The NGT Committee headed by Justice Tarun Agrawal submitted a report in 48 volumes that paved the way for a favourable verdict for UK-based Vedanta Resources’ Sterlite Copper unit at the Tribunal. The Committee reportedly does not make any finding on pollution, hazardous waste mismanagement and greenbelt and other legal violations by Sterlite.
Intervenor Fatima called the findings of the report predictable. “This was predictable. We had expressed our doubts about the neutrality of the committee by way of an application at the NGT which was summarily dismissed without a proper hearing,” said Prof. Fatima. Prof. It may be recalled that the names of Tamil Nadu judges – Justice Sivasubramaniam and Justice Chandru – were dropped after Sterlite’s counsel argued that Tamil Nadu judges would be biased.
The Committee reportedly found that the impugned orders of the TNPCB and Government of Tamil Nadu were not maintainable, as the company was not given an opportunity to defend itself. Despite repeated requests for a copy of the report by counsel for the Intervenors Prof. Fatima and S. Raja, Adv. Ritwick Dutta, Hon’ble Justice A.K. Goel of the NGT declined in open court to furnish such copies and asked the intervenors to make their submissions during the final hearing. Adv. Dutta’s plea pointing to the absurdity of making submissions without the basis of the Committee’s report was not heeded.
“We are disappointed, though, with the Hon’ble NGT’s refusal to share a copy of the Committee’s report with the intervenors. That is against the principles of natural justice, and asking us to participate as parties without sharing the information on the basis of which we can argue is unjust,” said Prof. Fatima.
The NGT will hear arguments on the Committee’s report on 7 December and pronounce its orders. However, the Supreme Court has also directed NGT to rule on the issues of maintainability raised by TNPCB, Government of Tamil Nadu and Intervenor Fatima.
The NGT is a tribunal created by a parliamentary act – the National Green Tribunal Act, 2010. It is bound to exercise only those powers vested in it by law. Three key orders have been appealed by the company in NGT – namely, 9.4.2018 order of TNPCB rejecting Sterlite’s application for Consent to Operate under Air and Water Acts; 23.5.2018 order of TNPCB directing disconnection of electricity and water supply to the unit; the G.O. of the Government of Tamil Nadu dated 28.5.2018 directing sealing and permanent closure of the unit.
The 9.4.2018 order rejecting Consent to Operate can, by law, only be challenged in the Appellate Authority in Chennai set up under Air and Water Acts. An appeal to the Appellate Authority was registered by Vedanta, and Vaiko and Prof. Fatima joined the Appeal as intervenors. The GO directing permanent closure by the Government of Tamil Nadu cannot be challenged in the NGT. Government decisions can only be challenged in the High Court or Supreme Court.
However, even while the matter was being heard in the Appellate Authority, after the Tamil Nadu government’s closure order, Sterlite simultaneously initiated a case challenging all three orders in National Green Tribunal, New Delhi. Government of Tamil Nadu and the intervenors have pointed out that the NGT lacks jurisdiction. NGT has not yet passed a ruling on whether it has jurisdiction or not. However, as per the Supreme Court’s directions in appeals filed by the Government of Tamil Nadu and TNPCB, the NGT is required to also take a view on the jurisdiction issue.