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BEFORE THE NATIONAL GREEN TRIBUNAL
SOUTHERN ZONE, CHENNAI
APPLICATION NO. 34 of 2013 (SZ) (THC)
(W.P.No. 3561 of 2011, Madras High Court)
and
M.A.Nos. 69 of 2013(SZ) and 16 of 2014(SZ)
In the matter of:
Mayflower Sakthi Garden Owners' Association
The Club House
Mayflower Shakthi Gardens
Nanjundapuram Road
Coimbatore - 641 036
Rep by its President. ... Applicant/Petitioner in the writ
petition
and
1. State of Tamil Nadu
Rep by the Secretary to Government
Municipal Administration and
Water Supplies Department
Secretariat, Fort St. George
Chennai - 600 009.
2. State of Tamil Nadu
Rep by the Secretary to Government
Housing and Urban Development Department
Secretariat, Fort St. George
Chennai - 600 009.
3. Union of India
Rep by the Secretary to Government
Ministry of Environment and Forest
New Delhi - 110 001.
4. The Corporation of Coimbatore
Rep by its Commissioner
Coimbatore - 641 001.
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5. The Tamil Nadu Pollution Control Board
Rep by its Chairman
G.S.T. Road, Guindy
Chennai - 600 025.
6. The District Environmental Engineer
Tamil Nadu Pollution Control Board
266, Mettupalayam Road
Coimbatore - 641 043.
7. The District Collector
Coimbatore District
Coimbatore - 641 018.
8. The Coimbatore Local Planning Authority
Rep by its Member Secretary
Corporation Complex First Floor
Tatabad, Sivananda Colony
Coimbatore - 641 102. ..
Respondents/Respondents
in the writ petition
9. Parsn Senior Citizen Group
Rep. by R.J. Seshan
Nanjundapuram Road
Coimbatore. .. 9th respondent impleaded
By order dated 22.10.2013
of the Tribunal
Counsel appearing for:
Applicants: M/s. Sathish Parasaran, R. Parthasarathy, Rahul Balaji
and Madh Babu, Advocates.
Respondents: M/s. Abdul Saleem and S. Saravanan, Advocates for
respondent Nos.1,2, 4 and 8.
Smt. C. Sangamithirai, Advocate for respondent No. 3.
Smt. H. Yasmeen Ali, Advocate for respondent No. 5.
M/s. M.K Subramanian and M.R. Gokul Krishnan,
Advocates fo respondent No. 7
M/s. T. Mohan, S. Devika and A. Yogeshwaran, Advocates
for respondent No. 9
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JUDGMENT
Present:
1. Hon'ble Shri Justice M. Chockalingam Judicial Member
2. Hon'ble Prof. Dr. R. Nagendran Expert Member Dated: 12th February, 2014 (Hon'ble Shri Justice M. Chockalingam, Judicial Member) This applicant herein "May Flower Sakthi Garden Owners Association, (for short Applicant/Association) Coimbatore, State of Tamil Nadu, filed a Writ Petition No. 3561 of 2011 before the Hon'ble High Court of Madras (for short 'High Court') and on transfer, the same was taken on file by this Bench of the National Green Tribunal as Application No. 34 of 2013 (SZ) (THC). The short necessary facts of the case in the writ petition filed by the applicant and the petitioner in the above writ petition are as follows:
2.. The writ petition has been directed against the proceedings of the Chairman, Tamil Nadu Pollution Control Board, (for short 'TNPCB') bearing No. MA1/TNPCB/2.13302/2009 dated 13.11.2010 , which has been passed pursuant to the order dated 8.2.2010 passed by the High Court in W. P. No. 6800 of 2009 and issued to the fourth respondent namely the Commissioner/4th Respondent herein, Coimbatore Corporation, Coimbatore, The impugned proceeding, after virtually accepting the entire case put forth by the petitioner on merits, has however, proceeded to condone the statutory violations alleged to have been committed by the Municipal Corporation of Coimbatore, the fourth respondent, when such power was clearly absent. 3
3. After entering appearance all the respondents filed their replies. The Parsn Senior Citizens Group, Parsn Seshnestle, Nanjundapuram Road, Coimbatore filed a miscellaneous application in M.A.No. 84 of 2013 (SZ) for impleading and the same was allowed and impleaded as 9 th respondent to this proceedings. The 9th respondent has also filed the reply. When the matter was posted for enquiry, the respondent Nos. 1,2,4,7 and 8 raised their preliminary objection to the very maintainability of the instant application on the grounds set out hereafter. The counsel for the applicant was also given an opportunity to put forth his reply.
4. Before adverting to the question of maintainability of the application, it would be fit and proper to narrate the admitted facts which emerge as follows:
5. The applicant/association comprises over 500 persons in a residential colony called Mayflower Sakthi Gardens at Uppiliyapalayam Village, Nanjundapuram, Ramanathapuram at Coimbatore. An area measuring approximately 6 acres bearing S.Nos. 655, 656/2,657 and 658 of Uppiliyapuram village is situate on the side of the colony of the members of the applicant/assoctiation. Affter noticing the commencement of construction activities of a large open sewage tank by the 4 th respondent, the applicant/association raised its objection by way of representation to the Commissioner, Coimbatore Corporation and also to other authorities and also made a request for relocation of the sewage treatment plant (for short 'STP') and also existing pumping station from the immediate vicinity of the residential apartments in order to save the residents from serious health hazards. Despite the same, the construction activities were being undertaken which 4 constrained the applicant/association to file the first W.P.No. 6800 of 2009 before the High Court for the following relief:
" to issue a writ of mandamus or any other writ or order or direction in the nature of writ of mandamus forbearing the respondents, their officers, employees, subordinates, men, agents or any other person(s) or entry(ies) claiming or acting under the respondents from in any manner proceeding with the construction activities of the proposed sewage treatment plant at S.No. 655, Uppiliyapalayam Village, Nanjundapuram, Coimbatore, which is presently situated within the immediate vicinity of the petitioner's residential colony.
6. Pending the writ petition, at the instance of the High Court, a Committee consisting of 5 Members was constituted by the TNPCB and the Committee filed its report. Commenting that the opinion with regard to the objections raised by the applicant/association given by the Committee is mechanical in nature, the High Court directed the Committee to make a spot inspection of the proposed STP at Nanjundapuram and to submit a report in respect of five specific materials issues. After filing of the report by the Committee, the High Court by an order dated 08.02.2010 disposed of the writ petition with the following order:
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"As suggested by the learned Advocate General, we direct the TNPCB to consider the matter as per the report submitted by the Committee appointed by this Court in W.P.No. 6800 of 2009 dated 06.10.2009, after hearing the parties and pass orders on merits and in accordance with law within 4 weeks from the date of receipt of copy of this order."
7. The applicant/association filed a second writ petition before the High Court in W.P.No. 6695 of 2010 in the month of March 2010 for the following relief:
"issue a writ of mandamus or any other writ or order or direction in the nature of writ of mandamus forbearing the respondents, their officers, employees, subordinates, men, agents or any other person(s) or entry(ies) claiming or acting under the respondents from in any manner proceeding with the construction activities of the proposed open sewage treatment plant at S.No.
655,656/2, 657, 658 Uppiliyapalayam Village, Nanjundapuram, Coimbatore, which is presently situated within the immediate vicinity of the petitioner's residential colony."
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8. During the pendency of the above writ petition an application for consent for establishment of STP was made by the 4th respondent corporation on 10.10.2010 to the TNPCB, upon which the Chairman of the TNPCB made the following order:
"iv. The pending application filed by the Coimbatore Corporation on 22.04.2010, is returned herewith for resubmission after rectifying the defects therein and conducting the required studies from the stand point of the existing site being used for the STP. The Coimbatore Corporation may submit it revised DPR, layout, design, estimates, etc., as relevant to the project site. Care must be exercised to revise the design suitably so as to achieve greater buffer zone and economy in the use of land by revised design, duly considering the circular format suggested by the TNPCB.
v. As already indicated structural stability studies may be got done by the Department of Civil Engineering, IIT, Madras.
vi. The reclassification orders for the lands in question shall be annexed to the new application."
9. On 15.11.2010, the TNPCB reported to the High Court, Madras that an order has been passed by the Board after considering the objections raised by the applicant before the TNPCB as sought by the applicant on the 7 application made by the 4th respondent and hence, the W.P.No.6695 of 2010 had become infructuous in view of the said order. While disposing of the W.P.No.6695 of 2010, the High Court made an order giving liberty to the applicant to approach the court of law in case of any grievance.
10. After receiving the copy of order dated 13.11.2010 passed by the TNPCB, the applicant/association has filed on 19.01.2011 the W.P.No.3561 of 2011 which is presently the Application No. 34 of 2013 (SZ) (THC) of this Tribunal seeking the following relief:-
"issue a wirt of certiorified mandamus or any other writ, order or direction in the nature of certiorarifed mandamus calling for the records of the 5th respondent comprised in its proceedings bearing No. LA.1/TNPCB/F.12032/2009 dated 13.11.2010 and quash the same in so far as its relates to resubmit the application of rconsent under the Water (Prevention and Control of Pollution) Act, 1974 and submit an application under the Air (Prevention and Control of Pollution) Act, 1981, after obtaining reclassification of the site which the STP is proposed from 'mixed residential' to ágricultural' and all further proceedings pursuant thereto pending disposal of the above writ petition and consequently issue a mandamus forbearing the 4th respondent corporation, their officers, employees, subordinates, servants, men, agents or any other person(s) or 8 entity(ies) claiming or acting under the 4th respondent from in any manner proceeding with the construction or other activities of the proposed Open Sewage Treatment Plant at S.Nos. 655, 656/2, 657, 658 at Upplipalayam Village, Nanjundapuram, Coimbatore within the immediate vicinity of the petitioner's residential colony.
11. The said writ petition on transfer from the High Court to this Tribunal was taken on file as Application No. 34 of 2013 (SZ) (THC).
12. The 4th respondent, Coimbatore Corporation filed the application for consent with all required details and documents on 22.03.2012 before the TNPCB. Pursuant thereto the TNPCB issued orders of consent for establishing the STP under Water (Prevention and Control of Pollution) Act, 1974 (for short 'Water Act') and Air (Prevention and Control of Pollution) Act, 1981 (for short 'Air Act'). These consent orders have been challenged by the 9th respondent on 21.12.2012 in Appeal Nos. 32 and 33 of 2012 before the Appellate Authority, Tamil Nadu Pollution Control (for short 'Appellate Authority') which are pending adjudication.
13. At the outset, the counsel for the respondents raised their preliminary objection on the question of maintainability.
14. The Tribunal paid its anxious consideration on the submissions made by either side on the question of maintainability and also looked into all the materials available. As could be seen above, the present application No. 34 of 2013 (SZ) (THC) which was taken on file by the Tribunal on an order of 9 transfer of W.P.No. 3561 of 2011 by the High Court is the 3 rd application filed by the applicant/association. The first Writ Petition No. 6800 of 2009 seeking a writ of mandamus forbearing the 4th Respondent/Corporation from proceeding with the construction of the proposed open STP at the site in question came to be disposed of by the High Court on 08.02.2010 with a direction to the TNPCB to consider the matter as per the report submitted by the Committee appointed in that proceedings on 06.10.2009 and to pass orders on merits in accordance with law after hearing the parties within a time frame of 4 weeks. In pursuance of the above order, the Chairman, TNPCB made the impugned order on 13.11.2010 whereby the application filed by the 4th Respondent/Corporation on 22.10.2010 was returned for resubmission after rectifying the defects therein and conducting required studies from the stand point of the existing site being used for STP. The 4 th respondent was also required to submit along with a revised DPR, layout, design, estimates etc., necessary for the project. It is pertinent to point out at this stage that the 2nd writ petition made by the applicant/association in W.P.No.6695 of 2010 before the High Court for a writ of mandamus forbearing the respondents including the Corporation from in any manner proceeding with construction activities of the proposed STP was disposed of on 15.11.2010 since it was represented by the TNPCB that the application originally filed by the 4th Respondent/Corporation and pending in the hands of TNPCB was disposed on 13.11.2010 and in view of the same the writ petition itself has become infructuous. It is not in controversy that the application filed by the 4 th respondent before TNPCB which was pending during the pendency of both the Writ Petition Nos. 6800 of 2009 and 6695 of 2010 was returned for resubmission on 13.11.2010. The present application challenges the said 10 order of TNPCB returning the original application of the 4th respondent dated 22.10.2010 for resubmission. There is nothing to indicate that the said application was ever resubmitted. But, the 4 th respondent has submitted an application to the TNPCB with all required details and documents only on 22.03.2012 after a lapse of 15 months. The said application made by the 4th respondent dated 22.03.2012 resulted in the grant of consent orders on 25.12.2012 under Water Act and Air Act. This application questioning the order dated 13.11.2010 for resubmission of original application was made on 19.01.2011. As rightly pointed out by the learned counsel for the respondent that on 19.01.2011, when the W.P.No.3561 of 2011 was filed neither the original application dated 22.04.2010 was resubmitted nor any new application was made by the 4th respondent and thus, no application made by the 4th respondent before TNPCB was pending consideration on 19.01.2011. Pending the writ petition before the High Court, no stay of the impugned order was granted by the High Court. What was asked in the writ petition was only a direction to forbear the respondents from doing any construction activities for STP in the site in question.
15. Thus, it can be well stated that the applicant had no cause of action to file on the date when the application was made. The contention putforth by the learned counsel for the applicant such a preliminary objection as to the maintainability cannot be raised in view of the liberty given on 15.11.2010 while disposing of the Writ Petition No. 6695 of 2010 by the High Court, cannot be disputed that the liberty has been given to the applicant to approach the Court in case of any grievance. But, the applicant cannot be allowed to take advantage of the liberty given by way of an application like this when he had 11 not even had the cause of action. Admittedly, the TNPCB has passed the order of consent to establish on 25.10.2012 both under Water Act and Air Act which are the subject matter of two appeals before the Appellate Authority in Appeal Nos. 32 and 33 of 2012. Having preferred two appeals before the Appellate Authority, the applicant in M.A.No. 84 of 2013 (SZ) has chosen to implead as a party in this application as 9th respondent. The comparison of the grounds set out in this application and the appeals before the Appellate Authority referred to would clearly indicate that many of them are the same. It is true that the applicant has not preferred those appeals. But, it is a fact that these are the appeals preferred challenging the order of consent given by TNPCB to the 4th respondent and if allowed, it would be allowing two parallel proceedings. As to the contention putforth by the learned counsel for the applicant that this application challenges the proceedings at the initial state even before the grant of consent by the TNPCB and the grant of consent by TNPCB was subsequent in point of time and hence either the grant of consent or pendency of appeals would not stand as an impediment for this application, the Tribunal is afraid whether it can agree with the contention putforth by the learned counsel for the applicant for the simple reason that what is challenged by the applicant is regarding the siting criteria which is a part of the process of issuance of consent orders. Admittedly, on the application made by the 4 th Respondent/Corporation after following through several processes, the proceedings have culminated into consent order which is also challenged before the Appellate Authority. by none else than the newly impleaded 9th respondent herein. This application is pertaining to resubmission of an application originally made by the 4th respondent before the TNPCB. But, the above referred to appeals have challenged the grant of consent orders. 12
16. The learned counsel for the applicant with vigour and vehemence would contend that the reliefs sought for by the applicant were not only on the ground that the setting up of the subject STP was in violation of the provision of Water Act and Air Act, but also on the ground that the subject site did not qualify for setting up the STP, that the presence of large quantum of industrial waste in the sewage to be treated in the proposed STP, that the proposal of the 4th respondent to set up the STP at the site in question was contrary to the enactments which cannot be raised before the Appellate Authority. The Tribunal is of the considered opinion that all the above contentions can as well be raised before the Appellate Authroity since the grant of consent, though to be tested under the provisions of the Water Act and Air Act, would definitely include other issues also from the point of view pollution and environmental aspects.
17. Pointing to one of the conditions in the consent order, the learned counsel would submit that the TNPCB is conscious of pending proceedings and hence, the consent has been subject to the outcome of the present appeals. (Condition No. 27). As rightly pointed out by the learned counsel for the respondents that once the consent orders are challenged by way of appeals, the above condition attached to the consent order loses its significance. Merely because such a condition was added to the consent order it would not clothe the applicant with the right to maintain the application which lacks even a cause of action.
18. It is true that the 4th respondent has filed an undertaking affidavit that he would not make any construction without obtaining consent from the TNPCB. It is not the case of the applicant/asoication that the 4th respondent 13 has, at any point of time breached the said undertaking. The contentions put forth by the 4th respondent that the Corporation has not commenced the activity is not disputed by applicant.
19. Pending this application, the applicant has filed a Miscellaneous Application seeking amendment of relief clause. He also relied on the decisions to the effect that the amendment could be allowed at any stage of the proceedings. There is no quarrel as to the preposition of law. But in the instant case, the attempt made by the applicant , if allowed would certainly be an introduction of a new cause of action which he did not have on the date of filing of this application, Hence, it cannot be permitted.
20. The only grievance ventilated by the applicant/association in all the writ petitions was that the 4th respondent/Corporation was not justified in selecting the site for setting up the STP in the subject site from the environmental point of view. As could be seen from the grounds in the Appeals before the Appellate Authority, the same grounds have already been raised. Hence, no impediment is felt for the applicant/association to raise the same ground before the Appellate Authority.
21. For all the reasons given above, the application has to be dismissed as not maintainable. But, in view of the fact and circumstances of the case, the Tribunal is satisfied that it is a fit case where liberty has to be given to the applicant/association to implead as a party to the proceedings in Appeal Nos. 32 and 33 of 2012 pending before the Appellate Authority, Tamil Nadu Pollution Control and raise all contentions both legal and factual before the said authority.
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22. In the result the application is disposed of giving liberty to the applicant/association to approach the Appellate Authority, Tamil Nadu Pollution Control to implead as a party to the proceedings in Appeal Nos. 32 and 33 of 2012 and raise all the contentions both legal and factual before the said Authority. With the above observations the application is disposed of. The parties shall maintain status quo till the disposal of the above appeals.
23. We hope that the Appellate Authority, Tamil Nadu Pollution Control would dispose of the appeals at the earliest considering the fact that the concerned STP project has public interest.
24. The connected Miscellaneous Application Nos. 69 of 2013 (SZ) and 16 of 2014 (SZ) are closed.
No cost.
(Justice M. Chockalingam) Judicial Member (Prof. Dr. R. Nagendran) Expert Member Chennai, 12th February, 2014 15