BEFORE THE NATIONAL GREEN TRIBUNAL

                          SOUTHERN ZONE, CHENNAI

                            Tuesday, 09th April 2013

                             APPEAL NO. 57 OF 2012



Quorum:

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

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



BETWEEN:



M/s. Perfect Knit Process
Rep. by its Proprietor
Shri P. Nallasivam
S F. No. 12/2I, 2J, 2K, and 2l, Nallur Village
Kasipalayam, Vijayapuram (Post)
Tiruppur - 641 606.                                    ..   Appellant


                                        AND



1. The Chairman
   Appellate Authority
   Tamil Nadu Pollution Control
   'Krishna Vilas',
   No. 51, Gangadheeswarar Koil Street,
   Puraswalkam, Chennai - 600 084.

2. The Chairman
   Tamil Nadu Pollution Control Board
   No.76, Mount Salai
   Guindy, Chennai-600 032.

                                     Page 1 of 10
 3.    The District Environmental Engineer
      Tamil Nadu Pollution Control Board
      2nd Floor, Kumaran Commercial Complex
      Kumaran Road, Tiruppur-641 601.                               .. Respondents


(Advocates appeared: Shri K, Raja, for the appellant, Shrimathi Rita Chandra-
sekar for respondent Nos. 1 and 2)


                                    JUDGMENT

(Judgment delivered by the Bench) This appeal has been filed by the appellant herein praying for setting aside the order passed by the first respondent/Appellate Authority, Tamil Nadu Pollution Control dated 30.08.2012 in the Appeal Nos. 110 and 111/2010.

2. The gist of the case put forth by the appellant herein is as follows:

(1) The appellant has been running a dyeing unit at S. F. No. 150, Kancheepuram, Nallur village, Kasipayalaym post, Tiruppur Taluk and District since 1987 in synchronizing with the directions issued from time to time by the Tamil Nadu Pollution Control Board, arrayed as the second respondent herein. While so, as per the direction of the Hon'ble Supreme Court of India, in Vellore Citizen Welfare Forum vs. Union of India reported in 1996 (5) SCC 647 and the High Court of Madras in W.P. No. 1649 of 1996 inter alia for installing individual Effluent Treatment Plant ( for short ETP) in all the dyeing and bleaching units, the appellant had also installed the individual ETP in the year 1998 to abate the water pollution and consent for discharging 1.50 lakh liter of trade effluent per day was granted to the appellant on 07.10.2008. After that, as per the directions of the Madras High Court, in W.P.No.21791 of 2003 filed by an agriculturist, to all the dyeing and bleaching units to achieve Zero Liquid Discharge (for short ZLD) Page 2 of 10 by installing Reverse Osmosis Plant and Multiple Evaporator System, the appellant became a member of the Eastern Common Effluent Treatment Plant Limited (for short ECETP) by making necessary contributions and the said ECETP had achieved ZLD and it is in operation now. Hence, as on today the unit of the appellant is a ZLD unit.

(2) The appellant was running the dyeing unit in a rental premises at S. F. No. 150, Kancheepuram, Nallur village, Kasipalayam, Vijayapuram Post, Tiruppur Taluk and District and as the landlord insisted the appellant to vacate the premises for the former's personal use, the appellant had purchased a piece of land measuring an extent of 1.49 acre by a sale deed dated 12.06.2008 from which land it could be feasible to lay down pipe lines to carry the treated and untreated water to and from the proposed site to the ECETP. Since the landlord exerted much pressure on the appellant to vacate the rental premises, the appellant made an application on 22.06.2010 to the 3 rd respondent herein for shifting the unit from S. F. No. 150, Kancheepuram, Nallur village, Kasipalayam, Vijayapuram Post, Tiruppur Taluk and District to S. F. No. 12/2I, 2J, 2K, and 2L in Nallur village, Kasipalayam, Vijayapuram Post, Tiruppur Taluk and District. The application was rejected by the 3rd respondent on 09.07.2010 on the sole ground that the proposed shifting is located within one kilometer from the Noyyal river and thus attracted by the G.O.Ms.No.213, Environment and Forest Department dated 30.03.1989. Challenging the same the appellant herein had preferred two appeals before the first respondent/Appellate, Tamil Nadu Pollution Control: (i) Appeal No. 110/2010 as per section 31 of the Air (Prevention and Control of Pollution) Act 1981 and (ii) Appeal No. 111/2010 as per section 28 of the Water (Prevention and Control of Pollution) Act 1974. Both the appeals were dismissed by the first respondent/Appellate Authority by a common order dated 30.08.2012.

(3) In the grounds for this appeal, the appellant contends that the unit of the appellant is an existing operating unit situated within 200 meters from the river and the shifting of the unit from the rental premises to the new place as aforesaid is situated within 372.5 meters from the river. The Government order dated 30.03.1989 prohibits only the establishment of new industries and not the shifting of an existing unit from one place to another. Further, the unit which is run in a rental premises is shifted to the own premises and it is feasible to lay down pipe lines to carry the treated and untreated water to and from the ECETP through the proposed site and that the first respondent/Appellate Authority has erroneously passed an order dated 26.07.2006 in Appeal Nos. 16 and 17 of 2006 which dealt with the purchase of a leather unit and which is attached with the CETP and the unit was in operation in the period and kept as vacant site. The facts and circumstances of the case is not applicable to the appeals of the appellant herein and which is for shifting the existing unit. The appellant has also contended that the 1st respondent/Appellate Authority has allowed the shifting of the dyeing units from one place to another after imposing stringent conditions it is orders dated 10.09.2004 in Appeal No.39/2004, dated 11.08.2008 in Appeal Nos. 115 and 116/2008, dated 17.04.2009 in Appeal Nos. 11 and 12/2009, and dated 06.07.2010 in Appeal Nos. 5 and 6 of 2010. The said orders were implemented by the second and third respondents by granting the shifting of the dyeing units and the appellant herein is also entitled for the same relief as a similarly placed unit. The appellant in the Appeal Nos. 5 and 6 of 2010 is attached with the ECETP, for which shifting was permitted, in which the appellant herein also is a member, and therefore, the first and third respondents ought not to have rejected the claim of the appellant for shifting. The appellant herein further pleads that the appellant's unit was given consent in the year 1999 as the appellant proved the case in W.P. No. 1649 of 1996 before the Madras High Court for attaching the unit with the ECETP, also achieved ZLD, is in operation now and the Government order dated 30.03.1989 prohibits only new industry and not shifting Page 4 of 10 of the existing unit. The first and third respondents have not looked into the principle of sustainable development while considering the claim of the appellant for shifting and that having implemented the order in similar set of facts, the second and third respondents are estopped from rejecting the claim of the appellant. The appellant is ready to abide by the stringent conditions that may be imposed and in the event of granting the shifting the unit, the appellant undertakes that it will not increase the discharge of effluent over and above the quantity for which the respondent/Board has already given the consent and the appellant will not change the nature of industry or vary or alter the operation or process without consent of the respondent/Board and the appellant will not use the old premises for running the dyeing unit or any other industry or process and the shifting will be done under the supervision of the respondent/Board so as to comply with the above said conditions. Hence, the appellant prays for setting aside the orders passed by the second and third respondents and for issue of directions to the second and third respondents to permit the appellant's unit to shift from S.F. No. 150, Kancheepuram, Nallur village, Kasipalayam, Vijayapuram post, Tiruppur Taluk and District to S.F.No. 12/ 2I, 2J, 2K, and 2L in Nallur village, Kasipalayam, Vijyapuram post, Tiruppur Taluk and District.

3. Per contra, in the reply filed by the second and third respondents, the facts of the case with regard to the establishment and operation of the appellant's dyeing unit with the Consent Order dated 07.10.1998 upto 31.10.1998 in a leasehold land, setting up of individual ETP and subsequent membership of the appellant unit in ECETP are not disputed. Thereafter, when the application was made on 22.06.2010 by appellant to shift the unit to its own premises, the same was rejected by the order dated 09.07.2010 of the respondent/Board on the grounds of the Government order dated 30.03.1989 as no new industry can be established within the prohibited distance of water bodies/sources. Aggrieved by the same, the appellant preferred Appeals before Page 5 of 10 the first respondent/Appellate Authority in Appeal Nos. 110 and 111/2010. Along with the appeal the appellant enclosed the order dated 26.07.2006 passed by the first respondent/Appellate Authority in Appeal Nos. 16 and 17/2006 whereby the first respondent/Appellate Authority granted permission of shifting to the appellants referred to in the above appeals. However, the first respondent/ Appellate Authority dismissed the same sustaining the Government order dated 30.03.1989. A detailed counter affidavit was filed on behalf of the second respondent/Board before the first respondent/Appellate Authority stating that the shifting of the appellant's unit would attract the Government order dated 30.03.31989 as the Appellate Authority was not inclined to follow the earlier order passed in Appeal Nos. 16 and 17/2006. The second and third respondents have, therefore, prayed the Tribunal for passing appropriate orders.

4. On the above pleadings, the following points were formulated for decision in the appeal:

(1) Whether the order of the first respondent/Appellate Authority, Tamil Nadu Pollution Control in the Appeal Nos. 110 and 111/2010 dated 30.08.2012 and the order of the third respondent in Letter No. F.TPR.0301/RS/DEE/ TPR/2010 dated 09.07.2010 are liable to be set aside as alleged by the appellant and consequently permission can be granted to the appellant to shift the unit as required by him.

5. The Tribunal heard the arguments advanced on either side and looked into all the materials available, in particular, the order of the first respondent Appellate Authority and also the third respondent Board.

6. Admittedly, the appellant M/s. Perfect Knit Process, a dyeing unit, was established in the year 1993. The third respondent Board by its proceedings No.F2/TNPCB/F.2673/CBE//98 dated 07.10.1998 granted Consent to the Page 6 of 10 Appellant unit under Water (Prevention and Control of Pollution) Act,1974 and Air (Prevention and Control of Pollution) Act, 1981 upto 31.10.1998.

7. Pursuant to the direction of the Apex Court in Vellore Citizen Welfare Forum vs. Union of India (1996 (5) SCC 647), and also the High Court of Madras, the appellant, after providing its case, installed individual Effluent Treatment Plant, and a consent for discharging1.50 lakh litre per day of trade effluent was granted on 07.10.2008. In W.P. No. 21797 of 2003, the High Court of Madras inter alia issued directions to all the dyeing and bleaching units to achieve Zero Liquid Discharge (for short ZLD) by installing Reverse Osmosis Plant and Multiple Evaporator System. Following the directions, the appellant became a Member of the Eastern Common Effluent Treatment Plant Limited (for short Eastern CETP) by making the necessary contribution. The said Eastern CETP achieving the ZLD is in operation and thus the appellant dyeing unit is a ZLD unit.

8. It is not in controversy that the appellant was running its unit in a rental premises in S.F.No.150, Kancheepuram, Nallur Village, Kasipalayam, Vijayapuram Post, Tiruppur Taluk and District. In view of the pressure exerted by the landlord to vacate the premises, the appellant purchased a piece of land measuring an extent of 1.49 acres in S.F.No. 12/21, 2J, 2K, 2L in Nallur Village, Kasipalayam, Vijyapuram Post, Tiruppur Taluk and District by a sale deed dated 12.06.2008 and thus there arose the necessity to shift the dyeing unit from the rental premises to the own premises.

9. The appellant made an application to the third respondent/Board on 22.06.2010 for shifting the unit from the rented premises to its own premises, which was rejected by an order dated 09.07.2010 on the sole ground that the same would attract G.O. Ms. No. 213, Environment and Forest Department, dated 30.03.1989 and no new industry could be established within the prohibited Page 7 of 10 distance of water bodies/source. Aggrieved appellant preferred appeals in Appeal Nos. 110 and 111/2010 before the first respondent, which dismissed the appeals accepting the contentions put forth by the third respondent/Board. Under the stated circumstances, the appellant has preferred this appeal before the Tribunal.

10. After paying an anxious consideration and also making scrutiny of all the materials available, the Tribunal is of the considered opinion that the order of the first respondent/Appellate Authority under challenge confirming the order of the third respondent cannot be sustained for more reasons than one. The third respondent has categorically admitted that a Consent under the under Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981 was issued to the appellant's dyeing unit by its proceedings dated 07.10.1998. The appellant, who originally set up individual Effluent Treatment Plant and thereafter became a member of the Eastern CETP and thus as a unit of the same, the appellant unit can be termed as ZLD unit. The appellant, who has been carrying on the dyeing unit in a rental premises was compelled to shift to S.F. No. 12/21, 2J, 2K, 2L in Nallur Village, Kasipalayam, Vijyapuram Post, Tiruppur Taluk and District, purchased and owned by it. Necessary application made by the appellant therefor was rejected by the third respondent.

11. Perusal of the order of the third respondent would indicate that on the grounds for rejection that the setting up of the appellant's unit in a different place cannot be construed as a shifting of the existing unit, but it would amount to setting up of a new unit at a different place and apart from that it would attract the prohibition in G.O. Ms. No. 213, Environment and Forest Department, dated 30.03.1989 and accepting the said contentions of the respondent/Board, the Appellate Authority also dismissed the appeal. In our opinion, the order of the 3 rd respondent and subsequent confirmation by the Appellate Authority cannot be sustained in law.

12. The appellant, who has been carrying on its unit by obtaining the necessary consent from the 3rd respondent from 1998 onwards and it has joined as unit of the Eastern CETP who has achieved ZLD. There arose the necessity to the appellant to shift his unit from the existing rental premises to his own premises. Shifting of an existing unit by the appellant to a new location cannot be construed as a new industry since the appellant is shifting the unit to the new location. In the instant case, it is noticed that the appellant unit is a member of the Eastern CETP who has achieved ZLD. The case of the appellant is that it is feasible to lay down pipelines to carry the treated and untreated water to and from the Eastern CETP through the proposed site is not denied by the respondent/Board. Under such circumstances, it would be highly unreasonable refusal of Consent to the appellant on an unsustainable grounds that shifting of an existing industry, which has been originally functioning with the Consent from the Board all along and also achieved ZLD, to a new location as anew industry.

13. Hence, the order of refusal to grant Consent made by the 3 rd respondent has to be set aside. The Tribunal cannot also subscribe to the order of the Appellate Authority, which has affirmed the said unsustainable order of the 3 rd respondent. As pointed out by the learned counsel for the appellant, the Appellate Authority in Appeal Nos. 39/2004, 115 and116/2008, 11 and12 /2009 and 9 and10 of 2010 has already taken a view that the shifting of the existing dyeing unit to another location would not amount to setting up of a new industry.

14. The Tribunal is unable to notice any reason or circumstance to make a deviation from the earlier view recorded by the Appellate Authority in those judgments'. Under the circumstances, the Tribunal has no option than to set aside the order of the 3rd respondent refusing to grant Consent and the subsequent confirmation of the said order made by the first respondent/Appellate Authority. Accordingly, both the appeals are allowed setting aside the order of the 3rd respondent in Letter No. F.TPR.0301/RS/DEE/TPR/2010 dated 09.07.2010 Page 9 of 10 and also the judgments of the first respondent/Appellate Authority dated 13.08.2012 in Appeal Nos. 110 and 111/2010.

15. The 3rd respondent/Board is directed to issue Consent for shifting the dyeing unit of the appellant from S.F.No.150, Kancheepuram, Nallur Village, Kasipalayam, Vijayapuram Post, Tiruppur Taluk and District to S.F. No. 12/21, 2J, 2K, 2L in Nallur Village, Kasipalayam, Vijyapuram Post, Tiruppur Taluk and District subject to the following conditions:

     1. The      shifting   is    to      be   done    under   the   supervision   of    the
           respondent/Board.

2. The appellant, after shifting to the new location, shall not increase the discharge of the trade effluent over and above the quantity for which Consent was given by the 3rd respondent/Board.

3. The appellant shall not change the nature of the industry or vary or alter the operation and process.

4. The appellant, after shifting the unit to the new location in S.F.

No. 12/21, 2J, 2K, 2L in Nallur Village, Kasipalayam, Vijyapuram Post, Tiruppur Taluk and District, shall not use the premises in S.F.No.150, Kancheepuram, Nallur Village, Kasipalayam, Vijayapuram Post, Tiruppur Taluk and District for running a dyeing unit or any other industry or process.

There shall be no order as to costs.

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




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