Holding

The Supreme Court permitted the continuation of the power plant subject to compliance with the EC and the additional conditions of the corrigendum, kept the question of the necessity of a cumulative impact assessment open, and held that an appeal against a corrigendum is maintainable only on the additional conditions if the original EC is not under challenge.

Summary

The appellant, IL&FS Tamil Nadu Power Company Ltd, obtained environmental clearance (EC) for a 2x600 MW coal‑based thermal power plant under the EIA Notification, 2006. The National Green Tribunal (NGT) upheld the EC but directed the Ministry of Environment, Forest and Climate Change (MoEF) to review it based on a cumulative impact assessment and to impose additional conditions, which led the MoEF to issue a corrigendum adding such conditions, including a flue‑gas desulphurisation (FGD) system. The NGT later quashed the corrigendum, prompting the appellant to appeal to the Supreme Court. The Court, noting that the plant has been operating since 2015 and supplies power to about 40 lakh households in the energy‑deficit state of Tamil Nadu, allowed the plant to continue subject to full compliance with the original EC and the additional conditions of the corrigendum, while keeping the larger question of whether a cumulative impact assessment is mandatory open. It also clarified that an appeal against a corrigendum is maintainable only on the additional conditions if the original EC is not under challenge. The appeals were disposed of, with the order expressly stated not to be cited as precedent.

Issues considered

Whether a cumulative impact assessment study is required for the project.
Whether an appeal before the NGT against the MoEF's corrigendum to the EC and the additional conditions imposed therein is maintainable.
Whether the power plant may continue operating despite the quashing of the corrigendum, considering public interest and compliance with conditions.

Legislation cited

Environment Impact Assessment Notification, 2006

Subjects

environmental clearancecumulative impact assessmentNational Green Tribunalflue‑gas desulphurisationpublic interestcompliance with conditionsthermal power plantenergy deficit

Judgment

194 [2023]
SUPREME COURT 3 S.C.R. 194
REPORTS [2023] 3 S.C.R.

A M/S IL&FS TAMIL NADU POWER COMPANY LIMITED
v.
T. MURUGANANDAM & OTHERS
(Civil Appeal Nos. 1811-1812 of 2015)
B FEBRUARY 17, 2023
[M. R. SHAH AND C. T. RAVIKUMAR, JJ.]
Environmental Law – Appellant was granted the Environment
Clearance (EC) in accordance with the recommendations of the
Expert Appraisal Committee (EAC) under EIA Notification, 2006 –
C
NGT upheld the validity of the EC but directed the MoEF to review
the EC based on the cumulative impact assessment study and stipulate
any additional conditions, if required – MoEF based on the
recommendations of the EAC, issued a corrigendum to the EC
imposing additional conditions to the EC – Corrigendum quashed
D by NGT – On appeal, held: Pursuant to the interim order passed by
Supreme Court, the appellant has commenced two power plants in
Phase-I, which are in operation since 2015 – Appellant is operating
two units of 600MW since September, 2015 and April, 2016, which
presently supply power to approximately 40 lakhs households –
Power plants are situated in an energy deficit State (Tamil Nadu) –
E
Thus, closing the power plants would adversely affect power sector
of the State and which shall not be in the larger public interest –
Appellant permitted to continue with the power plants subject to
compliance of all the conditions mentioned in the EC as well as
additional conditions imposed vide corrigendum to the EC – Also
F to fully comply with the conditions which are partly complied with,
within the stipulated time – Present order not to be cited as a
precedent.
Environmental Law – Corrigendum to the Environment
Clearance (EC) along with additional conditions, appeal
G thereagainst if maintainable before NGT – Held: An aggrieved
person may always challenge the corrigendum to the EC, however,
the appeal will be restricted to the corrigendum to the EC on
additional conditions only, if the original EC is not under challenge
and/or the original EC has been confirmed by the NGT earlier on
certain conditions which have not been challenged.
H
194
M/S IL&FS TAMIL NADU POWER COMPANY LIMITED v. T. 195
MURUGANANDAM & OTHERS

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.1811- A
1812 of 2015.
From the Judgment and Order dated 23.05.2012 of the National
Green Tribunal, (Principal Bench), New Delhi in Appeal No.17 of 2011
(T) and dated 10.11.2014 in Appeal No.50 of 2012.
Dr. Abhishek Manu Singhvi, Prashanto Chandra Sen, Sr. Advs., B
Piyush Joshi, Senthil Jagadeesan, Ms. Sumiti Yadava, Ms. Sonakshi
Malhan, Sajal Jain, Ms. Mrinal Kanwar, Advs. for the Appellant.
Ms. Aishwarya Bhati, A.S.G., Amit Anand Tiwari, A.A.G., Ms.
Srishti Agnihotri, Ms. Sanjana Grace Thomas, Ms. Itisha Awasthi, Ms.
Mantika Vohra, Shiv Mangal Sharma, Ms. Suhashini Sen, Rajat Nair,
S.S. Rebello, Annirudh Sharma, Ms. B.L.N. Shivani, Ms. Shivika Mehra, C
Gurmeet Singh Makker, Dr. Joseph Aristotle S., Shobhit Dwivedi, Ms.
Nupur Sharma, Ms. Devyani Gupta, Ms. Tanvi Anand, Advs. for the
Respondents.
The Judgment of the Court was delivered by
M. R. SHAH, J. D
1. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 23.05.2012 in Appeal No. 17/2011 and judgment and
order dated 10.11.2014 in Appeal No. 50/2012 passed by the National
Green Tribunal (Principal Bench), New Delhi (hereinafter referred to
as the ‘NGT’), M/s IL&FS Tamil Nadu Power Company Limited has
E
preferred the present appeals.
2. The facts leading to the present appeals in nutshell are as under:
The appellant herein has been incorporated in the year 2006 to
implement the Project for establishing a 2x600 MW and 3x800 MW
(aggregating to 3600 MW) imported coal based thermal power plant at
village Kottatai, Ariyagoshti, Villianallur and Silambimangalam in F
Chidambram Taluk, District Cuddalore, Tamil Nadu. Now the appellant
company is under the control of Government of India. The appellant
submitted Form I under EIA Notification, 2006 to obtain Terms of
Reference for the EIA study on 5.2.2008. The Terms of Reference
approval letter was issued by the Ministry of Environment, Forest and G
Climate Change (hereinafter referred to as the ‘MoEF’) on 9.7.2008.
Public hearing was carried out for the project on 5.2.2010. The appellant
completed the EIA study in accordance with EIA Notification, 2006.
That thereafter the Expert Appraisal Committee (for short, ‘EAC’)
considered the EIA study and directed the appellant to undertake certain
additional submissions to address specific points and directed that an H
196 SUPREME COURT REPORTS [2023] 3 S.C.R.

A updated Form I be submitted. That thereafter the appellant submitted
updated Form I reflecting recommendations of EAC meeting dated
19.03.2010 to MoEF. The EAC meeting considered the project and
recommended the project for Environment Clearance (for short, ‘EC’),
subject to stipulation of specific conditions including project to keep space
for providing Flue Gas De-sulfurization (for short, ‘FGD’) system with
B all the five units of the power plant to enable the system to be installed
whenever required. The appellant herein was granted the EC in
accordance with the recommendations of the EAC under EIA
Notification, 2006.
2.1 The original petitioners claiming to be fishermen and persons
C acting for welfare of fishermen filed appeals against the EC before
National Environment Appellate Authority being NEAA Appeal Nos. 19
& 20 of 2010. On the constitution of the NGT, Appeal No. 20/2010 filed
before the National Environment Appellate Authority came to be
transferred to the NGT, which was re-numbered as Appeal Nos. 16/
2011 & 17/2011.
D 2.2 Vide order dated 23.05.2012 in Appeal No. 17/2011, the NGT
upheld the validity of the EC but directed the MoEF to review the EC
based on the cumulative impact assessment study and stipulate any
additional conditions, if required and directed that till then the EC shall
remain suspended. Instead of the cumulative impact assessment study,
E the appellant completed the Rapid Cumulative Impact Assessment (for
short, ‘RCIA’) study and submitted a copy thereof to the MoEF. That
thereafter the EAC, after extensive deliberations on the RCIA and after
hearing the representative of the original petitioners and the appellant/
project proponent, recommended certain additional conditions to be added
to the EC including the requirement of installing a FGD system as part
F of the power plant. At this stage, it is required to be noted that as such
neither the original petitioners nor even the appellant challenged the first
judgment and order dated 23.05.2012 passed in Appeal No. 17/2011 by
which the NGT upheld the validity of the EC but directed MoEF to
review the EC based on the cumulative impact assessment study and
stipulate any additional conditions, if required. That thereafter, on
G 14.08.2012, MoEF based on the recommendations of the EAC, issued a
corrigendum to the EC imposing additional conditions to the EC. That
thereafter the original petitioners who filed the earlier appeal against the
grant of EC, filed Appeal No. 50/2012 against the corrigendum dated
14.08.2012 issued by the MoEF. By the impugned judgment and order
dated 10.11.2014, the NGT has disposed of Appeal No. 50/2012, quashing
H
M/S IL&FS TAMIL NADU POWER COMPANY LIMITED v. T. 197
MURUGANANDAM & OTHERS [M. R. SHAH, J.]

the corrigendum dated 14.08.2012. The judgment and order dated A
23.05.2012 in Appeal No. 17/2011 and subsequent judgment and order
dated 10.11.2014 in Appeal No. 50/2012 passed by the NGT are the
subject matter of present appeals.
3. By an interim order dated 10.02.2015, this Court stayed the
impugned order dated 10.11.2014 passed in Appeal No. 50/2012, which
B
has been continued till date. Pursuant to the interim order passed by this
Court, the appellant-company had commenced two power plants in
Phase-I, which are in operation since 2015.
4. Dr. Abhishek Manu Singhvi, learned Senior Advocate appearing
on behalf of the appellant-company has submitted that to close the power
plant now would not be in public interest. It is submitted that the appellant’s C
power plant is running since September 2015 in power deficit State of
Tamil Nadu. Appellant operates two units of 600MW each since
September, 2015 and April, 2016, which presently supply power to
approximately 40 lakhs households. The power plant is situated in an
energy deficient State (Tamil Nadu) and therefore closing the power
plant would adversely affect power sector of the State. D
4.1 In support of his submission that to close the power plant now
would not be in public interest, it is submitted as under:
(i) That Appellant’s power plant is running since September 2015
in power-deficit state of Tamil Nadu: Appellant operates two unit
of 600MW each since September 2015 and April 2016, which E
presently supply power to approximately 40 lakhs households. The
power plant is situated in an energy deficient State (Tamil Nadu),
and closing the plant would adversely affect power section of the
State;
(ii) Plant running in compliance with EC and Corrigendum: That F
the plant is in compliance with clearance conditions, and six-
monthly reports being submitted to Ministry of Environment, Forest
& Climate Change, latest report of April-September;
(iii) Plant uses imported coal with low sulphur and uses FGD
system: That Appellant uses imported coal from Indonesia for its
thermal power plant, which already has low sulphur content. G
Pursuant to MoEF Corrigendum, has spent Rs. 775 crores to install
Flue Gas De- sulphurisation (FGD) system. Report of Centre for
Science and Environment identifies Appellant’s plant as compliant
with SO2 standards. All over India only 20 power plants have
FDGs, of which two units are the Appellant’s power plant;
H
198 SUPREME COURT REPORTS [2023] 3 S.C.R.

A (iv) Appellant part of IL&FS Group and value to be maximized:
That ITPCL/ Appellant is a group company of IL&FS which is
under control of Govt. of India and is undergoing restructuring.
Larger public interest is to realize value and recover PSU debt.
Appellant’s restructuring plan has been approved by Hon’ble
NCLAT on 01.12.2021. Appellant incurred expense of Rs. 11,000
B crores (approx.) to build 2 x 600 MW units, which are operational
since September 2015 and April 2016. Of this, Rs. 6,080 crore
was through loans from public sector banks (Punjab National Bank,
Bank of Baroda, LIC, SBM Bank, SBI) and Rs. 4,560 crores in
equity by IL&FS Energy Development (another IL&FS group
C entity); and
(v) Appellant’s CSR initiatives: That till date approx. Rs. 30 crores
spent on CSR activities, including adopting several villages in the
surrounding areas. As of February, 2022, the Appellant has 1466
employees of which 87% are from Tamil Nadu. Overall, 69%
(1005 persons) are from Cuddalore District itself.
D 4.2 It is further submitted that instead of cumulative impact
assessment study, the appellant bonafidely and taking into consideration
the order passed by the NGT in Application No. 25/201 conducted/
completed RCIA, a copy of which was submitted to MoEF and after
undertaking extensive deliberations on the RCIA and after hearing the
E representative of the original petitioners and the appellant/project
proponent, the EAC recommended certain additional conditions to be
added to the EC including the requirement of installing FGD system and
pursuant to which and based on the recommendations of the EAC, MoEF
issued a corrigendum to the EC imposing additional conditions to the
EC.
F 4.3 It is further submitted that taking into consideration the
additional conditions imposed vide corrigendum dated 14.08.2012, the
appellant- company had installed FGD system at a cost of Rs. 775 crores,
the only thermal power plant in the country to commence operations
with FGD system.
G 4.4 Dr. Abhishek Manu Singhvi, learned senior counsel appearing
on behalf of the appellant has also made an elaborate submission on the
maintainability of Appeal No. 50/2012 before the NGT, filed by the original
petitioners against the corrigendum dated 14.08.2012 issued by the MoEF.
It is submitted that as such the first judgment dated 23.05.2012 passed in
Appeal No. 17/2011, by which the NGT specifically upheld the validity
H of the EC but directed MoEF to deal with the EC based on cumulative
M/S IL&FS TAMIL NADU POWER COMPANY LIMITED v. T. 199
MURUGANANDAM & OTHERS [M. R. SHAH, J.]

impact assessment study and stipulate any additional conditions, was not A
challenged by the original petitioners. It is submitted that the original
petitioners had no locus and therefore the original petitioners could not
have challenged the subsequent corrigendum dated 14.08.2012 by which
certain additional conditions were imposed to the original EC by the
MoEF.
B
4.5 Dr. Abhishek Manu Singhvi, learned senior counsel has taken
us to the additional affidavits dated 20.09.2022 and 28.11.2022. He has
also taken us to the EC & CRZ Compliance Report dated 12.01.2022 as
well as the subsequent Compliance Report dated 20.09.2022 and the
copy of the response of the project proponent. He has stated at the Bar
that by and large all the conditions of the original EC as well as C
corrigendum to the EC have been complied with by the appellant/project
proponent and few conditions are under continuous compliance. He has
stated that the conditions imposed while issuing the EC and the
corrigendum have been substantially complied with and there are no
fundamental breaches and/or non-compliance. He has stated at the Bar
that whichever conditions are not complied with and not complied with D
fully and/or there are continuous compliance, the same shall be complied
with within the time stipulated in the response of the project proponent.
4.6 Making above submissions and praying for keeping the question
of law , if any, namely, “Whether for the project like this, a cumulative
impact assessment study is required or not” open and also the question, E
“whether an appeal before the NGT against the corrigendum to the EC
and the additional conditions imposed as per the corrigendum to the EC
would be maintainable or not” and keeping the aforesaid questions(s) of
law open, it is prayed to dispose of the present appeals by permitting the
appellant to continue the power plants which are in operation since 2015.
5. Shri Shiv Mangal Sharma, learned counsel appearing on behalf F
of the MoEF has submitted that as such the appellant had never
challenged earlier conditions imposed while issuing the EC and the first
judgment and order passed by the NGT dated 23.05.2012 and even the
corrigendum dated 14.08.2012 issued by the MoEF imposing additional
conditions and therefore the appellant is bound by the conditions imposed
G
while issuing the EC and corrigendum to the EC dated 14.08.2012 and
the appellant has to comply with all the conditions imposed while issuing
EC as well as additional conditions imposed vide corrigendum dated
14.08.2012. He has pointed out certain non- compliances/part compliances
of certain conditions and the response by the appellant. Therefore, he
has submitted that if this Court is inclined to permit the appellant to H
200 SUPREME COURT REPORTS [2023] 3 S.C.R.

A continue with the power plants in the public interest, in that case, the
appellant may be directed to comply with all the conditions imposed
while issuing EC as well as additional conditions imposed while issuing
corrigendum dated 14.08.2012.
6. Ms. Srishti Agnihotri, learned counsel appearing on behalf of
the original petitioners has prayed that in case this Court is inclined to
B
permit the appellant to continue with the power plants as per the EC and
the corrigendum dated 14.08.2012 which are in operation since 2015, in
that case, the question of law, namely, “whether for the project like this
conducting a cumulative environment impact assessment study is must
or not”, may be kept open as so many other such projects may come
C and that on conducting cumulative environment impact assessment study,
the Tribunal may consider the said issue in detail.
6.1 Insofar as maintainability of appeal before the NGT against
the order of corrigendum is concerned, it is submitted that against the
additional conditions imposed vide corrigendum dated 14.08.2012, an
appeal would be maintainable before the NGT against the corrigendum
D to the EC.
7. Having heard Dr. Abhishek Manu Singhvi, learned Senior
Counsel appearing on behalf of the appellant and the learned counsel
appearing on behalf of the MoEF and original petitioners and the facts
narrated hereinabove, it is to be noted that pursuant to the interim order
E passed by this Court, the appellant has commenced two power plants in
Phase- I, which are in operation since September, 2015. The appellant is
operating two units of 600MW since September, 2015 and April, 2016,
which presently supply power to approximately 40 lakhs households.
The power plants are situated in an energy deficit State (Tamil Nadu).
Thus, closing the power plants/units would adversely affect power sector
F of the State and which shall not be in the larger public interest, more
particularly the power deficient State of Tamil Nadu.
7.1 However, at the same time, the appellant has to comply with
all the conditions imposed while issuing EC as well as the additional
conditions imposed vide corrigendum to the EC dated 14.08.2012. From
G the compliance report dated 20.09.2022 (latest compliance report) and
the response of the project proponent, it appears that by and large there
is a substantial compliance of the conditions imposed while issuing EC
as well as the additional conditions imposed vide corrigendum to the EC
dated 14.08.2012. There do not appear to be any fundamental breaches
or non-compliance of the conditions imposed while issuing EC as well as
H additional conditions imposed vide corrigendum to the EC dated
M/S IL&FS TAMIL NADU POWER COMPANY LIMITED v. T. 201
MURUGANANDAM & OTHERS [M. R. SHAH, J.]

14.08.2012. However, some conditions are still partly complied with, A
which have been responded by the appellant and has agreed to comply
with the same. The particulars of the specific conditions, part compliances
and the response to the same are as under:

B

C

D

E

F

G

H
202 SUPREME COURT REPORTS [2023] 3 S.C.R.

A

B

C

D

E

F

G

H
M/S IL&FS TAMIL NADU POWER COMPANY LIMITED v. T. 203
MURUGANANDAM & OTHERS [M. R. SHAH, J.]

A

B

C

D

E

F

G

H
204 SUPREME COURT REPORTS [2023] 3 S.C.R.

A

B

C

D

E

F

G

H
M/S IL&FS TAMIL NADU POWER COMPANY LIMITED v. T. 205
MURUGANANDAM & OTHERS [M. R. SHAH, J.]

A

B

C

D

E

F

G

H
206 SUPREME COURT REPORTS [2023] 3 S.C.R.

A 8. Considering the aforesaid facts and circumstances and subject
to compliance of the conditions imposed while issuing EC and the
additional conditions imposed vide corrigendum to the EC dated
14.08.2012 and subject to the conditions/additional conditions which are
partly complied with, to be complied with within the time suggested in
the response of the appellant/project proponent, reproduced hereinabove
B
and keeping the larger question of law, namely, “whether for the project
like this, a cumulative impact assessment study is required or not”, open
and to be decided in an appropriate case, we dispose of the present
appeals by permitting/allowing the appellant/project proponent to continue
with the power plants which are in operation since September, 2015 and
C April, 2016 on the conditions as above, i.e., subject to compliance of all
the conditions mentioned in the EC as well as additional conditions
imposed vide corrigendum to the EC dated 14.08.2012 and to fully comply
with the conditions which are partly complied with within the stipulated
time as suggested and prayed by the appellant company, prayed in
response to the compliance report dated 20.09.2022, reproduced
D
hereinabove.
9. Now so far as the issue, “whether against the corrigendum to
the EC along with additional conditions, an appeal before the NGT would
be maintainable or not” is concerned, having heard learned counsel
appearing on behalf of the respective parties, we are of the opinion that
E an aggrieved person may always challenge the corrigendum to the EC,
however, the appeal will be restricted to the corrigendum to the EC on
additional conditions only, if the original EC is not under challenge and/or
the original EC has been confirmed by the NGT earlier on certain
conditions which have not been challenged.
F 10. The present appeals stand disposed of in the aforesaid terms.
We make it clear that the present order shall not be cited as a precedent
in any other matter.

Divya Pandey Appeals disposed of.
G (Assisted by : Abhishek Pratap Singh and Roopanshi Virang, LCRAs)

H