THE NATIONAL GREEN TRIBUNAL

                            SOUTHERN ZONE, CHENNAI

                            Thursday, 28th February, 2013

                              Appeal No. 9 of 2012 (SZ)



Quorum:

1. Hon'ble Justice Shri M. Chockalingam
   (Judicial Member)

2. Hon'ble Prof. Dr. R. Nagendran
  (Expert Member)

BETWEEN

P.S. Vajiravel
Proprietor
M/s. Shivashakthi Dyeing
S.F.No.273/3B, 277 of Periasemur Village
No.14, Cauvery Nagar, Soolai
Erode Taluk and District-638004.                ..          Appellant

                                        AND

1.   The Chairman
     Tamil Nadu Pollution Control Board
     No.76, Mount Road
     Guindy, Madras-600 032.

2.   The District Environmental Engineer
     Tamil Nadu Pollution Control Board
     No.155-A, Nehru Street
     D.V.Complex, First Floor
     Erode-1

3.   District Collector
     Erode.


4.   The Superintending Engineer



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      Tamil Nadu Pollution Control Board
     Electricity Distribution Circle
     Erode.

5.   Assistant Engineer
     Rural/Veerappan Chathiram
     Tamil Nadu Generation and
     Distribution Corporation Ltd.,
     Erode Distribution Circle
     Erode-638 004.                                    ..               Respondents



(Advocates appeared:

M/s. V. Raghavachari, V. Srimathi, V. Lakshminarayanan, and M. Karunanidhi for the
appellant.

M/s. Rita Chandrasekar for Respondent Nos.1 and 2, M.K. Subramanian, Abdul
Saleem for Respondent No.3

Shri S.K. Rameshwar, Standing Counsel for Respondent Nos. 4 and 5)


                                       JUDGEMENT

(Judgment delivered by the Bench) This appeal challenges an order of the respondent No.1, namely the Tamil Nadu Pollution Control Board dated 28.10.2012 in proceedings No. T2/TNPCB/F.13756/12-1 whereby the respondent No.1 issued order for the closure of the appellant's dyeing unit. Necessary facts for the disposal of the case can be stated thus:

2. The appellant is the proprietor of M/S. Shiva Shakthi Dyeings and commenced the business in the year 1995. The unit comprises of a factory and an Effluent Treatment Plant (for short ETP). The land on which the factory is situated is owned by one E.P. Thyagarajan. Due to constraints of space, the unit had to look for further space to construct ETP as directed by the Tamil Nadu Pollution Control Board Page 2 of 10 (for short the TNPCB). One Mr. Shanmugam offered his land to put up the ETP and reverse osmosis plant (for short RO plant) and he leased out an area of 7500 square feet of vacant land to the dyeing unit to enable to construct the ETP and the lease deed was executed in 1999. The appellant had incurred additional expenses to diligently comply with the norms for the treatment of effluent discharge as prescribed by the TNPCB and obtained a letter of consent from the first respondent to operate the dying unit. Subsequently, in the year 2007, the lessor of the applicant namely Mr. Shanmugam, clandestinely effected a sale of the land to one Mr. Prabhu, the son of one Mrs. Mallika Paramasivam, a politician and the present Mayor of Erode. She has succeeded in using her high office to influence the officials of the first respondent to repeatedly harass and browbeat the appellant into giving up possession of the lands belonging to her son. The said Mr. Prabhu had used his mother's clout over the officers of the first respondent and had attempted to cancel the license issued to the dyeing unit and the second respondent issued show cause notice vide proceedings No. F.ERD 0049/OS/DEE/2012 dated 30.03.2012 and the said letter was issued mechanically without even carrying out an inspection as mandated under the statutes. The above said notice is the subject matter of the W.P.No.12726 of 2012, which is sub judice before the High Court of Madras. However, the appellant issued a detailed reply vide his letter dated 04.04.2012 explaining the installation of E.T and R.O. plants and the suit pending before the District Munsiff Court Erode in O.S.No.424/2007. An interim injunction was granted in favour of the appellant that his possession is not to be disturbed till the disposal of the suit. The District Environmental Engineer Erode has recommended the closure of the said unit under Section 33-A of the Water (Prevention and Control of Pollution) Act, 1974 (for short Water Act) citing expiry of the lease of land as the reason.

3. The respondents have mechanically and without justification sought to intrude upon the right of the appellant and have acted under the dictate from the mother of the lessor and all of them have colluded together to ruin the business of the appellant. The appellant had issued a detailed reply to the queries of the First Page 3 of 10 respondent on 13.07.2012. He had also obtained an order of ad-interim injunction as far back as on 18.06.2007. The first respondent had overlooked these facts and proceeded to issue the impugned order in a manner that smacks of abuse of power. Despite being informed of the Civil Court's order of injunction and the detailed letter issued by the appellant mentioned supra, the Member Secretary of the Board issued a letter mechanically and all of a sudden the First respondent has issued the impugned order for closure of the unit and as a result of the order, the fifth respondent had disconnected the electricity to both the connections of the appellant vide his communication dated 14.11.2012.

4. Per contra the reply affidavit filed by the TNPC Board on behalf of the first and second respondents states thus:

(i) The appellant unit had been functioning since the year 1995 and it had obtained the consent on 21.10.1999 both under the Air Act, 1981 and Water Act, 1974 for manufacturing dyed cotton yarn of 12.5 MT and to discharge trade effluent of 50 KLD. The appellant is having his unit in a leasehold land. A complaint was received from the land owner vide letter dated 15.03.2012 complaining that the lease period had expired on 31.03.2010 and in that context requested the respondents to cancel the license issued in respect of the ETP and RO. Whereupon, the respondents issued show cause notice dated 31.03.2012 to the appellant stating that as the lease period had expired as per the letter of the land owner, the unit had not complied with the conditions stipulated in the order dated 04.07.2007 passed by the High Court, Madras in W.P.Nos.5494 of 1998 and 30153 of 2003. A reply was sent by the appellant on 05.04.2012 stating that it had complied with the directives issued by the High Court, Madras in the order dated 04.07.2007 passed in the above writ petitions and that 90% of the work with regard to the installation of RO and RMS had already been completed. In so far as the civil dispute is concerned, in the reply of the appellant it was stated that the same need not be taken into consideration for the purpose of issuing further orders and further stating the fact of the pendency of the Page 4 of 10 civil suit in O.S.No.424 of 2007 before the District Munsiff Court, Erode and that of the interim injunction initially obtained and which was made absolute by the court. The appellant had also mentioned about the applications made for the renewal of the consent from time to time.

(ii) On account of the dispute between the appellant and his landlord, the application for renewal of consent could not be considered and the same was intimated to the appellant on 05.07.2012. In the proceedings dated 28.10.2012, an order of closure and disconnection of power supply was issued on the premises that the unit has been operating without valid consent and the validity of the lease period where ETP and ZLD (Zero Liquid Discharge) had been constructed had expired. As per the directions issued in the order dated 04.07.2007 passed in W.P. Nos. 5494 of 1998 and 30153 of 2003, the unit had to provide ETP and ZLD and the same was installed in the leased land and hence the Board has requested the appellant to furnish the valid lease agreement to the respondents. The unit had not furnished the same. The non-renewal of lease period was also cited as one of the grounds for issuing the order of closure. By the proceedings dated 28.10.2012, the electricity supply was disconnected. With regard to the civil dispute between the appellant and his landlord, it is an admitted fact that the same has been filed by the appellant wherein an injunction has been obtained which was made absolute. In the event of the suit filed by the appellant getting dismissed, it would be difficult for the respondents to revoke the order of consent on that score.

5. The respondent No. 5 has filed a counter stating that the 4 th respondent had received a letter in No.T2/TNPCB/F13756/12-2 dated 28.10.2012 from the first respondent namely the Tamil Nadu Pollution Control Board to disconnect the service connection for the appellant unit. In the said letter the TNPCB had stated that the dyeing unit was causing pollution and as per the request of the Board, the service connection No. 010-002-787 and 010-002-526 was disconnected with prior notice in accordance with law. The Electricity Board is not responsible for any other action. It Page 5 of 10 was based on the first respondent that the Electricity Board had disconnected the service connection on 14.11.2012 due to heavy pollution caused by the dyeing unit and the Electricity Board will obey the directions passed by the Tribunal.

6. The only question that arises for consideration in the appeal is whether the order of closure made by the first respondent dated 28.10.2012 vide proceedings No. T2/TNPCB/F.13756/12-1 is liable to be set aside for all or any of the reasons stated in the appeal grounds.

7. The Tribunal paid its anxious consideration on the arguments advanced on either side and also made scrutiny of the documentary evidences adduced by the appellant. The respondents have not filed any documents. Admittedly, the appellant commenced his Shivashakthi Dyeing in the year 1995 which comprised a factory and an ETP. As he required additional space to construct the ETP he took an area of 7500 sq.ft. of land from the land owner Mr. Shanmugam for the construction of ETP. A lease deed was entered into in the year 1999. He complied with the norms for the treatment of effluent discharged as prescribed by the TNPCB. Being satisfied with the same, the respondent No.1 issued a letter of consent to operate the dyeing unit and the same was in force. While the matter stood thus, the owner of the land sold the same to one Mr. Prabhu. The present owner sent a letter to the Tamil Nadu Pollution Control Board on 15.03.2012 stating that the lease period had already expired and hence the license issued to the appellant unit on the said survey numbers had to be cancelled. On receipt of the show cause notice issued on 13.03.2012 in proceedings No. F.ERD 0049/OS/DEE/2012, the appellant sent a detailed reply on 04.04.2012 and also filed a writ petition in W.P.No.12726 of 2012 before the High Court of Madras. The TNPCB in exercise of the powers conferred under Section 33-A of the Water Act, 1974 made an order of closure of the appellant unit with immediate effect and also issued directions for stoppage of electricity to the said unit, which was also done by the Fifth respondent, Tamil Nadu Electricity Board. Under the circumstances the appellant brought forth this appeal before the Tribunal.

8. After careful consideration of the available materials, the Tribunal is of the considered opinion that the directions of the First respondent ordering closure of the applicant unit and also issuing directions to stop the electricity cannot be sustained for the more reasons than one. The appellant, who is the proprietor of a small dyeing unit called Shivashakthi Dyeing, and who commenced the business in 1995 took 7500 sq.ft of vacant land on lease in the year 1999 to put up the ETP and constructed the same. It is not in controversy that the respondent Board being satisfied with the norms for the treatment of effluent discharge and other parameters issued a letter of consent to operate the said unit. The appellant has also made application for renewal of the consent and he had not only paid the consent fee for the earlier periods, but also for the period 2012-13 on 12.04.2012 as could be seen from the documents relied on by the appellant. It is pertinent to point out at this juncture that though the respondent Board has received the necessary fee for the period 2012-13 and issued receipt therefor, has not given the letter for renewal. On the contrary, it has issued the order under challenge and no explanation is forthcoming from the Respondent No.1 Board in this regard.

9. A perusal of the order of closure issued by the first respondent Board dated 28.12.2012 indicates that an inspection of the unit was made on 19.09.2012, that during that time the unit was under operation, that a show cause notice was issued, that the unit has furnished a reply denying the right of the land owner as a civil dispute was pending in the District Munsiff Court, Erode in O.S.No. 424 of 2007, since the validity of the lease agreement has been lapsed, the unit's request could not be considered and thus the reply was not satisfactory, that since the Unit was operating without a valid consent and the validity of the lease of land where ETP and ZLD were constructed has already expired and the unit not submitted the renewal of lease deed, the second respondent, District Environmental Engineer, Erode, has recommended for closure under Section 33-A of the Water Act, 1974. Hence a Page 7 of 10 direction was issued to disconnect the electricity and a direction issued to close the Unit.

10. As could be seen above, the only material in the hands of the second respondent, namely the District Environmental Engineer, TNPCB Erode, was a letter written by the land owner that the lease period under agreement had lapsed and hence the consent order to operate the unit has to be cancelled. The case of the appellant is that he entered into an agreement of lease with one Mr.Shanmugam in 1999 in respect of 7500 sq.ft of vacant land for the purpose of constructing ETP and when his possession was attempted to be interfered with, he filed a civil suit in O.S. No. 424 of 2007 before the District Munsiff Court Erode.

11. Pointing to a certified copy of an order of the said court in an Interim Injunction petition, the learned counsel for the appellant would submit that the appellant was enjoying an interim order which was made absolute. Since the petition was allowed, the contention put forth by the appellant as to the pendency of the suit and the original order of injunction is in force is not disputed by the respondent Board. It is also contended by the appellant, that on coming to know the sale of the piece of land to one Mr. Prabhu, he was also added as a party in the said proceedings and the injunction was binding on him also. The order of the respondent refers to an inspection of the appellant unit on 19.04.2012 and at that time, the unit was under operation. The report of the second respondent, District Environmental Engineer, TNPC Board, Erode found in Page No.11 of Paper Book Volume-II of the appellant makes it clear that at the time of inspection, that the readings on the ETP and ZLD systems indicated that the ZLD was operated at 90.78% efficiency and the performance of the ETP and RO were adequate. On receipt of the show cause notice dated 30.03.2012, which was issued on the strength of the letter received from Mr. Prabhu, the present owner of the land, the appellant has sent a detailed reply on 04.04.2012, in which he has narrated all the details and in particular the pendency of the civil suit in O.s.No.424 of 2007, which was initially Page 8 of 10 filed against the original owner and subsequently impleading the present owner Mr. Prabhu apart from the fact that the interim injunction was in force at that time. Under such circumstance, the recommendation made by the second respondent for cancellation of the consent to operate and the pursuant order of the first respondent cancelling the consent to operate are arbitrary, invalid and also against the proceedings pending in the civil court. The authorities have acted merely on the strength of the letter of the present owner of the land, who asserted in his letter the period of lease was over, but has not cared to consider the original owner of the land who entered into a lease agreement with the appellant and also the present owner who was also a party to the proceedings in court actually suffers from an order of injunction in the said suit. The order under challenge suffers by a grave violation of the principles of natural justice. The authorities have not even given an opportunity to the appellant of being heard to put forth his case. It is pertinent to point out that the only material available in the hands of the authorities is the letter of the present owner of the land and a suitable and acceptable reply of the appellant. Having accepted the renewal license fee for the year 2012-13, the Board, instead of renewing the letter of consent to operate, has taken a drastic action of closure of the unit with immediate effect. The recommendation made by the District Environmental Engineer, TNPC Board, Erode, the second respondent herein who recommended for cancellation without required materials to do so, is a glaring example of non- application of mind, utter carelessness to the court proceedings and also flagrant violation of the principles of natural justice.

12. Hence, without any hesitation, the order of the first respondent dated 28.10.2012 issued for the closure of the appellant unit has to be set aside as illegal and invalid in law and consequently the order issued by the Respondent No.5 , Assistant Engineer, Tamil Nadu Generation and Distribution Corporation Limited, Erode in letter No. Ka.No.E.Ma.Po/E&Pe/Pu.Na/Vee.Sa/Ko.Kattu/No.137 dated 14.11.2012 for disconnecting the electricity is also set aside. As it is not the case of the respondents that the appellant Unit is lacking in any of the environmental Page 9 of 10 parameters required to operate the Unit, the Respondent No.1 is directed to issue renewal letter of consent to operate and the Respondent No.5 is directed to give electricity connections within one week herefrom to the appellant's unit.

13. The appeal is allowed. There will be no order as to the costs.

   (Prof. Dr. R. Nagendran)                                 (Justice M. Chockalingam)
     Expert Member                                                Judicial Member




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