ORDER Jagadeesan, J.

1. The petitioner company was incorporated under the Indian Companies Act. The petitioner is engaged in manufacturing rayon yarn, filament yarn. Viscose staple fibre and edible oil. The Petitioner company's manufacturing plant is located at Sirumugai Village, Mettupalayam Taluk. Apart from the share capital, the petitioner company has borrowed loans from financial institutions amounting Rs. 175 crores. The petitioner company is having its industrial activity from 1984 by obtaining consent orders from the respondent. The industry is a continuous process chemical industry. The company has provided a modern effluent treatment plant, in order to satisfy the requirement of Water (Prevention and Control of Pollution) Act, 1974 as amended in 1988 (hereinafter refer to as 'the Act'). The Industry has also got a sulphuric acid plant and carbon-disulphide plant. The source of effluent are the wood washing section, digesters, pulping section viscose staple fibre preparation section and floor washing. The effluent is being properly treated with lime solution and further treated in aerated lagoons provided with conventional and floating type aerators. The treated effluent is discharged into river Bhavani. The petitioner company has been strictly following the conditions imposed by the respondent Board and the effluent is being treated in such a way that it will not in any way affect the public interest.

2. While so, by proceedings dated 24.4.1990 the respondent stipulated 18 conditions. The petitioner company had complied with all the conditions except the one i.e., condition No. 5. Even in respect of that condition, the company has to explore the possibility of anaerobic biological treatment and hence immediately could not be implemented because the technology was found unsuitable for the industry, as the industry do not have constant and consistent pollutant loads due to operational reasons. The company took all necessary efforts as required by the respondent, but the technology was found unsuitable and this fact was made known to the respondent during the periodical inspection. For the subsequent year the consent order has been renewed and the conditions imposed therein have been complied with. Till the year 1994 the consent order has been renewed. For the year 1995 the application for the consent order is pending.

3. Under the show cause notice dated 15.2.1995 the respondent called upon the petitioner to show cause as to why penal action for offences punishable under Section 44 read with 45 of the Act should not be initiated against the petitioner and in the same notice the Board of Directors of the petitioner were asked to show cause as to why a direction should not be issued under Section 33-A of the Act for closure of the pulp plant. The said show cause notice was issued since it was found that the sample collected from the out let of the unit on 6.10.1994 under Section 21 of the Act shows that the parametres BOD, COD are exceeding the tolerable limits prescribed by the Board whereby the company has contravened the conditions of the consent order issued under Section 26 of the Act.

4. The petitioner submitted the explanation on 6.3.1995. In the explanation, the company has stated that there is no technology available at present to make the discharge from the pulp plant totally colourless as the discharge picks up colour due to silt in the lagoon which leads to a slight darkening of the discharge. But, however, the company intends to purchase and instal new equipments imported from Japan and U.S.A. and the same will be implemented in August, 1995 and that the equipments had already been purchased and received by the petitioner. The steps taken by the petitioner had already started yielding results. The company would achieve the object immediately after the installation of the equipments. But, any how, at present, with the help of indigenuous dredge pumps, the company has made every effort to reduce the colour from the discharge.

5. Without considering the explanation submitted by the petitioner, the respondent has passed the impugned order dated 9.5.95 under Section 33-A of the Act directing the company to close down the pulp plant at Sirumugai Village and also ordered stoppage of power supply and water supply to the pulp plant of the company. The petitioner has filed this writ petition challenging the same.

6. The respondent has filed counter stating that the petitioner necessarily has to make the effluent treatment plant so as to bring the quality of the effluent to satisfy the standards as prescribed by the respondent. The petitioner has established the effluent treatment plant before the formation of the respondent Board. But in due course of time and due to improper maintenance and defective operation of the effluent treatment plaint, it could not treat the effluent to satisfy the standards prescribed by the Board. The trade effluent is being directly discharged into the river Bhavani. The respondent has been receiving several complaints from the public in ayacut area stating that the trade effluent contains colour and odour emission which pollutes the river and this necessitated to issue the proceedings dated 24.4.1990 imposing 15 conditions under Section 26 of the Water (Prevention) and Control of Pollution) Act, 1974 and four '"onditions under Section 21 of the Air (Prevention and control of Pollution) Act, 1981 while granting renewal consent order. During the regular inspection by the officials of the respondent, certain short falls have been found. Hence the petitioner unit was asked to improve the existing effluent treatment system which would satisfy the standards prescribed by the respondent. The petitioner has all along been telling that the improvement is technically not feasible. Even though the minor defects have been rectified, but still the petitioner company did not show any interest to improve the existing effluent treatment plant. Even in the reply dated 6.3.1995 submitted by the petitioner, they have submitted the short falls in respect of the effluent treatment plant and reiterated their contention regarding the non-feasibility of the improvement. Even though in the proceedings dated 24.4.1990 fifteen conditions were imposed, the petitioner had not complied with nine conditions. The petitioner except stating that they are taking necessary steps to improve the treatment plant, has never shown any real interest in improving the same. In 1993 the then Chairman of the respondent Board stated in his report about the company that the treated effluent disposal by the industry is satisfactory only in the context of the measures agreed by the petitioners for the improvement. Before ever the show cause notice was issued, the officials of the respondent inspected the petitioner factory on more than 10 occasions and samples were taken which reveals that the trade effluent discharged by the industry is not satisfactory. The petitioners were given sufficient opportunity and since they failed to fulfil the conditions imposed by the respondent, the impugned order was passed in the public interest. Hence the impugned order is quite legal.

7. Mr. G. Subramaniam, the learned senior counsel contended that the conditions imposed in the consent orders have been complied with and the non-mentioning of the conditions in the latter renewal consent orders would amount to waiver of such conditions by the respondent. Even though show cause notice was issued on various grounds, the impugned order has been passed on the ground which was not mentioned in the show cause notice and hence the impugned order is bad. Further the impugned order had been passed without taking into consideration of the representation of the petitioner in the explanation to the show cause notice. Before ever the impugned order was passed, the petitioner had not been given any personal hearing or opportunity and hence the orders is bad for violation of principles of natural justice. The officials of the respondent did not furnish the inspection report to the petitioner and on this ground also the impugned order is liable to be set aside. The respondent Board ought to have exhausted the remedial measures provided under the Act before ever they resort to the closure of the unit.

8. Mr. N.R. Chandran, the learned Senior counsel appearing for the respondent contended that the Act does not provide any parameter to decide the pollution. The Board had prescribed the tolerable limit in respect of the pollution and whenever the effluent exceeds the tolerable limit, it has be treated as unauthorised as it would affect the public life, Before ever the impugned order was passed, the petitioner was given the show-cause notice and the principles of natural justice cannot be put in straight jacket. The court has to consider whether the petitioner has been given an opportunity before ever the impugned order was passed or not. The discharged effluent had been collected and sent for chemical examination and only after getting the analyst report, the action was taken. The non-furnishing of the analyst report or the inspection report will not vitiate the impugned order. The impugned order is not a permanent one and it is only temporary one to enable the petitioner to comply the norms in respect of the discharged effluents to bring them within the prescribed limits as the same is essential in the public interest.

9. W.M.P. No. 12226 of 1995 has been filed by the petitioner council to implead themselves as party respondent on the ground that they are necessary parties, since they are the ayacutdars who are entitled to taken water from the river. As the effluent discharged by the petitioner makes the water non-potable one, the petitioners are aggrieved and hence they are necessary parties.

10. Mr. G. Subramaniam, the learned senior counsel appearing for the petitioner in the main writ petition opposed the impleading petition by contending that the petitioner has filed the writ petition to quash the impugned order passed by the respondent. It is a matter between the petitioner and the respondent and the third parties have no right to interfere in this by way of public interest.

11. Mrs. Nalini Chidambaram, the learned senior counsel appearing for the petitioner in W.M.P. No. 12226 of 1995 contended that the petitioner association had been making representation to the Board as well as to other authorities complaining about the illegal discharge of the effluent by the petitioner company. The petitioner in the W.M.P. do not come into the proceedings by way of public interest but, by the discharge of the effluent made by the petitioner the consumption of water by the petitioner in the W.M.P is deprived and hence it is only violation of personal interest. Hence the petitioner is entitled to come on record.

12. Mr. A.L. Somayajee, the learned senior counsel appearing for the petitioner in W.M.P. No. 11843 of 1995 who are the workers union of the petitioner company in the main writ petition contended that before ever the closure of the unit is ordered, the respondent ought to have taken remedial steps and enforce the same, taking into consideration of the interest of the workmen of the company. If the company is closed, all the workers will be left without job and this will give rise for the industrial dispute in order to enforce their claim for salary. Further it is not the case of the respondent that there is imminent danger to the public health which necessitates the immediate closure of the factory. More or less he supports the contention of the counsel for the petitioner in the main W.P.

13. Even though several questions, both on facts as well as on law were raised by Mr. G. Subratnaniam, the learned senior counsel appearing for the petitioner and Mr. N.R. Chandran, the learned senior counsel for the respondent Board in view of the decision that I am going to take, I am of the view that those contentions need not be elaborately discussed in this order.

14. The respondent has issued the show-cause notice dated 15.2.1995 which was received by the petitioner on 23.2.1995. In the show-cause notice it is stated as follows:

Consent was issued to the unit of M/s. S.I.V. Industries Limited, Sirumugai Village, Mettupalayam Taluk, Coimbatore District under Section 26 of the Water Act and renewed vide reference cited subject to the following conditions:

1. The unit shall improve, operate and maintain the effluent treatment plant measures efficiently and continuously to treat the effluent so as to achieve the standards prescribed by the Board.

2. The unit has to implement suitable colour removal system for the strong colour effluent from pulp plant before 30.6.1994. The unit has violated the above conditions imposed by the Board. It was seen during inspections of the unit on 1.2.1994, 8.3.1994, 24.3.1994, 8.4.1994, 17.5.1994 and 15.10.1994 that someof important units in effluent treatment plant were not under operation which resulted in poor quality of effluent and coloured effluent discharge into river Bhavani.

It is further stated in the said notice that the industry is treating the entire effluent only through one clariflocculator. The colour of the clarified effluent was found to be dark due to the insufficient dosing (chemicals) and overloading of the clariflocculator. Though the unit had assured to take immediate effective/corrective steps, the relief has been neither full or durable. The unit has not taken appreciable steps to improve the existing environmental measures. The unit has not shown any physical progress on the specific remedial measures like reduction of colour in raw effluent and colour removal from final effluent, as agreed to, during the meeting held on 9.3.1994. Though the unit has been instructed to stop pulp plant for discharge of coloured effluent into the river, the unit had requested the permission of the Board to permit the operation of the pulp plant taking into consideration of the services of the American Consultant and ATIRA for removal of colour in the effluent. Though the industry had taken measures to improve the effluent treatment plant by provision of additional aerators, measures for colour removal etc., these measures have not proved to be adequate to produce the desired result. The report of analysis of the sample collected from the outlet of the unit on 6.10.1994 under Section 21 of the Water Act shows that the parameters BOD, COD are exceeding the tolerance limits prescribed by the Board. Thereby, the unit is contravening the conditions of the consent order issued.

15. For this show-cause notice, the petitioner has sent the reply stating that there is absolutely no slackness or indifference to their obligations and they have not deliberately or otherwise contravened any of the provisions of the Act. With regard to the measurements adopted for pollution control and reduction of pollution level, the respondent has stated as follows:

We have adopted the following measures recently for this purpose:

Pressure Knotter and Pressure Screen have been installed at a capital cost of Rs. 650 lakhs to reduce the liquid and solid effluent loads to the Effluent Treatment plant (ETP) Additional 18 numbers of floating aerators have been installed for operation in the lagoons to avoid anaerobic pockets at a cost of Rs. 100 lakhs in pursuance of the directives given by the Pollution Control Board.

Lime Slackers has been erected for automation of neutralization of effluents at a cost of Rs. 15 lakhs and automatic bar screen has been commissioned in the Viscose Staple Fibre Effluent Plant at a cost of Rs.5 lakhs.

Some of the coloured effluent streams in pulp plant are being re-routed to suitable areas for recycling as a source control step and used as fuel. This scheme is being operated at cost of Rs. 1.25 lakhs per day.

Chemical coagulation method is being practiced continuously for colour removal and this has been implemented at a capital cost of Rs. 5 lakhs and incurs and operating cost of Rs. 1 lakh per day.

The measures referred above were adopted by us based on the advice of Engineers and Technologists and also upon the advice of the Pollution Control Board. The pollution load to the effluent treatment plant has been considerably reduced. The oil and grease, sulphide, TDS, sulphate are all within permissible limits.

Further under short term and long term schemes, under implementation they have stated as follows:

The following Short Term Schemes are to be implemented by us:

Start up Scrubber for the Sulphuric Acid Plant is in the process of fabrication and would be commissioned before the end of July, 1995. We propose to use the state of art on line desilting scheme for the lagoons using floating pontoon and dredge pumps etc., Orders have been placed for Dredge pumps, with Toyo Denki Industrial Company, Japan and for filters with Phoenix Process Equipment Co. Kentucky, U.S.A. The total project cost of Rs. 152 lakhs and the project is to be commenced by the end of August, 1995. The feasibility can be seen from the project scheme.

It is anticipated that the Short Term project would yield immediate results even as regards to bringing down the colour of the treated effluent discharged.

Long term schemes to be implemented Change over to Plant-wise effluent treatment i.e., treatment of VSF Plant, Rayon Plant and Pulp Plant separately, instead of the present combined treatment scheme, and this project which would cost about Rs. 650 lakhs, is expected to be completed by December, 1995.

Plug flow activated sludge reactor treatment for the effluent of pulp mill is to be installed at a cost of Rs. 3,000 lakhs. This project is expect is expected to be completed by July, 1995.

Further with regard to the aerators it is stated that the aerators are now properly working as ten new aerators manufactured by M/s. Enviro Engineers have also been installed to make it more efficient and 18 numbers of floating aerators have been installed.

16. The Board has passed the impugned order on the ground that the unit has been discharging the effluent not satisfying the standards prescribed by the Board into river Bhavani, thereby causing serious pollution problem in the nearby areas affecting the lives of large number of people and complaints have been received about the persistence of colour and odour due to the discharge of effluent into river Bhavani, thereby making it unfit for drinking and irrigation purposes and the unit has failed to take appreciable steps to improve the existing environmental measures such as segregation of strong and weak colour bearing trade effluent, treatment of strong effluent by anerobic digesters measures to reduce the pollution load entering the effluent treatment plant, improvement of air pollution control measures and though the unit has taken measures to improve the effluent treatment plant by provision of additional aerators, measures for colour removal etc., these measures have not proved to be adequate to produce the desired result.

17. In the case reported in M.C. Mehta v. Union of India , the Supreme Court has held as follows:

We cannot therefore ignore the possible hazard to the health and well-being of the workmen and the people living in the vicinity on account of escape of chlorine gas. We also cannot overlook the old and worn out state of machinery and equipment. The negligence of the management in the maintenance and operation of the caustic chlorine plant and the indifference shown by the man management in installing proper safety devices and safety instruments and taking proper and adequate measures for ensuring safety of the workmen and the people living in the vicinity. These are considerations which are very relevant in deciding whether the caustic chlorine plant should be allowed to be restarted. But as against these considerations, we must also take into account the proven fact that all the recommendations made in the Reports of Manmohan Singh Committee and Nilay Choudhary Committee have been carried out by the management of Shriram and it is the opinion of not only Manmohan Singh Committee and Nilay Choudhary Committee but also of the last Committee appointed by us on 31st January, 1986, that since all these recommendations have been complied with by the management in satisfactory manner, Shriram may be allowed to restart the caustic chlorine plant. There can be no doubt, particularly having regard to the opinion of Manmohan Singh Committee, Nilay Choudhary Committee and last Committee appointed, by us, that the possibility of hazard or risk to the community is considerably minimised and there is now no appreciable risk or danger to the community if the caustic chlorine plant is allowed to be restarted. We cannot also ignore the interests of the workmen while deciding this delicate and complex question. It could not be disputed either by the Government of India or by the Delhi Administration or even by the petitioner that the effect of permanently closing down the caustic chlorine plant would be to throw about 4,000 workmen out of employment and that such closure would lead to their utter impoverishment.

In the case reported in Ajay Singh Rawat v. Union of India , the Supreme Court has considered with regard to the construction of a hotel as to whether the construction would affect the environmental and ecological surroundings in Nainital. The court had issued certain preventive and remedial measures and on that basis, the petitioner's counsel contended that it is open to this Court to give certain remedial directions. In the case reported in M.C. Mehta v. Union of India , the Supreme Court has held as follows:

It is pleaded on behalf of the rest of the tanneries who are the members of the Hindustan Chambers of Commerce and three other tanneries represented by Shri Mukul Mudgal that if some time is given to them to establish the pre-treatment plants they would do so. It is, however, submitted by all of them that it would not be possible for them to have the secondary system for treating waste water as that would involve enormous expenditure which the tanneries themselves would not be able to meet. It is true that it may not be possible for the tanneries to establish immediately the secondary system plant in view of the large expenditure involved but having regard to the adverse effect the effluents are having on the river water, the tanneries at Jajmau, Kanpur should, at least set up of the primary treatment plants and that is the minimum which the tanneries should do in the circumstances of the case. In the counter-affidavit it filed on behalf of Hindustan Chamber of Commerce it is seen that the cost of pretreatment plant for a 'A' Class tannery is Rs. 3,68,000 and the cost of the plant for 'C' class tannery is Rs. 50,000. This cost does not appear to tanneries should be considered as irrelevant while requiring them to establish primary treatment plants. Just like an industry which cannot pay minimum wages to its workers cannot be allowed to exist a tannery which cannot set up a primary treatment plant cannot be permitted to continue to be in existence for the adverse effect on the public at large which is likely to ensue by the discharging of the trade effluents from the tannery to the river Ganga would be immense and it will outweigh any inconvenience that may be caused to the management and the labour employed by it on account of its closure. Moreover, the tanneries involved in these cases are not taken by surprise. For several years they are being asked to take necessary steps to prevent the flow of untreated waste water from their factories into the river. Some of them have already complied with the demand. It should be remembered that the effluent discharged from a tannery is ten times noxious when compared with the domestic sewage water which flows into the river from any urban area on its banks. We feel that the tanneries at Jajmau, Kanpur cannot be allowed to continue to carry on the industrial activity unless they take steps to establish primary treatment plants. In cases of this nature this Court act affecting or likely to affect the public is being committed and the statutory authorities who are charged with the duty to prevent it are not taking adequate steps to rectify the grievance. For every breach of a right there should be a remedy. It is unfortunate that a number of tanneries at Jajmau even though they are aware of these proceedings have not cared even to enter appearance in this Court to express their willingness to taken appropriate steps to establish the pretreatment plants. So far as they are concerned an order directing them to stop working their tanneries should be passed.... M/s. Indian Tanning Industry (respondent 30), the U.P. Tannery (respondent 19), M/s. Zaz Tannery (respondent 28), M/s. Super Tannery India Ltd., (respondent 21) M/s. Shewan Tannery (respondent 20), M/s. Pioneer Tannery (respondent 23) and M/s. M.K.J. Corporation (respondent 89) who have already put up the primary treatment plants may continue to carry on production in their factories subject to the condition that they should continue to keep the primary treatment plants established by them in sound working order.

18. It has to be seen as to whether the petitioner had taken sufficient measures to comply with the conditions imposed under the consent orders. It is one thing to say that total failure on the part of the petitioner to take any steps considering the public interest involved in the case. It is another thing to say that the petitioner have taken sufficient steps which have not been proved to be adequate to produce the desired result. In case of first category, the authorities are entitled to have a strong view and take straight action in compliance of the Act. But the same strictness cannot be enforced in respect of the second category of cases. In the cases where the industry has taken sufficient steps, but the desired result had not been achieved the authorities should consider as to whether the industries had taken sufficient care and bonafide steps to comply with the conditions. If there is bona fide attempt on the part of the industries to fulfil the conditions and if the result could not be achieved because the system evolved is beyond their control, then the authorities ought to be granted some more time to the industry to comply with the conditions depending upon the proposal that is submitted by the industries and the feasibility of such proposal. The closure of the unit would adversely affect the interest of the workmen who are employed there, the economy of the country in case if the industry is engaged in manufacturing articles which are to be exported and the commitments of the industry.

19. In this case, in the show-cause notice issued by the respondent it is stated that the unit has violated the conditions and the sample collected from the unit on 6.10.1994 under Section 21 of the Act shows that the parameters BOD, COD are exceeding the tolerable limits prescribed by the Board and though the industry had taken measures to improve the effluent treatment plant by provision of additional aerators, measures for colour removal etc., these measures have not proved to be adequate to produce the desired result. The impugned order has been passed not only stating the reasons given in the show-cause notice but also two additional grounds stating that the discharge of the effluent causing serious pollution problem in the nearby areas affecting the lives of large number of people and making Bhavani river water unsafe for drinking and irrigation purposes.

20. It could be seen that both in the show-cause notice as well as in the impugned order the respondent specifically admitted that the petitioner industry had taken measures to improve the effluent treatment plant but the same has not been proved to be adequate to produce the desired result. For this, the petitioner has stated in his reply to the show-cause notice that Pressure Knotter and Pressure Screen have been installed at a capital cost of Rs. 650 lakhs to reduce the liquid and solid effluent loans to the effluent treatment plant and an additional 18 numbers of floating aerators have been installed for operation in the lagoons to avoid anaerobic pockets at a cost of Rs. 100 lakhs in pursuance to the directives given by the Pollution Control Board. It is further stated that the petitioner company has proposed to change over to plant wise effluent treatment i.e., treatment of VSF plant, Rayon plant and pulp plant separately, instead of the present combined treatment scheme and this project which would cost Rs. 650 lakhs is expected to be completed by December, 1995 and plug flow activated sludge reactor treatment for the effluent of pulp mill is to be installed at a cost of Rs. 3,000 lakhs and this project is expected to be completed by July, 1996. The petitioner has further stated in the reply, the steps taken to reduce the colour of the effluent with immediate effect. In fact in the reply the petitioner has stated that they proposed to use the state of art on line desilting scheme for the lagoons using floating pontoon and dredge pumps etc., Orders have been placed for dredge pumps with Toyo Denki Industrial Company, Japan and for filters with Phoenix Process Equipment Co., Kentucky, U.S.A. The total project cost is Rs. 152 lakhs and the project is to be commenced by the end of August, 1995.

21. When the petitioner has stated and given all these particulars, it is for the respondents to call for the meeting of the representatives of the petitioner company and ascertain as to the proposal submitted by the petitioner and ought to have found out the feasibility of the same. The respondent has failed to do so. When the petitioner has given concrete proposals at huge cost, it is the duty of the respondent to direct the petitioner to have some immediate measures temporarily for the present to reduce the colour of the effluent whereby the danger to the public can be avoided.

22. A perusal of the impugned order would patently show that the respondent has not considered any of the facts mentioned in the reply submitted by the petitioner to the show cause notice issued by the respondent. Since the respondent has totally failed to consider the explanation submitted by the petitioner, I am of the view that the impugned order has been passed without application of mind. Hence the impugned order cannot be sustained and it is liable to be set aside. Accordingly the writ petition is allowed. No costs.

23. The respondent is directed to give opportunity to the petitioner to put forth his proposals to comply with the conditions imposed by the Board and find out the feasibility of the same and also the time required by the petitioner to make such compliance depending upon the feasibility of the proposal. The respondent should give reasonable time to the petitioner to comply with the conditions, provided the petitioner adopts some immediate scheme to reduce the colour of the effluent to bring it within the tolerable limit as prescribed by the Board.

24. So far as W.M.P. No. 11843 of 1995 where the workers union have filed the petition to implead themselves as party/respondents, the petitioner in the main Writ petition have no serious objection and hence the same is ordered.

25. So far as W.M.P. No. 12226 of 1995 is concerned, it could be seen from the representation made by the counsel for the petitioner in the W.M.P. as well as typed set filed by them that the petitioner had made representations to the concerned authorities making complaint about the discharge of the effluent made by the petitioner in the writ petition. The complaint of the petitioner in the W.M.P is that the effluent discharged by the industry causes injury to the health of the public and makes the Bhavani river water non-potable one. Hence, the petitioners are aggrieved persons. There is some force in the contention of the learned Counsel for the petitioner in the W.M.P. As the petitioner in the W.M.P. No. 12226 of 1995 is personally affected, they are interested parties even though the writ petition has been filed for certiorarified mandamus to quash the order of the respondent. Hence, the W.M.P. No. 12226 of 1995 is allowed.