JOIN USSterlite Copper plant in Thoothukudi to remain shut; Madras HC dismisses Vedanta’s plea to reopen the plant
Handing down a major victory to anti-Sterlite protesters and the Tamil Nadu government, the Madras High Court on Tuesday rejected a plea by Vedanta-owned Sterlite Copper seeking permission to reopen its massive copper smelter in the southern port city of Thoothukudi.
The court also upheld the Tamil Nadu government’s decision to shut down the plant on the outskirts of Thoothukudi, 610 km from here, based on an order passed by its pollution watchdog on May 28, 2018. The plant was closed down permanently, exactly seven days after the protests against expansion of Sterlite Copper turned violent resulting in police firing that killed 13 civilians.
While anti-Sterlite protesters and almost all political parties welcomed the verdict, Sterlite Copper termed the judgement as “utter shock” and dropped hints that it would move the Supreme Court. Political parties also asked the Tamil Nadu government to take a policy decision not to allow such industries in the state in a bid to ensure that the smelting unit does not get a new lease of life.
The division bench of justices T S Sivagnanam and V Bhavani Subbaroyan dismissed all the ten writ petitions filed by Sterlite Copper against rejecting its application for renewal of consent and challenging orders passed by the Tamil Nadu Pollution Control Board (TNPCB) directing closure under the Air and Water Acts.
‘Environment is supreme’
“The petitioner has been consistently stating that if their plant is shut the requirement of copper in India cannot be met, it will be a great blow on the economy, etc. The Courts have held that when the economy is pitted against the environment, the environment will reign supreme,” the judges said the division bench said in its voluminous 815-page order.
“Therefore, economic considerations can have no role to play while deciding the sustainability of a highly polluting industry and the only consideration would be with regard to safeguarding the environment for posterity and remedying the damage caused,” the judges added.
In a voluminous order running into 815 pages, the division bench said the GO issued on May 28, 2018 announcing shutting down of the plant cannot be stated to be devoid of reasons, as it directs permanent closure and sealing of the unit and “has referred to the mandate cast on the State by the Constitution and bearing in mind the larger public interest.”
The judges also came down on the company for its contention that Thoothukudi was safer than Chennai and that statements given by the public in the villages surrounding the unit to the officials are all “tutored” and everybody in Thoothukudi District is happy to have the factory.
“All these submissions deserve to be outrightly rejected after going through the compilation filed by the TNPCB…As per the report of the Government of India - National Clean Air Programme dated 10.01.2019, giving a list of most polluted cities in the Country, in Tamil Nadu, Thoothukudi is the only District which finds place in the list of most polluted city in Tamil Nadu,” the judges noted.
Sterlite Copper approached the Madras High Court after the Supreme Court struck down a 2018 order by the National Green Tribunal (NGT) allowing reopening of the plant on the grounds of maintainability and gave the liberty to approach the high court.
Reactions of anti-Sterlite protesters and Sterlite Copper
Prof Fathima Babu, one of the first to move the court against Sterlite Copper, said the verdict is being dedicated to the 13 people who laid their lives for the cause. “We are upbeat and in a happy mood. The struggles of the people of Thoothukudi for 25 years have succeeded. But I do feel the journey is not yet over. We may have to travel some more distance. We will chase them even if they (Sterlite Copper) go to Delhi,” Prof Babu told DH.
However, Vedanta-owned Sterlite Copper said the verdict was a “big letdown to the people of Thoothukudi, Tamil Nadu and India.”
“There has been no complaint of pollution by Sterlite Copper from competent authorities of the Tamil Nadu government in the past five years. As a knee-jerk reaction, the government shut the plant and I would say the verdict is a big letdown to the people,” Pankaj Kumar, CEO, Sterlite Copper, told DH via video-conferencing. He added that the company may move the Supreme Court after “studying the order.”
The judges also said the 2013 judgment of the Supreme Court that allowed the plant to reopen cannot be a bar for the authorities issuing directions for closure and noted that Sterlite Copper was not exonerated by the apex court judgment.
“Therefore, on facts, we hold that the doctrine of res judicata can have no application to the facts of this case and it is not a case where the matter has been determined in a former proceedings and therefore, it is not open to the parties to re-agitate the matter again,” the judgment read.
‘Sterlite not able to establish decisions of Govt and TNPCB malafide’
The division bench also said Sterlite Copper has not been able to establish that the decisions of the Tamil Nadu government and TNPCB are “malafide” or on account of extraneous consideration or political consideration or a “colourable exercise of power.”
“The petitioner being the biggest in the area cannot plead that they have been singled out and victimized when they have been found to be a violator. This observation will equally apply to the argument of the petitioner that 101 red category industries do not have authorization under HW Rules. This is a sorry state of affairs, the reasons are unknown but that can hardly be an argument to exonerate the petitioner,” the judges said.
The judges also did not agree with the company’s contention that the Pollution Control Board may direct closure of industry, but it cannot seal the entire industry bringing every unoffending activity to a standstill, pointing to a judgment of the Delhi High Court in relation to another company’s case.
“The petitioner cannot be heard to say that an ancillary unit, ancillary to a main unit, should be permitted to function when the main unit has been locked, sealed and directed to be dismantled. Therefore, we reject such submission,” the verdict read.