C. Joseph vs District Collector And Ors

Respondent No.5 is residing in Aishwarya Nagar, Lalgudi of Trichy District along with his wife and son. They are running a handmade sweet and savouries in the name and style of M/s. A.S. Sweets at the backyard of their residential house, on constructing a shed with iron rods and asbestos sheet.

The application is filed seeking a direction to respondent No.5 to stop manufacturing of Sweets and Savouries and to direct respondent Nos.1 to 4 to take appropriate action against respondent No.5. The case of the applicant is that respondent No.5 is using cashew nut shell as fuel for manufacturing sweets and savouries and as a result cause air pollution in the whole area, making it impossible to the applicant and the neighbours to have a peaceful life. It is also contended that respondent No.5 is preparing sweets with only a break only a of two hours in 24 hours. It is also alleged that disregarding the directions of the Tamil Nadu State Pollution Control Board as well as the Hon'ble High Court of Madras not to use cashew nut shell as fuel, the applicant is using cashew nut shells as fuel and inspite of various complaints filed, proper action was not taken and the injurious smoke which emanates from the unit of respondent No.5 is injurious to the health and therefore respondent No.5 shall not be permitted to continue the preparation of sweets at the residential area.

Respondent No.2, Tamil Nadu State Pollution Control Board (hereinafter referred to as the Board) filed a reply submitting that on receipt of a complaint dated 03.09.2013 from the applicant, the complaint was forwarded to Food Safety and Drugs Administration Department, Tiruchirappalli to take action. Again a complaint dated 28.01.2014 was received from the applicant. Respondent No.5 was thereafter directed, by letter dated 24.02.2014, to obtain Consent from the Board after providing Air Pollution Control measures. The unit of respondent No.5 was inspected by the Board officials on 25.02.2015. It was then found that the unit is not having any Consent to operate. The unit was therefore advised not to cause nuisance to the public. By letter dated 21.05.2015, respondent No.5 was directed not to use cashew nut shell as fuel and also to shift the unit to a non residential area and operate the same only after obtaining Consent from the Board. When the unit was inspected on 25.02.2015, it was observed that respondent No5 was manufacturing sweet and karam items, using cashew nut shell as well as LPG as fuel. The Board submitted that necessary orders be passed.

Respondent No.3, the Designated Officer of Food Safety and Drug Administration Department filed a reply stating that on receipt of the complaint from the applicant forwarded by respondent No.2, the unit was inspected by the Area Inspector on 29.10.2013. The Area Food Safety Officer then issued notice to respondent No.5 instructing to take safety measures for preparing sweets, including installation of chimney to avoid nuisance caused by smoke. It was found that the unit was not holding a license and therefore he was directed to take license within two months. A reply was received from respondent No.5 dated 18.11.2013 stating that no nuisance is caused by manufacturing of the sweets. The Area Food Safety Officer once again inspected the unit and it was then found that respondent No.5 had taken safety measurements. It was also found that he was using LPG as fuel. It was also found that he had installed Reverse Osmosis Wall mounted plant, for the purpose of manufacturing of sweets. When another complaint was received from the applicant submitted before the District Collector dated 27.01.2014, the Area Safety Officer informed that the shop is under continuous observation. After satisfaction of the safety measurements taken by respondent No.5, licence was granted for conducting sweets and snacks by Licence dated 13.08.2014. It was valid upto 12.08.2015. The Licence was renewed upto 12.08.2016. In the mean while, respondent No.5 instituted O.S.No.398 of 2015 before the District Munsif Court at Lalgudi, against the applicant and the officers seeking a decree for permanent injunction restraining them from interfering with his hand made preparation of sweets and snacks and the suit is pending. Respondent No.5 submitted an application for renewal of license on 13.07.2016. In the light of the pending issues, respondent No.5 was directed to obtain no objection from the local body. As it is not furnished, the license was not renewed.

Respondent No.1 adopted the reply submitted by respondent No.3.

Respondent No.4, the Executive Officer of Lalgudi Selection Grade Town Panchayat filed a reply contending that based on the complaint received from the applicant that respondent No.5 is burning cashew nut shell and causing health hazards, the unit was inspected. At the time of inspection it was found that respondent No.5 was not using cashew nut shell and instead was using only LPG. Respondent No.5 was advised to obtain necessary Consent from the Board. In the mean while, respondent No.5 instituted O.S.No.398 of 2015, which is pending consideration. It is also contended that respondent No.5 was directed not to use cashew nut shell as fuel or cause nuisance to the public.

Respondent No.5 inspite of receiving notice, did not appear or contest the case.

By Notification G.O.MS.No.135 Environment and Forest (EC2) dated 21.11.2008, the State of Tamil Nadu prohibited burning of cashew nut shells as fuel. The State of Tamil Nadu in exercise of the powers conferred by sub-section (5) of Section 19 of the Air (Prevention and Control of Pollution) Act,1981. The Government Order reads as follows:

" No. ll(2)/EF/581/2008.-In exercise of the powers conferred by sub-section (5) of Section 19 of the Air (Prevention and Control of Pollution) Act, 1981 (Central Act 14 of 1981), the Governor of Tamil Nadu after consultation with the Tamil Nadu Pollution Control Board, is of the opinion that the burning of cashew nut shells causes air pollution and hereby prohibits the burning of the said material in the State of Tamil Nadu without observing the following measures while burning the said material:-

(1) Wet scrubber with suction arrangement and a stack of height of chimneys at least three metres above the building shall be provided.

(2) The particulate matter emission from the stack shall not exceed 150 mg/Nm3.

(3) The waste water from the wet scrubber shall be recycled.

(4) The ovens shall be designed with protective covers so that there shall not be any direct heat radiation towards persons working near by.

(5) Cashew nut shells shall be stored in a closed shed so as to avoid carry over due to wind and to avoid spillages.

(6) The burnt carbon (ash) shall be collected in a container and disposed of.

(7) All hotels, bakeries and other institutions that burn cashew nut shells shall get the consent of the Tamil Nadu Pollution Control Board under relevant Act and Rules."

Even though the applicant contended that respondent No. 5 is using Cashew nut shell as fuel for preparing sweets and savouries, the reply filed by respondent No.4 shows that when the unit was inspected, on receipt of the complaint from the applicant, respondent No.5 was instructed not to use cashew nut shell as fuel and instead use LPG as fuel. The reply filed by respondent No.3 shows that on receipt of the complaint from the applicant, the unit was inspected and then the unit was found using LPG as fuel and respondent No.5 was instructed not to use cashew nut shell as fuel.

In such circumstances, even though respondent No. 5 was not appearing and contesting the allegations of the applicant, by order dated 27.01.2017, the Board was directed to inspect to the unit and file a status report. The Board pursuant to the order inspected the unit on 16.02.2017 and submitted the report dated 10.03.2017. On inspection, the following facts were observed:

" a) It was informed by Thiru. K. Ashok that they are preparing sweet - 15 Kg/day and savouries - 30 Kg/ day on average.

b) They have provided LPG stove and masonry stove for the preparation of sweet and savouries. Both LPG and cashew nut shells - 20 Kg/day are used as fuel.

c) It was reported that a stack of height 22 ft was attached to the masonry stove and it was noticed that only 15 ft stack was found to be in existence at present.

d) No Air Pollution Control measures are provided for the masonry stove where cashew nut shell is used as fuel.

e) The effluent generated from the washings of vessel used for preparation of sweet and savouries is discharged on adjacent open land for percolation.

f) The applicant Thiru. C. Joseph's residence is located in the Northern side adjacent to the respondent Thiru. K. Ashok residence where handmade sweet and savouries are prepared in the name and style of M/s. A.S. Sweets.

g) Thiru. K. Ashok, has obtained license from Tamil Nadu Food Safety and Drug Adminstration Department (Food Safety Wing) for M/s. A.S.Sweets which is valid upto 12.08.2016.(copy enclosed)

h) Thiru. K. Ashok has obtained commercial LPG gas connection from India Oil Corporation Ltd, M/s. Kalyani Gas Agencies, Lalgudi for the preparation of sweet and savouries.

i) Thiru. K. Ashok has obtained separate EB service connection for handmade sweet and savouries preparation in the backyard of the house in SC.No.215-002-1200 in the Tariff of commercial activity.

j) Based on the complaint made by Thiru. C. Joseph, the Executive Officer, Lalgudi Town Panchayat has inspected the site and advised to shift the unit since it is an residential area and preparation of sweets and savouries by using LPG and cashew nut shell as fuel results in health hazards to the nearby residents vide Lr. No. 146/2014 dated 21.09.2015 (copy enclosed).

k) Based on the complaint, the Thasildhar, Lalgudi has inspected the site and reported that Thiru.

K. Ashok is utilising cashew nut shell and firewood for the preparation of sweets and savouries and submitted report to the Sub Collector, Lalgudi vide letter dated 21.08.2015 (copy enclosed).

l) Based on this report, the Sub Collector, Lalgudi has issued order for the removal of sweet and savouries activity carried out by Thiru. K. Ashok in the name and style of M/s. A.S. Sweets (copy enclosed).

m) Thiru. K. Ashok, Owner of M/s. A.S. Sweets has informed that he will shift this activity from this place to other place within three months.

Copy of the letter given by Thiru. K. Ashok is enclosed herewith. "

The report also shows that the industrial activity of Bakery/Confectionary/Sweets production with gas or electrical oven is classified as Green category. But the activity carried on by respondent No. 5 and located at the backyard of his residence could not be considered as a separate industry and therefore Consent could not be granted. The report also shows that inspite of repeated instructions by the Executive Officer of respondent No. 4 Panchayat, the Sub Collector, Lalgudi and the Board, respondent No. 5 has not stopped the usage of cashew nut shell as fuel, for preparing sweets and savouries in the name of M/s. A.S. Sweets.

As rightly argued by the learned counsel appearing for the applicant, the facts discussed establish that respondent No. 5 is preparing sweets and savouries in the name and style of M/s. A.S. Sweets from a shed constructed on the backyard of his house using iron rods and asbestos sheets. It is also clear that respondent No. 5, though promised to comply the instructions to use only LPG as fuel and not cashew nut shell, is using cashew nut shell also as fuel in violation of the instructions as well as the prohibition provided under G.O. MS. No. 135 dated 21.11.2008. It is therefore clear that respondent No. 5 is making preparation of sweets and savouries and causing Air Pollution. He has not obtained consent under Air (Prevention and Control of Pollution) Act, 1981. He is also not entitled to cause nuisance to the neighbouring residence and the general public by using cashew nut shells as fuel or cause environmental pollution . Respondent No. 5 is therefore to be directed to stop the preparation of sweets, without an order consent under the Air (Prevention and Control of Pollution) Act, 1981 and not to use cashew nut shell as fuel.

In the result, the application is disposed as follows: Respondent No. 5 is directed to stop manufacturing of sweets and savouries on the backyard of his residence at No.14, Aishwarya Nagar, Lalgudi. Respondent Nos. 1 to 4 are directed to enforce the direction to stop manufacturing of sweets and savouries by respondent No. 5 on the backyard of his residential house, without the consent under Air (Prevention and Control of Pollution) Act, 1981 and using cashew nut shell as fuel.

The application is disposed accordingly with no order as to costs.