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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