BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT               

DATED: 28.04.2017  

CORAM   

THE HONOURABLE Mr.JUSTICE  T.S.SIVAGNANAM           
AND  
THE HONOURABLE Mr.JUSTICE  N.SESHASAYEE            

W.P.(MD)No.3644 of 2017  
and 
W.M.P.(MD) No.2933 & 2934 of 2017   


Ganasekar                                                          ...  Petitioner
                        
Vs.

1.The Chairman (FAC)  
   Tamil Nadu Pollution Control Board,
   76,Mount Salai, Guindy,
   Chennai ? 600 032.

2.The District Collector,
   Madurai District,
   Madurai.

3.The Commissioner,  
   Madurai City Corporation,
   Madurai.

4.The District Environment Engineer,
   Tamil Nadu Pollution Control Board,
   Kappaloor, Madurai.

5.The Superintending Engineer,
   Madurai Electricity Distribution Circle ? Metro
   K.Pudur, Madurai.

6.The Assistant Commissioner, 
   Zone ? 2, Race Course Road, 
   Madurai Corporation,
   Madurai.

7.The Assistant Engineer (O&M) 
   TANGEDCO / Sellur  
   Kalpallam, Palam Station Road,
   Madurai ? 625 009    

8.Nagarajan                                                       ...  Respondents

PRAYER: Writ  Petition is filed under Article 226 of the Constitution of
India praying for issuance of a Writ of Certiorari to call for the records
pertaining to the impugned proceedings passed by the first respondent in
Proc.No.T8/TNPCB/F.23855/MO263/EB/MDU/2017, dated 08.02.2017 and        
T8/TNPCB/F.23855/MO263/A/MDU/2017, dated 08.02.2017 and quash the same.       


!For Petitioner           : Mr.M.Senthil Kumar

^For R1 & R4              : Mrs.Reeta Chandra Sekar 

For R2                    : Mr.S.Chandra Sekar,
                                                        Government Advocate
For R3                    : Mr.J.Gunaseelan Muthiah,
                                                         Government Advocate
For R5 & R7               : No appearance
For R6                    : No appearance
For R8                     : Mr.Veilkani Raju
        


:ORDER  

[Order of the Court was made by T.S.SIVAGNANAM, J.] Heard the learned counsel for the parties.

2. In this writ petition, the petitioner challenges the proceedings issued by the first respondent/the Chairman (FAC), Tamil Nadu Pollution Control Board, Chennai, dated 08.02.2017, in and by which direction has been issued to the Electricity Board as well as the District Collector to disconnect the electricity supply for the unit in exercise of the powers conferred under Section 31A of the Air (Prevention and Control of Pollution) Act, 1981 as amended in 1987. This has has a case chequered history and this is the third round of litigation before this Court.

3. Earlier, the 8th respondent had approached this Court and filed W.P.(MD).No.1956 of 2016 to forbear the Official respondents from permitting the petitioner herein to run the industry in the name and style of Gnanam Ever Silver Pattrai at the place in question and to immediately take action for violation of the Public Health Act and Madurai City Municipal Corporation Act. The said writ petition was disposed of by an order dated 06.01.2017, by the Division Bench.

4. At this juncture, it would be relevant to take note of the relevant portion of the order made in W.P.(MD). No. 1956 of 2016, Paragraph Nos.4, 5, 6, 7, 9, 10 and 13 are as follows:

?4. The main grievance of the petitioner is that in spite of his complaint about the usage of heavy power equipments and machineries, which resulted in heavy noise and pollution in that area, no action was taken by the respondents 1 to 3. It is to be noted that the fourth and fifth respondents, without having licence to carry on the business, are running the industry. Hence, he sought for a direction to consider his representation and pass orders.

5. The second respondent has filed a counter-affidavit stating that notice under Section 41(8), 42(b), 44 and 134(1) of the Tamil Nadu Public Health Act was issued to the fourth respondent on 29.01.2016, directing the fourth respondent not to use the machineries after 10.00 p.m., till 06.00 a.m., and also directed the fourth respondent to take steps to reduce the sound of machineries.

6. The third respondent has also filed a counter-affidavit stating that the petitioner has given a complaint against the operation of M/s.Gnanam Ever Silver Pattarai, which is located next to the petitioner's house and because of usage of heavy machineries, there were severe vibration, noise pollution and public nuisance. Further, according to the petitioner, the Unit is running without local body licence and building plan approval. The complaint of the petitioner was forwarded to the Commissioner of Madurai Corporation to take action under the Local Body Act and the Public Health Act, vide letter dated 05.11.2015.

7. It is further stated in the counter-affidavit that another petition was received from the petitioner on 08.02.2016 against the same Unit. Based on the said complaint, the Unit was investigated on 12.02.2016 by the Assistant Engineer, Tamil Nadu Pollution Control Board, Madurai and it was observed thus:

"The unit was under operation.

The unit is located in the residential area.

The unit has provided one lathe, one plate turning machine, 4 no's of spinning/shaping machine, 2 No's of polishing machine and a welding machine It is reported that the lathe is not under operation for more than 8 months.

It is also reported that 1 no.of spinning/ shaping has been relocated (i.e. away from Complainant house) based on the request from complainant 4 months before.

It was found that the unit has not provided any noise absorbing materials or any vibration controlling materials to the machinery and in the unit's premises.

It is further to submit that no action taken reports has been received from the Commissioner, Madurai Corporation with respect to the previous complaints forwarded from this office."

9. Pursuant to the same, a show cause notice was issued to the Unit under the Water Act and Air Act for running the industry without valid consent. The Unit, by reply letter dated 07.05.2016, has stated that it has removed all the machineries installed nearer to the complainant's house and requested to grant one month time for removal of few of machineries in other part of the Unit i.e., Shed No.2-II.

10. Based on the reply of the Unit, it was again inspected by the Assistant Engineer, Tamil Nadu Pollution Control Board, on 20.05.2016 and on inspection, it was found that the Unit was under operation, but all the machineries adjacent to the petitioner's house were removed, except 2 numbers of welding machines and the manual sheet turning machine.

13. However, a perusal of the counter-affidavits filed by the second and third respondents would go to show that on receipt of the complaint preferred by the petitioner, the officials concerned are taking steps immediately. In fact, the second respondent has directed the Unit not to use the machineries after 10.00 p.m., till 06.00 a.m., and the third respondent has also constantly monitored the position of the Unit. When the official respondents have taken action against the Unit, this Court need not give any further direction. Therefore, recording the statements made by the Tamil Nadu Pollution Control Board in the counter-affidavit, more particularly, their undertaking that as soon as they receive the report from the Joint Chief Environmental Engineer (Monitoring) Madurai, they would take further action on the complaint of the petitioner, the Writ Petition is closed. No costs. Consequently, the connected miscellaneous petition is also closed.?

5. Thus, the Writ Petition stood disposed of by recording the statement given by the Tamil Nadu Pollution Control Board in the counter affidavit and the undertaking given by the Joint Chief Environmental Engineer (Monitoring), Madurai, that they would take further action on the complaint of the petitioner.

6. The grievance of the petitioner is that the impugned proceedings have been issued without any reference to the earlier orders passed by this Court, wherein the Court has taken into consideration all the factors. It is seen from the records placed before this Court that the Joint Chief Environmental Engineer (Monitoring), Madurai has conducted a public hearing on 11.07.2016, in which the petitioner has also participated, wherein the petitioner has stated that he has applied for permission from the Madurai Corporation and also will obtain the appropriate clearance from the Tamil Nadu Clearance Board within 15.08.2016. Subsequently, the petitioner filed another Writ Petition in W.P.(MD).No.10721 of 2016 for a Writ of Mandamus to direct the respondents to permit him to run the said factory. The said writ petition was dismissed for non-prosecution by the Division Bench, by order dated 04.08.2016. Thus, it is evidently clear that the Writ Petitioner has failed to obtain requisite clearance which he had undertaken to obtain at the time of personal hearing, on 11.07.2016. Hence, there is no error in the impugned proceedings. Accordingly, the Writ Petition fails and the same is dismissed. However, the dismissal of the Writ Petition will not prevent the petitioner from approaching the Authorities for necessary approvals. No costs. Consequently, the connected Miscellaneous Petitions are closed.

7. After the above order was passed, the learned counsel for the petitioner submitted that domestic electricity connection alone may be restored. In this regard, the petitioner shall give a representation to the seventh respondent, who shall consider the same in accordance with law.

To

1.The Chairman (FAC) Tamil Nadu Pollution Control Board, 76,Mount Salai, Guindy, Chennai ? 600 032.

2.The District Collector, Madurai District, Madurai.

3.The Commissioner, Madurai City Corporation, Madurai.

4.The District Environment Engineer, Tamil Nadu Pollution Control Board, Kappaloor, Madurai.

5.The Superintending Engineer, Madurai Electricity Distribution Circle ? Metro K.Pudur, Madurai.

6.The Assistant Commissioner, Zone ? 2, Race Course Road, Madurai Corporation, Madurai.

7.The Assistant Engineer (O&M) TANGEDCO / Sellur Kalpallam, Palam Station Road, Madurai ? 625 009..