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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 29.10.2018
DELIVERED ON: 14.12.2018
CORAM:
THE HONOURABLE MR.JUSTICE T.RAJA
W.A(MD)No.976 of 2017
and
C.M.P.(MD)Nos.6685 and 9345 of 2017
and
W.P(MD)Nos.5915 of 2017 and 11718 of 2014
and
M.P.(MD)Nos.4691 of 2017 and 1 & 2 of 2014
W.A(MD)No.976 of 2017
Suriyur Vivasayigal Pathukappu Sangam,
Rep. by its President,
T.Ramaraj,
S/o. Thulasiaiyah,
No.3/138, Pattaveli,
Suriyur Village, Suriyur Post,
Trichy – 620 025. : Appellant
Vs.
1.LA Bottlers Private Ltd.,
Represented by its Managing Director,
Mr.Joseph Francis,
No.5, Bharathiyar Saalai,
Jenne Plaza, Cantonment,
Thiruchirappalli – 620 001.
http://www.judis.nic.in
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2.The State of Tamil Nadu,
Represented by its Secretary to Government,
Housing & Urban Development Department,
Secretariat, Chennai – 600 009.
3.The Commissioner,
Directorate of Town and Country Planning,
Fourth Floor, No.807,
Anna Saalai, Chennai – 600 002.
4.The Assistant Director,
Town and Country Planning Department,
Trichy District,
No.10, Williams Road,
Cantonment, Tiruchirappalli – 620 001.
5.Navalpattu New Town Development Authority,
Represented by its Member Secretary,
Navalpattu,
Trichy District.
6.Suriyur Panchayat,
Represented by its President,
Thiruverumbur Panchayat Union,
Thiruverumbur Taluk,
Trichy District.
7.Mrs.Saradadevi,
President,
Suriyur Panchayat,
Thiruverumbur Panchayat Union,
Thiruverumbur Taluk,
Trichy District. : Respondents
http://www.judis.nic.in
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PRAYER: Appeal filed under Clause 15 of the Letters Patent,
praying to set aside the order dated 26.04.2017, passed in W.P.
(MD)No.19069 of 2016.
For Appellant : Mr.T.Lajapathi Roy
For Respondent : Mr.K.M.Vijayan, SC
for Mr.E.Vijay Anand for R1
: Mr.V.R.Shanmuganathan, Spl.GP
Special Government Pleader for R2 to R5
******
W.P(MD)No.11718 of 2014 V.Gopal Vallatharasu : Petitioner Vs.
1.The Government of Tamil Nadu, Principal Secretary to Government, Housing and Urban Development Department, Secretariat, Chennai – 600 009.
2.The Director, Directorate of Town and Country Planning, Opposite to LIC, Chengalvarayan Building, Fourth Floor, 807, Anna Salai, Chennai – 600 002.
3.The Assistant Director of Town Country Planning, 10, Williams Road, Cantonment, Tiruchirappalli – 620 001.
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4.The District Collector, Trichy District, Trichy.
5.Thiruverumbur Panchayat Union, Represented by its Commissioner/Block Development Officer, Thiruverumbur, Trichy District.
6.Suriyoor Village Panchayat, Suriyoor represented by its President / Executive Authority, Sooriyoor, Trichy.
7.Chief Engineer, State Ground and Surface Water Resources Data Center, Tharamani, Chennai – 600 113.
8.The Executive Engineer, Public Works Department, Ground Water Division, Mannarpuram, Trichy – 20.
9.The Inspector of Factories, Plot No.23, 3rd Street, Khaja Nagar, Trichy – 620 020.
10.S.Malar Vizhi
11.L.A.Bottlers Pvt. Ltd., Represented by its Managing Director, Periya Suriyoor, Trichirapalli. : Respondents http://www.judis.nic.in 5 PRAYER: Petition filed under Article 226 of the Constitution of India, to issue a Writ of Mandamus, directing the respondents 1 to 9 to initiate necessary action against the 11th respondent and forthwith close and seal the factory premise and stop all manufacturing and other operations in the factory of the 11th respondent situated in Survey field Nos.469/1A2 and 1B1, Periya Suriyoor Village, Thiruverumbur Panchayat Union, Tiruchi District.
For Petitioner : Mr.T.Lajapathi Roy For Respondents : Mr.V.R.Shanmuganathan, (1 to 4 & 7 to 9) Special Government Pleader For Respondent No.11 : Mr.R.Venkataraman for Mr.E.Vijay Anand For R5, R6 & R10 : No Appearance ******* W.P(MD)No.5915 of 2017 Suriyur Vivasayigal Pathukappu Sangam, Rep by its President, T.Ramaraj, S/o. Thulasiaiyah, No.3/138, Pattaveli, Suriyur Village, Suriyur Post, Trichy – 620 025. : Petitioner http://www.judis.nic.in 6 Vs.
1.The State of Tamil Nadu, Represented by its Secretary to Government, Housing & Urban Development Department, Secretariat, Chennai – 600 009.
2.The Commissioner, Directorate of Town and Country Planning, Fourth Floor, No.807, Anna Salai, Chennai – 600 002.
3.The Assistant Director, Town and Country Planning Department, Trichy District, No.10, Williams Road, Cantonment, Tiruchirappalli – 620 001.
4.Navalpattu New Town Development Authority, Represented by its Member Secretary, Navalpattu, Trichy District.
5.LA Bottlers Private Ltd., Represented by its Managing Director, Mr.Joseph Francis, No.5, Bharathiyar Saalai, Jenne Plaza, Cantonment, Tiruchirappalli – 620 001. : Respondents PRAYER: Petition filed under Article 226 of the Constitution of India, to issue a Writ of Mandamus, directing the respondents 1 to 4 to remove the unauthorized construction carried out by the fifth http://www.judis.nic.in 7 respondent Company to an extent of 8687.83 Sq.Meter (93,000 Sq.Ft) situated in S.No.469/1A1, 1A2, 1B1 in Suriyur Village, Thiruverambur Taluk, Trichy District in accordance with the Section 56 of the Tamil Nadu Town and Country Planning Act, 1971.
For Petitioner : Mr.T.Lajapathi Roy For Respondents 1 to 4 : Mr.V.R.Shanmuganathan, Special Government Pleader For Respondent No.5 : Mr.R.Venkataraman for Mr.E.Vijay Anand COMMON JUDGMENT The appellant/Suriyur Vivasayigal Pathukappu Sangam, represented by its President, Mr.T.Ramaraj, filed W.A. (MD).No.976 of 2017 against the orders dated 26.04.2017 passed by the learned Single Judge in W.P.(MD).No.19069 of 2016.
2. W.P.(MD).No.11718 of 2014 has been filed by one Mr.V.Gopal Vallatharasu seeking for issuance of a writ of mandamus directing Respondent Nos.1 to 9 to initiate necessary http://www.judis.nic.in 8 action against the 11th respondent and forthwith close and seal the factory premise and stop all the manufacturing and other operations in the factory of the 11th respondent, situated at Survey Field Nos.469/1A2 and 1B1, Periya Suriyoor Village, Thiruverumbur Panchayat Union, Trichy District.
3. W.P.(MD).No.5915 of 2017 has been filed by Suriyur Vivasayigal Pathukkappu Sangam seeking for issuance of a writ of mandamus directing the respondents to remove the unauthorized construction of the Factory of M/s. LA Bottlers.
4. For better appreciation, facts that led to the filing of W.A.(MD).No.976 of 2017 are given below:-
The writ petitioner proposed to set up a plant/factory over an extent of 24 acres at Suriyur Village, Trichy District, for manufacturing and bottling of soft drinks, concentrates, beverages, mineral water, drinking water, etc. The said Plant was set up to http://www.judis.nic.in 9 function as a bottling unit for Pepsico India Holdings Private Limited. The land was purchased through a registered sale deed dated 04.10.2010 bearing Document No.8347 of 2010 on the file of the Sub-Registrar, Tiruverumbur. A Land Conversion Certificate was also obtained from the President, Suriyur Panchayat, Trichy / fifth respondent herein vide letter dated 05.10.2010, besides obtaining a Building Permit from the same authority vide proceedings dated 25.10.2010. Subsequently, on 02.02.2011, the fifth respondent had issued “No Objection Certificate” for the manufacture of soft drinks.
4.1. Since the said land was classified as “Mixed Residential Zone”, the writ petitioner Company had submitted an application dated 25.11.2010 to the third respondent / the Assistant Director, Town and Country Planning Department, Trichy, requesting to classify the said land as “Conrtrolled Industrial Zone”. On receipt of the said application, the fourth respondent / http://www.judis.nic.in 10 the Member Secretary, Navalpattu New Town Development Authority, Navalpattu, Trichy District, issued a Notification in daily newspapers both English and Tamil, inviting the general public to file their objections, if any, within 30 days. However, since there was no response from the general public, the third respondent directed the petitioner Company to produce more materials in respect of its application for change of land use and thereafter, the petitioner Company had also complied with the same vide its letter dated 28.02.2011. In the meanwhile, they have also obtained various documents from various authorities for granting Licenses and Clearances for smooth running of the Plant.
4.2. Whileso, the third respondent/the Assistant Director, Town and Country Planning, Trichy, through his letter dated 23.06.2011, requested the fifth respondent / the President of Suriyur Village Panchayat, Trichy, to pass a resolution for conversion of the land in question. Subsequently, a resolution http://www.judis.nic.in 11 dated 08.08.2011 was passed by the fifth respondent to that effect.
4.3. Besides, in order to meet the plant's water requirements, the writ petitioner Company, for utilization of ground water, had also entered into an agreement dated 12.11.2010 with the Executive Engineer, Public Works Department, Ground Water Division Trichy, as per which, the petitioner Company was permitted to draw 1.50 lakh litres of ground water per day from three bore-wells. It is also further averred that, based on the above licenses and clearances, the writ petitioner Company started to run its plant and commenced its production in May, 2011, by employing in its Factory about 150 persons from the local villages. During the process, the Pollution Control Board took samples of water and inspected the writ petitioner's factory and they did not find any irregularity whatsoever or any harmful discharge of chemical, which is prohibited or declared as hazardous. Subsequently, considering the increase in the plant's http://www.judis.nic.in 12 production, the writ petitioner Company entered a revised agreement dated 19.07.2011 with the Executive Engineer, Public Works Department, Ground Water Division, Trichy, whereupon, the Unit was permitted to draw 2.40 lakh litres per day, after taking into account the hydrogeological status of the area. Later on, by yet another agreement with the same authority, the writ petitioner obtained an approval for a total of six bore-wells, besides obtaining a Water Availability Certificate/NOC/Groundwater Clearance, dated 31.01.2012, for drawal of groundwater for Industries/Infrastructure Projects, from the Government of Tamil Nadu, Water Resources Department, State Ground and Surface Water Resources Data Centre, Chennai, wherein it has been stated that the subject lands fell under “Safe Category”. Accordingly, the writ petitioner was also issued with a certificate permitting them to draw 5,80,000 litres of water per day and the said certificate was valid for a period of three years i.e. till 30.01.2015.
http://www.judis.nic.in 13 4.4. In the meanwhile, the Assistant Director, Town and Country Planning Department, Tirchy / third respondent herein, in his letter dated 04.10.2011, stated that the application of the writ petitioner Company for conversion of land is under process and thereby, the petitioner was also directed to produce the latest Encumbrance Certificate pertaining to the land in question. The said direction was also immediately complied with by the writ petitioner Company.
4.5. Whileso, from November, 2011, Respondent NO. 7/newly elected President of Suriyur Panchayat, namely, Mrs.Saradadevi, started creating problem to the writ petitioner objecting for drawal of water from the ground without further approval. In reply, the writ petitioner explained to them about the various approvals granted by the Authorities, including the Water Availability Certificate/NoC/Groundwater Clearance, dated http://www.judis.nic.in 14 31.01.2012, issued by the Government of Tamil Nadu, Water Resources Department, State Ground and Surface Water Resources Data Centre, Chennai, for drawal of ground water. However, inspite of showing such documents, the sixth respondent and the officials of the fifth respondent continued to create problems to the writ petitioner. After some time, a Peace Committee meeting was also held during March, 2013, whereby the Revenue Divisional Officer, Trichy, Block Development Officer, Tiruverumbur, members of the Public and representatives of the writ petitioner took part in the Peace Committee meeting. Finally, the writ petitioner agreed not to draw water from three of its bore wells. Thereafter, in view of law and order problem, the Revenue Divisional Officer, through his proceedings dated 25.04.2013, ordered for closure of three bore-wells out of total six bore wells. Again, the fifth respondent issued an order dated 24.02.2014, ordering for closure of the writ petitioner's factory stating that the writ petitioner is running its factory without any approval and http://www.judis.nic.in 15 that since the lands of the factory are agricultural lands in nature and as the writ petitioner was drawing water from the bore-wells, agricultural operations were being affected. Therefore, the fifth respondent invoking Section 159 of the Tamil Nadu Panchayat Act, 1994, ordered for closure of the writ petitioner's factory on or before 15.03.2014, without taking into account various approvals including the permission obtained by the writ petitioner for drawal of water.
4.6. Under this background, the writ petitioner has filed W.P.(MD).No.4498 of 2014 and obtained an order of interim stay and it was also brought to the notice of this Court that the writ petitioner was forced to close three of its bore-wells due to the illegal threats of some local miscreants and that the writ petitioner took recourse to drawal of water from nearby villages in order to avoid any law and order problem. Moreover, in order to draw water from nearby villages, the petitioner again obtained a “No http://www.judis.nic.in 16 Objection Certificate' from the Chief Engineer, WRD/PWD, State Ground and Surface Water Resources Data Centre, Tharamani, Chennai, dated 23.06.2014, and this No Objection Certificate was issued for the writ petitioner's three bore-wells which were not closed and that the quantity recommended under this NOC was increased for 6,00,000/- litres.
4.7. After 3 ½ years, the third respondent returned the writ petitioner's application, vide proceedings dated 13.05.2014, by referring to an alleged objection from the fifth respondent as well as alleged complaints from the public. Challenging the said action, the writ petitioner filed W.P(MD).No.9632 of 2014, whereby, this Court, vide its order dated 19.06.2014, directed the writ petitioner to resubmit its application to the third respondent and the third respondent was directed to forward the said application to the first respondent along with the objections received by him and thereafter, the first respondent was directed http://www.judis.nic.in 17 to consider the same after affording an opportunity of personal hearing to the sixth respondent and pass appropriate orders. During the course of personal hearing, the writ petitioner was issued with the Analysis Report of the ambient air quality, stack monitoring and ambient noise level survey. Finally, a resolution dated 13.11.2014 was also passed by the Panchayat withdrawing the earlier order dated 24.02.2014 ordering for closure of the writ petitioner's factory.
4.8. In the meanwhile, one Mr.Gopal Vallatharasu, who is a resident of Suriyur Village, filed a Public Interest Litigation in W.P.(MD).No.11718 of 2018 praying for issuance of a writ of mandamus directing the respondents to initiate action against the writ petitioner and forthwith close the factory and stop all the manufacturing activities. This writ petition is also tagged along with the writ appeal.
http://www.judis.nic.in 18 4.9. Whileso, all of a sudden, on 28.01.2015 at about 7 p.m., the District Revenue Officer, Trichy, the Revenue Divisional Officer, Trichy, the Tahsildar, Thiruverambur, the Block Development Officer, Thiruverambur, and the Executive Engineer, Ground Water Division, Trichy, came to the writ petitioner's factory along with police personnel and sealed three bore-wells without any notice and without following any procedure contemplated under the law and, as a result, the writ petitioner was forced to stop its production activities. Although No Objection Certificate issued by the Chief Engineer, WRD/PWD, State Ground and Surface Water Resources Data Centre, Tharamani, Chennai, which was valid till 22.06.2015, was brought to the notice of the authorities, they have refused to remove the seal. Thereafter, the Block Development Officer, Thiruverambur, issued a notice dated 28.01.2015 under Sections 160 and 220 of the Tamil Nadu Panchayats Act, 1994. Challenging the same, the writ http://www.judis.nic.in 19 petitioner filed W.P.(MD).No.1334 of 2015, whereby, this Court, vide its order dated 05.02.2015, by recording the undertaking given by the BDO, Thiruverambur, that he will not proceed further till the disposal of W.P.(MD).Nos.1156 and 1334 of 2015, ordered to post these matters together. In the meanwhile, the first respondent rejected the writ petitioner's application for conversion of land in G.O.(2D) No.91, dated 30.06.2016. The said Government Order was questioned in the present writ petition, inter-alia, contending that the impugned order passed by the first respondent is running contrary to the law and also suffers from violation of the principles of natural justice, inasmuch as the writ petitioner was not called for personal hearing and no notice was issued.
4.10. When the matter was taken up for final hearing by the learned Single Judge, learned counsel for the writ petitioner had filed an affidavit of undertaking stating that water would not http://www.judis.nic.in 20 be drawn from the subject land and they would also outsource the supply of water through other means. By recording the same, the learned Single Judge, by an order dated 26.04.2017, which is impugned in the Writ Appeal, remanded the matter back to the the Secretary to Government, Housing and Urban Development Department, Chenni / second respondent in W.A.(MD).No.976 of 2017 for fresh consideration. Questioning the said order passed by the learned Single Judge, the present writ appeal has been filed.
4.11. The Hon'ble Division Bench consisting of the Hon'ble Mr.Justice M.Sathyanarayanan and the Hon'ble Mrs.Justice R.Hemalatha took conflicting views, in that, the Hon'ble Mr.Justice M.Sathyanarayanan, after considering the materials placed before the Court, came to the conclusion that there is no infirmity or error in the reasons assigned by the learned Single Judge in remanding the matter for fresh consideration of the first respondent and thereby, dismissed W.A.(MD).976 of 2017 http://www.judis.nic.in 21 by confirming the order passed by the learned Single Judge in W.P. (MD).No.19069 of 2016, dated 26.04.2017, and the Hon'ble Mrs.Justice R.Hemalatha, by holding that (i) the project is a private commercial venture and not for any public purpose to disregard the sentiments of the public based on the factual position of the depletion of water table, especially when water is the main input for all the products produced in the writ petitioner factory; (ii) that the competent authority for land conversion is the Tamil Nadu State Government and not the President of Suriyur Village Panchayat; and that thirdly the closure of the factory will not affect adversely since the industry is started in an area not earmarked for industries, allowed W.A.(MD).No.976 of 2017 setting aside the order passed by the learned Single Judge in W.P.(MD).No.19069 of 2016, dated 26.04.2017.
5. In view of the difference of opinion, the matter was directed to be placed before the Hon'ble Chief Justice for passing http://www.judis.nic.in 22 appropriate orders. Thereafter, the Hon'ble Chief Justice has nominated me to hear and dispose of these cases.
6. Mr.K.M.Vijayan, learned Senior counsel appearing for the writ petitioner Company would submit that the writ petitioner Company, having proposed to set up a plant for manufacturing and bottling of soft drinks, beverages, drinking water etc., had purchased 24 acres of land, situated at S.Nos. 469/1A2 and 469/1B1, of Suriyur Village, Trichy, and for which, they had also obtained the License dated 09.05.2012 from the Food Safety and Standards Authority of India; a letter from the Revenue Divisional Officer, Trichy, dated 29.06.2012, to the effect that the lands in question were not covered under the Land Reforms Act, 1961; Stability Certificate dated 21.10.2013 from the Chief Inspector of Factories, Tamil Nadu Government; Machinery Certificate dated 04.09.2014 from the Deputy Director, Industrial Safety and Security; and necessary approval from the Tamil Nadu http://www.judis.nic.in 23 Pollution Control Board for the operation of its new plant. Other requirements in respect of registration with the Tamil Nadu Commercial Taxes Department and the Central Excise Department were also done. Based on the above licenses and clearances, the writ petitioner Company entered into an agreement dated 12.11.2010 for ground water utilization with the Executive Engineer, Public Works Department, Ground Water Division, Trichy, and as per the approval dated 30.01.2012 granted by the Government of Tamil Nadu, Water Resources Department, State Ground and Surface Water Resources Data Centre, Chennai, they were permitted to draw 5,80,000 litres of water per day and the said certificate was valid for a period of three years i.e. till 30.01.2015. After some time, Suriyur Village Safety Union/appellant in W.A.(MD).No.976 of 2017 / the petitioner in W.P.(MD).No.5915 of 2017, sent a representation dated 03.12.2012 to the Revenue Divisional Officer, Trichy, objecting to the drawal of water by the Company. Subsequently, in order to settle the http://www.judis.nic.in 24 dispute, a Peace Committee meeting was held, wherein the writ petitioner Company had agreed to extract water only from three bore-wells instead of six bore-wells and thereupon, the Revenue Divisional Officer, Trichy, through the proceedings dated 25.04.2013, had ordered for closure of three bore-wells, although permission was granted for six bore-wells on earlier occasion. The petitioner, in order to settle the issue amicably, had decided not to draw water from any one of the bore-wells, but, to outsource the water by other means and to that effect, they also filed an affidavit of undertaking dated 17.03.2017 stating that water would not be drawn from the subject land anymore and they would outsource the water through other means, therefore, the learned Single has rightly remanded the matter back to the Secretary to Government, Housing and Urban Development Department, Chenni / second respondent in W.A.(MD).No.976 of 2017 for fresh consideration, after giving due opportunity to the writ petitioner Company and other parties concerned, besides directing the said Authority to http://www.judis.nic.in 25 evaluate the public perception / opinion in a proper perspective to ensure a balance between the rule of law and over bearing public opinion with dispassionate mind. This order passed by the learned Single Judge has been confirmed by one of the learned Judges (Hon'ble Mr.Justice M.Sathyanarayanan) in the Division Bench, while the other learned Judge (Hon'ble Mrs.Justice R.Hemalatha) disagreeing with the same, has set aside the order passed by the learned Single Judge.
7. Adding further, learned Senior counsel would submit that, if the objections of Suriyur Vivasayigal Pathukappu Sangam / the appellant in W.A.(MD).No.976 of 2017 as well as the affidavit of undertaking filed by the writ petitioner Company stating that they would not draw the water from the land in question and that they would outsource the same from outside, are going to be considered by the second respondent / the Secretary to Government, Housing and Urban Development http://www.judis.nic.in 26 Department, Chennai, then the writ petitioner Company cannot have any objection and accordingly, learned Senior counsel prayed for confirming the order passed by the learned Single Judge.
8. Mr.T.Lajapathi Roy, learned counsel appearing for the appellant in W.A.(MD).No.976 of 2017 and the petitioners in W.P.(MD)Nos.5915 of 2017 and 11718 of 2014, would strongly submit that the Local Body is not the competent authority to accord necessary approval and that necessary approval, having not been accorded by the Directorate of Town and Country Planning (DTCP), the alleged permission granted for running soft drinks bottling plant by the Local Body has no legal sanctity. It is further stated that the earlier permission given by the authorities to draw 5.80 lakh litres of water per day from six bore-wells dug by them would definitely deplete the ground water level, which would, in turn, affect the agricultural operations of the local body, therefore, the writ petition is liable to be dismissed as ordered by http://www.judis.nic.in 27 the Hon'ble Mrs.Justice R.Hemalatha.
9. Considered the rival submissions made on either side and perused the materials placed before this Court.
10. It is the claim of the writ petitioner that they had purchased 24 acres of lands comprised in Survey Nos.469/1A2 and 469/1B1, situated at Suriyur Village, Trichy, for establishing a bottling unit for Pepsico India Holdings Private Limited to manufacture and bottle the soft drinks, beverages, mineral water, etc. As necessary license and NOC are required from the competent authorities, they obtained the following licenses:-
i) “No Objection” Certificate from the Fire Service Department, which was dated 03.11.2010.
ii) A Licence and Certificate from the Inspector of Factories, vide order dated 29.04.2011, in proceedings bearing No.2914/11, for the commencement of production in the factory premises of the petitioner.
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iii) Certificate of Registration from the Department of Labour, dated 27.03.2012.
iv) License from the Food Safety and Standards Authority of India, dated 09.05.2012.
v) Letter from the Revenue Divisional Officer, Trichy, dated 29.06.2012, in O.Mu.A2.545-2012, stating that the lands in Survey Nos.469/1A2 and 469/1B1 were not covered under the Land Reforms Act, 1961.
vi) Licence from the Boiler Inspection
Department bearing No.T9277, dated
23.07.2014;
vi) Stability Certificate from the Chief Inspector of Factories, T.N. Government dated 21.10.2013;
vii) Machinery Certificate from the Deputy Director, Industrial Safety and Security, dated 04.09.2014;
viii) Licence issued by the Petroleum & Explosives Safety Organisation (PESO), Ministry of Commerce & Industry, Government of India, dated 30.12.2011 & 03.12.2013, for storage of Petroleum;
ix) Licence issued by the Petroleum & Explosives Safety Organisation (PESO), Ministry of Commerce & Industry, Government of India, dated 30.12.2011 & 01.04.2015, for storage of Carbon Dioxide;
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x) Licence under the Prevention of Food Adulteration Act, issued by the Deputy Director of Health Services & Family Welfare, Trichy, dated 12.05.2011;
xi) NOC from the District Revenue Officer, dated 02.07.2011 for grant of a licence for installation of one under-ground petroleum storage tank and
xii) High Tension Service Connection from TANGEDCO bearing Service No.209.
xiii) The petitioner's industry has been classified as an “Orange” industry by the Tamilnadu Pollution Control Board. The petitioner applied to the Tamilnadu Pollution Control Board for necessary approvals and obtained the necessary consents for the operation of its new plant under Sec.21 of the Air (Prevention & Control of Pollution) Act and for discharge of sewage under Sec.25 of the Water (Prevention & Control of Pollution) Act.
xiv) All requirements in respect of registration with the Tamil Nadu Commercial Taxes Department and the Central Excise Department were done and the certificates were obtained by the petitioner from the said Departments.
11. Initially, the writ petitioner Company had entered http://www.judis.nic.in 30 into an agreement dated 12.11.2010 with the Executive Engineer, Public Works Department, Ground Water Division, Trichy, for ground water utilization, and thereby, they were also permitted to draw 1.50 lakh litres of ground water per day from three bore- wells. It is the further claim of the writ petitioner Company that they have employed about 150 persons from the local village residents in their plant. After some time, a revised agreement dated 19.07.2011 with the Executive Engineer, Public Works Department, Ground Water Division, Trichy, was entered by the writ petitioner Company and thereupon, they were permitted to draw 2.40 lakh litres of water per day. Subsequently, the writ petitioner obtained an approval for six bore-wells vide clearance dated 31.01.2012 from the Government of Tamil Nadu, Water Resources Department, State Ground and Surface Water Resources Data Centre, Chennai, and as per the said permission given through the Certificate dated 31.01.2012, which is valid for a period of three years till 30.01.2015, they were permitted to draw http://www.judis.nic.in 31 5.80 lakh litres of water per day. However, it is claimed that, for political reasons, the writ petitioner Company was directed not not draw any ground water on the pretext that the same was without jurisdiction.
12. In view of the above said dispute, a Peace Committee meeting was constituted and in the said Peace Committee meeting, the writ petitioner Company had agreed to extract water only from three bore-wells instead of six bore-wells. Finally, the Revenue Divisional Officer, Trichy, through the proceedings dated 25.04.2013, had ordered for closure of three bore-wells out of six bore-wells on the ground that it is running its plant without any approval and that on account of establishment of the factory, agricultural operations were also severely affected.
13. Aggrieved by the same, the writ petitioner Company filed W.P.(MD).No.4498 of 2014 and while entertaining http://www.judis.nic.in 32 the same, an order of interim stay was granted. During the pendency of the said writ petition, the Assistant Director, Town and Country Planning Department, Trichy, vide proceedings dated 13.05.2014, had returned the application of the writ petitioner Company on the basis of certain complaints received from the general public and also the objections received from the President of the Suriyur Village Panchayat. The said proceeding was also questioned by the writ petitioner Company in W.P.(MD)No.9632 of 2014, however, this Court, considering the limited issue raised therein, directed the writ petitioner Company to resubmit its application to the Assistant Director of Town and Country Plannign Department, Trichy, who, in turn, was directed to forward the same to the Secretary to Government, Housing and Urban Development Department, Chennai/second respondent in W.A(MD)No.976 of 2017, and thereafter, the second respondent was directed to consider the same after affording an opportunity of personal hearing to the newly elected President of the Suriyur http://www.judis.nic.in 33 Village Panchayat / 7th respondent in W.A.(MD).No.976 of 2017.
14. In the meanwhile, the Revenue Officials came to the writ petitioner Company on 28.01.2015 and sealed the same without any notice to the writ petitioner Company. As against the same, the writ petitioner Company filed W.P.(MD).No.1156 of 2015 praying for a direction to the Revenue Officials to remove the seal from bore-wells and the said writ petition is also pending.
15. In view of various litigations that arisen on account of establishment of a bottling unit in the lands in question, wherein the writ petitioner Company also had closed down three b6ore-well Units out of the six bore-wells permitted for them and also as per the decision taken in the Peace Committee presided by the Revenue Divisional Officer, Trichy, on 25.04.2013, who had also ordered for closure of three bore-wells out of six bore-wells, the Secretary to Government, Housing and Urban Development Department, Chenni, vide G.O.(2D).No.91, Housing and Urban http://www.judis.nic.in 34 Development Department, dated 30.06.2016, rejected the application of the writ petitioner Company for land conversion.
16. Challenging the said proceedings, the writ petitioner Company has filed W.P.(MD).No.19069 of 2016, along with an affidavit of undertaking dated 17.03.2017 stating that water would not be drawn from the subject land anymore and they would outsource the water through other means. Therefore, the learned Single, by recording the said affidavit of undertaking, has rightly remanded the matter back to the Secretary to Government, Housing and Urban Development Department, Chennai, directing the said Authority to reconsider the said issue by giving fresh consideration on the basis of the affidavit of undertaking given by the writ petitioner Company dated 17.03.2017.
17. However, aggrieved by the order passed by the http://www.judis.nic.in 35 learned Single Judge, when an appeal was filed in W.A.(MD).No. 976 of 2017 before the Hon'ble Division Bench consisting of the Hon'ble Mr.Justice M.Sathyanarayanan and the Hon'ble Mrs.Justice R.Hemalatha, the Hon'ble Mr.Justice M.Sathyanarayanan, confirming the order of remand passed by the learned Single Judge, held that there is no infirmity or error in remanding the matter. In my considered opinion, the said view of the Hon'ble Mr.Justice M.Sathyanarayanan is a well considered one and therefore, the contra view taken by the Hon'ble Mrs.Justice R.Hemalatha that the project is a private commercial venture and not for any public purpose; and that the construction of the factory in a land which is mixed residential zone is an illegal act, is not in order. In a case of this nature, Courts must endevour to strike a balance between environment/ecological protection and developmental activities in the form of industrialization by following the principles of sustainable development and it means that necessary guidelines should be in place to ensure http://www.judis.nic.in 36 development while protecting the environment and ecology. In this case, it is stated that, with the functioning of the writ petitioner Factory, 150 people in the Villages have been employed directly and indirectly.
18. Regarding the specific finding recorded by my learned Sister Hemalatha, J. to the effect that the land in question is situated in a Mixed Residential Zone, I am not able to concur with the same and wish to agree with the findings of M.Sathyanarayanan, J. for the reason that it is an admitted fact that when the Factory commenced its production process, the Pollution Control Board, inspected the factory and they noticed no irregularity and also found that there is no harmful discharge of chemical, which is prohibited or declared as hazardous. It must be pointed out that the matter was remanded to the Authority for fresh consideration only to decide as to whether the subject lands fell under “Mixed Residential Zone” or “Controlled Industrial Zone”. In that regard, http://www.judis.nic.in 37 as I referred to earlier, the learned Single Judge made it very clear that the Secretary to Government, Housing and Urban Development Department, Chennai, among other things, shall also evaluate the public perception / opinion in proper perspective to ensure a balance between the rule of law and over bearing public opinion with dispassionate mind. That being so, I fear that the view taken by Hemalatha, J. may amount to pre-judging the matter, since the issue regarding conversion of land from “Mixed Residential Zone” to “Controlled Industrial Zone” needs to be decided quasi-judicially based on broader facts and data by the competent authority viz., the Secretary to Government, Housing and Urban Development Department, Chennai. In other words, any conclusion, in a case of this type, when the writ petitioner Factory alleges political motives against Mrs.Saradadevi, President of Suriyur Panchayat / R7 in W.A.(MD).No.976 of 2017, would only be a premature finding and further such finding may also influence the mind of the authority going to decide the issue about http://www.judis.nic.in 38 the nature of the land in question. Hence, I fully concur with the findings and ultimate conclusion arrived at by the Hon'ble Mr.Justice M.Sathyanarayanan.
14.12.2018
Index :Yes
Internet :Yes
rkm
Note to Office:
Issue order copy on 17.12.2018
To
1.The Secretary to Government,
The State of Tamil Nadu,
Housing & Urban Development Department, Secretariat, Chennai – 600 009.
2.The Commissioner, Directorate of Town and Country Planning, Fourth Floor, No.807, Anna Salai, Chennai – 600 002.
3.The Assistant Director, Town and Country Planning Department, Trichy District, No.10, Williams Road, Cantonment, Tiruchirappalli – 620 001.
4.Member Secretary, http://www.judis.nic.in 39 Navalpattu New Town Development Authority, Navalpattu, Trichy District.
5.The President, Suriyur Panchayat, Thiruverumbur Panchayat Union, Thiruverumbur Taluk, Trichy District.
6.Mrs.Saradadevi, President, Suriyur Panchayat, Thiruverumbur Panchayat Union, Thiruverumbur Taluk, Trichy District.
7.The Director, Directorate of Town and Country Planning, Opposite to LIC, Chengalvarayan Building, Fourth Floor, 807, Anna Salai, Chennai – 600 002.
10.The Assistant Director of Town Country Planning, 10, Williams Road, Cantonment, Tiruchirappalli – 620 001.
11.The District Collector, Trichy District, Trichy.
12.The Member Secretary, Navalpattu New Town Development Authority, Navalpattu, Trichy District.
http://www.judis.nic.in 40 T.RAJA, J.
RKM Pre-Delivery Common Judgment in W.A(MD)No.976 of 2017 and W.P(MD)Nos.5915 of 2017 and 11718 of 2014 14.12.2018 http://www.judis.nic.in 41 http://www.judis.nic.in