Chennimalai Weavers’ Co-operative vs Chairman Gand Ors

Several Writ Petitions were filed before the Hon'ble High Court of Madras as Public Interest Litigation to prevent the pollution of Cauvery river, Kalingarayan Channel, Bharani river, ground water and the lands in Erode District caused by the discharge of effluents from the tanneries and textile dyeing units. The Tamil Nadu State Pollution Control Board (Board) submitted before the Court that conventional Effluent Treatment Plant (ETP) provided by the Textile units is not able to contain Total Dissolved Solids (TDS) parameters and therefore, the Board has been exhorting the units to implement treatment technologies such as Membrane System with suitable evaporation methods for the disposal of rejects and preferably to achieve 'Zero Liquid Discharge' (ZLD) to avoid the discharge of effluents into the water sources. But, most of the industries are not complying with the directions. By order dated 15.02.2005, the Division Bench directed all the tanneries and dyeing units to implement the approved comprehensive treatment system on or before 31.08.2005. By various orders passed thereafter, time was extended for installation of Reverse Osmosis (RO) plants with Reject Management System (RMS) till 30.06.2006. By order dated 11.07.2006, the Division Bench further extended the time till 31.12.2006. It was also made clear that if any of the units failed to provide the RO system and RMS, they are liable to pay compensation by way of cost per day to the Board, which would be decided after the expiry of the such date and the Board was directed to inspect the units and submit the report.

Pursuant to the directions, the Board filed an affidavit disclosing that only few tanneries and dyeing units have complied with the order by installing RO Plant with RMS. By order dated 13.04.2007, the Division Bench appointed a Monitoring Committee to inspect all the units and report to the Court whether the concerned units have established RO plants/RMS systems and achieved 'Zero Liquid Discharge' as prescribed by the Board. As directed, the Monitoring Committee inspected 637 units and categorised these units into several categories.

The Hon'ble High Court by order dated 04.07.2007 categorised such units into six categories. (1) Those units who approached the court stating that RO system and RMS have been provided for the consented/ applied capacity are included in Category 'a'; (2) Those units which are making reduction of production capacity by removing process machines are included in Category 'b'; (3) Those units which are seeking time to install RO system and RMS are included in Category 'c'; (4) Units which have not applied for/applications not resubmitted are included in Category 'd'; (5) Those units which are willing to switch over for bleaching operations are included in Category 'e' ; (6) Those units which claim to have provided for a different technology like sprinkler system are included in Category 'f'.

With respect to Category 'a', it was directed that those units who have claimed to have provided RO system and RMS have to forthwith intimate the Board about the installation of RO/RMS system and for that purpose, they have to deposit a sum of Rs.50,000/- each before the Board and the Monitoring Committee will carry out the inspection of the units within 4 weeks from the date of installation and report to the Board whether RO/RMS have been provided for consented/applied capacity.

With respect to units falling under Category 'b', it was directed that the concerned units shall make a representation to the Board within a period of two weeks with a written undertaking for removing/dismantling the excess process machines to the capacity of RO/RMS system and deposit a sum of Rs.25,000/- with the Board and the Monitoring Committee shall inspect the units and thereafter, the complied units were permitted to operate and in the event of non compliance, the units shall be liable to be closed.

With respect to the units falling under Category 'c', it was directed that the Board shall grant three months further time, as a last chance, for installation of RO / RMS systems and during that period, the concerned unit to pay a fine of six paise per litre of discharge to the Board, in addition to the deposit of Rs.50,000/- to the Board. Further, it was directed that the units will be inspected by the Monitoring Committee after three months along with the Board jointly and in case of failure to install RO/RMS system within the stipulated period and to achieve 'Zero Liquid Discharge' within that period, the Board will direct the closure of such defaulting units.

As far as Tamil Nadu Co-operative Textile Processing Mills, Erode is concerned, taking into consideration of the difficulties projected by them, it was directed to install RO / RMS systems within a period of six months. It was also provided that they have to pay a fine of six paise per litre of discharge for the first three months and ten paise per litre for the remaining three months.

The appellant-The Chennimalai Weavers' Co-operative Production and Sale Society Ltd., was located at Chennimalai in Erode District and the State Pollution Control Board granted Consent to Operate on 02.05.1984 and permitted to discharge 50 KLD of effluent as directed by the Division Bench of the Hon'ble High Court by order dated 07.08.2008.

The Pollution Control Board in their reply stated that the Monitoring committee inspected the unit on 10.05.2007 and found that RO and RMS systems are inadequate. But according to the appellant, on 08.01.2007, several months prior to the directions of the Division Bench, the appellant had requested the Board to reduce the consented quantity to 20 KLD. A copy of the representation submitted by the appellant to the Board was produced along with the appeal memorandum. The fact that the request was received by the Board is not disputed. The request shows that earlier 50 KLD of water per day has been used and from the year 2000 onwards the production of internal requirements such as bed sheets, bed spread, furnishing cloth, terry-towels, Napkins, table cloth and pillow covers etc was stopped as its internal consumption has been reduced.

It was also stated that the Society concentrated on export quality and as on date, about 60% of the export quality fabrics are manufactured and sold through exporters.

The colour threads for the manufacture of export quality are procured directly from the exporters and hence, dyeing processes have become unnecessary. The Society, therefore, requested the Board as follows:

"In these circumstances the dyeing units in the Sangam are used for the 40% internal requirements. Accordingly, dyeing units are used for 60 to 70 bundles per day. A bundle requires about 250 litres of water and thereby about 17,500/- litres are used for a day. Taking this into account, about 2000 litres of discharge per hour totaling to 20,000 litres per day (10 hours) is recycled and the Reverse Osmosis system and the II stage Name filtration are erected. The requisite Solar Evaporation Pond has been erected. Hence, it is requested that the RO System erected for re-cycling of 20,000 litres of discharge per day may be recognized and necessary permission may be granted. We further confirm that the discharge is 0% and it is within the limits as prescribed by the Tamil Nadu Pollution Control Board."

The Board did not take any decision on that application. The reply of the Board filed before the Tribunal shows that in fact, the Society had installed the RO /RMS systems before 04.07.2007, the date of judgment of the Division Bench, though they are found to be inadequate by the Monitoring Committee and as the Hon'ble High Court has directed the units falling under Category 'c' to pay fine, the Board has not taken any decision on the request to reduce the capacity from 50 KLD to 20 KLD.

A Writ Petition No.19086 of 2008 was filed before the Hon'ble High Court of Madras with a prayer to issue a writ of mandamus directing the Board to reduce the Consent capacity of the appellant unit from 50 KLD to 20 KLD and also for permission to the appellant unit to pay a sum of Rs.10,000/- instead of Rs.25,000/- as has been directed by order dated 04.07.2007. Evidently, that direction was sought in respect of the units as it is falling under category 'a' or 'b'. The payment to be made by a unit falling under category 'c' is Rs.50,000/-. The Hon'ble High Court by order dated 07.08.2008 directed the appellant to pay Rs.10000/- instead of Rs.25,000/- and directed the Board authorities to inspect the units within a period of 10 days, from the date of service of a copy of the order and to pass orders on their request in accordance with law.

Pursuant to the directions, the Board inspected the unit on 21.08.2008. According to the Board, it was found that the machineries to carry out the excess production were not removed from the unit and RO system was not in operation and effluents were being discharged outside the land. Therefore, the Board directed in its order dated 26.12.2008 to close the unit. The Board officials inspected the unit again on 27.02.2009 and found that the unit has removed the excess machineries.

The Board, thereafter, directed the appellant-unit to pay a fine of Rs.14,01,000/- calculated at the rate of 6 paise per litre, for 50 KLD for 467 days, i.e for the period from 04.07.2007 to 27.02.2009. The appellant deposited a sum of Rs.1,39,742/- and requested to waive the balance amount of Rs.12,61,258/- On behalf of the appellant, the Director of Handloom and Textiles written a letter dated 27.09.2012 to the Chairman of the Board to waive the balance fine amount. The appellant thereafter deposited a further amount of Rs.2,10,508/- and by letter dated 10.07.2015, intimating that 25% of fine amount has already been deposited and therefore, requested to waive the balance amount. The Board by its proceedings dated 03.09.2015 demanded the balance amount of Rs.10,50,850/- and issued order under Section 33 A of Water (Prevention and Control of pollution) Act 1974 to pay the fine amount within a period of one month, failing which, the electricity supply would be disconnected. The said order is under challenge in the appeal.

Learned counsel appearing for the appellant and the respondents were heard.

The arguments of the learned counsel appearing for the appellant is that when the unit had installed RO system and RMS, even before 04.07.2007, the date of judgment of the Hon'ble High Court and in fact had requested the Board on 08.01.2007 itself to reduce the capacity from 50 KLD to 20 KLD, there is no justification to calculate the fine amount on the consented capacity of discharge of 50 KLD . Learned counsel argued that taking into consideration the pitiable situation of the appellant-Society, which was formed for the welfare of the weavers, later on could not operate and was closed, it cannot be made liable to pay the balance amount demanded. The learned counsel therefore argued that in any case, the fine amount be reduced calculating the discharge per day as 20 KLD for the relevant period.

Learned counsel appearing for the Board argued that the Board has to comply with the directions of the Hon'ble High Court and the fine amount has to be realized based on the consented capacity of 50 KLD for the relevant period and therefore, there cannot be any waiver.

If the Board has to proceed as directed by the Hon'ble High Court, firstly, it has to satisfy whether the unit comes under category 'a' or 'b' or 'c'. The appellant had approached the Hon'ble High Court in W.P.No.19080 of 2008 on the basis that the unit falls under category 'a' or 'b' and therefore, the unit is liable to deposit a sum of Rs.25,000/- for inspection and with a prayer to reduce the same to Rs.10,000/- The Board did not take up a contention before the Hon'ble High Court that the appellant does not come under category 'a' or 'b', but category 'c' and therefore, the deposit to be made is not Rs.25,000/- but Rs.50,000/- as is clear from the order in the Writ Petition dated 07.08.2008. The Hon'ble High Court reduced the deposit to be made from Rs.25,000/- to Rs.10,000/-. If so, the appellant unit falls under category 'a' or 'b'. In the appeal memorandum, the appellant stated that the unit falls under category 'b'. In order to fall under category 'b', the unit should have claimed reduction of production capacity by removing process machines and shall make a reduction by undertaking to remove or dismantle the excess process machines to the capacity of RO and RMS and deposit Rs.25,000/- to the Board. True. The appellant had made a request earlier to 04.07.2007, for reducing the consented capacity from 50 KLD to 20 KLD. But there is no case for the appellant that it has removed the machineries for the reduced capacity so as to come within the category 'b'. Added to this, the Board on inspection of the appellant unit on 21.08.2008, found that the machineries to carry out excess production were not removed from the unit. They were found removed from the unit only on 27.02.2009, the date of inspection. The Board has therefore, calculated the fine amount at 50 KLD for the period from 04.07.2007 to 27.02.2009. The appellant has not disputed the period. The dispute is only with regard to the quantum.

Though we sympathise with the fate of the appellant unit, as it was found that the appellant unit was operating without sufficient RO and RMS till 27.02.2009, we cannot direct the waiver of the fine amount. Though the units falling under category 'a' or 'b' are not liable to pay any fine and fine is to be paid by the units covered under category 'c', the liability to pay the fine amount, as such, was not at all challenged in the appeal memorandum. Therefore, we do not find it necessary to decide that aspect.

The only question to be decided is whether claiming fine based on the discharge of 50 KLD is justifiable. On the facts, we find that when the appellant unit had requested the Board to reduce the consented capacity from 50 KLD to 20 KLD as early as on 08.01.2007, and had even approached the Hon'ble High Court to get the reduction, the Board was not justified in claiming fine based on the discharge at 50 KLD per day. We are also inclined to take into consideration the fact that the appellant was not a unit which did not install RO and RMS system as on 04.07.2007 and had requested for extension of the period for installing RO and RMS systems, as in the case of the units falling under category 'c'. Therefore, taking into consideration all the relevant facts, we hold that the fine payable by the appellant unit has to be reduced calculating the discharge per day at 20 KLD and not 50 KLD. If that be so, the fine calculated for 467 days from 04.07.2007 to 27.02.2009 comes to Rs.5,60,400, namely, for 93,40,000 liters at the rate of 6 paise per litre. The appellant had already deposited Rs.3,50,250/- Therefore, the balance amount payable by the appellant is Rs.2,10,150/-

The appellant is granted 3 months time from the date of this judgment to deposit the said amount. The appeal is allowed as follows:

The fine amount payable by the appellant unit is Rs.5,60,400/-. Deducting Rs.3,50,250/- the payment already made by the appellant, the appellant is liable to pay the balance of Rs.2,10,150/-. The demand made under the impugned order dated 03.09.2015 is, therefore, reduced from Rs.10,50,850/- to Rs.2,10,150/-

The Appeal is allowed accordingly, with no order as to costs.