M/s.Chemplast Sanmar Limited v. The Appellate Authority Tamil Nadu Pollution Control Board

For Petitionerin W.P.No.12664/08 : Mr.Vijay Narayan, Senior Counsel assisted by Dr.P.VasudevanFor Respondents 1 to 3 in both the WPs. : Mr.R.Ramanlal, Standing Counsel for TNPCBFor Respondent 4in both the WPs. : Mr.T.Mohan & Ms.D.Nagasaila- - - - C O M M O N O R D E RF.M.IBRAHIM KALIFULLA, J.These two writ petitions have been filed challenging the commonorder of the first respondent dated 07.05.2008, passed in Appeal Nos.26 and 27 of 2008.2. The petitioner is stated to be engaged in the manufacture ofPVC in Plant-II and Caustic Soda / Chlorochemicals in Plant-III. Itis also stated to have Captive Power Generation capacity consistingof 7 Nos. of LSHS (Low Sulphur Heavy Stock) fired oil engines whichhas got combined generating capacity of 48.5 MW and those powergeneration units are stated to supply power and steam to thepetitioners complex in Mettur Dam with which the plants at Mettur arebeing operated. The second respondent (hereinafter referred to as the‘Pollution Control Board’) is stated to have granted consent to thepetitioner under Section 21 of the Air (Prevention and Control ofPollution) Act, 1981 (hereinafter referred to as the 'Air Act'), inits proceedings dated 16.11.1998, for operating the industrial plant(Plant-III) and similar consent has also been issued under the Water(Prevention and Control of Pollution) Act, 1981 (hereinafter calledas the ‘Water Act’) to the said plants. 3. It is stated that such consent was being extended from timeto time and was renewed upto 31.03.2008. It is also stated that thesaid consent also covered the power generating units with LSHS viz.,diesel operated generating units. According to the petitioner, inits caustic soda plant it had employed the Mercury Cell Technologyand that there was an obligation in India for switching over toMembrane Cell Technology by 2012, as part of environmental protectionmeasures which was notified by the Ministry of Environment andForest, Government of India in the year 2003. The petitioner isstated to have responded to the said obligation well in advance andhas converted its operations 5 years ahead of the upper limit fixed https://hcservices.ecourts.gov.in/hcservices/ viz., 2012. While effecting such a conversion, the petitioner claimsthat it had to necessarily switch over to other austerity measuresand as part of it wanted to switch over to coal based generation ofits captive power generation unit from the present set up of LSHSi.e. diesel oil based. 4. The petitioner is stated to have applied for change of fuelfrom diesel to coal on 23.02.2006, by installing captive power plantcombining the Plant-II and Plant-III capacity and by restricting suchpower generation to the existing level of 48.5 MW. By proceedingsdated 05.05.2006, the Pollution Control Board accorded its approvalfor such conversion by imposing certain additional special conditionsto suit the needs of the coal based conversion. Based on suchconversion permitted by the Pollution Control Board dated 05.05.2006,the petitioner is stated to have commenced the construction of itspower generation plant, in order to commission the same by February,2008. While the work was in progress, the third respondent is statedto have issued a show cause notice dated 06.12.2007, under the Waterand Air Acts stating that there was violation of the provisionscontained in G.O.Ms.No.213, dated 30.03.1989 and G.O.Ms.No.127, dated08.05.1998 of the Environment & Forest Department inasmuch as theclearance of the Environment Impact Assessment Notification dated14.09.2006, has not been obtained. The petitioner submitted itsreply dated 26.12.2007, taking the stand that it does not fall underthe purview of the aforesaid G.Os. and that it is not a new industry.The reply was received by the third respondent on 07.01.2008.Thereafter, by proceedings dated 22.01.2008, the petitioner wasdirected to stop its construction activities of the coal based powerplant with a further direction to apply for fresh consent forinstallation of power plant. The petitioner sent a detailed letterdated 29.01.2008 to the Pollution Control Board, to which there wasno response. 5. The petitioner therefore filed its appeals under the Air Actand Water Act challenging the order dated 22.01.2008, before thefirst respondent. The appeals were numbered as Appeal Nos.26 and 27of 2008 in which the impugned order dated 07.05.2008, came to bepassed confirming the order of the Pollution Control Board dated22.01.2008. While the appeals were pending, status quo was grantedin favour of the petitioner. The said order was subsequentlymodified by the first respondent directing the petitioner not to putup further constructions. When the petitioner preferred W.P.Nos.9140and 9141 of 2008, by an order dated 15.04.2008, the Division Bench ofthis Court directed the first respondent Appellate Authority todispose of the appeals on day-to-day basis and pass orders before10.05.2008. During the pendency of the appeals before the firstrespondent, the fourth respondent filed an application for gettinghimself impleaded, which was also allowed on 30.04.2008 and theappeals were taken up for hearing on the same date. https://hcservices.ecourts.gov.in/hcservices/

6. Before the first respondent, the main grievance of thepetitioner was that pursuant to the show cause notice dated06.12.2007, issued by the Pollution Control Board, a reply wassubmitted on 26.12.2007, which was also received by the thirdrespondent on 07.01.2008 long before the order dated 22.01.2008 andthat none of the explanation offered by the petitioner wereconsidered and were not even referred to in the order dated22.01.2008. The further grievance of the petitioner was that whensuch a serious adverse order is passed against the petitioner, anopportunity of personal hearing should have been extended to thepetitioner. The petitioner therefore insisted for the setting asideof the order dated 22.01.2008 and for remittal before the PollutionControl Board in order to enable the petitioner to put forth itsstand for maintaining the consent granted earlier on 05.05.2006. Thefirst respondent having dismissed both the appeals, the petitionerhas come forward with these writ petitions.7. When these writ petitions were initially entertained on21.05.2008, by way of an interim order, the petitioner was permittedto proceed with the constructions subject to the condition that suchconstruction would be at the risk of the petitioner and that noequity can be claimed later. However, subsequently by an order dated02.07.2008, the petitioner was directed not to proceed with theconstructions till the writ petitions are finally disposed of.8. We heard Mr.Habibullah Basha, learned senior counsel for thepetitioner in W.P.No.12663 of 2008, Mr.Vijay Narayan, learned seniorcounsel for the petitioner in W.P.No.12664 of 2008, Mr.Ramanlal,learned counsel for the respondents 1 to 3 and Mr.T.Mohan andMs.D.Nagasaila, learned counsel for the fourth respondent.9. At the foremost, Mr.Habibullah Basha, learned senior counselfor the petitioner in his submissions drew our attention to the orderof the first respondent dated 07.05.2008, wherein the firstrespondent has found that there was violation of principles ofnatural justice in passing the order dated 22.01.2008 and contendedthat after having held so, it ought not to have proceeded with themerits of the case in order to find out whether the order dated22.01.2008, can be sustained. According to the learned seniorcounsel, after the issuance of the show cause notice dated06.12.2007, which only referred to the inspection held on 04.12.2007,simply because the reply submitted by the petitioner dated 26.12.2007was not within the time granted in the show cause notice, thePollution Control Board was not justified in ignoring the stand ofthe petitioner raised in its reply when the order itself came to bepassed much later on 22.01.2008, i.e. long after the receipt of thepetitioner's reply on 07.01.2008. The learned senior counsel alsocontended that in the impugned order dated 22.01.2008, when the https://hcservices.ecourts.gov.in/hcservices/ Pollution Control Board referred to the subsequent inspection dated18.12.2007, the report copy of which was not furnished to thepetitioner, there was gross violation of principles of naturaljustice in the passing of the order dated 22.01.2008. The learnedsenior counsel therefore contended that when such glaring violationswere brought to the notice of the first respondent, which were alsoaccepted by the first respondent, it ought not to have proceeded todecide the case on merits and should have remitted the matter back tothe Pollution Control Board as very many factual factors wererequired to be placed before the Pollution Control Board to supportthe stand of the petitioner that it was not required to comply withG.O.Ms.No.213, dated 30.03.1989, G.O.Ms.No.127, dated 08.05.1998 aswell as the prescription contained in the Environmental ImpactAssessment Notification (EIA) dated 14.09.2006. The learned seniorcounsel relied upon the decisions reported in 1989 (2) SCC 505, 2005(1) MLJ 441, 2006 (4) SC 153, 2007 (8) RC 205, 2005 (7) SCC 159 and1972 (4) SCC 683 and 2004 (2) SCC 392 in support of his submissions.10. Mr.Vijay Narayan, learned senior counsel appearing for thevery same petitioner in W.P.No.12664 of 2008 in his submissionspointed out that this Court in the order dated 15.04.2008, directedthe first respondent to dispose of the appeal on day-to-day basis andfixed a time limit of 10.05.2008. The learned senior counsel thenpointed out that the contesting fourth respondent herein got himselfimpleaded on 30.04.2008, filed several documents and that the hearingbefore the first respondent commenced on the very same day.According to the learned senior counsel, even before the firstrespondent it was pointed out that the petitioner only wanted toconvert its existing power plant from diesel operation to coaloperation and that all the particulars relating to such conversionwere placed before the Pollution Control Board, which persuaded it topass the consent order dated 05.05.2006, that even after conversion,the power generation would not exceed 48.5 MW and that the statement“new power plant” found in the petitioner's reply dated 26.12.2007,cannot be torn out of the context. According to the learned seniorcounsel, it was a mere conversion and that the points raised by thecontesting private respondent about the new survey numbers, estimatedcost of the plant were all particulars which were placed for thefirst time before the first respondent and such disputed facts couldhave been satisfactorily explained by the petitioner only before thePollution Control Board. The learned senior counsel also pointed outthat the contesting private respondent produced a copy of the lettersaid to have emanated from the office of third respondent to statethat the cost of the power generation project could be around Rs.260crores, while according to the petitioner, the cost would be aroundRs.40 crores and when such documents were produced for the first timeby the contesting private respondent in the course of the hearingbefore the first respondent, in all fairness, the first respondent https://hcservices.ecourts.gov.in/hcservices/ ought to have set aside the impugned order dated 22.01.2008 anddirected the parties to go before the Pollution Control Board for adetailed hearing. The learned senior counsel by referring to Section21(4) of the Air Act and a similar provision in the Water Actcontended that those provisions specifically mandate a reasonableopportunity to be extended which would include a personal hearing atthe hands of the Pollution Control Board before cancelling its orderdated 05.05.2006. The learned senior counsel relied upon thedecision reported in 1979 (2) MLJ 466 in support of his submission.11. As against the above submissions, Mr.T.Mohan andMs.D.Nagasaila, learned counsel appearing for the contesting privaterespondent viz. the fourth respondent herein contended that thepetitioner neither had a fundamental right nor was there anyviolation of fundamental right to be traced in the facts of thiscase. According to the learned counsel, non-furnishing of theinspection report dated 18.12.2007, by itself, cannot be stated tohave caused any violation of principles of natural justice. It wasfurther contended that in any event when the petitioner had a fullfledged hearing before the first respondent, that would fall withinthe well known maxim “unfair trial followed by fair appeal” andtherefore no further opportunity need be given. The learned counselalso contended that if the ultimate conclusion of the firstrespondent cannot be changed, any order of remand would have been afutile exercise and therefore the order of the first respondent doesnot call for any interference. The learned counsel by making areference to G.O.Ms.No.213, dated 30.03.1989 and G.O.Ms.No.127, dated08.05.1998, drew the attention of this Court to various documentsstarting from the consent letter dated 05.05.2006, to the revocationorder dated 22.01.2008 and contended that having regard to theprescription contained in G.O.Ms.No.213, dated 30.03.1989 andG.O.Ms.No.127, dated 08.05.1998 and the further fact that the presentattempt of the petitioner in resorting to the conversion of the powerplant from diesel based to coal based involves construction of aplant by itself in a different location, it can only be construed assetting up of a new plant and therefore the conclusion of the firstrespondent in having directed the petitioner to apply for freshconsent in the order impugned dated 07.05.2008 was well justified.The learned counsel relied upon the decisions reported in 1967 (2)LLJ 46, 1984 (1) LLJ 248, 2001 (2) CTC 103, AIR 1985 SC 1416, 1997(4) SCC 741, 1986 (4) SCC 537, 1999 (6) SCC 237, 2000 (7) SCC 529,2001 (3) CTC 193, 2005 (6) SCC 321, 1970 (2) SCC 301, 2003 (4) CTC715, 1973 (1) SCC 380, 1988 (3) SCC 579, 1999 (8) SCC 16 and AIR 1991SC 2141 in support of their submission.12. Having heard the learned counsel for the respective parties,the short question that arises for consideration in these writpetitions is whether the claim of the petitioner for a fresh hearing https://hcservices.ecourts.gov.in/hcservices/ by the Pollution Control Board as regards the cancellation of itsearlier consent letter dated 05.05.2006 should be granted or not.13. As we have set out the facts in detail in the aboveparagraphs, we only refer to some of those facts which need to berestated for taking a decision on this question. The petitioner hasgot an existing captive power generation plant which is operated bydiesel called LSHS and the maximum generating capacity is stated tobe 48.5 MW. When the petitioner applied for conversion viz., fromdiesel operation to coal operation, the Pollution Control Boardconsidered the petitioner's application dated 23.02.2006 and passedorders on 05.05.2006 granting its consent. Subsequently in the year2007, a show cause notice came to be issued on 06.12.2007 forrecalling its order dated 05.05.2006. In the said notice, thepetitioner was called upon to submit its reply within 15 days fromthe date of its receipt. Such notices were issued under both theActs. The petitioner submitted its reply on 26.12.2007, which wasadmittedly beyond 15 days time granted by the third respondent in itsnotice dated 06.12.2007. The fact remains that the petitioner'sreply dated 26.12.2007 was received by the Pollution Control Board on07.01.2008. The Pollution Control Board passed its order on22.01.2008, revoking its consent order dated 05.05.2006, in whichadmittedly none of the explanation offered by the petitioner in itsreply dated 26.12.2007 was considered. When the petitioner sent afurther letter dated 29.01.2008 to the Pollution Control Boardseeking for an opportunity of personal hearing, there was no responsefrom the Board. In the appeals preferred by the petitioner, thefirst respondent viz., the Appellate Authority has made a categoricfinding to the effect that there was violation of principles ofnatural justice in passing the order dated 22.01.2008 by thePollution Control Board. 14. When we dilate further on this factual issue, we feel itnecessary to refer to the petitioner's application dated 20.03.2006 /26.04.2006, seeking for an amendment to the consent order forconverting its power plant from diesel operation to coal operation.Along with its application, a detailed project objective and summarywas also submitted setting forth all the features of the proposedcoal operated power plant including the various pollution controlmeasures envisaged. The said report also consisted of a topo-sketchindicating the location of the power plant etc. Based on thepetitioner's application, the third respondent submitted its reportdated 28.04.2006 to the Pollution Control Board and in that reportthe salient features of the petitioner's project have been set outviz., that the power generation will remain at 48.5 MW even after theconversion, that the contemplated use of imported coal will be withno ash content and that there would be no discharge of effluent fromthe plant. Thereafter, the amendment order dated 05.05.2006, to theconsent letter dated 16.11.1998, came to be issued. https://hcservices.ecourts.gov.in/hcservices/

15. Be that as it may, when we refer to G.O.Ms.No.213, dated30.03.1989 of Environment & Forest Department of the Government ofTamil Nadu and G.O.Ms.No.127 of the same department dated 08.05.1998,we find that there is a total ban on the setting up of any pollutingindustry mentioned in Annexure – I to G.O.Ms.No.213, dated30.03.1989, within one kilometer of an embankment of a water sourcementioned in Annexure-II of the said G.O. Thermal Power Station isone of the industries mentioned in Annexure-I and Mettur Reservoir isone of the water source mentioned in Annexure-II. In G.O.Ms.No.127,dated 08.05.1998, there is a prohibition from granting permission toestablish factories that are highly water polluting industry within 5km of Tamil Nadu's important water sources like Cauvery and itstributaries, Pennaiyaru, Pallaar, Vaigai and Thamirabarani.Similarly, when we refer to the Environment Impact AssessmentNotification of 1994, we find that Thermal Power Project is one ofthe items mentioned in Schedule-I of the said Notification. As perthe said notification, the stipulations and restrictions containedtherein will not apply if the investment in any plant is less thanRs.50 crores. 16. Keeping in mind the above referred to notifications and theprescriptions contained therein, it will have to be examined whetherthe petitioner's claim for conversion of its power generating plantfrom diesel operation to coal operation was properly considered bythe Pollution Control Board. If the petitioner's project ofconversion exceeds an investment of Rs.50 crores or if it were to beheld that it would be setting up a new power plant, then in eithercase it would attract the above referred to notifications. If theapplication of the notifications comes into play, then differentprocedure is prescribed under the Environment Impact AssessmentNotification, 1994 dated 27.01.1994, which would require a detailedexercise of a public hearing and clearance from other departments ofMinistry of Environment and Forest etc. In the abovesaidbackground, the point for consideration is whether the petitioner'sclaim for fresh hearing by the Pollution Control Board meritsacceptance. When we considered the said claim, some of the relevantfactors to be noted are that when the Pollution Control Board passedits order on 05.05.2006, amending the consent order dated 16.11.1998,substantial particulars about the project of conversion were placedbefore the third respondent who in turn submitted its report dated28.04.2006 before the Pollution Control Board. After the issuance ofthe amendment order dated 05.05.2006, nearly after 18 months, theshow cause notice for recalling that order was issued on 06.12.2007.In the said show cause notice, there was a reference to theinspection of the petitioner's plant made on 04.12.2007. The sumand substance of the said notice is that the inspection of the unitrevealed that there is a construction of a new thermal power plantinside Plant-III, which is in violation of G.O.Ms.213, dated https://hcservices.ecourts.gov.in/hcservices/

30.03.1989, G.O.Ms.No.127, dated 08.05.1998 and E.I.A. Notificationdated 14.09.2006. 17. In the petitioner's reply dated 26.12.2007, the petitionertook the stand that what was being carried on was only a conversionof its existing plant with 48.5 MW capacity from diesel operation tocoal operation and therefore the same does not attract any of thenotifications referred to in the show cause notice. Unfortunately,though the said reply was received by the Pollution Control Board on07.01.2008, it completely omitted to consider any of the pointsraised by the petitioner. The Pollution Control Board in its orderdated 22.01.2008 makes a specific reference to the further inspectionheld on 18.12.2007 by its officials and reiterated that suchinspection revealed a construction of 50 MW plant without environmentclearance. On the other hand, the categoric stand of the petitioneris that its power plant will continue to maintain the originalpermitted capacity of 48.5 MW. Admittedly, no report based on theinspection dated 18.12.2007 was ever furnished to the petitioner.The stand of the Pollution Control Board that the petitioner failedto submit its reply within two weeks from the date of receipt of itsshow cause notice and therefore, there was no obligation to considerthe contents of the reply, was rightly rejected by the firstrespondent. In effect, as rightly held by the first respondent,there was a serious violation of principles of natural justice in thematter of revocation of the amendment order dated 05.05.2006, to theconsent order dated 16.11.1998.18. The contention of the contesting private respondent thatsuch serious violation got cured in the proceedings held by theAppellate Authority viz., the first respondent, in our consideredopinion, cannot be accepted for more than one reason. As pointed outby Mr.Vijay Narayan, learned senior counsel for the petitioner inW.P.No.12664 of 2008, the ground which weighed with the firstrespondent in rejecting the appeals were :(a) the new power plant was being set up in a different SurveyNumber;(b) the private contesting respondent produced a copy of aletter from the District Environmental Engineer stating that the costof the project would be around 260 crores, while the conversion costas claimed by the petitioner was only Rs.40 crores;(c) the petitioner itself in its reply dated 26.12.2007 statedthat it is putting up a "new power plant", and that(d) the petitioner's plant will be covered by the notificationdated 27.01.1994. https://hcservices.ecourts.gov.in/hcservices/ The first respondent therefore concluded that even if the matter isremitted back to the Pollution Control Board, the petitioner will notbe able to convince the Pollution Control Board to take a differentview and therefore no useful purpose will be served by remitting thematter back for fresh disposal.19. When we heard the learned senior counsel for the petitionerin both the writ petitions and when we perused the various materialsplaced before us and considered the same in the light of theprovisions contained in the Air Act and in particular to the secondproviso to Section 21(4), we feel that when once a valid consentorder is granted and when the Pollution Control Board intends torevoke the same, proper opportunity should have been extended to theparty concerned. When we perused the order dated 22.01.2008, we findthat there is a reference to the inspection dated 18.12.2007 of thepetitioner's unit based on which the Pollution Control Board reachedthe conclusion that the compliance of G.O.Ms.No.213, dated30.03.1989, G.O.Ms.No.127, dated 08.05.1989, as well as EnvironmentalImpact Assessment Notification dated 27.01.1994, were attracted andtherefore the order dated 05.05.2006 is revoked. The questionwhether the petitioner's unit falls within the prohibitiverestriction viz. Establishment of a new plant, investment wouldexceed Rs.50 crores are all matters which the petitioner is bound toexplain to the Pollution Control Board. Further, when the privatecontesting respondent placed certain documents for the first timebefore the first respondent said to have been issued by the DistrictEnvironment Engineer stating that the investment of the petitioner insetting up the plant would be more than Rs.260 crores, certainly,such a document produced before the first respondent for the firsttime cannot be straight-away relied upon in order to non-suit thepetitioner. When the petitioner has taken a specific stand rightfrom the beginning that its investment is going to be less than Rs.50crores as against the so called document issued by the thirdrespondent herein mentioning more than Rs.260 crores, the firstrespondent ought not to have proceeded to make a decision on suchdisputed questions of facts without providing proper opportunity tothe petitioner. Similarly the issue relating to different surveynumbers in the location of the plant and the expression used in thereport dated 26.12.2007, viz. "New Power Plant" are all matters whichthe petitioner might have been in a position to convincingly explainbefore the Pollution Control Board in order to sustain the amendmentto the consent order dated 05.05.2006.20. In support of their respective contentions several decisionswere relied upon by both sides, we only refer to such of thosedecisions which are closely relevant to the case on hand. In thedecision reported in 1989 (2) SCC 505 (State of U.P. and others Vs.Maharaja Dharmander Prasad Singh and others), the Hon'ble SupremeCourt has stated as under in paragraph 64: https://hcservices.ecourts.gov.in/hcservices/ "64. On the point of denial of natural justice, weagree with conclusion of the High Court, though not forthe same reasons, that there has been such a denial inthe proceedings culminating in the order ofcancellation. The show-cause notice itself is animpalpable congeries of suspicions and fears, ofrelevant or irrelevant matter and has included sometrivia. On a matter of such importance where the stakesare heavy for the lessees who claim to have made largeinvestments on the project and where a number of groundsrequire the determination of factual matters of somecomplexity, the statutory authority should, in the factsof this case, have afforded a personal hearing to thelessees. We, therefore, agree with the conclusion of theHigh Court that both the show-cause notice dated 9-1-1986 and the subsequent order dated 19-4-1986 wouldrequire to be quashed, however, leaving it open to thestatutory authority, should it consider it necessary, toissue a fresh show-cause notice setting out the precisegrounds, and afford a reasonable opportunity includingan opportunity of personal hearing and of adducingevidence wherever necessary to the respondentlessees......" (Emphasis added)21. In the decision reported in 2007 (8) RC 205 (Baraka OverseasTraders Vs. Director-General of Foreign Trade and another) theHon'ble Supreme Court has held as under in paragraph 18:"18. If a licence is granted to someone, certainrights accrue to the licence-holder, and deprivation ofsuch right without a hearing is violation of naturaljustice. Before withdrawal of such right opportunity ofhearing has to be given. In the present case, no suchopportunity was given at all. The stand of the respondentsis that grant of a licence does not confer any vestedright in favour of the licensee if the licence has beenobtained by misrepresentation. We do not agree. The grantof a licence certainly creates certain rights in favour ofthe licensee, and if the licensing authority was of theopinion that the licence was obtained bymisrepresentation, then a show-cause notice should havebeen given to the appellant, as well as an opportunity ofhearing. In the present case neither an opportunity ofhearing was given to the appellant nor was the licencecancelled." (Emphasis added)22. In the decision reported in 2005 (7) SCC 159 (SACI AlliedProducts Ltd., Vs. Commissioner of Central Excise, Meerut), the https://hcservices.ecourts.gov.in/hcservices/ Hon'ble Supreme Court has held as under in paragraphs 17 and 18:"17. In this context, we may usefully refer to thejudgment of this Court in the case of Reckitt & Colman ofIndia Ltd. v. CCE3. This Court held that it is beyond thecompetence of the Tribunal to make out in favour of theRevenue a case which the Revenue had never canvassed andwhich the appellants had never been required to meet.18. The impugned order of the Tribunal which had gonebeyond the show-cause notice and the order of therespondent Collector is, therefore, liable to be setaside." (Emphasis added)23. In the decision reported in 1972 (4) SCC 683 (The PullangodaRubber Produce Co. Vs. State of Kerala) the Hon'ble Supreme Courtdealt with a rebuttable presumption of admission. The Hon'ble SupremeCourt has held in paragraph-5 as follows:"5.... An admission is an extremely important pieceof evidence but it cannot be said that it is conclusive.It is open to the person who made the admission to showthat it is incorrect." (Emphasis added)24. In the decision reported in 2006 (4) SCC 153 (Ranjit SinghVs. Union of India and others), the Hon'ble Supreme Court has held asunder in paragraphs 22 and 23:"22......He filed a show-cause but, albeit after sometime the said cause was available with the disciplinaryauthority before he issued the order of dismissal. Even ifhe had prepared the order of dismissal, he could haveconsidered the show-cause as he did not leave his officeby then. The expression “communication” in respect of anorder of dismissal or removal from service would mean thatthe same is served upon the delinquent officer. (See Stateof Punjab v. Amar Singh Harika.)23. Even otherwise also the jurisdiction of adisciplinary authority to consider the matter would remainwith it till it goes out of its hands which would meanthat the order is dispatched, as in the case of the orderof suspension. (See Sultan Sadik v. Sanjay Raj Subba.)"25. A learned single Judge of this Court (JusticeV.Balasubramanian) in the decision reported in 1979 (II) MLJ 466(Manohara Chetty and others Vs. Coomaraswamy Naidu and Sons) has heldas under in paragraph 10: https://hcservices.ecourts.gov.in/hcservices/ "10.The law by no means regards admission asconclusive proof of the matters admitted. This is becauseto a Court of law admissions are but statements which dono more then suggest an inference as to some facts orfacts in issue. (See Sections 31 and 17 of the IndianEvidence Act, 1872). It is, therefore, important that theCourt should examine any given admission inside out to seeif it suggests any clear inference on the fact in issueagainst the party making it. For a Court to draw anadverse inference against a party on the basis of what heis stated to have admitted, the admission must beunequivocal. It must also be comprehensive. It must gothe whole-hog, as it were, on the point at issue. If aparty's admission falls short of the totality of therequisite evidence needed for legal proof of a fact inissue, such an admission would be only a truncatedadmission. It follows that in such a case it cannotsupport a valid judicial determination, unless it be thatthe Court is in a position to find other evidence beforeit to make up for the deficiencies in the admission."(Emphasis added)26. In the decision reported in AIR 1987 SC 71 (Institute ofChartered Accountants of India Vs. L.K.Ratna), the Hon'ble SupremeCourt, after referring to Sir William Wades erudite and classic workon "Administrative Law" in the passage mentioned therein has held asunder in paragraph 18:"18. But perhaps another way of looking at the matterlies in examining the consequences of the initial order assoon as it is passed. There are cases where an order maycause serious injury as soon as it is made, an injury notcapable of being entirely erased when the error iscorrected on subsequent appeal. For instance, as in thepresent case, where a member of a highly respected anpublicly trusted profession is found guilty of misconductand suffers penalty, the damage to his professionalreputation can be immediate and far-reaching. “Not all theKing’s horses and all the King’s men” can ever salvage thesituation completely, notwithstanding the widest scopeprovided to an appeal. To many a man, his professionalreputation is his most valuable possession. It affects hisstanding and dignity among his fellow members in theprofession, and guarantees the esteem of his clientele. Itis often the carefully garnered fruit of a long period ofscrupulous, conscientious and diligent industry. It is theportrait of his professional honour. In a world said to benotorious for its blase attitude towards the noble values https://hcservices.ecourts.gov.in/hcservices/ of an earlier generation, a man’s professional reputationis still his most sensitive pride. In such a case, afterthe blow suffered by the initial decision, it is difficultto contemplate complete restitution through an appellatedecision. Such a case is unlike an action for money orrecovery of property, where the execution of the trialdecree may be stayed pending appeal, or a successfulappeal may result in refund of the money or restitution ofthe property, with appropriate compensation by way ofinterest or mesne profits for the period of deprivation.And, therefore, it seems to us, there is manifest need toensure that there is no breach of fundamental procedure inthe original proceeding, and to avoid treating an appealas an overall substitute for the original proceeding."In paragraph 17 of the above decision, the Hon'ble Supreme Court hasextracted what Sir William Wade said in his book 'Administrative Law'and it can be aptly quoted, which reads as under:"17....If natural justice is violated at the firststage, the right of appeal is not so much a true right ofappeal as a corrected initial hearing: instead of fairtrial followed by appeal, the procedure is reduced tounfair trial followed by fair trial......” 27. The burden of song of the learned counsel for the contestingfourth respondent was that the appellate authority, namely, the firstrespondent, having given the necessary opportunity to the petitioner,having examined the various materials and based on such examinationhad reached a conclusion which cannot be disputed on facts, thequestion of giving any more opportunity to the petitioner before thePollution Control Board does not arise. In other words, the firstrespondent having examined the crux of the issue, namely, the socalled mere conversion of the fuel alone for operating the powerplant as claimed by the petitioner was not true in the facts andmaterials placed before it, it will be an empty formality if the saidorder is to be set aside and the matter is remitted back to thePollution Control Board. To support the said contention, the learnedcounsel for the fourth respondent took pains to refer to the sketchfiled along with the application for conversion, wherein the locationof the plant to be operated by coal is shown and the various otherdetails furnished, and contend that those facts pleaded by thepetitioner themselves would show that the power plant, which theyhave now erected, is a new plant and by no stretch of imagination itcan be called as an existing plant with mere conversion of itsoperation by coal instead of diesel. https://hcservices.ecourts.gov.in/hcservices/

28. In the first blush, the submission of the learned counsel mayappear to be sound. On a detailed examination of the rivalcontentions, which we have set out in detail in paragraphs 13 to 19,we are of the considered opinion that it really required a detailedconsideration at the level of the Pollution Control Board, namely,the original authority who initially granted the consent by passingan order of amendment dated 5.5.2006 to the consent letter dated16.11.98. At the risk of repetition, it will have to be stated thatthe appellate authority, having ventured to examine the main issue asto whether the petitioner was erecting a new power plant or it wasonly a conversion of the fuel from diesel to coal, in our consideredopinion, has exceeded its jurisdiction vested with it. When once thefirst respondent reached a conclusion that there was violation ofprinciples of natural justice in revoking the order of consent dated5.5.2006 at the instance of the Pollution Control Board, it shouldhave remitted the matter back to the Pollution Control Board forfresh hearing.29. The first respondent should have also noted that beforegranting the order dated 5.5.2006 amending the consent order dated16.11.98, the Pollution Control Board had all the materials relatingto the conversion applied for by the petitioner, as could be seenfrom the report of the third respondent dated 28.4.2006. However,when it came to the question of revoking the order of consent dated5.5.2006, what all the Pollution Control Board did was, issue anotice dated 6.12.2007 as well as an inspection said to have beenmade on 4.12.2007 and 18.12.2007 and nothing more.30. The Pollution Control Board chose to pass the order ofrevocation on 22.1.2008 on a hyper-technical ground that thepetitioner's reply dated 26.12.2007 was submitted after theprescribed period of two weeks. Such an approach of the PollutionControl Board in respect of a proceeding, the consequences of whichwere of greater dimension, cannot be accepted. In this context, thecontention of the petitioner that it did not even know as to what wasthe outcome of the inspection held on 18.12.2007, which was one ofthe reasons mentioned in the order of revocation dated 22.1.2008,really merits consideration. That apart, when the fourth respondentplaced a document before the first respondent said to have beenissued by the third respondent to the effect that the investment ofthe petitioner in putting up the plant is worth more than Rs.260crores and when such a stand was never taken by the Pollution ControlBoard prior to the revocation order dated 22.1.2008, there is everyjustification in the stand of the petitioner in claiming that thePollution Control Board itself should extend an opportunity to thepetitioner before-ever the consent order dated 5.5.2006/16.11.98 issought to be revoked. https://hcservices.ecourts.gov.in/hcservices/

31. Similarly, the other reason which was also relied upon forrevocation of the consent order, namely, that the petitioner itselfin its reply dated 26.12.2007 claimed to set up a new power plant, itwill have to be stated that as held by the Hon'ble Supreme Court inthe decision reported in 1972 (4) SCC 683, the statement contained ina document cannot be straight-away taken as an admission and anadverse order passed against the concerned person. When thatspecific statement, namely, "new power plant" is to be put againstthe petitioner, the petitioner ought to have been given anopportunity to explain the said statement and in the absence of suchopportunity, it would be a travesty of justice if the petitioner wereto be deprived of the valuable right of a consent order beingrecalled.32. In this context, the statement of law as propounded by HisLordship Mr.Justice V.Balasubramanian in the decision reported in1979 (II) MLJ 466 are apposite. His Lordship in his own inimitablestyle has stated that any such admission if were to be put against aparty must be examined inside out to see if it suggests any clearinference on the facts in issue, that such admission must beunequivocal, that it must be comprehensive and it must go the whole-hog as it were on the point at issue. When such principles areapplied to the so called admission of the petitioner, it will have tobe held that the conclusion reached by the first respondent cannot beheld to be a fair conclusion based on consideration of all therelevant factors. In any event, as stated by Sir William Wade, whennatural justice was violated at the first stage, it cannot be heldthat a fair appeal can cure such an unfair trial. In this context,the decision of the Hon'ble Supreme Court reported in AIR 1987 SC 71assumes greater significance inasmuch as an appeal cannot be anoverall substitute in respect of the breach of fundamental procedurecommitted in the original proceedings. To strengthen the aboveprinciple, an English decision reported in 1971 Chancellory 34 (Learyv. National Union of Vehicle Builders can be aptly quoted, whereinMegarry, J. has held that, as a general rule, a failure of naturaljustice in the trial body cannot be cured by a sufficiency of naturaljustice in the appellate body." 33. Applying the above well established principles to the case onhand, the violation of principles of natural justice which hadoccurred at the level of the original authority cannot be said tohave been cured at the level of the appellate authority. We have,therefore, no hesitation to hold that the order of the firstrespondent cannot be said to have set right the violation committedat the level of the original authority. Since the petitioner isentitled to substantiate its stand that the consent obtained by it inthe order dated 5.5.2006/16.11.98 was passed on the real claim thatthe existing power plant operated by diesel is going to be operated https://hcservices.ecourts.gov.in/hcservices/ in future by the usage of coal and that the same cannot be construedas a new power plant, in all fairness, the first respondent afterreaching the conclusion that the Pollution Control Board breached theprinciples of natural justice ought to have set aside the order dated22.1.2008 and remitted the matter back to the Pollution Control Boardfor fresh hearing. Moreover, as referred to by us in the earlierparagraphs, when under the Air Act the proviso to Section 21(4)specifically provides for an opportunity of being heard, the passingof the impugned order dated 22.1.2008 by the Pollution Control Boardin revoking the order of consent dated 5.5.2006/16.11.98 will have tobe held to be per se illegal and consequently liable to be set aside.Even though such a provision may not be available under theprovisions of the Water Act, if for the purpose of considering thepetitioner's claim under the Air Act, such an opportunity of personalhearing has to be necessarily extended to the petitioner and when thepetitioner has specifically asked for such a hearing in itsexplanation dated 26.12.2007, in all fairness, the Pollution ControlBoard ought not to have ventured to pass the order dated 22.1.2008 insuch a hurried manner. Instead the Pollution Control Board could havevery well extended the opportunity of personal hearing to thepetitioner considering the various stand of the petitioner in itsexplanation before taking any decision as to whether or not itsearlier order dated 5.5.2006 should be revoked. Above all, thefailure of the Pollution Control Board in completely omitting torefer to the various explanation offered by the petitioner in itsexplanation dated 26.12.2007 only demonstrates that the PollutionControl Board wanted to pass the said order in a surreptitious mannerto the detriment of the interest of the petitioner. The PollutionControl Board should have realised that having passed the order ofconsent on 5.5.2006 and when it was sought to be revoked after morethan a year, namely, in December, 2007, nothing would have been lostby affording an opportunity to the petitioner and pass any ordersafter hearing the petitioner in detail.34. For all the above stated reasons, we are not inclined toaccede to the submission of the learned counsel for the contestingfourth respondent to hold that the first respondent's order has curedwhatever defect committed by the Pollution Control Board in passingthe impugned order dated 22.1.2008. That apart, by affording such anopportunity to the petitioner, no prejudice is going to be caused toanyone nor is it going to cause any advantage to the petitioner. Whenthis writ petition was entertained, though initially by an orderdated 21.5.2008, the petitioner was permitted to proceed with theconstruction, by our order dated 2.7.2008, after hearing both partiesat length, we directed the petitioner to stop the constructions tillthe writ petitions are finally heard and disposed of. Therefore, ason date, the petitioner has been directed not to proceed with theconstructions. In such circumstances, we are of the view that the https://hcservices.ecourts.gov.in/hcservices/ Pollution Control Board can be directed to give an opportunity ofhearing to the petitioner before passing final orders. Moreover,while extending such an opportunity of hearing to the petitioner, thePollution Control Board can also be directed to hear the fourthrespondent also. 35. In view of our above conclusions, we set aside the impugnedorder of the first respondent dated 7.5.2008 as well as the order ofthe Pollution Control Board dated 22.1.2008 and remit the matter backto the Pollution Control Board at the stage where the petitionersubmitted its explanation dated 26.12.2007. We direct the PollutionControl Board to furnish the copy of report, if any, based on itssubsequent inspection dated 18.12.2007 to the petitioner. It is alsoopen to the petitioner to submit any further representation beforethe Pollution Control Board within two weeks from the date of receiptof copy of this order. The Pollution Control Board shall thereafterfix the date of hearing at least by giving ten days notice to thepetitioner as well as the fourth respondent and after giving anopportunity of personal hearing, pass appropriate orders on meritsand in accordance with law expeditiously, preferably within a periodof four weeks from the date of hearing of the petitioner and thefourth respondent. Since we directed the petitioner not to proceedwith the construction in our order dated 2.7.2008, we direct that thepetitioner shall not proceed with the construction and any furtherconstruction shall depend upon the outcome of the orders to be passedby the Pollution Control Board.36. The writ petitions stand allowed with the above directions.No costs. Consequently, M.P.Nos.1,1,2,2 & 3,3 of 2008 are closed.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.kk/ssTo1. The Appellate Authority Tamil Nadu Pollution Control Board NCB-1, Greenways Road Chennai 600 028 https://hcservices.ecourts.gov.in/hcservices/

2. The Member Secretary Tamil Nadu Pollution Control Board No.100, Anna Salai Guindy Chennai 600 0323. The District Environment Engineer Tamil Nadu Pollution Control Board 1/276, Meyyanoor Main Road Salem 636 004+ 2 CC To Dr.P.Vasudevan, Advocate SR NO.53085, 53086 ORDER in W.P.Nos.12663 & 12664 of 2008RSM {CO}TP/22.9.08.