BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 26/07/2012

CORAM
THE HONOURABLE MRS. JUSTICE R. BANUMATHI
and
THE HONOURABLE MR. JUSTICE B. RAJENDRAN

W.P.(MD)No.13130 of 2011
and
M.P.(MD) No.2 of 2011

Federation of Indian Placer Mineral Industries
Rep. by its President Dr.D.Dhaya Devadas,
1A, Prasad Street,
Seethapathy Nagar,
Velachery, Chennai - 42.			... Petitioner

Vs.

1.M/s.Bala Murugan Chemicals Private Limited
   Rep. by its Chairman,
   South Silukkanpatti Village,
   Thoothukudi Taluk,
   Thoothukudi District.

2.The District Environmental Engineer,
   The Tamil Nadu Pollution Control Board,
   C7 & C9, SIPCOT Industrial Complex,
   Thoothukudi.

3.The Tamil Nadu Pollution Control Board,
   Rep. by its Chairman,
   76, Mount Road,
   Guindy, Chennai - 32.			... Respondents

PRAYER

Petition filed under Article 226 of the Constitution of India to issue a
Writ of Certiorari to call for the records of the third respondent herein in his
Consent Orders No.5413 and 5473 of even dated 16.12.2010 and quash the same as
illegal.
		
!For Petitioner		... Mr.V.Selvaraj
			    Senior Counsel
			    for Mr.T.Chandrakumar
^For Respondent 1 	... Mr.M.Suresh Kumar
For Respondents 2 & 3   ... Mr.C.Elaman

:ORDER	

*********** The petitioner has come forward with this Writ Petition by way of Public Interest Litigation challenging the Letters of Consent, dated 16.12.2010, given by the third respondent to the first respondent to establish the Titanium Di- Oxide Manufacturing Unit along with 2 MW Biomass based cogeneration Power Plant.

2. According to the petitioner, their main attack is that in order to safeguard the mining leases holding by the members of the petitioner federation and the mining lease applied areas of the members of the petitioner federation, they have filed this Public Interest Litigation. According to the petitioner, the second and third respondents should consider and appraise the raw material resources and water resources of the unit which has not been done properly before issuance of the Letter of Consent. They would mainly contend that to run the industry, huge quantity of ground water has to be utilised every day and permission granted to tap only one lakh litres per day but the quantity will not be sufficient. Therefore, they apprehend that the first respondent may tap the ground water which ultimately result in depletion of water and therefore, the environment will be put to risk.

3. Further, they would mainly contend that the minor lease of BMC Pvt., Ltd., which is the holding company of the first respondent unit has failed to obtain the Letter of Consent to establish mining lease and already certain show cause notices were issued to BMC Pvt. Ltd., in the year 2007 hence, they ought not to have granted the Letter of Consent. Further, as the raw materials mining licence obtained by BMC Pvt. Ltd., itself is not proper they ought not to have granted the letter of consent. Further, they would only contend that if the production is started it will affect the rights of the members in their federation. Therefore, they have come forward with this Public Interest Litigation.

4. The first respondent has filed a detailed counter. At the outset, they would mainly contend that the petitioner himself being a business rival institution running under the name and style of Placer Mineral Industry, he cannot maintain the Public Interest Litigation. Further, in the affidavit, they have categorically stated that this will affect the members of the federation and association. Therefore, a person who has interest cannot file a Public Interest Litigation.

5. The first respondent mainly would contend that the company had applied for Pollution Control Board for establishing of the industry even as early as in 2009 and after thorough inspection the Pollution Control Board has granted consent only on 16.12.2010 under Section 21 of Air (Prevention and Control of Pollution) Act, 1981 and under Section 25 of Water (Prevention and Control of Pollution) Act, 1974. Further, they would contend that these two consent orders are only to establish the industry. Further, they would mainly contend that after the inspection on 18.05.2012 pending the writ petition the decision for giving consent to operate is still there and only on giving a consent for operation they can operate the industry. Therefore, the petitioner has come forward only with the intention to delay and cause trouble to the first respondent. They would also contend that the raw materials Ilmenite are not only being procured by the first respondent from BMC Pvt. Ltd., but also indigenously procured from other proprietorship company engaged with the manufacture of Ilmenite. They specifically denied that there is any relationship between their company and BMC Pvt. Ltd., as alleged in the writ petition. As far as water is concerned, they have specifically averred that the company had got consent from TWAD Board for drawal of one lakh litres per day which is sufficient for the company and the company has further developed reverse osmosis plant to utilise the waste water thereby the availability of one lakh litres of water is sufficient to run the industry. Therefore, the contention of the petitioner that there is a possibility of illegal taping of ground water is frivolous and imaginary. Since the order under challenge is only an Order of Consent to establish under the relevant Act and still they have failed to obtain the consent to operate, this application is only a frivolous application.

6. The second and third respondents Pollution Control Board filed a detailed counter. The consent to establish only was originally given after thoroughly verifying all the details and subsequently, pending the writ petition, the unit was inspected on 18.05.2012 and found that the unit was not under operation and the inspection report also was submitted along with the report. They have complied with all the requirements and there is no need to apprehend regarding the water depletion as there is other sources of water as found in the plant.

7. Heard all the parties. By consent, the main writ petition itself is taken up for final disposal.

8. At the outset, this Public Interest Litigation has been filed though under the name of a federation the petitioner who has got an industry by his own which is a rival industry to the first respondent industry. Further, even in the affidavit they have categorically stated that by starting of the industry the members of the petitioner federation will be affected because they are also running the industry. Therefore, the initial objection of the first respondent is that the petitioner who has got a rival industry cannot maintain the Public Interest Litigation on the sole ground that the Public Interest Litigation is liable to be dismissed in limini.

9. Even though the writ petition is not maintainable even considering the merits of the case as put forward by the petitioner the main ground of attack is that the first respondent by establishing the unit will take the ground water and deplete the entire area. Further, the raw materials which is obtained from BMC Pvt. Ltd., will also affect the rights of the parties. They would mainly contend that BMC Pvt. Ltd., itself is subjected to some show cause notices and have not got the consent from the Environment Board. Unfortunately, the allegations made have not been established by any evidence.

10. First of all, let us take the submission regarding water depletion. According to the petitioner, the huge quantity of water is required to dilute the concentrated Sulphuric Acid for such a huge quantity of water required what is allowed is only one lakh litres per day which is drawn from TWAD Board and that will not be enough. In this connection, the Pollution Control Board has inspected the unit and filed a report which has categorically established that the first respondent was given the sanction of one lakh litres per day by TWAD Board for the utilisation of the industry. At the same time, the industry has also established reverse osmosis methods to utilise all the waste water and recycled the same for the purpose of utilisation in diluting the Sulphuric acid. It is also found by the appropriate authority concerned that the water level to be utilised is correct. Originally they have asked for a higher quantity of 6,45,000 litres but later on they have reduced it. Therefore, as per the report of the Pollution Control Board the water depletion will not arise. Secondly, insofar as the raw material Ilmenite is concerned, no doubt, there was some show cause notices were issued to BMC Pvt. Ltd., in the year 2007 as pointed by the petitioner. But, unfortunately, the application itself was made on 2009 in respect of the first respondent and the first respondent has subsequently stated that BMC Pvt. Ltd., is not a holding company and it is totally a different company and the Ilmenite is not only purchased from BMC Pvt. Ltd., but also from other sources which has also been pointed by the Pollution Control Board in their report. Above all those things, the order which is under challenge is only a consent to establish the industry even this consent to establish industry itself was granted in the year 2009 subsequently they have invested huge amount and erected machineries and constructed. Thereafter, after a period of one year only the petitioner has come forward with the present writ petition and that too, a person who is very well aware of the company and who is a competitor. Therefore, on these two vital points pointed out the Writ Petition has no legs to stand at all.

11. The first respondent industry has also obtained necessary permission from the Ministry of Environment and Forests, New Delhi, even as early as on 17.03.2009. Even in that letter, the Central Government has categorically stipulated a condition that the company shall obtain the permission for drawal of 1352 KLD water from TWAD Board and shall not draw any ground water without permission of CGWA/SGWB. Therefore, the Central Government authorities have categorically safeguarded the erosion of water by the company and they have given a specific direction to get necessary permission and pursuant to this, the first respondent company has also obtained necessary consent letter by the proceedings of the Chairman and Managing Director, TWAD Board for the drawal of one lakh litres of water per day for the above said purpose. Even the Central Government stipulates a further condition that the Regional Office of this Ministry / CPCB / SPCB shall monitor the stipulated conditions and a six monthly compliance report and the monitored data along with statistical interpretation shall be submitted to them regularly. Therefore, necessary precautionary methods and the supervisory mechanism has been evolved in the order itself. Above all those things, as rightly pointed out by the first respondent as against the order of approval granted by the Central Government, Ministry of Environment, even in the year 2009 an appeal against the environmental clearance shall lie with the National Environment Appellate Authority within 30 days. Admittedly, the petitioner has not chosen to file any appeal as against the clearance of the Ministry of Environment but has come forward only to challenge the Letter of Consent given by the third respondent which is nothing but business rivalry which has necessitated the application.

12. When we look into the inspection report of the Pollution Control Board dated 26.05.2012, we find that when the application was made though initially it was made that the total water requirement was 637.37 KLD now they have worked out the total water requirement is only 200.43 KLD and out of which 100 KLD is obtained from TWAD Board and the balance is through ETP and R.O. System generation by the industry itself and in the report itself they have specified how the reduction in water consumption is done. They have verified and given a detailed report. In the report they have stated that the unit has put up an ETP for the treatment of effluent arising from gas cleaning plant and filtration. The neutralised effluent after settling is brought to R.O. feed system for further treatment and recovery. They have further stated the unit has installed two stage R.O. system with a mechanical evaporator for the recovery of water so that no trade effluent is discharged outside and the unit thereby achieves zero effluent discharge and the unit has furnished details of its raw material sources viz., 10 mining lease and has complied with all the conditions as enumerated by the Environmental Act. Therefore, when the authority empowered under the Act is satisfied by the inspection and has given a report, this Writ Petition is nothing but a business rivalry which prompted him to file this application. As rightly pointed out, it is for the authority to take necessary precaution and issue the final orders for manufacturing unit and to verify all the details whether it is in accordance with law. We do not find any reason at all at this stage to interfere with the establishment of industry.

13. The scope and ambit of Public Interest Litigation and the abuse of Public Interest Litigation came up for consideration before the Honourable Supreme Court in the decision in State of Uttaranchal v. Balwant Singh Chaufal reported in 2010(1) SCALE 492. In paragraph 161 of the said decision, the Honourable Supreme Court observed that the time has come when genuine and bona fide Public Interest Litigation must be encouraged whereas the frivolous public interest litigation should be discouraged and the Courts must take effective steps to prevent and cure its abuse on the basis of monetary and non-monetary directions of the Courts and it is useful to extract the following paragraphs: "161. Unfortunately, of late, it has been noticed that such an important jurisdiction which has been carefully carved out, created and nurtured with great care and caution by the courts, is being blatantly abused by filing some petitions with oblique motives. We think time has come when genuine and bona fide public interest litigation must be encouraged whereas frivolous public interest litigation should be discouraged.

162. In our considered opinion, we have to protect and preserve this important jurisdiction in the larger interest of the people of this country but we must take effective steps to prevent and cure its abuse on the basis of monetary and non- monetary directions by the courts.

173. In BALCO (supra), this court held that the jurisdiction is being abused by unscrupulous persons for their personal gain. Therefore, the court must take care that the forum be not abused by any person for personal gain.

176. ....

The Court cautioned by observing that:

"Public interest litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest an ugly private malice, vested interest and/or publicity seeking is not lurking. It is to be used as an effective weapon in the armory of law for delivering social justice to the citizens. The attractive brand name of public interest litigation should not be used for suspicious products of mischief. It should be aimed at redressal of genuine public wrong or public injury and not publicity oriented or founded on personal vendetta.

186. In Dattaraj Nathuji Thaware (supra) this court again cautioned and observed that the court must look into the petition carefully and ensure that there is genuine public interest involved in the case before invoking its jurisdiction. The court should be careful that its jurisdiction is not abused by a person or a body of persons to further his or their personal causes or to satisfy his or their personal grudge or grudges. The stream of justice should not be allowed to be polluted by unscrupulous litigants.

The petitioner has not made out any case at all to invoke the jurisdiction of this Court to in any way challenge the permission granted to the first respondent. In the result, the Writ Petition is dismissed. Consequently, connected miscellaneous petition is closed. No costs.

srm To

1.The District Environmental Engineer, The Tamil Nadu Pollution Control Board, C7 & C9, SIPCOT Industrial Complex, Thoothukudi.

2.The Tamil Nadu Pollution Control Board, Rep. by its Chairman, 76, Mount Road, Guindy, Chennai - 32.