IN THE HIGH COURT OF JUDICATURE AT MADRAS 

DATE : 01.12.2009

CORAM

THE HONOURABLE MR. JUSTICE S.J.MUKHOPADHAYA
AND
THE HONOURABLE MR. JUSTICE  M.DURAISWAMY

W.P. NO. 29216 OF 2006
AND
M.P. NO. 2 OF 2006

Midas Golden Distilleries Pvt. Ltd.
Pushpagiri Road
Sirumathur Village
Padappai, Sriperumbudur Taluk
Kancheepuram District
Rep. by Thiru M.R.P.Eravanan				.. Petitioner

- Vs -

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

2. The District Environmental Engineer
    Tamil Nadu Pollution Control Board
    No.6, Sivashanmugam Street
    West Tambaram
    Chennai 600 045.						.. Respondents	
	Writ petition filed for the issuance of a writ of certiorari calling for the records pertaining to the 1st respondent in Proceeding No.T16/10952/06/KPM/Orange-1 dated 24.08.2006 as stated therein.
		For Petitioner		: Mr.Navaneethakrishnan

		For Respondents	: Mr. P.S.Raman, AG for Mr.R.Ramanlal
ORDER

S.J.MUKHOPADHAYA, J.

The petitioner has challenged proceeding No.T16/10952/06/KPM/Orange-1 dated 24th Aug., 2006, issued by the Chairman, Pollution Control Board u/s 33-A of the Water (Prevention and Control of Pollution) Act, 1974 (hereinafter referred to as the Act') whereby and whereunder the petitioner's unit has been closed with immediate effect.

2. According to the petitioner, the company was incorporated under the Companies Act on 28th Oct., 2002 and its unit started running only on obtaining consent order dated 6th May, 2003, issued by the Tamil Nadu Pollution Control Board. On 17th July, 2006, a show cause notice was issued by the 2nd respondent to which the petitioner replied on 27th July, 2006, enclosing relevant documents in its support relating to purchase of extra neutral alcohol, but without any basis and ground the impugned order of closure has been issued on 24th Aug., 2006.

3. Learned counsel for the petitioner submitted that the order u/s 33-A of the Act is bad as the show cause notice was not issued originally under the said provision, but u/s 25 of the Act. No notice was issued on the petitioner u/s 33-A of the Act. It was further contended that show cause notice dated 17th July, 2006, was issued by the District Environment Engineer, the 2nd respondent, seeking satisfactory explanation with respect to the allegation contained in the show cause notice, whereas the impugned order u/s 33-A has been passed by the Chairman of the Board, the 1st respondent, who never issued any show cause notice. Having noticed the show cause notice issued earlier u/s 25, it was not open to the respondent to pass order u/s 33-A. Further grievance of the petitioner is that no personal hearing was given in the entire proceeding and when the closure of the industry was made, it was excepted that before taking the extreme step the respondent should have fulfilled the minimum requirement of natural justice, which they deliberately denied.

Learned counsel for the petitioner submitted that power to give direction for closure or stoppage of production can be passed only by the Board as a whole and not by the Chairman in his individual capacity. The records do not indicate that the matter was placed and discussed by the Board. The Board had not delegated any power to the Chairman nor has delegated any power on the 2nd respondent to issue show cause notice u/s 25 of the Act.

4. After notice the respondents have appeared, but no counter affidavit has been filed by the respondents denying the averments made in the writ petition. This Court wanted to know from the learned Advocate General appearing on behalf of the Pollution Control Board whether the respondent has got the power to order permanent closure of any unit to which it was replied by the learned Advocate General that power of permanent closure can be issued depending on the gravity of the violation of the Act if it is found and that it will cause irreparable and irreversible damage or to prevent further pollution. It was submitted that temporary closure is a regulatory weapon used by the Board to comply with the terms and conditions and provisions of the Air and Water Act. It was accepted that if a person takes remedial measures, in that case, after necessary verification such units are allowed to function.

5. We have heard the learned counsel for the parties and perused the records.

6. The 2nd respondent, in its impugned notice dated 24th Aug., 2006, has alleged that during inspection of the petitioner's unit by the officials of the Pollution Control Board held on 13th July, 2006, the unit was found operational and following was observed :-

i) The unit has exceeded the production than the consented capacity for the month of February 2006 and March 2006. February 2006 production was 4,65,490 cases per month and March 2006 production 527664 cases per month as against the consented capacity of 4,25,000 cases per month.

ii) The final treated sewage pumped for gardening is varying from 6 KLD to 30 KLD (consented capacity is 10 KLD).

Iii) RO plant provided in Effluent Treatment Plant was not in operation.

iv) The unit had not recycled 50% of the treated effluent so as to reduce process water consumption as requested by the Board in letter dated 24.4.2006.

v) Effluent Treatment Plant sludge approx. 500 Kg was collected in Polyethylene bags and stored in open land which is to be stored in closed impervious shed. Subsequently, on 27th July, 2006, when the unit was inspected and was found operational, the following observation was made by the officials :-

i) The unit has increased the production during the month of February 2006 and March 2006 above the consented capacity of the Board, thereby violated the conditions stipulated in the consent order already issued.

ii) The unit has not operated the RO plant to reduce the process water consumption by recycling the 50% of the treated trade effluent as directed by the Board.

Iii) The unit has not installed the Hazardous Wastes Display Board as per the directions of the Hon'ble Supreme Court of India in WP No.657 of 1995. From the aforesaid fact it will be evident that certain technical fault was found like increase of production during the month of February and March, 2006 and the unit has not operated the R.O. Plant to reduce water consumption and that the unit has not installed the Hazardous Waste Disposal Board. But there is nothing on the record to suggest that any water pollution was actually committed by the petitioner to call for permanent closure of the unit.

.

7. Normally, if some defects are found out, which are technical in nature and not directly causing pollution for the present, the parties are asked to rectify such defects. For example, if the production of the company has increased in one or other month, one can understand if the authority who granted permit of production specifying a limit finds violation of its order or provisions of law and takes action, but it is not clear as to how the Pollution Control Board can take such action u/s 33-A of the Act if production is found more but not caused any pollution. Similarly, if proper Display Board at one or other place has not been displayed, penalty may be imposed or warning can be given to the unit or it may be asked to take necessary remedial measures, but such technical defects cannot be a ground for permanent closure of the unit.

8. Section 25 of the Act relates to new outlets and new discharges. But the respondents have failed to make it clear as to under what circumstances such notice was issued by the 2nd respondent u/s 25 of the Act in absence of allegation of opening of a new outlet or new discharge.

U/s 33-A of the Act, the Board has power to give directions and in exercise of its powers may issue any direction in writing to the unit to comply with such directions. Such power having vested on the Board, though it was open to the Board to issue such direction asking the petitioner's unit to rectify the defects as found on inspection, but the respondents have failed to show as to why no such opportunity was given to the petitioner's unit to rectify such defect, which otherwise do not call for closure, in absence of any allegation of adverse effect on the environment or pollution being caused, which may affect the ecological balance of the locality. If earlier any direction is given and such direction is not complied, in that case also it is open to the Board to use the weapon of Section 33-A by directing temporary closure of the unit till the direction is complied. But, in the present case, no such direction was issued to comply with certain irregularities found and to take step to rectify such irregularities, if any, found during inspection. Further, u/s 33-A the power is vested with the Board to issue such direction and pass appropriate order, but in the present case there is nothing on the record to suggest that the matter was taken up or decided by the Board. On the contrary, the impugned order dated 24th Aug., 2006, shows that the Chairman, in his independent capacity, has passed the order, who has no jurisdiction to pass order u/s 33-A of the Water Act.

9. For the reason aforesaid, we set aside the impugned order dated 24th Aug., 2006 but remit the case to the Pollution Control Board, who may make further inspection of the petitioner's premises and if any defect is pointed out, may ask the petitioner to take correctional measures to rectify such defect. In such case, the petitioner should rectify such defects, if found, failing which it will be open to the respondent to proceed in accordance with law. Further, we make it clear that the respondents cannot take any coercive step on the ground that in February and March 2006 the petitioner had increased the production. But the petitioner is also prohibited from increasing its production over the permitted limit till such permission is granted by the competent authority before whom it has applied. If any application has been preferred by the petitioner for increase of the production capacity, the petitioner may pursue the matter before the said authority, who is expected the decide the same in accordance with law on an early date.

The writ petition is allowed with the aforesaid observations and directions. Consequently connected miscellaneous petition is closed. But there shall be no order as to costs.

							        (S.J.M.J.)       (M.D.J.)
								      01.12.2009
Index     : Yes
Internet : Yes
GLN

W.P.No.29216 of 2006


S.J.MUKHOPADHAYA,J,
      AND
M.DURAISWAMY,J.

O R D E R
(Made by S.J.MUKHOPADHAYA,J.)

The learned counsel for the Pollution Control Board pointed out typographical error in paragraph 4 of the order dated 01.12.2009, wherein, it is observed that no counter affidavit has been filed.

2. It is also accepted by parties that such counter affidavit has been filed.

3. We have heard the learned counsel for the parties and could find out the typographical error. Accordingly, we direct to read the first line of paragraph 4 as follows:

"After notice the respondents have appeared, but, in the counter affidavit, the respondents have not denied the averments made in the writ petition."

The order dated 01.12.2009 stands modified to the above extent.

(S.J.M.J.) (M.D.J.) 03.12.2009.

kpl To

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

2. The District Environmental Engineer Tamil Nadu Pollution Control Board No.6, Sivashanmugam Street West Tambaram Chennai 600 045.

S.J.MUKHOPADHAYA, J.

AND M.DURAISWAMY,J.

GLN ORDER IN W.P. NO.29216 OF 2006 03.12.2009