Closure of Sterlite copper plant at Thoothukudi was a colourable exercise of power, Vedanta to Madras HC

The Madras High Court Bench of Justices TS Sivagnanam and Bhavani Subbaroyan on Thursday commenced hearing in the plea filed by Vedanta to reopen its Sterlite copper plant at Thoothukudi, Tamil Nadu..Appearing for Vedanta, Senior Advocate Aryama Sundaram centered his arguments around the contention that the closure of the plant by the Tamil Nadu Government last year was only a politically motivated response meant to appease the agitating public. He asserted,.“What motivated them [to close the Sterlite plant] was not the preservation of the environment. What motivated them was not to safeguard against pollution. What motivated them was not to ensure that the company [Vedanta] was compliant with pollution control norms… On the contrary, they wanted to prove a political point….…The aim was not to subserve the environment… It was a colourable exercise of power.”.Pertinently, he submitted that the state authorities have not brought on record a scrutiny report dated February 28, 2019, in which the Sterlite plant was found eligible for renewal of consent to operate for another five years. This aspect is highlighted in the rejoinder filed by Vedanta to the Tamil Nadu Government’s counter as well. Vedanta has submitted,.“…the Respondents are wilfully avoiding disclosure of the Scrutiny Reports made pursuant to the Inspection Report dated 27.02.2018, which if laid before this Hon’ble Court, contrary to the claim of the Respondents, would establish that the application for renewal of Consents for the Petitioner Unit have been scrutinized and consents have been recommended for a period of 5 years.”.The state, on the other hand, has asserted in its counter-affidavit that the closure order against Vedanta was issued as the company has been chronically non-compliant with statutory conditions, and has merely feigned compliance in a cursory manner at best..“The Respondent No. 2 [Tamil Nadu Pollution Control Board/TNPCB], on a detailed examination of the unit, its operating standards, history and compliance with consent conditions, and on taking cognizance of old festering issues where the unit has been non compliant, rejected the application for renewal of Consent to Operate vide Order dated 09.04.2018.”.However, Sundaram argued that the timing of the closure indicated that it was not prompted by non-compliance on the part of Vedanta. He highlighted that the Sterlite plant had been shut down by Vedanta as part of periodical maintenance work..“Once in four years, a complete overhaul of the plant is to be done.”.During this shutdown, Vedanta cannot and did not operate the Sterlite plant, the Court was informed. While the unit was shut down, public protests against the Sterlite plant gained momentum, leading Vedanta to approach the Madurai Bench of the Madras High Court for police protection on April 4..However, on April 9, the TNPCB issued an order rejecting Vedanta’s application for renewal of consent. In this backdrop, Sundaram argued,.“On 9th April my operations are still shut down. So I ask myself, what happened between 27th February [when the scrutiny report supposedly indicated that Vedanta is eligible for renewal of consent] and 9th April for you [TNPCB] to pass the impugned order to shut down?“.Sundaram proceeded to assert that the closure was only motivated by extraneous factors in order to appease public agitators. To this end, Vedanta’s rejoinder also states,.“The directions passed by the TNPCB vide the impugned order dated 23.05.2018 was neither emergent nor proportional. It is submitted that the only emergency for closing the Petitioner Unit was to appease a section of public after the incident of police firing on 22.05.2018….…the Respondents have yielded to the pressures from NGOs & activists, operating for their own ulterior purposes and profits, and as a knew jerk reaction the Respondents directed the closing down the Petitioners unit. The Impugned Orders are nothing by knee-jerk reactions….…It is reiterated that the Petitioner has been a target of vested interests which would be evident from the fact that there have been surge of public demonstration, complaints against the Petitioner after public announcement of its expansion project.“.It has also been argued that the grounds now being cited by the state authorities to justify the closure of the Sterlite plant did not find mention in the final closure order of May 28, 2018..“The order dated 28.05.2018 does not specifically state these grounds and these justifications cannot be allowed to be added to the order by way of a counter affidavit.“.Vedanta has further submitted,.“It is unfortunate that in instant proceedings the Respondent No. 1 is taking adversarial position and is not considering the representations from more than 1, 55, 0000 people supporting the opening and restart of the Petitioner Unit. .Assuming that there were repeated demonstrations by the public over several years, recurrently demanding closure of the Petitioner Unit, it is inconcievable…how all the previous three inspection reports of 2015-16, 2016-17 and 2017-18 records that there are no complaints and has recommended the renewal of consents for the Petitioner Unit [Sterlite].“.Arguments on behalf of Vedanta will resume on Friday at 11 am..[Read the counter-affidavit filed by the Tamil Nadu government].[Read the rejoinder filed by Vedanta].Bar & Bench is available on WhatsApp. For real-time updates on stories, Click here to subscribe to our WhatsApp.