum to the EC

dated 14.08.2012 and to fully comply with the conditions which are

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partly complied with within the stipulated time as suggested and prayed

by the appellant company, prayed in response to the compliance report

dated 20.09.2022, reproduced hereinabove.

9. Now so far as the issue, “whether against the corrigendum to the

EC along with additional conditions, an appeal before the NGT would be

maintainable or not” is concerned, having heard learned counsel

appearing on behalf of the respective parties, we are of the opinion that

an aggrieved person may always challenge the corrigendum to the EC,

however, the appeal will be restricted to the corrigendum to the EC on

additional conditions only, if the original EC is not under challenge

and/or the original EC has been confirmed by the NGT earlier on certain

conditions which have not been challenged.

10. The present appeals stand disposed of in the aforesaid terms. We

make it clear that the present order shall not be cited as a precedent in

any other matter.

…………………………………J

 [M.R. SHAH]

NEW DELHI; ……………………………….J.

FEBRUARY 17, 2023 [C.T. RAVIKUMAR]

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