BEFORE THE NATIONAL GREEN TRIBUNAL
                  SOUTHERN ZONE, CHENNAI

                    APPEAL NOs. 22 and 23 of 2014 (SZ)

In the matter of:

M/s. Sri Murugan Dyeing
Rep. by its Partner
N. Sakthivel
S.F.No. 159/1C1 & 1C2
Nallur village
Tiruppur Taluk and District        ..     Appellant in both the appeals

                                  AND

1.   The Disrict Environmental Engineer
     Tamil Nadu Pollution Control Board
     2nd Floor, Kumaran Commercial Complex
     Kumaran Road
     Tiruppur-641 601

2.   The Appellate Authority
     Tamil Nadu Pollution Control
     'Krishna Vilas'
     No.51, Gangadeeswarar Koil Street
     Purasawalkam
     Chennai- 600 084             .. Respondents in both the appeals


Counsel appearing:

Appellants in both the appeals     ..     Shri C. Prakasam. Advocate

Respondents in both the appeals     ..    Shrimathi Rita Chandrasekar,
                                          Advocate




                               JUDGMENT

Present:

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

2. Hon'ble Prof. Dr. R. Nagendran, Expert Member

------------------------------------------------------------------------------------------------

Date: 15th October, 2014

------------------------------------------------------------------------------------------------ (Hon'ble Shri Justice M. Chockalingam, Judicial Member) These appeals have been filled by appellant herein challenging the order of the 2nd respondent, namely, the Appellant Authority, Tamil Nadu Pollution Control (Appellant Authority) made in Appeal Nos. 37 and 38 of 2013 dated 28.02.2014 whereby the appeals have been dismissed.

2. The brief facts made out from the appeal memoranda can be stated thus:

The appellant submitted the application to the 1st respondent, District Environmental Engineer (DEE), Tamil Nadu Pollution Control Board (Board), Tiruppur on 19.06.1992 seeking consent to operate (CFO) the dyeing unit at S.F. No.143/1 and 143/2 in Nallur village, in Tiruppur Taluk and District at the rate of 20 MT per month and to discharge 105 KLD of trade effluent. The Chairman of the Board issued a communication to the appellant unit on 14.10.1993 stating that the Board had decided to recommend the case of the appellant for relaxing the conditions of G.O. Ms. No. 213, Environment and Forest Department dated 30.03.1989 (G.O. No. 213) and directed the appellant to obtain the relaxation order and communicate the same to the Board. Accordingly, 2 the appellant submitted a revised application for consent on 01.04.1999 to carry on the dyeing of hosiery fabric at the rate of 30 MT/month. The said application was not considered. Hence, the appellant again submitted a revised application on 20.07.2005 to carry on the dyeing of hosiery fabric of 1.15 MT per day and to discharge trade effluent at the rate of 172.5 KLD. The Chairman, Tamil Nadu Pollution Control Board refused to grant consent and hence the appellant unit became a member of the Kasipalyam Common Effluent Treatment Plant (CETP) Ltd., situated at S.F.No.249 (Part), 250 (Part) and 250/1, Agrahara Periyapalayam village, Avinashi Taluk. The trade effluent of the appellant's unit was taken to the said Kasipalayam CETP which was operating under a valid consent. The Kasipalayam CETP was closed by an order of the Hon'ble Madras High Court and again started functioning by an order of the Board dated 16.03.2012. The G.O. No. 213 dated 30.03.1989 prohibits only the establishment of new industries and not the shifting of an existing unit from one place to another. The unit is being shifted from a rented premises to the own premises and to facilitate the Zero Liquid Discharge (ZLD), and the pipelines are already in place to convey the trade effluent to the Kasipalayam CETP. The members of the Kasipalayam CETP do not have individual consent and are all operating based on the consent given to the CETP. The appellant unit has already installed the pipelines to carry the trade effluent to the 3 Kasipalayam CETP and the appellant unit is also to be treated as one of the members of the Kasipalayam CETP to operate the unit based on the consent given to the CETP.

3. The appellant unit is operating in a rented premise at S.F. No.143/1 and 143/2 in Nallur village, in Tiruppur Taluk and District from the year 2007 and as the landlord wanted the land for his own use, the appellant purchased land at S.F. No. 159/1C1 and 1C2 of the same village which is situate right opposite to the rented premises. The application for consent to shift the dyeing unit to the new premises was made on 28.07.2008 to the 1st respondent and the 1st respondent in his letter dated 08.08.2008 refused to give consent to shift the premises stating that the lands are situated within the prohibited distance of 300 m from Noyyal River and also further observed that even though the appellant unit is a member of the Kasipalayam CETP, the said unit is situated in a mixed residential zone as per letter No. 715/2008 dated 04.07.2008 of the Tiruppur Local Planning Authority. The appellant unit approached the Hon'ble High Court at Madras in W.P.No. 13878/2008 seeking a direction to the respondent to consider the appellant's representation dated 16.04.2008 and the Hon'ble High Court was pleased to dispose of the writ petition with a direction to the Chairman, TNPCB to consider the appellants representation within a period of one month. The appellant unit's consent application dated 25.04.2008 was 4 placed before the Consent Clearance Committee on 04.12.2008 and the application for consent was dismissed on the ground that the appellant unit's new premises is located at a mixed residential zone and the appellant unit is situated within a distance of 300 m from the Noyyal River and the same was communicated to the appellant unit in proceedings Lr.No.T8/TNPCB/F.3702/TPR/2008 dated 15.12.2008.

4. Aggrieved by the order of the Board, the appellant unit preferred a statutory appeal before the Appellate Authority in Appeal Nos. 21 and 22 of 2013 and the appeals were dismissed by the Appellate Authority. The Appellate Authority passed an order of consent to shift M/s. Syndicate Colours which is a member of Sirupooluvapatti CETP in Appeal Nos. 15 and 16 of 2009 which is adjacent to the unit of the appellant herein. Another dyeing unit namely, M/s. Colour Lines, Tiruppur is located in the agricultural area and even the Kasipalayam CETP is also situate in the river bed and agriculture area and the consent was granted by the Board on 07.10.2010. The appellant unit preferred a writ petition before the Hon'ble High Court of Madras aggrieved by the order of the Appellate Authority in W.P.No. 7480 of 2010 and the Hon'ble High Court disposed of the writ petition with a direction to the respondent/Board to consider the application of the appellant and pass orders within a period of 4 weeks. The respondent/Board rejected the application dated 25.04.2013 of the 5 appellant in Lr. No. F.TPR 0233/RS/DEE/TPR/2013 dated 25.04.2013 on the same reasons that the unit is located in a mixed residential zone and the unit is located within the prohibited distance from Noyyal River.

5. Aggrieved by the order of the respondent/Board, the appellant preferred an appeal before this Bench of National GreenTribunal (NGT) in Appeal No. 54 of 2013 as the Appellate Authority was not functioning at that time and the Tribunal by its order dated 12.07.2012, directed the appellant to approach the Appellate Authority as the order of the respondent/Board is appealable under the Water (Prevention and Control of Pollution) Act, 1974 (Water Act) and Air (Prevention and Control of Pollution) Act, 1981 (Air Act). The Appellate Authority dismissed the appeals filed by the appellant seeking permission to shift the existing dyeing unit. Hence, these appeal are filed by the appellant herein seeking to set aside the order dated 28.02.2014 of the Appellate Authority in Appeal Nos. 37 and 38 of 2013 and to grant permission to shift the appellant's unit.

6. Per Contra, the Joint Chief Engineer of the Board would state in reply that the appellant unit, namely M/s. Murugan Dyeing, is a member of the Kasipalayam CETP and originally applied for consent at S.F. No. 142/1 of Nallur village, Tiruppur Taluk and District on 19.06.1992 for the dyeing of hosiery fabric at 20 MT per month and to discharge 105 KLD of trade effluent. As the unit of the appellant is situate within 1 km from 6 Noyyal River, the Board in its letter dated 14.10.1993 informed the appellant to obtain orders of the Government relaxing the condition relating to the distance factor as per G.O. No. 213 dated 30.03.1989. Hence, consent was not issued to the appellant's unit. A revised application was submitted on 01.04.1999 by the appellant unit seeking consent to the dyeing of hosiery fabric at 30 MT per month and to discharge 150 KLD of trade effluent at S.F. No. 143/1, 143/2 and 141 of Nallur village in Tiruppur Taluk and District. Thereafter, the unit has submitted another revised application on 25.07.2005 seeking consent to dyeing of hosiery fabric at 1.15 MT per day and to discharge 172.5 KLD of trade effluent. The location of the unit is within 1 km of the Noyyal River and attracted by the provisions of G.O.No.213 dated 30.03.1989. Further, Kasipalayam CETP with which the appellant's unit is attached did not have consent from the Board and hence the application made by the appellant could not be considered and consent was not issued.

7. The appellant filed a writ petition in W.P. No. 13878 of 2008 before the Hon'ble High Court of Madras seeking permission to shift the existing unit from the present location at S.F. No. 143/1, 143/2, and 141 of Nallur village in Tiruppur Taluk and District to a new location at S.F. No. 159/1C1 and 1C2 of the same village and in the order dated 16.06.2008, the High Court disposed of the writ petition based on the submissions made by the Board that the representation dated 7 16.04.2008 shall be disposed of in accordance with law by a reasoned order within a period of one month from that date. When the appellant herein was directed to apply for the consent of the Board under Water Act and Air Act, the appellant filed application on 28.07.2008 for a new location at S.F. No. 159/1C1, 1C2 of Nallur village in Tiruppur Taluk and District for the dyeing of hosiery fabric at 28.125 MT per month and to discharge 172.5 KLD of trade effluent. The proposed location of the appellant's unit at S.F. No. 159/1C1 and 1C2 of Nallur village is at a distance of 300 m from Noyyal River which is within the prohibited distance as per the G.O.No. 213 dated 30.03.1989 and G.O.Ms.No. 127, Environment and Forest Department dated 08.05.1998 and the location of the existing unit in S.F. No. 143/1, 143/2 and 141 of Nallur village is at a distance of 270 m and both the locations are within the prohibited distance of the said Government orders. The location of the unit of the appellant has been classified as mixed residential area by the Tiruppur Local Planning Authority and hence, the Board has not issued consent even for the unit in the existing location since the Government has not relaxed the G.O.No. 213 dated 30.03.1989. The issue of consent for shifting the unit to the new location could not also be considered as the River Noyyal is flowing at a distance of 300 m. The Board, therefore, rejected the application on the above reasons. The appellant unit preferred appeals before the Appellate Authority in Appeal Nos. 21 and 8 22 of 2009 and the Appellate Authority dismissed the appeals on 15.03.2010 stating that unless and otherwise the appellant gets the location of its unit reclassified from mixed residential zone, the appellant would not be entitled to consent. Further, the Appellate Authority has also given the liberty to the appellant to make appropriate application to the Board for getting whatever remedy he required.

8. At this juncture, the appellant unit made fresh application on 25.03.2010 seeking consent of the Board for its existing location at S.F. No. 143/1, 143/2 and 141 of Nallur village to carry on dyeing hosiery fabrics at 29.326 MT per month and to generate 200 KLD of trade effluent to discharge into Kasipalayam CETP and when additional particulars were called from the unit, the same were not submitted by the appellant unit.

9. In the meantime, the appellant filed W.P.No. 7480 of 2010 against the order dated 15.12.2008 of the Board and order dated 15.03.2010 of the Appellate Authority. The writ petition was disposed of on 15.06.2010 with directions to the Board to consider the application dated 25.03.2010 which was for the unit in the existing location and pass orders on merit and in accordance with law.

10. The Board vide its memo dated 16.07.2010 has returned the application to the office of the DEE of the Board, Tiruppur as requested by the DEE so as to comply with the orders of the Hon'ble High Court of 9 Madras issued in W.P.No.7480/2010. At this juncture, the Noyyal River Ayacutdars Protection Association filed contempt petitions in No.1013 and 1068 of 2010 for non-compliance of orders of the Hon'ble High Court of Madras made in W.P. No. 29791/2003 dated 22.12.2006 and the orders of the Hon'ble Supreme Court of India. Since the contempt case was under trail in the Hon'ble High Court of Madras, the unit's application was not processed by the DEE of the Board at Tiruppur. Moreover, the unit has not made any representation to the Board to effect the orders of the Hon'ble High Court. In the meantime, all the dyeing and bleaching units in Tiruppur were closed based on the order dated 28.01.2011 of the Hon'ble High Court of Madras in Contempt Petition Nos. 1013 and 1068 of 2010 with respect to W.P. No. 29791/2003 filed by the Noyyal River Ayacutdars Protection Association and with disconnection of power supply which includes the appellant's unit also. Based on the representation dated 05.12.2002 made by appellant, the application seeking consent for the unit was placed before the VI Zonal Level Consent Clearance Committee meeting held on 19.04.2013 and the application was decided to be rejected for the following reasons and these were communicated to the appellant by DEE's letter dated 25.04.2013.

1. In the existing location at S.F. No.143/1, 2 and 141 this industry is not existence.

10

2. In the new location at S.F. No.159/1C1, 1C2, Nallur village, construction activities have been completed.

3. The unit's above sites are located in the Mixed Residential area, where the dyeing activity is not permitted.

4. The river Noyyal which is included in the G.O. Ms. No. 213, Environment and Forest Department, dated 30.03.1989 and G.O.Ms.No.127, Environment and Forest Department dated 08.09.1998 is flowing within 1 km from the locations as stated above. The said Government orders ban the setting up of dyeing activity 1 km/5 km from River Noyyal.

11. Aggrieved over the above letter dated 25.04.2013, the appellant preferred Appeal No. 54 of 2013 before the Tribunal as the Appellate Authority was not functioning at that time and the Tribunal passed orders on 12.07.2013 directing the appellant to exhaust the appeal remedy available under Water Act and Air Act and disposed of the appeal. The appellant preferred necessary appeals before the Appellate Authority in Appeal Nos. 37 and 38 of 2013 to direct the Board to issue consent to the appellant's unit to shift from the existing location to a new location and the appeals were dismissed as the appellant did not convince the Board with reference to any of the factual issue or on the point of law so as to seek the relief in those appeals.

12. On the above averments, the respondent Board seeks to uphold the order dated 28.02.2014 made by the Appellate Authority 11 which sustained the rejection order made by the DEE on 25.04.2013 and to dismiss the appeals.

13. The following points are formulated for decision in these appeals based on the above pleadings.

1. Whether the orders of the 2nd respondent/Appellate Authority in Appeal Nos. 37 and 38 of 2014 dated 28.02.2014 upholding the orders of the 1st respondent/Board in Letter No. F.

TPR/0233/RS/DEE/TPR/2013 dated 25.04.2013 are liable to be set aside as sought for by the appellant and consequently grant permission to the appellant to shift the unit as applied for. POINT:

14. The Tribunal heard the arguments advanced on both sides and looked into all the materials available and in particular the order of the 2nd respondent/Appellate Authority and also of the 1st respondent/Board and paid its anxious considerations thereon.

15. As could be seen from the specific averments from both sides, the appellant unit applied for consent on 19.06.1992 to commence its activity in S.F. No. 143/1, 143/2 of Nallur village for dyeing of hosiery fabric at 20 MT per month and to discharge 105 KLD of trade effluent. The appellant was informed by the Board in Lr. No. T.13/1473/W/93 dated 14.10.1993 that a recommendation would be sent to Government for relaxation of the G.O.No.213 dated 30.03.1989 since the appellant's 12 unit was located within 1 km from Noyyal River. There is no material available and it is not the case of the appellant also that any relaxation of the G.O.No.213 dated 30.03.1989 was given to the appellant at any point of time. Under the circumstances, consent was not issued to the appellant by the Board as applied for by the appellant. It is admitted by the Board as contended by the appellant that revised applications were made on 01.04.1999 and also on 25.07.2005 for the dyeing of hosiery fabric at 30 MT per month and to discharge 150 KLD of trade effluent and at 1.15 MT per day and to discharge 172.5 KLD of the trade effluent, respectively.

16. Though the Kasipalayam CETP was closed for a period as per the orders of the Hon'ble Madras High Court in Contempt Petition Nos. 1013 and 1068 of 2010, the same has been in operation as per the orders dated 16.03.2012 of the Board.

17. The case of the appellant is that the unit was operating at S.F. Nos. 143/1, 143/2 and 141 of Nallur village on a rented premises and in view of the demand by the landlord, the partners of the appellant's unit purchased a piece of land situate at S.F. No. 159/1C1, 1C2 of Nallur village whereupon an application for consent to shift the dyeing unit to the new premises was made on 25.07.2008 and the same was refused by a communication dated 08.08.2008 stating that the proposed unit of the appellant was within the prohibited distance of 1 km from the Noyyal 13 River and also the appellant unit is a member of the Kasipalayam CETP and the said unit is situate in a mixed residential zone as per the letter dated 04.07.2008 of the Tiruppur Local Planning Authority. The appellant made an application on 16.04.2008 to the respondent Board and approached the Hon'ble High Court, Madras in W.P.No. 13878 of 2008 for a direction to the respondent Board to consider the representation dated 16.04.2008. The same was disposed of with a direction to the Chairman of the Board to pass appropriate order on the representation of the appellant unit within a period of one month. The Board called for necessary particulars and details from the appellant which were furnished.

18. The application for the consent of the Board for the appellant's unit dated 25.04.2008 which was placed before the Consent Clearance Committee was rejected on 04.12.2008 on the grounds that the new premises where the appellant's unit is to be located falls under mixed residential zone and is also within a distance of 300 m from Noyyal River. The same was communicated to the appellant by the Board in the proceedings dated 15.12.2008.

19. Aggrieved over the same, the appellant preferred the Appeal Nos. 21 and 22 of 2009 before the Appellate Authority who dismissed the same. Challenging the said dismissal order on the said appeals, the appellant filed W.P.No. 7480 of 2010 before the Hon'ble Madras High 14 Court and the same was disposed of by the Hon'ble High Court with a direction to the Board to consider and pass order within a time frame. The respondent Board rejected the application made by the appellant unit on 25.04.2013 on the reasons that the unit is in a mixed residential area and is also situate within the prohibited distance from the Noyyal River. The appellant preferred an appeal before this Bench of NGT in Appeal No. 54 of 2013 since the Appellate Authority was not functioning during that time. The said appeal was disposed of by this Bench with a direction to the appellant to approach the Appellate Authority within a period of 30 days therefrom. Accordingly, the appellant preferred Appeal Nos. 37 and 38 of 2013 under the Water Act and Air Act before the Appellate Authority which was dismissed. The appellant has preferred these two appeals therefrom.

20. The bone of contention of the appellant is that the respondent Board should have granted the consent to the appellant's unit since it was an existing unit which was carrying on its operations in S.F. No. 143/1, 143/2 and 141 of the Nallur village and the appellant is intending to shift the unit to the own land of the appellant purchased and situate at S.F. No. 159/1C1 and 1C2 of Nallur village and made an application on 28.07.2008. Pointing to the application made by the appellant before the Board seeking consent, the counsel would vehemently contend that it was only the shifting of the unit from the old premises to a new premises 15 and thus it is not a new industry or a new unit and thus the prohibition on the distance criteria that it is situate at a distance of 300 m from Noyyal River would not apply. No doubt, the shifting of an existing unit to a new location cannot be construed as a new industry. It is also true that the appellant has originally filed the application, revised applications and representations and also application dated 28.07.2008 and the rejection of which has culminated in all subsequent proceedings including these appeals. From the materials available, it is quite evident that from the year 1992 onwards the appellant unit was never granted consent to carry on its activities. Under the said circumstances, the appellant's unit cannot be termed as an existing unit. Even if the unit was carrying on its activities, it should have been without any consent of the Board. Hence, the Tribunal is afraid whether it can agree with the contention of the appellant that the appellant's unit is an existing unit and hence the distance criteria would not apply. Equally, the contention putforth by the appellant that it is a member of a CETP which has commenced functioning from February, 2014 is worth to be ignored for the reason that consent granted to a CETP in which the appellant's unit is a member cannot be taken as a ground to the appellant's unit to carry on the activities. Consent to a CETP is only for treatment, discharge and disposal of the trade effluent generated from different member units 16 which has nothing to do with the grant of consent to the dyeing unit as that of the appellant.

21. In the instant case, at no point of time consent was ever given to the appellant's unit to commence its activities despite a number of applications and representations and hence, it cannot be construed as an existing unit. Hence, the case of the appellant that the appellant unit has applied for shifting of the existing unit cannot be accepted. Thus, both the appeals have got to be dismissed as devoid of merits and accordingly dismissed.

No cost.

(JusticeM. Chockalingam) Judicial Member (Prof. Dr. R. Nagendran) Expert Member Chennai 15th October, 2014 17