BEFORE THE NATIONAL GREEN TRIBUNAL
                         SOUTHERN ZONE, CHENNAI

                           APPEAL No.55 of 2013 (SZ)

                                     against

             Order dated 28.06.2013 in Appeal Nos. 12 and 13 of 2011
              of the Appellate Authority, Tamil Nadu Pollution Control

In the matter of:

M/s. Greetings Colour Processors
rep.by its Partner V. Rajendran
Ponnapuram
Mudalipalayam Village
Tiruppur- 641 606.                                   ..                  Appellant

                                         and

1. The Appellate Authority
   Tamil Nadu Pollution Control
   Krishna Vilas
   No.51, Gangadeeswarar Koil Street
   Purasawalkam
   Chennai- 600 084.

2. Tamil Nadu Pollution Control Board
   rep. by its Chairman
   No.76, Mount Road
   Guindy, Chennai- 600 032.

3. The District Environmental Engineer
   Tamil Nadu Pollution Control Board
   Kumaran Complex
   Kumaran Road
   Tiruppur- 641 601.                              ..               Respondents


Counsel appearing for:

Appellant .. M/s. S. Kolandasamy. C.S. Saravanan and M. Selvalakshmi, Advocates

Respondents: Shrimathi H. Yasmeen Ali, Advocate for respondent Nos. 2 and 3.



                                   JUDGMENT

Present:

1

1. Hon'ble Shri Justice M. Chockalingam, Judicial Member

2. Hon'ble Prof. Dr. R. Nagendran, Expert Member __________________________________________________________________ Dated: 05th February 2014 ___________________________________________________________________ Hon'ble Shri Justice M. Chockalingam, Judicial Member This appeal has been preferred by the appellant herein against the order dated 28.06.2013 in Appeal Nos. 12 and 13 of 2013 of the Appellate Authority, Tamil Nadu Pollution Control, Chennai (for short 'Appellate Authority') wherein the Appellate Authority had set aside the orders dated 28.06.2013 passed by the Tamil Nadu Pollution Control Board (for short 'the Board') under section 28 of the Water(Prevention and Control of Pollution) Act, 1974 (for short 'Water Act, 1974) and section 31 of the (Air Prevention and Control of Pollution) Act, 1981 (for short Air Act, 1981) and dismissed the appeals. The short necessary facts of the case are narrated below:

2) The appellant has been running a dyeing unit in S.F. No. 159/2, Maniyakaranpalayam, Nallur village, Vijayapuram Post in Tiruppur District since 1995 with the name and style of 'M/s. Greetings Process' and obtained necessary consent order under Water Act, 1974 and Air Act, 1981 from the Board vide Consent Order No. 17104 dated 15.12.1998 and 13212 dated 15.12.1998, respectively for the capacity of 150 kilolitre per day (KLD). Subsequently, the appellant changed the name of the unit as M/s. Greetings Colour Processors on 11.11.2012 and the appellant has been paying the consent fees every year. The unit installed an individual effluent treatment plant (ETP) in the year 1998 to abate water pollution. 2

3) As per the directions of the Hon'ble Supreme Court of India in Vellore Citizen Welfare Forum Vs. Union of India reported in 1996(5) SCC, 647, the Hon'ble High Court of Madras in W.P. No. 1649 of 1996 inter alia issued directions to all the dyeing and bleaching units to prove their case. Based on that the appellant has installed ETP system with sludge drying beds from the trail of the unit itself.

4) Based on the Writ Petition No. 21791 of 2003 filed by the agriculturists in the year 2005, the Hon'ble High Court of Madras inter alia directed all the dyeing and bleaching units to achieve Zero Liquid Discharge (ZLD) by installing RO and Multiple Evaporation System. The appellant is permanent member of M/s. Eastern Common Effluent Treatment Plant (for short 'CETP') which achieved ZLD and is in operation now. As on date, the appellant's dyeing unit is a ZLD unit. The appellant has been running a dyeing unit in a rental premises at S.F. No. 159/2, Maniyakaranpalayam, Nallur Village, Vijayapuram Post in Tiruppur District. The land owner insisted the appellant to vacate the premises for his personal use and therefore, the appellant herein had purchased a piece of land measuring an extent of 6.90 acres in S.F. Nos. 35, 36/1, 2 and 37 of Muthapalaiyam Village, Ponnapuram, Tiruppur District for establishing a dyeing unit. The appellant has laid pipelines to carry the treated and untreated water from the proposed site to M/s. Eastern CETP to achieve ZLD and the proposed site is nearby M/s. Eastern CETP. The appellant submitted an application before the 2nd respondent herein for shifting the dyeing unit from S.F. No. 159/2, Maniyakaranpalayam, Nallur Village, Vijayapuram, Tiruppur District to the appellant's own land which is situate nearby the CETP in S.F. No. 35,36/1,2 and 37, Muthaliapalayam Village, Ponnapuram, Tiruppur District and the same was rejected by the 3rd respondent on 02.03.2011 on the ground that the proposed shifting site is located within 1 km from River Noyyal thus attracting G.O. Ms. No. 213, Environment and Forests Department dated 30.03.1989 and G.O. Ms. No. 127 dated 08..05.1998 of the State of Tamil Nadu. Challenging the same, the appellant herein had preferred 3 the Appeal No. 12 of 2011 under section 28 of the Water Act, 1974 and under section 31 of the Air Act, 1981 before the 1st respondent, Appellate Authority and the appeals were dismissed by the impugned order dated 28.06.2013 of the said Appellate Authority.

5) The appellant herein further states in the averments that the appellant's unit is an existing unit under operation and sought for shifting the unit from the old location at Maniyakaranpalayam, Nallur Village to the new location at Mudalipalayam Village and the proposed location is situate at a distance of 1.40 km from the Noyyal River. The second respondent herein did not consider that the Government orders dated 30.03.1989 and 30.05.1998 which prohibit setting up of new industries within 1 km from the river or its tributaries and would not apply to the existing units. The appellant's unit is a member of M/s. Eastern Common Effluent Treatment Plant and the proposed site is the CETP area and will discharge its raw trade effluent only to the CETP, if it is shifted. The CETP has installed RO system to ensure ZLD and achieved ZLD and the main manhole and the pipelines are crossing the proposed site of the appellant which is nearer to CETP. The 1st respondent, Appellate Authority had allowed the shifting of dyeing unit from one place to another after imposing stringent conditions in its orders dated 10.09.2004 in Appeal Nos. 39/2004; dated 11.08.2008 in Appeal Nos. 115 and 116/2008, dated 17.04.2009 in Appeal Nos. 11 and 12 of 2009; and dated 06.07.2010 in Appeal Nos. 5 and 6/2010 and the appellant herein is also entitled to the same relief as the unit of the appellant is also similarly placed. The appellant's unit has obtained the consent orders in the year 1998 and proved its case in W.P.No.1649 of 1996 before the Hon'ble Madras High Court that the appellant's unit is attached to Eastern CETP to achieve ZLD and is in operation now. The Government order dated 30.03.1989 prohibits only establishment of new industries and not for shifting the existing unit that too when the appellant has achieved ZLD and similarly placed units were given consent for 4 shifting. The 1st and 3rd respondents failed to apply the principles of sustainable development while considering the claim of the appellant for shifting and the rejection order was passed by the 3rd respondent as if it is a new unit. When the 2nd and 3rd respondents have implemented order of the 1st respondent, Appellate Authority in a similar set of facts, they are estopped from rejecting the claim of the appellant for shifting his unit. By virtue of shifting, no prejudice would be caused to anybody. The appellant is ready to abide by any stringent conditions that may be imposed by this Tribunal.

6) Per contra, the 2nd and 3rd respondents have stated in the reply affidavit as follows:

7) The appellant unit namely M/s. Greetings Process at S.F. No. 159/2, Maniyakaranpalayam, Nallur Village, Vijayapuram, Tiruppur District had obtained the consent from the Board under the Water Act, 1974 and Air Act, 1981 for dyeing of 25 T/m hosiery cloth and to generate 15 KLD dye bath and 135 KLD other stream effluent. While obtaining the consent, the unit was an IETP unit. Later, an amendment for change of name from 'Greetings Process' to 'Greetings Colour Processors' was issued to the unit vide Board's Proceedings dated 11.11.2002. Subsequently, consent to the appellant's unit has not been renewed due to non installation of ZLD. In the meanwhile, as directed by the Hon'ble High Court of Madras in its various directives issued in W.P. No. 29791 of 2003, some of the individual bleaching and dyeing units in the areas have decided to establish a CETP so as to achieve ZLD and one such CETP is M/s. Eastern Common Effluent Treatment Plant Ltd., and the appellant's unit became the member of the said CETP. The said CETP has installed ZLD system and also obtained consent to operate from the Board in the proceedings dated 07.01.2010 with validity upto 31.03.2010. The CETP and its members were under closure as per the order dated 28.01.2011 in 5 Contempt Petition Nos. 1013 and 1068 of 2010 in W.P. No. 29791 of 2003. The appellant's unit became a member of M/s. Eastern Common Effluent Treatment Plant and was permitted by the CETP to discharge 500 KLD of trade effluent to the CETP for treatment and disposal. Subsequently, the appellant has applied on 19.01.2011 for the consent of the Board under Water Act, 1974 and Air Act, 1981 for the proposed activities of carrying out of 50 T/month dyeing hosiery fabric and to generate 150 KLD of trade effluent in a new location at S.F. No. 35, 36/1, 2 and 37, Muthalipalayam Village, Ponnapuram, Tiruppur District. As per the certificate obtained by the appellant's unit from Coimbatore Institute of Technology, Coimbatore dated 15.12.2010 along with its application, it was observed that the unit's proposed new location is within 1 km from River Noyyal (139.32 m as per the certificate) and the application received from M/s. Greetings Colour Processors, S.F. No. 35, 36/1, 2 and 37 of Mudalipalayam Village, Ponnapuram, Tiruppur District was rejected vide letter No. F. No. TPR 2755/DEE/TNPC Board/TPR/2011, dated 02.03.2011 for the following reason:

"The unit is proposed to carry out the dyeing activity and the proposed site is located within 1 km from River Noyyal, thus attracting G.O.Ms. No. 213, Environment and Forests Department/EC3 dated 30.03.1989 and the said Government order prohibits dyeing units locating within 1 km from the specified water sources as mentioned in the Government order."

8) The said order was upheld by the Appellate Authority in the order dated 28.06.2013 in the Appeal Nos. 12 and 13 of 2011 preferred by the appellant herein before the Appellate Authority against the letter dated 02.03.2011 of the third respondent herein. In this case, the shifting of the existing unit to a new location shall be considered as a new unit in terms of the G.O. Ms. No. 213, Environment and Forests Department dated 30.03.1989 and G.O. Ms. No. 127, Environment and 6 Forests Department dated 08.05.1998, which prohibit dyeing units to be located within 1 km and 5 km respectively and the very purpose of the above Government orders will be defeated in case of allowing the unit to a new location.

9) On the above pleadings, the following points were formulated for decision in the appeal:

Whether the order of the respondent No.1/Appellate Authority made in Appeal Nos. 12 and 13 of 2011 dated 28.06.2013 and the order made by the 3 rd respondent/Tamil Nadu Pollution Control Board in Letter No. F. No. TPR/2755/DEE/TNPCB/TER/2011 dated 02.03.2011 are liable to be set aside for all or any of the reasons alleged by the appellant and consequently permission be granted to shift the unit as requested.

10) The Tribunal heard the arguments advanced on either side and looked into all the materials available and in particular the order of the 1 st respondent/Appellate Authority and also the 2 nd and 3rd respondents/Tamil Nadu Pollution Control Board.

11) Admittedly, the appellant M/s. Greeting Colour Processors, a dyeing unit was established in the year 1995 in S.F. No. 159/2 of Maniyakaranpalayam, Nallur Village, Vijayapuram, Tiruppur District in the name and style of M/s. Greeting Process. And the respondent /Tamil Nadu Pollution Control Board had issued consent order Nos. 17104 and 13212 dated 15.12.1998 under Water Act, 1974 and Air Act, 1981, respectively for the capacity of 150 KLD. Subsequently, the appellant changed the name of the unit as Greeting Colour Processors on 11.11.2012.

12) Pursuant to the direction of the Apex Court in Vellore Citizen Welfare Forum Vs. Union of India (1996)(5)SCC 647), and also the High Court of Madras, the 7 appellant after proving his case, installed individual ETP and a consent for discharging 150 KLD of trade effluent was granted in 1998. In W.P. No. 21797 of 2003, the High Court of Madras inter alia issued directions to all the dyeing and bleaching units to achieve ZLD by installing Reverse Osmosis Plant and Multiple Evaporator System. Following the directions, the appellant became a member of the Eastern Common Effluent Treatment Plant Limited by making necessary contribution. The said Eastern CETP after achieving the ZLD is in operation and thus the appellant dyeing unit is a ZLD unit.

13) It is not in controversy that the appellant was running its unit in a rental premises in S.F. No. 159/2 of Maniyakaranpalayam, Nallur Village, Vijayapuram, Tiruppur District. In view of the pressure exerted by his land owner to vacate the premises, the applicant made an application before the 2 nd respondent/Tamil Nadu Pollution Control Board for shifting the dyeing unit from the above premises to his own lands which are situate in S.F. No. 35, 36/1,2 and 37 of Muthalipalayam Village, Ponnapuram, Tiruppur District. It is pertinent to point out that the contentions putforth by the appellant that the appellant's lands are situate near to the CETP is not disputed.

14) The said application made by the appellant was rejected by the respondent/Tamil Nadu Pollution Control Board on the ground that the proposed shifting site is located within 1 km from the Noyyal River, which would attract G.O.Ms.No.213, Environment and Forests Department dated 03.03.1989 and G.O.Ms.No.127, Environment and Forests Department dated 08.05.1998 of the Government of Tamil Nadu and no new industries could be established within the prohibitory distance of the water body/source as per the above Government orders. Aggrieved by the rejection of the application by the Tamil Nadu Pollution Control Board, the appellant preferred appeals before the Appellate Authority, which were 8 dismissed by the Appellate Authority accepting the contentions putforth by the respondent/Tamil Nadu Pollution Control Board and thus, this appeal has arisen.

15) After paying anxious consideration and also making scrutiny of all the materials available, the Tribunal is of the considered opinion that the order of the 1st respondent/Appellate Authority under challenge confirming the order of the 3 rd respondent cannot be sustained for more reasons than one. The third respondent has categorically admitted that consent orders under the Water Act, 1974 and Air Act, 1981 were issued to the appellant's dyeing unit by its proceedings dated 15.12.1998. The appellant, who originally set up individual ETP and thereafter, became the member of the Eastern CETP and thus as a unit of the same, the appellant unit can be termed as ZLD unit. The appellant, who has been carrying on the dyeing unit in a rental premises was compelled to shift to S.F. No. 35, 36/1, 2 and 37 of Muthalipalayam Village, Ponnapuram, Tiruppur District, purchased and owned by him. Necessary application made by the appellant therefor was rejected by the 3rd respondent.

16) Perusal of the order of the third respondent would indicate that the grounds for rejection that the setting up of the appellant's unit in a different place cannot be construed as a shifting of the existing unit, but would amount to setting up of a new unit at a different place and apart from that it would attract the prohibitory orders in G.O.Ms.No.213, Environment and Forests Department dated 03.03.1989 and accepting the sand contentions of the respondent/Tamil Nadu Pollution Control Board, the Appellate Authority also dismissed the appeals. In our opinion, the order of the 3rd respondent and subsequent confirmation by the Appellate Authority cannot be sustained in law.

17) The appellant, who has been carrying on his unit by obtaining the necessary consent from the 3rd respondent from 1998 onwards and has joined as a 9 unit of Eastern CETP which has achieved ZLD. There arose the necessity for the appellant to shift his unit from the existing rental premises to his own premises. Shifting of an existing unit by the appellant to a new location cannot be construed as a new industry since, the appellant is shifting the unit to a new location. In the instant case, it is noticed that the appellant unit is a member of Eastern CETP which has achieved ZLD. The case of the appellant is that, it is feasible to lay pipelines to carry the treated and untreated water to and from Eastern CETP through the proposed site is not denied by the respondent/Tamil Nadu Pollution Control Board. Under such circumstances, it would be highly unreasonable to refuse the grant of consent to the appellant on unsustainable grounds for shifting of an existing industry which has been functioning with the consent from the Tamil Nadu Pollution Control Board all along and also achieved ZLD in the new location.

18) Hence, the order of refusal to grant consent made by the 3rd respondent has to be set aside. The Tribunal cannot also subscribe to the order of the Appellate Authority which has affirmed the said unsustainable order of the 3 rd respondent. As pointed out by the learned counsel for the appellant, the Appellate Authority in Appeal Nos. 39/ 0024, 115-116/2008, 11-18/2009 and 9-10/2010 had already taken a view that the shifting of the existing dyeing unit to another location would not amount to setting up of a new industry. The Tribunal is unable to notice any reason or circumstance to make a deviation from the earlier view recorded in these judgments.

19) The learned counsel also relied on the judgment of this Zonal Bench of the National Green Tribunal made in Appeal No.57 of 2012 (SZ) wherein the Tribunal had taken a view that shifting of an existing unit by the owner of the unit to a new location could not be construed as a new industry, since the appellant was 10 shifting an existing unit only to a new location. The Tribunal is unable to notice any reason to deviate from its view taken and recorded in Appeal No.57 of 2012 (SZ).

20) Under the circumstances, the Tribunal has no option than to set aside the order of the 3rd respondent/Tamil Nadu Pollution Control Board refusing to grant consent and the subsequent confirmation of the said order made by the 1st respondent/Appellate Authority. Accordingly, the appeal is allowed setting aside the order dated 28.06.2013 of the 1st respondent/Appellate Authority, Tamil Nadu Pollution Control, Chennai in Appeal Nos. 12 and 13 of 2011 confirming the orders made by the third respondent in Letter No. TPR/2755/DEE/TNPCB/TER/2011 dated 02.03.2011.

21) The 3rd respondent is directed to issue consent order for shifting the dying unit of the appellant from S.F. No. 159/2 of Maniyakaranpalayam, Nallur Village, Vijayapuram, Tiruppur District to the appellant's own land which is situate nearby the CETP at S.F.No.35,36/1, 2 and 37, Muthalipalayam Village, Ponnapuram, Tiruppur District subject to the following conditions:

1. Shifting is to be done under the supervision of the respondent/Board.

2. The appellant, after shifting to the new location, shall not increase the discharge of the trade effluent over and above the quantity for which the consent was given by the respondent/Tamil Nadu Pollution Control Board.

3. The appellant shall not change the nature of the industry or vary or alter the operation and process.

4. The appellant after shifting to the new location in S.F.No.35,36/1, 2 and 37, Muthalipalayam Village, Ponnapuram, Tiruppur District shall not use 11 the premises in S.F. No. 159/2 of Maniyakaranpalayam, Nallur Village, Vijayapuram, Tiruppur District for running a dyeing unit or any other industry or process.

There shall be no order as to cost.

(Justice M. Chockalingam) Judicial Member (Prof. Dr. R. Nagendran) Expert Member Chennai, 05th February, 2014 12