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IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 5.10.2010
Coram
The Honourable Mr. JUSTICE ELIPE DHARMA RAO
and
The Honourable Mr. JUSTICE K.VENKATARAMAN
Writ Petition Nos.20664, 20637 of 1998,
14023 of 2003, 457, 6375 & 6376 of 2006,
1749, 5982, 5316 & 5449 of 1999
&
All Connected MP's
W.P.No.20664 of 1998
The Southern India Chamber of Commerce
and Industry, a Company registered under
the Company's Act, having its office
at the Indian Chamber Building, P.B.
No.1208, Chennai 600 108, rep by its
Secretary Mr.J.Prasad Davids ... Petitioner
-Vs.-
1.Union of India,
represented by its Secretary to Government
Environment Department, New Delhi.
2.The State of Tamil Nadu,
rep by its Secretary to Government,
Environment and Forest Department,
Fort St. George, Chennai 600 009.
3.The Tamil Nadu Pollution Control Board,
Guindy, Madras 600 032
rep by its Member Secretary. ... Respondents
Writ Petition has been filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorarified Mandamus calling for the records relating to G.O.Ms.No.213, Environment and Forest Department dated 30.03.1989 issued by the second respondent and quash the same and direct the third respondent to consider applications for consent from Industries made from time to time without prejudice to the said Government Order.
For Petitioners : Mr.G.Rajagopalan, Senior Counsel
for M/s.G.R.Associates
in W.P.Nos.20664 & 20637 /1998
Mr.T.R.Rajagopalan, Senior Counsel
for Mr.C.Kasirajan,
in W.P.No.457 / 2006
Mr.V.R.Rajasekaran,
in W.P.No.6375 & 6376 / 2006
Mr.R.Ravi,
in W.P.No.14023 / 2003
Mr.P.Sundaram,
in W.P.Nos.1749, 5982 & 5499 / 2003
Mr.R.Ravi,
in W.P.No.14023 / 2003
For Respondents : Mr.R.Ramanlal, for TNPCB &
Mr.L.S.M.Hassan Fizal, G.A,
for T.N.Govt.,
in W.P.Nos.20664 & 20637 /1998,
457 / 2006, 6375 & 6376 / 2006,
14023 / 2003.
Mr.R.Ramanlal, for TNPCB
Mr.K.M.Venugopal, SCGSC, for R1
Mr.Dhesingh, Spl.G.P., for R2
in W.P.Nos.1749, 5982, 5499,
14023 / 2003.
C O M M O N O R D E R
ELIPE DHARMA RAO, J
W.P.No.20664 of 1998 has been filed for a writ of Certiorarified Mandamus calling for the records relating to G.O.Ms.No.213, Environment and Forest Department dated 30.03.1989 issued by the second respondent and quash the same and direct the third respondent to consider applications for consent from Industries made from time to time without prejudice to the said Government Order.
2. W.P.No.20637 of 1998 has been filed for a writ of Certiorarified Mandamus to quash G.O.Ms.No.127, Environment and Forest Department dated 8.5.1998 issued by the second respondent and quash the same and direct the third respondent to consider the applications for consent submitted by the industry from time to time without reference to the said Government Order.
3. W.P.No.14023 of 2003 has been filed for a writ of Certiorarified Mandamus to quash the proceeding of the first respondent dated 28.5.2002 wherein a direction has been issued to close the petitioner unit immediately and direct the respondents to consider the consent application form on submission without reference to G.O.Ms.No.213 Environment and Forest Department dt.30.3.1989.
4. W.P.No.457 of 2006 has been filed for a writ of Certiorarified Mandamus to quash G.O.Ms.No.127, Environment and Forest Department dated 8.5.1998 issued by the first respondent and the consequential order dated 2.8.2005 and direct the respondents to consider the application for consent by the proposed 19 tanneries who are the members of the petitioner's CETP Company without reference to the said Government Order.
5. W.P.No.6375 of 2006 has been filed for a writ of Declaration declaring that the impugned G.O.Ms.No.1, Environment control Department, dt.6.2.1984, G.O.Ms.No.213, Environment and Forest Department dt. 30.3.1989 and G.O.Ms.No.127 Environment and Forest Department dt. 8.5.19198 as amended by G.O.(1D) No.223, Environment and Forest Department dt. 2.9.1998 as arbitrary, illegal and ultravires the provisions of Water (Prevention and Control of Pollution) Act, 1974 and Article 14, 19 (1) (g) and 21 of the Constitution of India.
6. W.P.No.6376 of 2006 has been filed for a writ of Certiorarified Mandamus to quash the order of the third respondent dated 19.4.2005 as confirmed by the appellant authority by order dt.3.11.2005 in Appeal No.53 of 2005 and direct the respondents to consider the application of the petitioner dated 18.4.2005 for consent on merits keeping in view the provisions of Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981.
7. W.P.No.1749 of 1999 has been filed for a writ of Certiorarified Mandamus, calling for the records relating to G.O.Ms.No.213 dated 31.03.1989 and G.O.Ms.No.127 dated 08.05.1998 and to quash the same and also to direct the Tamilnadu Pollution Control Board to device the norms to be followed by various classes and categories of the industries in the State of Tamilnadu as defined under the provisions of the Water (P & CP) Act, 1974 and under the provisions of the Environmental Protection Act, 1986 forthwith.
8. W.P.No.5982 of 1999 has been filed for a writ of Certiorari, calling for the records relating to the orders passed by the State Government of Tamilnadu in G.O.Ms.No.127 (Environment and Forest Department) dated 08.05.1998.
9. W.P.No.5316 of 1999 has been filed for a writ of Certiorari, calling for the records of the second respondent in G.o.Ms.No.127, Environment and Forest Department dated 08.05.1998 and quash the same as far as the petitioner is concerned.
10. W.P.No.5449 of 1999 has been filed for a writ of Certiorari, calling for the records relating to the orders passed by the State Government of Tamilnadu in G.O.Ms.No.127 (Environment and Forest Department) dated 08.05.1998 and to quash the same.
11. The short facts set out in the affidavit filed in support of the writ petition in W.P.No.20664 of 1998, in a nutshell are stated hereunder:
(a) The petitioner was incorporated in the year 1910 with the objects to promote and protect trade, commerce and manufacturers of India or any part thereof. The Government of Tamil Nadu had issued G.O.Ms.No.213, Environment and Forest Department dated 30.03.1989 imposing restrictions on locations of industries within one kilometre from the embankment of rivers, streams, dams etc. It is not known under what provisions of law, the said Government Order has been issued by the State Government. When the Vellore Citizens Forum matter was being heard before the Hon'ble Supreme Court of India, the attention of the above said G.O appears to have been drawn to the notice of the Hon'ble Supreme Court. The Hon'ble Supreme Court in its judgement in the said case had directed the authorities to strictly implement the G.O referred to above. However, the Hon'ble Supreme Court had no occasion to consider the validity of the said G.O viz., whether the State Government had power to issue such a direction in the light of the fact that the said power is vested with the Union of India under Section 3 of the Environmental Protection Act read with Rule 5 of the Environmental Protection Rules. Hence there is no bar in law to consider the validity of the said notification.
(b) While so, recently another G.O. has been issued by the State of Tamil Nadu, wherein the scope of G.O.Ms.No.213 has been extended by the said G.O viz., G.O.Ms.No.127, Environment and Forest Department dated 08.05.1998, that there shall not be any industry of the red category within five kilometres of certain rivers mentioned in the said notification. The notifications dated 30.03.1989 and 08.05.1998 are ultra vires of the Constitution and therefore invalid. It violates the fundamental rights of the members of the petitioner guaranteed under Article 19(1) and Article 21 of the Constitution, besides being arbitrary and violative of Article 14 of the Constitution. Thus, the petitioner has come up with the present writ petition challenging 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 08.05.1998, issued by the second respondent and to consequently direct the third respondent to consider applications for consent from Industries made from time to time without reference to the said Government order.
12. With the same prayer the writ petition No.20637 of 1998 has also been filed.
13. Writ Petition Nos.457 of 2006 has been filed by the SIPCOT and SIDCO Phase II Entrepreneur Finished Leather Effluent Treatment Company. The facts set out in the said writ petition in a nut shell are stated hereunder:
(a) The petitioner was incorporated in the year 1993. It had applied for consent of the Tamil Nadu Pollution Control Board as required under Section 25 of the Water (Prevention and Control of Pollution) Act, 1974 for the discharge of treated effluent from the petitioner's Common Effluent Treatment Plant (CETP) on 28.12.1994 for treating the effluent received from 40 member tanneries, including 19 proposed member tanneries. The Tamil Nadu Pollution Control Board issued consent to the petitioner, before the issue of G.O.Ms.No.127, Environment and Forests (EC III) Department, dated 08.05.1998 which prohibits certain highly polluting industries including tanneries within 5 Km from the banks of the Palar river. After completion of construction of the CETP, consent to operate the same was issued by the Tamil Nadu Pollution Control Board on 09.03.2002 for discharging 1560 KLD of treated effluent, which includes the effluent from proposed 19 tanneries. However, the Chairperson of the Tamil Nadu Pollution Control Board in his letter dated 21.08.2002, requested the petitioner's CETP company not to permit the proposed member units into the Common Effluent Treatment Plant conveyance system at any cost.
(b) The petitioner in its letter dated 19.12.2003 requested the Chairperson, Tamil Nadu Pollution Control Board to permit the 19 proposed member units so that the CETP would be technically and financially viable. A writ of Mandamus was also filed before this Court in W.P.No.1066 of 2005, to consider and pass orders on its representation. This Court by order dated 19.01.2005 directed the Government and Tamil Nadu Pollution Control Board to consider the petitioner's representations in accordance with law. However, the Government in its letter dated 02.08.2005 informed the petitioner that in view of G.O.Ms.No.127, it is not possible to issue consent to the proposed member units of Common Effluent Treatment Company, since they are located within 5 Kms radius of Palar river. Thus, the petitioner has approached this court challenging not only G.O.Ms.No.127, Environment and Forest (E.C.III) Department, dated 08.05.1998 but also the Government letter dated 02.08.2005 referred to above and further directing the respondent to consider the application for consent in respect of the proposed 19 tanneries.
14. Writ Petition No.14023 of 2003 has been filed by one S.R.Ethiraj, Proprietor of Vikneshwara Electroplating setting out the following facts.
(a) The petitioner along with few others started a business in the name and style of Vikneshwara Electroplating and Steel Furnitures. He has obtained provisional certificate of registration as a small scale tiny unit from the District Industries Centre under Directorate of Industries, Government of Tamil Nadu. They had periodically applied to the Tamil Nadu Electricity Board, Karur for extension of supply to their unit. Meanwhile, a show cause notice was issued by the District Environmental Engineer, Karur by letter dated 05.02.2001, calling for explanation as to why his unit should not be closed down basically on the ground that it is a highly polluting industry operating within 1 K.M radius of water sources as prohibited under G.O.Ms.213 dated 30.03.1989. A suitable explanation was offered by the petitioner by his letter dated 12.03.2001 to the said show cause notice. While so, the Tamil Nadu Pollution Control Board had issued closure order dated 28.05.2002 without considering the explanation offered by the petitioner. Hence, the petitioner has approached this Court challenging the said proceedings dated 28.05.2002 and further directing the respondents to consider the consent application form without referring to G.O.Ms.No.213.
15. W.P.Nos.6375 and 6376 of 2006 were filed by one Vel Tapioca Products represented by its proprietor P.Ravikumar, challenging the proceedings of the third respondent dated 19.04.2005 as confirmed by the order dated 03.11.2005 of the Appellate Authority made in appeal No.53 of 2005 and to consequentially direct the respondents to consider the application of the petitioner dated 18.04.2005, for consent. It is stated in the affidavit filed in support of the writ petitions that,
(a) The petitioner company is establishing a small scale industry at Veerapandi Village to manufacture Starch from tapioca. The petitioner unit proposes to manufacture 41 tonnes of Starch / Sago per month using tapioca as raw material. G.O.Ms.No.213 Environment and Forest Department, imposed total ban to set up highly polluting industries within one kilometre from the embankments of the water sources mentioned in Annexure-II of the said order. The State Government expanded the scope of the ban by increasing the prohibited distance to 5 Kms from 1 Km through its G.O.Ms.No.127, Environment and Forest Department, dated 08.05.1998. Though the State Government did not specifically mention the names of the tributaries of river Cauvery, Thirumanimuthar would not certainly be termed as a tributary of river Cauvery.
(b) While so, the application of the petitioner's unit was rejected by the second respondent herein on the sole ground that it is located at a distance of 1.85 Km from Thirumanimuthar which is claimed to be a Tributary of Cauvery River by the respondents 2 and 3. Hence, the petitioner has to approach this court by filing the present writ petition for the relief set out earlier.
16. The common averments made in W.P.Nos.1749, 5982, 5316 and 5449 of 1999 are as follows:-
(a) The petitioners are engaged in the dyeing industries as small entrepreneurs. Most of the industries are even now developed by their location in the land space where supply of water is easily available. In practice, the effluents are discharged through the drainage of the house connecting the public sewage provided by the local authority and taken to the terminal where the common effluents of the village or town is treated by the local authority itself and the treated water is utilised by the local authority itself for appropriate public purpose. The effluents discharged in the dyeing activity are not diverted to any well or any water source utilised by the members of the public.
(b) The Water (Prevention and Control of Pollution) Act came into force in the year 1974 and the Environment Protection Act came into force in the year 1986. Both Acts are intended to prevent pollution to water to be caused by any industry. Applying the provisions of these legislations, the Government of India had classified the Industries into 3 categories viz., Red, Orange, Green. So far, the State of Tamil Nadu is concerned, the Government of Tamil Nadu by G.O.Ms.No.213 dated 31.3.1989 promulgated an order prohibiting installation of any high polluting industry within a distance of 1 kilo metre from any notified water source. Now, by another Government Order in G.O.Ms.No.127 dated 8.5.1998, the prohibition has been now extended to a distance of 5 kms.
(c) Challenging the said Government Order in G.O.Ms.No.127 dated 8.5.1998, the petitioners have come up with these writ petitions.
17. Counter affidavit was filed on behalf of the first respondent in W.P.No.457 of 2006, which is set out here under:
(a) In G.O.Ms.No.213, Environment and Forest Deparment, dated 30.03.1989, the Government has imposed a total ban on the setting up of the Highly Polluting Industries mentioned in Annexure-I, within one kilometre from the embankments of the water sources mentioned in Annexure-II to that order. Subsequently, in G.O.Ms.No.127, Environment and Forest Department, dated 08.05.1998, the Government prohibited setting up of highly polluting industries within 5 Kms from the embankments of river Cauvery and its tributaries. In view of the same, the consent sought for by the petitioner was not granted.
(b) The Hon'ble Supreme Court of India in the decision reported in AIR 1996 SC 2715 = 1996 (5) SCC 647 (Vellore Citizen's Welfare Forum vs. Union of India and others), directed the Government to strictly implement G.o.Ms.No.213, dated 30.03.1989 and that new industry shall not be permitted to be set up within the prohibited area. That apart, the Hon'ble Supreme Court directed the State Government that the authorities shall review the cases of all industries which are already operating in the prohibited area and it is open to the authorities to direct relocation of any such industries. After passing final orders on 28.08.1996, the cases were transferred to this Court. In the final order, the Hon'ble Apex Court of India have issued comprehensive directions. At that time, the 22 proposed units have not filed their application for consent of Tamil Nadu Pollution Control Board. In the mean while, the Government of Tamil Nadu in G.O.Ms.No.127 have issued orders imposing a total ban of setting up of the highly polluting industries within 5 Kms from the embankment of the river Palar. The Tamil Nadu Pollution Control Board is duty bound to enforce the G.O. in letter and spirit.
(c) Though, it is true that semi-finished to finished leather operations would be generating less pollution in comparing to the raw to finished operations, it also contains pollution which will affect the environment. Even the treated effluent from the petitioners CETP is not meeting the standards. In the Status report furnished to the Hon'ble Apex Court of India, only 18 member units, among the 40 member units of the said CETP that carried out wet process tannery operations have been included. The remaining 22 proposed member tanneries of the CETP company have not obtained consent for establishment to carry out wet process tannery operations from the Tamil Nadu Pollution Control Board and are located within 5 Km radius of Palar river, thus attracting the provisions of the orders issued in the G.O.Ms.No.127 dated 08.05.1998. The directions were given by virtue of the powers conferred under Section 18(1)(b) of the said Central Act 6 of 1974. The State Government has got revisional powers under Section 29(1) of the said Central Act 6 of 1974. G.O.Ms.No.213 and G.O.Ms.No.127 clearly prove that these directions were issued by the State Government only to the Tamil Nadu Pollution Control Board. The Government of Tamil Nadu has got every right to issue directions to the Tamil Nadu Pollution Control Board. Thus, the counter affidavit seek for the dismissal of the writ petition.
18. Counter affidavit was filed on behalf of the second respondent, TNPCB containing the following facts:
(a) Out of 40 member units, consent to operate with a validity upto 31.03.2000 has been issued to 3 existing member units and valid upto 31.03.1998 to 1 existing member unit, which is not in operation at present. Permit letters to 12 existing member units and 2 existing member units are not in operation, totalling 18 existing member units. Out of remaining 22 proposed member units, only 3 units do not attract the G.O.Ms.No.127 and the other 19 units attract the said G.O.
(b) Further, the G.O.Ms.No.127 dated 08.05.1998 which has been passed by the Government in extending scope of the earlier G.O.Ms.No.213 dated 30.03.1989 has been accepted by the Hon'ble Supreme Court of India in the writ petition filed by the Vellore citizens Welfare Forum. Thus, putting forth the said contention the second respondent seek for the dismissal of the writ petition.
19. On the basis of the above pleadings, we have heard the learned counsels appearing for the petitioners and the learned counsels appearing for the respondents.
20. Though, at length the matter has been argued, the issue involved in these writ petitions is only on a narrow campus viz., whether 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 08.05.1998 is valid in law. Before embarking on the said contention, it would be more useful to extract G.O.Ms.No.213 dated 30.03.1989 and the same is extracted here under:
GOVERNMENT OF TAMIL NADU
ABSTRACT
ENVIRONMENT CONTROL Control of Pollution of Water
Sources Location of Industries within 1 K.M from the
embankments of rivers, streams, dams etc. - Imposition of restrictions Orders Issued.
------------------------------------------------------------------------
ENVIRONMENT AND FOREST (EC-I) DEPARTMENT
G.O.Ms.No.213 Dated the 30th March 1989
Read:
1. G.O(Ms)No.1, Environment Control Dated 6.2.84.
2. From the Member Secretary, Tamil Nadu Pollution Control Board Lr.No.BMS(1)/18878/88/Dated 23.8.88
3. From the Chairman, Tamil Nadu Pollution Control BoardLr.BMS(1)/44365/88/ dated 3.11.88 and letter of even No. Dated 30.12.88
* * * * *
ORDER:
In the Government Order first read above, the Government have ordered, among other things, that no industry causing serious water pollution should be permitted within one kilometre from the embankments of rivers, streams, dams etc., and that the Tamil Nadu Pollution Control Board should furnish a list of such industries to all local bodies. It has been suggested that it is necessary to have a sharper definition for water sources so that ephemeral water collections like rain water ponds, drains, sewerages (bio - degradable) etc., may by excluded from the purview of the above order. The Chairman, Tamil Nadu Pollution Control Board has stated that the scope of the Government Order may be restricted to reservoirs, rivers and public drinking water sources. He has also stated that there should be a complete ban on location of highly polluting industries within 1 kilometre of certain water sources.
2. The Government have carefully examined the above suggestions. The Government impose a total ban on the setting up of the highly polluting industries mentioned in Annexure I to this order within one Kilometre from the embankments of the water sources mentioned in Annexure II to this order.
3. The Government also direct that under any circumstances if any highly polluting industry is proposed to be set up within one kilometre from the embankments of water sources other than those mentioned in Annexure II to this order, the Tamil Nadu Pollution Control Board should examine the case and obtain the approval of the Government for it.
4. The receipt of this order may be acknowledged.
(BY ORDER OF THE GOVERNOR) D.SUNDARESN, COMMISSIONER AND SECRETARY TO GOVT.
21. G.O.Ms.No.127, Environment and Forest Department, dated 08.05.1998 is also usefully extracted here under:
GOVERNMENT OF TAMIL NADU ABSTRACT Environment Protection of the quality of the Water Resources Regulation of the establishment of highly water polluting industries banning the establishment of industries within 5 km distance from water resources -
order issued.
------------------------------------------------------------------------
ENVIRONMENT AND FOREST (EC3) DEPARTMENT G.O.Ms.No.127 Date : 08.05.1998 Ref: 1. G.O(Ms)No.1, Environment and Forest Department Dated 6.2.84 2. G.O(Ms)No.213, Environment and Forest Department Dated 30.3.89 ORDER:
In G.O.Ms.No.1, Environment and Forest Departments, dated 6.2.84, Government have ordered that highly polluting industries should not be established within 1 km distance from rivers, nullahs and dams and the Tamil Nadu Pollution Control Board was requested to furnish the list of highly polluting industries to the Local Bodies. Highly polluting industries specified in G.O.Ms.No.213, Environment and Forests Department, dated 30.3.1989 should not be established within 1 km distance from certain water resource. List of those industries was also annexed to that Government Order.
2. In accordance with the orders of the Supreme Court passed in the Writ Petition filed by the Vellore Citizen Forum in connection with tanneries, G.O.Ms.No.213 Environment Forest Department, Dated 30.3.89 should be strictly enforced forthwith and the industries mentioned in the Annexure to the G.O should not be established in the prohibited area. Further, it is directed that Authority constituted for that purpose should examine about those industry and review the already established industries and order, if necessary, relocation of the industry in other areas.
3. Many industries have come up near Cauvery, Pennaiyar, Palar, Vaigai, Thamiraparani and their Tributaries even before there was awareness about the pollution control among public. The land and the water quality are very much affected by the discharge of waste water from industries. If this is allowed without being stopped, there is a possibility of the water resources and their quality, the welfare of the public and other living beings getting affected. At present the industries are advised to establish and commission Common Effluent Treatment Plants/Individual Effluent Treatment Plants.
4. Now, some industries utilize water from water resources and establish industrial estates. In order to protect water quality and keeping in view the need to protect water resources, public health and living beings and the welfare of the lakhs of people and based on the judgments of the High Court and Supreme Court, Government have to take a policy decision for regulating the establishment of highly water polluting industry without affecting the industrial growth.
5. Based on the circumstances indicated in the Para 4 above, it is decided to slightly enlarge the scope of the G.O.Ms.No.213, Environment and Forest Department, dated 30.3.89 and enforce the same strictly. With this view, directions are issued as follows:
1. G.O.Ms.No.213, Environment and Forest Department, dated 30.3.89 shall be strictly enforced fully.
2. No highly water polluting industries (Red Category) shall be permitted to be established within 5 kms distance from the important water resources of Tamil Nadu Cauvery and its tributaries, Pennaiyar, Palar, Vaigai and Tamaraparani rivers.
3. Public Works Department, Industries Department and other Departments shall consult Environment and Forest Department before permitting other category industries Orange and Green to tape water from water resources and establishing new industrial Estates. This procedure is applicable to the new industries to be established in future.
4. Tamil Nadu Pollution Control Board shall take action to appraise the Local Bodies regarding the restrictions on the procedure for regulations relating to the establishment of Orange and Green Category of Industries.
/ By Order of Governor / K.S.SRIPATHI Secretary to Government
22. On the basis of the said G.O, wherever industry is sought to be located within the prescribed area viz., within one Km as per G.O.Ms.213 and 5 Kms as per G.O.Ms.127, the authorities concerned have refused to accord permission to start the industry. The English version of the amendment of the said G.O's which was passed by the Government in G.O.(ID) No.223, Environment and Forest Department dated 02.09.1998 is extracted here under:
TAMIL NADU GOVERNMENT ABSTRACT Environment Protection of Water Resources Amendment to G.O.Ms.No.127, Environment and Forest Department, dated 8.5.1998 Issued.
------------------------------------------------------------------------
ENVIRONMENT & FORESTS DEPARTMENT G.O.(ID) No.223 Date : 02.09.1998 Ref: 1. G.O(Ms)No.213, Environment and Forest Department Dated 30.3.89
2. G.O(Ms)No.127, Environment and Forest Department Dated 8.5.98 ORDER:
In G.O.Ms.No.213, Environment and Forest Department, dated 30.3.89, orders were issued among other things not to permit the 14 types of industries mentioned in Annexure I to said the G.O from 1 km distance of the water resources mentioned in Annexure II to the said G.O. Afterwards, orders were issued in G.o.Ms.No.127, Environment and Forest Department dated 8.5.98 not to permit the establishment of highly water polluting industries (Red Category) within 5 km distance from Cauvery and its tributaries, Pennaiyar, Palar, Vaigai, Thamiraparani.
2. Government is of the view that industries in particular 14 types mentioned in the Annexure I to the Government Order dated 30.3.1989 shall not be permitted within a distance of 5 kms from the important water sources mentioned in the Government Order dated 8.5.1998. Accordingly, Government issue the following amendments to G.O.Ms.No.127, Environment and Forest Department dated 8.5.1998.
AMENDMENT The sentence "No highly water polluting Industry (Red Category) shall be permitted to be established within a distance of 5 kms from the important water sources viz., Cauvery and its tributaries, Penniyar, Palar, Vaigai and Thamiraparani in sub para (2) of para 5 of G.O.Ms.No.127, Environment and Forest Department, dated 08.05.1998 shall be read as 14 types of Industries mentioned in the Annexure I to the G.O.Ms.No.213, Environment and Forest Department, Dated 30.3.89 shall not be permitted to be established within a distance of 5 kms from the important water sources Cauvery and its Tributaries, Penniyar, Palar, Vaigai and Thamiraparani rivers.
/ By Order of Governor / K.S.SRIPATHI Secretary to Government
23. The Hon'ble Apex Court in W.P.(Civil) No.914/91 filed by the Vellore Citizens Welfare Forum has passed the following order:
"10. The Government Order No.213 dated March 30, 1989 shall be enforced forthwith. No new industry listed in Annexure I to the Notification shall be permitted to be set up within the prohibited area. The authority shall review the cases of all the industries which are already operating in the prohibited area and it would be open to authority to direct the relocation of any of such industries."
24. The Government of Tamil Nadu in order to prevent pollution in major rivers had passed a Government Order in G.O.Ms.No.127 dated 05.08.1998 referred to above and the subsequent amendment to the said Government Order viz., G.O.Ms.No.223 dated 02.09.1998, issuing directions to the Tamil Nadu Pollution Control Board that 14 types of industries mentioned in Annexure I of G.O.Ms.No.213 dated 30.03.1989, should not be started within 5 Kms from the embankments of river Cauvery and its tributaries Pennaiyar, Palar, Vaigai and Tamiraparani. G.O.Ms.No.127 extracted above would clearly reveal that the said G.O came to be passed in view of the orders of the Hon'ble Apex Court in the case of the Vellore Citizens Welfare Forum.
25. The Hon'ble Apex Court, after passing final orders on 28.08.1996 have transferred the case to this Court. The main direction of the Hon'ble Apex Court is that the Tamil Nadu Pollution Control Board has to meticulously implement the provisions of G.O.Ms.No.213. The proposed units have not filed application for consent from the Tamil Nadu Pollution Control Board at that point of time. In the mean while, the State Government has passed G.O.Ms.No.127 dated 08.05.1998 imposing total ban of setting up of the highly polluting industries within 5 Kms from the embankment of the river Palar. The Tamil Nadu Pollution Control Board is duty bound to enforce the said Government Order.
26. When the Hon'ble Apex Court had directed the Government of Tamil Nadu to implement in letter and spirit, the Government Order in G.O.Ms.No.213 dated 30.03.1989, it cannot be heard from the petitioners that the said Government order is not valid in law and that the Government of Tamil Nadu has no power to pass the said Government Order. The dictum of the Hon'ble Supreme Court is the law of the land and hence it cannot be heard from the mouth of the petitioners that the G.O referred to above is invalid.
27. In view of the above facts and circumstances, we are of the view that the petitioners have not made out any case and hence these writ petitions are liable to be dismissed and accordingly dismissed. Consequently, connected miscellaneous petitions are closed. However, no orders as to costs.
(EDRJ) (KVJ) 05.10.2010 pgp Index : Yes Internet : Yes To
1.The Secretary to Government, Environment Department, Union of India, New Delhi.
2.The Secretary to Government, Environment and Forest Department, The State of Tamil Nadu, Fort St. George, Chennai 600 009.
3.The Member Secretary, The Tamil Nadu Pollution Control Board, Guindy, Madras 600 032.
ELIPE DHARMA RAO, J.
& K.VENKATARAMAN, J.
pgp W.P.Nos.20664, 20637 of 1998, 14023 of 2003, 457, 6375 & 6376 of 2006, 1749, 5982, 5316 & 5449 of 1999 Dated :05 .10.2010