CHENNAI: Chief Minister Edapaddi K Palaniswami announced that the Government would challenge
the National Green Tribunal (NGT)'s judgement on the Sterlite case in the Supreme Court. But, the question is - can the government successfully do it, considering its past failures?
The government had approached the apex court twice, challenging the NGT order of allowing administration access to Sterlite and NGT's authority to constitute an independent committee. The government had also challenged Sterlite's plea on maintainability. But, the Supreme Court has dismissed all the petitions and allowed NGT to decide the case on maintainability and as well as merits.
While disposing a government's appeal on August 17, 2018, the Supreme Court observed that: "The National Green Tribunal may continue to hear the matter on merits and finally decide the matter, both on maintainability as well as on merits."
In the judgement, the NGT said there was no ground to reject the Sterlite appeal on maintainability. The bench headed by NGT chairman Justice AK Goel, said there was no bar to exercise of powers of the Appellate Authority by the tribunal.
"As noted, the TNPCB Appellate Authority has declined to proceed with the matter. The grounds in the impugned orders are identical. If the appeals are held to be not maintainable, the appellant (Sterlite) will be without any remedy against the order of closure. We, thus, do not find any merit in this case in the objections of the respondent (TN)," the bench said.
The NGT also dismissed the objection raised by the State government on appointing an independent committee. "This Tribunal is certainly entitled to ascertain facts on the ground by a fair and credible expert mechanism. Section 19 of the NGT Act is to the effect that the Tribunal is not bound by procedure laid down by the C.P.C. but is to be guided by the principles of Natural Justice.
The Tribunal can regulate its own procedure. It is not bound by rules of evidence under the Evidence Act. In certain matters specified under Section 19(4), the Tribunal has the powers of Civil Court. We do not see any bar to the procedure followed by the Tribunal in the present case in appointing a Committee to ascertain facts, to be gathered by spot visit and by hearing all concerned. In doing so, the adjudicatory
powers of the Tribunal have not been in any manner delegated," the bench said.
What NGT said on grounds of closure?
1. Not furnishing groundwater analysis report.
"We find that the ground water analysis reports are available with the TNPCB. .... even if there is a technical breach as contended on behalf of the respondents, the breach is trivial in nature causing no prejudice to anyone."
2. Not removing copper slag stored along the River Uppar and not constructing physical barrier between the river and the slag.
"Copper slag is not found to be hazardous nor has been found to be obstructing the flow even on visit of the site by the Committee. Physical barrier could be directed to be constructed for the entire area. .....no opportunity given. On this ground, refusal of consent to a running unit and its closure could not be justified".
3. The unit did not have authorization to generate and dispose hazardous waste
"Expiry of authorization under the Hazardous Wastes (Management, Handling and Trans boundary Movement) Rules, 2016, could not be a plea against the appellant as it had already submitted the requisite application. It was TNPCB itself which was sitting over the matter."
4. The unit has not analyzed parameters of heavy metals in the ambient air
"As regards the fourth ground of failure to analyse parameters in the ambient air quality, there is nothing to show that the appellant caused any violation of air quality norms."
5. The unit has failed to construct gypsum pond as per CPCB guidelines.
"Not constructing gypsum pond as per the CPCB revised guidelines, is unfounded as time to do so is still available"