AI Structured Summary
Not yet generated for this judgment
Judgment
R. Banumathi, J.—Whether members of 4th respondent Noyyal Ayacutdars Protection Association alone are entitled to the amount of Rs.
75.00 Crores deposited by the polluting units in pursuance to the order in a Public Interest Litigation W.P. No. 29791 of 2003 in preference to
other affected agriculturists of Noyyal River Basin identified by Loss of Ecology Authority (LoEA) is the point falling for consideration in these
batch of writ petitions. For convenience, the parties are referred to as arrayed in W.P. No. 2790 of 2012. Due to rapid and haphazard
industrialisation of Tiruppur with large number of hosiery units and consequential establishment of dyeing and bleaching units resulted in Noyyal
River getting polluted causing havoc to the agricultural operations. Menace of pollution caused in Noyyal river by bleaching and dying units has
been subject matter of litigation from 1996. Based on the order in a Public Interest Litigation in W.P. No. 29791 of 2003 confirmed by the
Supreme Court in SLP No. 6963 of 2007 and in pursuance of the interim order dated 10.8.2007 passed by the Supreme Court, a sum of Rs.
25.00 Crores was deposited in High Court to the credit of W.P. No. 29791 of 2003. Further, Rs. 42.02 Crores collected towards the fine
amount and Rs. 7.64 Crores ordered towards adhoc compensation available with the District Collector, Tiruppur are payable to the affected
agriculturists. The applications filed by Government to withdraw the amount of Rs. 25.00 Crores in High Court deposit came to be dismissed on
29.3.2011. The impugned G.O. Ms. No. 209, Environment and Forests (EC-1) Department dated 31.12.2011 was passed in which Government
sanctioned an interest bearing advance of Rs. 75.00 Crores to Tamil Nadu Pollution Control Board for disbursing the amount to the members of
4th respondent Association. Challenging the said Government Order, writ petitions are filed seeking to quash the said Government Order and
other directions.
Background Facts:-
W.P. No. 1649 of 1996 was filed by P.R. Kuppusamy, Advocate, in public interest, as the President of Karur Taluk Noyyal Canal Agriculturists
Association seeking directions to the Pollution Control Board to prevent the pollution and dyeing units at Tiruppur from polluting Noyyal river and
to take steps to clean the river Noyyal of its pollution. On 26.2.1998, W.P. No. 1649 of 1996 was disposed of in terms of a joint memo filed by
the parties, wherein, the industries agreed to set up Common Effluent Treatment Plants (CETPs) or Individual Effluent Treatment Plants (IETPs)
and Tamil Nadu Pollution Control Board (TNPCB) was to enforce it failing which to take action as per law.
Public Interest Litigation W.P. No. 29791 of 2003:- Joint memo filed in W.P. No. 1649 of 1996 was not honoured by the polluting industries
and TNPCB also did not enforce it. Noyyal River Ayacutdars Protection Association (4th respondent) filed a Public Interest Litigation - W.P. No.
29791 of 2003 seeking for a writ of mandamus directing the respondents to implement the order dated 26.02.1998 in W.P. No. 1649 of 1996
passed in pursuance of the joint memo. Court granted time to the industrial units to achieve Zero Liquid Discharge (ZLD) and inter alia issued
directions:-
i) they should pay a fine on pro rata basis at the rate of six paise per litre for the first three months and eight paise per litre for next two months and
ten paise per litre for the subsequent two months;
ii) to deposit a sum of Rs. 22,99,98,548/- being the balance of the total compensation amount of Rs. 24,79,98,548/- awarded by the LoEA in its
award dated 17.12.2004; iii)Court also directed the units to deposit a sum of Rs. 12.00 Crores as adhoc compensation towards the estimated loss
for the years 2005, 2006 and 2007; iv)The compensation amount as well as the fine amounts deposited and the amounts already deposited
pursuant to orders of this Court shall be deposited in a Nationalised Bank as a Corpus Fund and utilized for the purpose of cleaning of
Orathapalayam dam and Noyyal River and for the ultimate payment to be made to the agriculturists towards loss of ecology.
SLP No. 6963 of 2007 (Civil Appeal No. 6776 of 2009 with 6777 of 2009):-
Order dated 22.12.2006 made in W.P. Nos. 29791 and 39368 of 2003 was challenged by Tiruppur Dyeing Factory Owners Association in SLP
No. 6963 of 2007. On 10.8.2007, Supreme Court granted interim stay of closure of dyeing units. In the interim order dated 10.8.2007, Supreme
Court directed Tiruppur Dyeing Factory Owners Association to deposit a sum of Rs. 25.00 Crores before the High Court and in compliance of
the said order, a sum of Rs. 25.00 Crores has been deposited in the Registry and subsequently transferred to a Nationalised Bank by the Order of
the High Court dated 3.7.2012. By directing Tiruppur Dyeing Factory Owners Association to ensure compliance with all directions including the
payment of dues and to ensure that the members of Tiruppur Dyeing Factory Owners Association have to carry out their industrial activities
without polluting the water and issuing other directions, the Supreme Court disposed off the appeals on 6.10.1999 in Tirupur Dyeing Factory
Owners Association Vs. Noyyal River Ayacutdars Protection Association and Others,
Loss of Ecology Authority (LoEA) and award dated 17.12.2004 in respect of affected agriculturists of Noyyal River Basin:-
When the said Writ Petition was pending, in Vellore Citizens Welfare Forum Vs. Union of India and others, the Supreme Court has directed the
Central Government to constitute Loss of Ecology Authority (LoEA) u/s 3(3) of Environment (Protection) Act, 1986 and further directed that the
authority so constituted shall implement the ""Precautionary Principle"" and the ""Polluter Pays Principle"". Notification (SO 671 (E)) dated
30.09.1996 was issued by the Government of India constituting the Loss of Ecology (Prevention and Payment of Compensation) Authority
(LoEA) for the State of Tamil Nadu. The authority has inter alia been conferred power:-
i) to assess the loss of ecology and environment in the affected areas and also identify the individuals and
ii) families who have suffered because of pollution and assess the compensation to be paid to the said individuals and families;
iii) to determine the compensation to be recovered from the polluters as cost of reversing the damaged environment;
iv) to lay down its own procedure for assessing loss and determining compensation and for recovery from polluters;
v) to compare loss under two heads, namely, for reversing the ecology and for payment to individuals.
Even when the Public Interest Litigation in W.P. No. 1649 of 1996 was pending before the High Court, LoEA took suo motu cognizance of the
pollution by the Dyeing and Bleaching Industries in Noyyal river basin. With the assistance of an expert body on environmental issues, Centre for
Environmental Studies, Anna University, Authority assessed loss of ecology and environment in the areas affected by the industries located in the
Taluk of Tiruppur and its vicinity in Noyyal river basin. The Authority identified 28,596 affected agriculturists, who are eligible for compensation
and an extent of 28,449 ha in 68 villages and passed the award on 17.12.2004 awarding compensation to individuals totaling Rs. 24,79,98,548/-
as compensation for the period from 28.08.1996 to 31.12.2004. The list of affected farmers and the list of polluting industries were prepared and
they were supplied in C.Ds to various District Collectors for the purpose of recovery of the compensation amount from the polluting units for
disposal to the affected farmers.
Writ Petitions challenging the award of LoEA:-
A batch of writ petitions came to be filed challenging the award of LoEA on various grounds including failure to assess the contamination of water
resources and soil and cause of restoration of ecology, violation of principles of natural justice and inadequate compensation and failure to pass
order for preventing future pollution. W.P. Nos. 12999, 13549 and 39722 of 2005 were filed by the 4th respondent Noyyal Ayacutdars
Association and its members. Ramaswami - who is the petitioner in W.P. No. 3553 of 2012 along with 334 others filed W.P. No. 46632 of 2006
and the said Writ Petition is pending. W.P. Nos. 6607, 6619, 8662 and 6606 of 2005 were filed by the Industries challenging the award.
Amount of Rs. 75.00 Crores:-
In pursuance to the interim order of the Supreme Court dated 10.8.2007 in SLP No. 6963 of 2007 (C.A. No. 6776 and 6777 of 2009), Tiruppur
Dyeing Factory Owners Association deposited Rs. 25.00 Crores before the High Court to the credit of W.P. No. 29791 of 2003. In terms of the
directions issued by this Court in W.P. Nos. 29791 and 39368 of 2003 (judgment dated 22.12.2006) in paragraph No. 30(a), Polluting
units/CETPs remitted a sum of Rs. 42.02 Crores with accrued interest to the District Collector. Further, in terms of direction in Paragraph No.
30(d), a sum of Rs. 12.00 Crores has been awarded by the Court in W.P. No. 29791 of 2003 towards adhoc compensation, out of which an
amount of Rs. 7.64 Crores is available with District Collector, Tiruppur along with accrued interest. Total amount paid by the Polluting Units is Rs.
75.00 Crores and available as stated infra.
W.M.P. Nos. 184 to 187 of 2011 in W.P. No. 39368 of 2003 were filed by the Government of Tamil Nadu seeking permission of the Court
to disburse the amount lying with the District Collector, Tiruppur and in deposit in High Court to all the affected agriculturists. Petitions filed by the
Government for disbursal of deposited amounts were dismissed by an Order dated 29.3.2011.
G.O. Ms. No. 209, Environment and Forests (EC-1) Department dated 31.12.2011:-
After change of Government, the 4th respondent Association made representation for payment of compensation to their 535 members of their
Association. Stating that the members of 4h respondent Association are worst affected and that 4th respondent Association had been waging the
legal battle, Government issued G.O. Ms. No. 209, Environment and Forests (EC-1) Department in which Government advanced interest bearing
amount of Rs. 75.00 Crores to the Tamil Nadu Pollution Control Board and directed the Board to disburse the said amount to the Noyyal
Ayacutdars Protection Association for payment to the members of the Association numbering 535. In the Government Order, TNPCB was
directed to repay the advance along with interest within a period of six months from the date of releasing the advance. The said Government Order
is the subject matter of challenge in these batch of writ petitions.
Pleadings/case of the parties:-
The writ petitioners, who are agriculturists, having lands on the banks of Noyyal river, have filed the writ petitions challenging G.O. Ms. No. 209,
Environment and Forests (EC-1) Department dated 31.12.2011. Case of writ petitioners is that the amount of Rs. 75.00 Crores
collected/deposited as per the order of the Court in W.P. No. 29791 of 2003 and the Order of the Supreme Court in SLP No. 6963 of 2007 is
intended to compensate all the affected agriculturists along the Banks of Noyyal river and to clean the river and also for restoration of ecology.
According to the writ petitioners, respondents 1 to 3, instead of acting in the larger interest of the affected farmers and in the larger interest of
restoration of ecology, acted in a manner to give unjust enrichment to the 4th respondent Association. The impugned Government Order is assailed
as arbitrary as it gives preferential treatment to the members of the 4th respondent Association and causing great prejudice to the affected
agriculturists, who have the benefit of the award of the Loss of Ecology Authority and therefore seek for issuance of writ of certiorarified
mandamus to quash G.O. Ms. No. 209, Environment and Forest (EC-1) Department dated 31.12.2011 and consequently recover the amounts
paid to the 4th respondent Association and their members.
In its counter affidavit, Government of Tamil Nadu averred that the 4th respondent Association represented to the Government that their
members suffered several financial stress and after examining the representation made by the 4th respondent Association and other relevant
materials, issued G.O. Ms. No. 209, Environment and Forests (EC-1) Department dated 31.12.2011 sanctioning an interest bearing advance of
Rs. 75.00 Crores to Tamilnadu Pollution Control Board for payment to the members of 4th respondent Association, which was directed to be
paid on per acre basis uniformly to all the members irrespective of the electrical conductivity test, since almost all their lands are having electrical
conductivity value of more than nine and considered as ""highly affected by the pollution"". In Para 17 of the counter, Government averred that
......... in the event writ petitioners'' submitting necessary application enclosing the documentary evidence, the Government will consider payment
of compensation."" Denying the allegation that the Government has given preferential treatment to the members of 4th respondent Association,
Government further averred that ""....... it is interested in the welfare of the affected farmers, who will be compensated for the loss of damage
suffered in the event of their making application with all necessary particulars.
Pollution Control Board filed counter stating that the decision to sanction Rs. 75.00 Crores was taken on the basis of the representation made
by the 4th respondent Association to the Government and the sum of Rs. 75.00 Crores disbursed to the members of 4th respondent Association
has nothing to do with the award of LoEA. TNPCB stated that sum of Rs. 75.00 Crores deposited towards fine and compensation were meant
for the members of 4th respondent Association and other agriculturists cannot seek compensation from out of the said amount of Rs. 75.00
Crores. It is further stated that when the writ petitioners have challenged the award of LoEA, they have to work out their remedy in the said writ
petition (W.P. No. 46632 of 2006).
Denying the averments in the writ petition, the 4th respondent Association filed counter stating that all the 535 members of 4th respondent
Association are genuine agriculturists eligible for payment of compensation and that they have been duly identified to receive compensation. The
4th respondent averred that through their Coordinator they continued their negotiations with polluting industrial units located in and around Tiruppur
and that industrial units agreed to pay total sum of Rs. 75.00 Crores as compensation to 535 members of 4th respondent Association and the
payment of amount by industrial units is only by taking into consideration the long drawn struggle of 4th respondent Association. Considering the
representation of 4th respondent Association, Government issued G.O. Ms. No. 209, Environment and Forests (EC-1) Department dated
31.12.2011 so as to alleviate the sufferings of agriculturists and in particular, the members of 4th respondent Association, who were highly affected
by the pollution caused in Noyyal River. The Government Order is with respect to payment of compensation to the members of 4th respondent
Association only and the said Government Order imposes no restriction on the writ petitioners or any other affected farmers claiming their due
compensation in accordance with law.
Contentions:-
Ms. D. Nagasaila, learned counsel appearing for some of the writ petitioners contended that entire exercise of issuance of Government Order in
G.O. Ms. No. 209, Environment and Forests (EC-1) Department dated 31.12.2011 is arbitrary and unjust. Learned counsel submitted that after
field study, LoEA identified 28,596 affected agriculturists and by the award dated 17.12.2004 awarded compensation to those affected
agriculturists and while so there is no material to show in what manner the members of 4th respondent Association are different from other affected
farmers. It was further contended that G.O. Ms. No. 209, Environment and Forests (EC-1) Department dated 31.12.2011 is in the nature of a
tripartite private arrangement between Government of Tamil Nadu, TNPCB and the 4th respondent Association with the illegal purpose of
appropriating funds, which is meant for 28,596 affected farmers. Government Order giving preferential treatment to the 4th respondent Association
is opposed to public policy. The learned counsel has drawn our attention to various aspects in support of her contention that money intended to
compensate all the affected agriculturists has been siphoned of by 4th respondent Association and sizeable percentage has been appropriated by a
few in the Association under the pretext of donation, legal expenditure and cleaning of Orathapalayam Dam.
Learned counsel Mr. N. Manoharan appearing on behalf of the petitioner in W.P. No. 19826 of 2012 submitted that Public Interest Litigation
W.P. No. 29791 of 2003 was not only to ventilate the grievance of members of the 4th respondent Association, but was espousing the cause of all
the affected agriculturists and therefore the relief granted by the First Bench of this Court in the Order dated 22.12.2006 is applicable to all the
affected agriculturists. He further submitted that merely because all the affected agriculturists have not approached the Court, the benefit of the
Order passed by the Court in W.P. No. 29791 of 2033 and the fine amount ordered to be collected/adhoc compensation and deposit made in
High Court cannot be restricted to the members of the 4th respondent Association and such a stand taken by the 4th respondent Association and
the impugned Government Order would cause serious prejudice to other affected agriculturists.
Learned counsel Mr. V. Bharathidasan appearing for the petitioners in W.P. Nos. 12617 and 23981 of 2012 contended that G.O. Ms. No.
209 dated 31.12.2011 was issued in a hasty manner without keeping in view the interest of other affected agriculturists. Drawing our attention to
the compensation paid in respect of Survey No. 132, the learned counsel submitted that co-sharers were paid higher compensation, which
according to him, would clearly show as to how the members of 4th respondent Association were given preferential treatment.
Mr. N.S. Sivaprakash, learned counsel appearing for the petitioner in W.P. No. 18653 of 2012 submitted that Government cannot assume the
role of LoEA, which is the competent authority to assess the damage and pass award and while so, Government/TNPCB cannot withdraw the
amount deposited in the Court and with the Collector and the said amount was deposited only for affected farmers under Loss of Ecology
Authority.
We have heard Mr. C. Prakasam, learned counsel appearing along with Mr. Chakrapani for petitioner in W.P. No. 8950 of 2012. Learned
counsel has drawn our attention to the topo-sketch of the lands along the banks of Noyyal river and submitted as to how the land owners/other
affected agriculturists of other survey numbers, which are adjacent to the Noyyal river, were not awarded any compensation. It was submitted that
the impugned Government Order is arbitrary as it gives preferential treatment to the 4th respondent Association at the cost of other affected
agriculturists.
Taking us through the directions issued in paragraph 30 of the order in W.P. No. 29791 of 2003, Mr. S. Guru Krishnakumar, learned
Additional Advocate General appearing on behalf of the Government contended that a reading of paragraph 30(f) of the order dated 22.12.2006
would clearly show that liberty was given to the members of 4th respondent Association to seek appropriate direction for disbursement of
compensation amount. Learned Additional Advocate General inter alia made the following submissions:-
A sum of Rs. 75.00 Crores was sanctioned by the Government to Tamil Nadu Pollution Control Board for being distributed to the members of 4th
respondent Association which had been waging legal battle before the High Court and the Supreme Court against dyeing and bleaching units
situated in Tiruppur. Government after carefully examining the representation of 4th respondent and taking into consideration that members of 4th
respondent Association are highly affected, Government sanctioned loan of Rs. 75.00 Crores to Tamil Nadu Pollution Control Board for being
distributed to the members of the 4th respondent Association.
Amount of Rs. 75.00 Crores advanced as a loan to Tamil Nadu Pollution Control Board under impugned G.O. Ms. No. 209, Environment and
Forests (EC-1) Department dated 31.12.2011 has nothing to do with the Award dated 17.12.2004 passed by Loss of Ecology Authority.
Government would consider payment of compensation to the petitioner and other agriculturists, provided they submit necessary individual
applications along with documentary proof to Tamil Nadu Pollution Control Board. When the Government is ready to compensate the affected
agriculturists, the question of discrimination does not arise.
Reiterating the contentions of Additional Advocate General, on behalf of the Pollution Control Board, the learned Advocate General Mr. A.
Navaneethakrishnan contended that in paragraph No. 30(f) of the Order, while issuing directions for investing the compensation amount and the
fine amount in a Nationalised Bank as a corpus fund, Court gave liberty to the 4th respondent to seek appropriate directions for disbursement of
the amount of compensation and in order to alleviate the sufferings of members of 4th respondent Association, Government issued Government
Order sanctioning interest bearing advance of Rs. 75.00 Crores to TNPCB for payment to the members of 4th respondent Association. It was
further submitted that sum of Rs. 75.00 Crores disbursed to the members of 4th respondent Association has nothing to do with the award passed
by the LoEA and the writ petitioners have already filed W.P. No. 46632 of 2006 for quashing the award passed by LoEA and the same is
pending for adjudication. The learned Advocate General would further contend that when the said Writ Petition W.P. No. 46632 of 2006
challenging the inadequacy of compensation awarded by LoEA is filed, the petitioners have nothing to do with disbursement of the compensation
amount to the members of 4th respondent Association. In pursuance to the issuance of said Government Order, TNPCB disbursed the amount of
Rs. 75.00 Crores to the account of 4th respondent Association on 21.3.2012 for further disbursement of the individual members.
On behalf of the 4th respondent Association, we have heard learned Senior Counsel Mr. V. Santhanagopalan, appearing for the 4th
respondent Association -petitioner in W.P. Nos. 2790, 3553, 12562, 15369, 12617, 10566, 15420, 23981, 9535, 9536 and W.P. (MD) Nos.
1399, 1614 and 11976 of 2012 and we have also heard Mr. V. Raghavachari, learned counsel appearing for the same association in W.P. Nos.
19826 and 18653 of 2012 and both the learned counsel submitted that the writ petitioner and its members were nowhere in the picture when the
4th respondent and its members were fighting for a cause for making the river Noyyal free of pollution and fit for use for agricultural and drinking
purposes and several proceedings commencing from High Court upto the level of Supreme Court were initiated and defended only by 4th
respondent and the entire expenses were met only by its members. It was further submitted that after taking into consideration the 4th respondent''s
long drawn struggle to establish their rights and after negotiations, the Government agreed to pay total sum of Rs. 75.00 Crores as compensation
to 535 members to be distributed among them equally based on the extent of their agricultural holdings and G.O. Ms. No. 209 dated 31.12.2011
was passed to alleviate the sufferings of agriculturists and in particular the members of 4th respondent, who were the worst affected by the
pollution caused to the river water. It was further argued that after negotiation when the 4th respondent Association arrived at a compromise with
the Government, such a compromise cannot be reopened by any third party and the writ petitioners are precluded from challenging the
compromise and there is no reason to reopen the issue at the behest of the writ petitioners. Emphasis was laid upon the directions in paragraph
No. 30(f) of the order in W.P. No. 29791 of 2003 giving liberty to the members of the 4th respondent Association to take appropriate steps to
get the amount disbursed.
We have heard Mr. Chinnasamy, learned Senior Counsel appearing for the 4th respondent Association in W.P. Nos. 7108, 17341 and 8950
of 2012 and Mr. Meyyappan, learned counsel appearing for the 4th respondent Association in W.P. Nos. 10901 and 11304 of 2012.
We have also heard Mr. S.V. Jayaraman, Senior Counsel appearing along with Mr. K. Raja, appearing for the Dyers Association and Mr. L.
Chandrakumar, learned counsel appearing for the Bleachers Association.
Upon consideration of rival contentions and other materials placed before us by way of typed set of papers, the following points arise for
determination in these writ petitions:
Whether the amount of Rs. 75.00 Crores collected/deposited in pursuance to the order in W.P. No. 29791 of 2003 and also the Order of the
Supreme Court in Civil Appeal No. 6776 of 2009 with No. 6777 of 2009 is payable to all the affected agriculturists?
Whether the benefit of said amount of Rs. 75.00 Crores should be restricted only to 535 members of 4th respondent Association?
Whether G.O. Ms. No. 209, Environment and Forests (EC-1) Department dated 31.12.2011 is arbitrary and unjust intending to give
preferential treatment to the members of 4th respondent Association at the cost of all the affected agriculturists of Noyyal river basin?
Whether G.O. Ms. No. 209, Environment and Forests (EC-1) Department dated 31.12.2011 is liable to be quashed?
Points 1 to 4 Discussion and Findings:- In and around Tiruppur, there was rapid industrialisation by installation of establishment of large
number of hosiery units engaged in manufacture of garments giving rise to consequential establishment of large number of dyeing and bleaching
units. The direct and indirect discharge of chemicals and toxic effluents from the factories into Noyyal river affected the agricultural operations all
along the river course of Noyyal river. The foul and contaminated water stored at Orathapalayam dam has greatly affected the agricultural
operations in a large area around the Dam. The river water became unfit both for agricultural operations and also for drinking water purpose.
The damage caused to the river water affecting agricultural operations and directions to implement pollution control measures were the subject
matter of litigation in W.P. No. 1649 of 1996 and also in W.P. No. 29791 of 2003. In W.P. No. 29791 of 2003, the First Bench appointed
Expert committee and also Monitoring Committee and keeping in view the plight of farmers in continuing agricultural operations and also
contamination of drinking water, the First Bench issued directions to (i) collect the fine amount; (ii) deposit the amount for cleaning the dam; (iii)
direction to deposit the compensation amount awarded by LoEA in its award dated 17.12.2004 and (iv) adhoc compensation. We would shortly
elaborately refer to the above decision. Suffice it to note that this amount directed to be collected/deposited in Court by the First Bench and the
Hon''ble Supreme Court (excepting the compensation of Rs. 24,79,98,548/- awarded by LoEA) was sanctioned as interest bearing advance to
TNPCB for being distributed to the members of 4th respondent Association.
The controversy and crux of the issue involved is the impugned G.O. Ms. No. 209 Environmental and Forests Department dated 31.12.2011,
by which interest bearing advance amount of Rs. 75.00 Crores was given to TNPCB for distributing it to the members of the 4th respondent
Association. The relevant portion of G.O. Ms. No. 209 dated 31.12.2011 reads as under:-
In addition to the award of Loss of Ecology Authority, the Hon''ble High Court in its order dated 22.12.2006, ordered for the payment of an
adhoc compensation of Rs. 12 crore of which the amount available with Collector, Tiruppur District is Rs. 7.64 crores. Further, the Hon''ble High
Court ordered for the payment of fines for ensuring Zero Liquid Discharge before 31.07.2007 amounting to Rs. 25 crore deposited in the High
Court of Madras and Rs. 42 crore deposited with the Collector of Tiruppur.
It has been brought to the notice of Government that the petitioners in the High Court viz., Noyyal River Ayacutdars Protection Association has
only 535 members whereas the farmers to whom compensation was awarded by the Loss of Ecology Authority was 28596. From the records of
the Loss of Ecology (P & PC) Authority, it is ascertained that out of 535 members of the Petitioner Association, the award compensation has been
given to only 398 persons amounting to Rs. 2,63,99,784 leaving out 137 members. The Noyyal River Ayacutdars Protection Association had filed
petitions before the Loss of Ecology Authority claiming compensation of Rs. 49,00,53,264 for its 535 members. Further, the farmers have
represented that while awarding the compensation, the Loss of Ecology (P & PC) Authority adopted the whole village as an unit after test check of
two or three wells and individual test reports were not taken with the result that they have not been adequately compensated.
The main petitioners'' in the High Court case are the Noyyal River Ayacutdars Protection Association whose members numbering 535 are the
worst affected by the pollution caused by the dyeing units and they are ones who have been waging a legal battle from 1996 before the High Court
of Madras, Loss of Ecology (P & PC) Authority and the Supreme Court of India. As seen from the above, the Loss of Ecology (P & PC)
Authority award did not cover 137 of their members. Further, while they requested for a compensation of Rs. 49 crores for the period upto 2004,
only 398 of them have been given compensation of Rs. 2.64 crore.
6.......
The Petitioner Association has been representing to the Government that even though they would like to approach the Hon''ble High Court,
Madras for payment of compensation, since all the dyeing units have not yet achieved Zero Liquid Discharge and only trial runs have been
permitted, it would require some more time for the achievement of Zero Liquid Discharge for the pollution to be completely arrested and the river
courses brought back to the original stage which is the primary objective of the Hon''ble High Court intervention based on the petitions of the
Petitioners'' Association. They have, therefore, requested that similar to the decision taken by the Government of Tamilnadu to revive the dyeing
units by way of interest free loan of Rs. 200 crore, an arrangement may be made to pay the compensation to the 535 Petitioners'' Association
members who are the most affected pending the filing of petitions in the Hon''ble High Court, Madras and further orders of Hon''ble High Court
Madras.
In the above circumstances, Government after careful consideration of all the aspects, have decided to issue the following orders:-
(1) On the lines similar to the interest free loan given to the Dyeing units, Government sanction an interest advance of Rs. 75.00 crores (Rupees
Seventy Five Crores only) to the Tamil Nadu Pollution Control Board for payment to the members of the Petitioner Association viz. Noyyal River
Ayacutdars Protection Association numbering 535. The amount will be distributed on per acre basis uniformly to all the members irrespective of
the electrical conductivity test since almost all their lands are having E.C. values of more than 9 and could be considered as highly affected by the
pollution.
(2) The Tamilnadu Pollution Control Board shall prepare a list of the Petitioner Association members along with the compensation to be released
to them and obtain an undertaking from them relating to their ownership of the lands and the test reports of soil and water available with them
regarding damage to their lands. The disbursement shall be done by Tamilnadu Pollution Control Board to the Noyyal River Ayacutdars Protection
Association through the respective District Collectors who shall obtain proper acknowledgement for the amount received. An undertaking shall be
obtained that any final compensation later sanctioned or awarded through the Court process would be first set off against the interim compensation
being awarded now. A model of the undertaking is annexed herewith.
(3) Tamilnadu Pollution Control Board is directed to repay the advance of Rs. 75.00 crores (Rupees Seventy Five Crores only) along with interest
to Government within 6 months from the date of the release of this advance. Tamilnadu Pollution Control Board should also follow up with the
Petitioner''s Association for permitting the withdrawal of the fine amounts available with the Hon''ble High Court of Madras and Collector, Tirupur
and also take action to close the cases filed in this regard. In case the Tamilnadu Pollution Control Board is not able to adjust from the accounts as
above, they shall make their own arrangements to repay the advance taken from the Government and adjust the available amount as and when it is
released besides collecting the fines due from the polluting units following the ""Polluter Pays"" principle.
The expenditure sanctioned in para 8 (1) above shall be debited to the following head of account:-
6402.00. Loans for soil and water conservation 204. Water conservation 1. Non Plan AA Ways and Means Advance to Tamil Nadu Pollution
Control Board for distribution of compensation amount to the affected farmers of Noyyal River Basin (DPC 6402-00-204-AA-0000) Outgo
(DPC 6402-00-204-AA-000A) Receipts.
By a cursory reading of G.O. Ms. No. 209 dated 31.12.2011, it is seen that the source of amount ordered to be paid as loan to TNPCB for
distributing it to the members of 4th respondent Association is the order in W.P. No. 29791 of 2003 dated 22.12.2006. It is seen from the said
Government Order that TNPCB was directed to repay the advance amount of Rs. 75.00 Crores along with interest to the Government within six
months from the date of release of the advance. Thereafter, TNPCB shall take follow up with the 4th respondent Association for withdrawal of the
fine amount available in the High Court and also from the District Collector, Tiruppur and take action to close the cases.
After elaborately referring to the plight of the agriculturists, in paragraph No. 30 of its order dated 22.12.2006 in W.P. No. 29791 of 2003,
the First Bench issued directions to the polluting units to deposit the amount towards cleaning of Orathapalayam dam/adhoc compensation/ fine to
be collected and also to deposit the amount awarded by LoEA. The directions in paragraph No. 30 reads as under:-
(a) The CETPs are given time upto the 31st of July, 2007 to achieve the Zero Liquid Discharge (ZLD) of trade effluents subject to the following
conditions -
(i) The concerned CETPs are directed to pay a fine on pro rata basis at the rate of six paise per litre from 1st January, 2007 to 31st March, 2007;
at the rate of eight paise per litre from 1st April, 2007 to 31st May, 2007; and at the rate of ten paise per litre from 1st June, 2007 to 31st July,
2007. The fine amount payable by the respective CETPs shall be arrived at by multiplying the fine amount i.e., six, eight or ten paise, as the case
may be, by the total quantity of discharge of each Member Units of CETP as per the consent certificate or as the quantity found in the application
for consent and also by the total number of working days in a month. The fine amount thus calculated shall be paid by the respective CETPs on the
last date of every month. In case the CETPs or any of them commit any default in payment of fine, the Pollution Control Board shall direct closure
of such defaulting C.E.T.P. and the Member Units and also disconnect the power supply to such defaulting CETP and the Member Units.
(ii) The CETPs or any of them on achieving Zero Liquid Discharge shall satisfy the Pollution Control Board about their ZLD status and the
Pollution Control Board upon verification shall issue appropriate certificate from which date, such CETP shall not be liable to pay the fine. In any
event, if the CETPs or any of them fail to achieve the ZLD on or before 31st July, 2007, the Pollution Control Board shall forthwith direct closure
of such CETPs and the Member Units and also disconnect the power supply to such defaulting CETP and the Member Units
(b) The respondents 4 to 7 herein are directed to deposit the balance sum of Rs. 8.50 Crores out of Rs. 12,50 Crores estimated by the P.W.D.
towards the cleaning and desilting operations of the Orathapalayam dam to be carried out by the Public Works Department in two equal
installments, the first of such installments being payable on or before the 28th of February, 2007 and the second installment to be paid on or before
the 30th of April, 2007.
(c) The respondents 4 to 7 are directed to deposit a sum of Rs. 22,99,98,548/-, being the remaining of the total compensation of Rs.
24,79,98,548/-awarded by the Loss of Ecology Authority in its Award dated 17.12.2004. This amount shall also be payable in two equal
installments, the first of such installments being payable on or before the 28th of February, 2007 and the second installment to be paid on or before
the 30th of April, 2007.
(d) The respondents 4 to 7 are further directed to deposit a sum of Rs. 12 Crores as an ad-hoc compensation towards the estimated loss for the
years 2005, 2006 and 2007. This amount shall be payable in two equal installments, the first of such installments being payable on or before 15th
June, 2007, and the second installment to be paid on or before 31st July, 2007.
(e) M/s. Mannarai CETP and M/s. Veerapandi CETP are directed to deposit the amounts of fine imposed on each of them by this Court, being
Rs. 15 lakhs and Rs. 60 lakhs respectively, within a period of four weeks from today, failing which the Tamil Nadu Pollution Control Board shall
direct closure of these CETPs with immediate effect.
(f) The compensation amount, as well as the fine amounts to be deposited in term''s of Clauses (a) to (e) and the amounts which are already
deposited pursuant to the orders of this Court shall be kept invested in reserve in a Nationalised Bank as a Corpus Fund and utilised for the
purposes of cleaning of the Orathapalayam dam and Noyyal river and for the ultimate payment to be made to the agriculturists towards loss of
ecology. The petitioners are at liberty to seek appropriate directions for disbursement of the amount of compensation.
(g) The Pollution Control Board is directed to process the applications for consent submitted by all the C.E.T.Ps. and pass appropriate orders on
all such applications within a period of eight weeks from the date of receipt of such applications.
(h) All individual units which fall in Category ''A'' of the Annexure to the Report of the Monitoring Committee dated 16.11.2006 shall cease all
discharge to land/river/other water bodies/CETPs forthwith and operate their Reverse Osmosis Plants and Reject Management Arrangements.
These units would demonstrate their Zero Liquid Discharge (ZLD) by installation of Electromagnetic Flow Meters at the points suggested by the
Committee and the Pollution Control Board shall maintain proper records of their operations, have separate electricity sub-meters for the Reverse
Osmosis Plants and provide for computerisation, wherever the discharge is one lakh litres and above a day.
(i) All the individual units in Categories ''B'' and ''C'' of the Annexure to the Report of the Monitoring Committee dated 16.11.2006 shall be
subject to closure by the Pollution Control Board unless these units file before this Court, affidavits and demonstrate that they have made Reverse
Osmosis Plants operational and sufficient Reject Management Arrangements have been made within a period of four weeks from today.
(j) All the units should ensure that a Hazardous Waste Board is set up by providing sufficient information on the hazardous waste generated every
day and lying in stock, as mandated by the order of the Supreme Court dated 14.10.2003.
(k) The Tiruppur Office of the Pollution Control Board shall be strengthened with sufficient staff/ formation of flying squads, providing of sufficient
number of vehicles and telephone lines to enable them to effectively monitor over 700 units scattered in and around Tiruppur.
(l) The Tiruppur, Erode and Karur Offices of the Tamil Nadu Pollution Control Board shall implement a programme for periodical inspection
(atleast for nightly) of the Noyyal river in order to ensure that there is no industrial trade effluent discharge into the river and the water in the river
meets the relevant standards desirable for drinking and irrigation purposes.
(m) The Pollution Control Board shall ensure that all IETPs and CETPs are properly storing and disposing off the waste generated by them and
ensure, in consultation with the Expert Committee constituted by this Court, a programme to reduce, if not eventually eliminate, the generation of
such wastes.
(n) The District Collector of Coimbatore is directed to initiate remediation programme in consultation with the Pollution Control Board, and the
Expert Committee to remediate the areas affected by the polluted water flows such as the Sarkar Periypalayam Eri, which is a water body with
abundant bird life, now polluted with effluent flow, with the cost being recoverable from the units.
(o) The District Collectors of Coimbatore, Erode and Karur are directed to demarcate the boundary lines for the Noyyal river from the
Orathapalayam dam upto its confluence point with the river Cauvery within a period of eight weeks from today. The survey stones for erecting
stones for the purpose of demarcating the boundary lines shall be supplied by the petitioner-Agriculturists Association and the value thereof can be
claimed by the Association from the District Collector to be paid from out of the corpus fund.
(p) The Public Works Department and the Revenue Authorities are directed to have the quarry waste dumped on the coast of the Noyyal river,
thus causing obstruction to the flow of the river water, removed within a period of eight weeks from today and the costs therefore shall be
recoverable from the quarry operators. The authorities shall ensure that there is no more dumping of the quarry waste in the river and in case of
violation by any of the quarry operators his licence shall be cancelled forthwith.
(q) The Public Works Department is directed to continue with the cleaning and desilting operations of the Orathapalayam Dam and the cleaning of
the Noyyal river shall be carried out through the petitioner association as per the orders of this Court. The District Collector, Coimbatore is
directed to release a sum of Rs. 25 lakhs directly to the petitioner-Agriculturists Association towards the charges for cleaning of the Noyyal river
and the works to be carried out upto the confluence point of the river with river Cauvery.
(r) The respondents 1 to 3 are directed to finalise the site for dumping the solid waste from the Orathapalayam dam as well as from the Noyyal
river which has been kept in bags and in open spaces. The Pollution Control Board is directed to provide the infrastructure and technical expertise
for removal of the solid waste from the units as well as the dam to the notified site. The above exercise shall be done within a period of three
months.
(s) Both the Expert Committee as well as the Monitoring Committee shall submit periodical reports before this Court every two months.
(t) The Monitoring Committee shall be paid a sum of Rs. 15,000/- per day/per visit as charges.
As per the above directions in paragraph No. 30, the amount has to be collected/deposited as under:-
CEPTs to pay fine on pro-rata basis at the rate of 6ps. Per litre. Fine .... Rs. 62.37 Crores
amount to be collected
Cleaning and desilting of Orathapalayam dam .... Rs. 12.50 Crores
Amount awarded by LoEA in its award dated 17.12.2004 remaining .... Rs.
compensation from out 22,99,98,548.00
of total compensation of Rs. 24,79,98,548/-
Adhoc compensation for 2005, 2006 and 2007 .... Rs. 12.00 Crores
On our direction, the Principal Secretary to Government Environment and Forests Department filed a status report showing the details of the
amount collected/deposited and the balance available for compensation to the affected farmers showing the details of the amount
collected/deposited. The details of the amounts collected/deposited and the balance available under various heads is as under:-
I. Statement showing the details of compensation collected as per Loss of Ecology Award of December 2004:
Sl. No. Details Loss of Ecology Authority amount of (Rs. in Crore)
compensation
1 Total amount to be remitted 24.79
2 Remitted before 22.12.2006 HC Judgment 1.80
3 Remitted with the Coimbatore Collector before the stay15.33
obtained in SC
4 Remitted subsequently with Tiruppur Collector after SC2.89
judgement
5 Total amount remitted 20.02
6 Balance to be remitted 4.77
II. Statement showing the details of amount deposited/to be collected relating to cleaning up of the Orathapalayam Dam:
Sl. Details (Rs. in Crore)
No. Orathapalayam Dam cleaning charges
1 Total amount to be remitted 12.50
2 Remitted before 22.12.2006 HC Judgment 4.00
3 Remitted with the Coimbatore Collector before the stay 3.77
obtained in SC
4 Remitted subsequently with Tiruppur Collector after SC 0.02
judgement
5 Total amount remitted 7.79
6 Balance to be remitted 4.71
7 Remarks All the identified works have
been completed and completion
report submitted by EE,
PWD, Erode.
III. Statement showing adhoc compensation ordered by High Court, Madras on 22.12.2006 collected/to be collected/balance
Sl. No. Details (Rs. in Crore)
Orathapalayam Dam cleaning charges
1 Total amount to be remitted 12.00
2 Remitted with Tiruppur Collector After SC 8.04
Judgment
3 Total amount remitted 8.04
4 Balance to be remitted. 3.96
IV. Statement showing the collection of fine amount from the dyeing and bleaching units based on the orders of High Court, Madras on
22.12.2006:
Sl. No. Details (Rs. in Crore)
Fine Amount
1 Total amount to be remitted 62.37
2 Remitted with the Coimbatore 27.42
Collector before the stay
obtained in SC
3 Amount deposited with Hon''ble25.00
High Court as per orders of SC
4 Remitted subsequently with 17.04
Tiruppur Collector after SC
judgement
5 Total amount remitted 69.46
6 Balance to be remitted -7.09 (excess)
7 Remarks 1. The amount is inclusive of interest accrued.
Rs. 25 Crores available with Madras High Court.
Rs. 44.46 crore available with Tiruppur Collector as on
07.07.2012 in addition to
the High Court deposit vide Sl.No.3 above.
V. Statement showing the amount available with the District Collector, Tiruppur:
1 LoEA Amount Rs.72,73,071
2 Adhoc Amount Rs.8,03,68,852
3 Fine Amount-I Rs.29,19,44,983
Fine Amount-II Rs.15,26,73,471
Rs.44,46,18,454
4 Orathapalayam Dam CleaningRs.1,02,00,000
TOTAL Rs.54,24,60,377
The compensation/fine amount was collected in pursuance to the direction in Paragraph No. 30 of W.P. Nos. 29791 and 39368 of 2003. W.P.
No. 29791 of 2003 was a Public Interest Litigation filed by 4th respondent association. In Paragraph No. 30(f), the First Bench directed that the
petitioners are at liberty to seek appropriate directions for disbursement of the amount of compensation.
Re-contention Amount of Rs. 75.00 Crores is only the outflow from the Government to assist the farmers and corpus intended for agriculturists
remains intact:-
On behalf of Government, Additional Advocate General Mr. S. Guru Krishnakumar advanced argument as if the loan amount to TNPCB is only
an outflow from the Government to assist the farmers and that the said amount of Rs. 75.00 Crores has nothing to do with the award amount
passed by LoEA.
The above argument does not merit acceptance and is liable to be rejected. By reading of G.O. Ms. No. 209 dated 31.12.2011, we find that
the Government Order refers to adhoc compensation of Rs. 7.64 Crores available with the Collector and Rs. 25.00 Crores deposited in the High
Court of Madras and Rs. 42.00 Crores deposited with the District Collector, Tiruppur towards the fine amount. Paragraph No. 8 (iii) of the
Government Order makes it clear that:-
TNPCB has to repay the advance of Rs. 75.00 Crores along with interest to Government within six months from the date of release of the
advance;
Pollution Control Board should also follow up with 4th respondent association for permitting the withdrawal of the fine amount available with the
High Court and also District Collector, Tiruppur and also to take action to close the cases filed in this regard;
In case if TNPCB is not able to adjust from the amounts as above, TNPCB shall make their own arrangements to repay the advance taken from
the Government and adjust the available amount as and when it is released besides collecting the fines due from the Polluting Units following
Polluter Pays Principle.
In the Government Order itself it is categorically made clear that the amount of Rs. 75.00 Crores paid as loan to TNPCB is traceable to the
fine amount collected and lying with the District Collector, Tiruppur and Rs. 25.00 Crores deposited in pursuance of the order of the Hon''ble
Supreme Court and the adhoc compensation amount ordered to be deposited by the High Court, Madras. As per the Government Order, Rs.
75.00 Crores of interest bearing amount advanced to TNPCB is linked to the order in W.P. No. 29791 of 2003 and the deposit of Rs. 25.00
Crores in the High Court. In Paragraph 30(c) of the order in W.P. No. 29791 of 2003, the First Bench directed the polluting units to deposit an
amount of Rs. 22,99,98,548/- being the remaining total compensation of Rs. 24,79,98,548/- awarded by LoEA in its Award dated 17.12.2004.
The direction to deposit the compensation amount awarded by LoEA and the other directions issued by First Bench are integral part of each other.
In fact, TNPCB filed a petition in W.P. M.P. No. 185 of 2012 in W.P. No. 29791 of 2003 seeking permission to withdraw Rs. 25.00 Crores
deposited in High Court, Madras and the said petition was dismissed by the First Bench on 3.7.2012 on the ground that the main writ petitions are
pending. When the interest bearing advance of Rs. 75.00 Crores to TNPCB has its source from W.P. No. 29791 of 2003 and the order of the
Hon''ble Supreme Court, there is no force in the contention that it is only an outflow from the Government and has nothing to do with the award
amount passed by LoEA and collected in pursuance to the order of the First Bench in Public Interest Litigation.
Learned Additional Advocate General Mr. S. Guru Krishnakumar submitted that the compensation awarded by LoEA remains intact for being
distributed to the affected agriculturists and Government is also ready to settle the claim of other farmers who produce documents substantiating
their claim and that the Writ Petitioners cannot make grievance of the Government Order.
The argument of the learned Additional Advocate General that deposits made towards the compensation amount awarded by LoEA remains
intact does not seem to reflect the correct facts. In respect of 28,596 affected agriculturists, LoEA passed the award on 17.12.2004 for payment
of total compensation of Rs. 24,79,98,548/-. In Paragraph (19) of the counter filed by the Government, it is stated that the amount awarded by
LoEA has already been disbursed to the individuals as set out in G.O. Ms. No. 209 Environment and Forests (EC-1) Department dated
31.12.2011. In the impugned Government Order in G.O. Ms. No. 209 Environment and Forests (EC-1) dated 31.12.2011, the said
disbursement of the amount is stated as under:-
The amount reported as disbursed as on 24.11.2011 by the Collectors is as follows:-
S.No. Name of the District No. of farmers Amount disbursed Rs.
1 Karur 7702 10,46,25,185/-
2 Erode 4283 3,40,84,592/-
3 Tiruppur 5011 5,98,61,406/-
Total 19,85,71,183/-
The Collectors have reported that further disbursement is not possible due to Court cases, legal heir disputes, refusal of farmers to accept
compensation as being inadequate, difference in extent, land owners no longer in station etc.
In the status report filed by the 2nd respondent, the statement showing the details of compensation collected as per LoEA Award dated
17.12.2004 and the amount available with the District Collector are stated as under:-
I. Statement showing the details of compensation collected as per LoEA Award dated 17.12.2004:-
Sl. No. Details (Rs. in Crore)
Loss of Ecology Authority amount of compensation
1 Total amount to be remitted 24.79
2 Remitted before 22.12.2006 as per the High Court 1.80
judgment
3 Remitted with the Coimbatore Collector before the stay15.33
obtained in Supreme Court
4 Remitted subsequently with Tiruppur Collector after 2.89
Supreme Court judgment
5 Total amount remitted 20.02
6 Balance to be remitted 4.77
II. Statement showing the LoEA amount available with the District Collectors as follows:-
District Collector, Tiruppur Rs.72,73,071/-
District Collector, Karur:-
1 LoEA amount which Rs.95,80,305/-
could not be disbursed
2 Balance with Bank Rs.1,33,858/-
Total Rs.97,14,163/-
District Collector, Erode:-
1 LoEA amount which Rs.72,99,885
could not be disbursed
2 Balance with Erode, Rs.15,72,934/-
Perundurai Tahsildars
Total Rs.88,72,819/-
As per the status report when only the above amount is available, the arguments of learned Additional Advocate General that compensation
amount awarded by LoEA remains intact does not reflect the correct facts.
In the light of the fact that the interest bearing advance amount of Rs. 75.00 Crores advanced to TNPCB is recoverable from out of the
amount in Court deposit/fine amount lying with the District Collector, Tiruppur, we need to examine the propriety of the huge amount of Rs. 75.00
Crores being diverted to TNPCB for being distributed to 535 members of 4th respondent Association. The impugned G.O. Ms. No. 209 dated
31.12.2011 stoutly opposed by the Writ Petitioners contending that G.O. Ms. No. 209 dated 31.12.2011 is arbitrary and unlawful as it diverts the
fund of Rs. 75.00 Crores intended for the benefit of all 28,596 affected agriculturists to selective few i.e. 535 members of 4th respondent
Association. Before we answer the contentious points raised assailing G.O. Ms. No. 209 dated 31.12.2011, it is necessary to consider the
question whether the order in W.P. No. 29791 of 2003 directing collection of fine amount/deposit of adhoc compensation and direction of the
Hon''ble Supreme Court to deposit Rs. 25.00 Crores is intended to the benefit of the affected agriculturists or only the members of 4th respondent
Association.
Whether the Order in P.I.L. (W.P. No. 29791 of 2003) is intended to benefit the selective few i.e., members of 4th respondent Association or
intended to benefit all the affected 28,596 agriculturists: - Whether the Order in Public Interest Litigation (W.P. No. 29791 of 2003) is intended to
benefit all the agriculturists and by the impugned G.O. Ms. No. 209, Environment and Forests (EC-1) Department dated 31.12.2011, whether the
Government is justified in selecting the members of 4th respondent Association for disbursement of the amount is the main point falling for
consideration.
Learned Additional Advocate General Mr. Guru Krishnakumar submitted that the interest bearing advance of Rs. 75.00 Crores was
sanctioned to TNPCB for being disbursed to the members of 4th respondent Association, since the 4th respondent Association has been mainly
waging the legal battle in this regard up to the Supreme Court and the Writ Petitioners were nowhere in the picture in the earlier stages. He would
further submit that while so agitating the 4th respondent Association was in the forefront and that the fundamental fact formed the basis for
sanctioning the amount to TNPCB for disbursement to 4th respondent Association.
Learned counsel for 4th respondent Association would also submit that the Writ Petitioners and its Association were nowhere in the picture
when the 4th Respondent and its members were fighting for the cause of affected agriculturists and also for making the river Noyyal water free of
pollution and the actions were defended by the 4th respondent Association and the entire expenses were met only by its members. Emphasis is laid
upon the direction in Paragraph 30(f) of the Order in W.P. No. 29791 of 2003 where the petitioner was given liberty to seek appropriate direction
for disbursement of the amount of compensation.
Seeking implementation of the Joint Memo dated 11.2.1998 filed in W.P. No. 1649 of 1996 and inter alia seeking various directions to the
Government and also TNPCB to clean the river water stored at Orathapalayam dam and to prevent future pollution of Noyyal river and other
consequential reliefs, 4th respondent Association filed Public Interest litigation in W.P. No. 29791 of 2003. In the said Writ Petition, by the Order
dated 5.5.2005, Court appointed an expert Committee with specific terms of reference to monitor the river and suggest ways and means to
prevent pollution of the river water and river''s ecological damage. Later, by order dated 1.8.2005, Court appointed a monitoring Committee
consisting of three advocates with specific terms of reference to monitor the units in and around Tiruppur as to achieve Zero Liquid Discharge and
to assess the damage caused to the dam and to find out the individual units to prevent pollution into the Noyyal river. Both the Committees filed
reports with respect to the pollution caused and that the pollution caused havoc to the agricultural operations and that it affected the drinking water.
The opening part of the judgment in W.P. No. 29791 of 2003 reads as follows:
These petitioners - public interest - under Article 226 of the Constitution of India filed by the Noyyal River Ayacutdars Protection Association
and few individual farmers, who have agricultural lands on the banks of river Noyyal bring to light the woes of the agriculturists living in Noyyal
River Basin, whose agricultural lands have been rendered either partially or totally unfit for cultivation by the unabated, heavy and constant
discharge of highly toxic trade effluents into the Noyyal river by the several dyeing, bleaching and other ancillary factories in and around Tiruppur
Town and its suburbs, in blatant violation of the environmental laws and the orders passed by this Court, and total apathy and inaction on the part
of the authorities concerned to prevent the pollution of the river by the erring industries, as the river water becomes totally polluted and has been
rendered wholly unfit for irrigation and even for drinking purpose, affecting the interests of a large section of agriculturists in Coimbatore, Erode
and Karur Districts.
The very opening part of the said judgment would show that 4th respondent association has filed writ petition only in order to agitate a public
cause of the farmers whose lands are located at Noyyan basin. It is not a private lis. Even in the concluding portion of the judgment, this Court has
specifically stated that the ultimate payment to be made to the agriculturists towards Loss of Ecology. In the said judgment it has not been stated
that members of the 4th respondent Association who have filed the said writ petition alone are entitled for compensation.
On the other hand, the First Bench of this Court took note of various reports filed by Expert Committee as well as the Monitoring Committee
and also took note of the award of LoEA that 28596 agriculturists are affected and that compensation of Rs. 24,79,98,548/- is payable to 28,596
affected agriculturists. The order in W.P. No. 29791 of 2003 dated 22.12.2006 was passed keeping in view the plight of all the affected
agriculturists and also 28,596 individuals and the same is evident in paragraph No. 28 of the judgment of the First Bench of this Court, which reads
as under:
It is now settled by several judgments of the Supreme Court, referred to supra, that any one who pollutes must not only compensate the
victims of pollution, but also the costs of restoring the environmental degradation. The Loss of Ecology Authority has passed an award dated
17.12.2004 with reference to the compensation payable for the period from 28.8.1996 to 31.12.2004. The award was made with reference to
28,596 individuals residing in 68 villages and with reference to an extent of 28,49,816 Hectares of lands comprised in seven taluks in Coimbatore,
Erode and Karur Districts. The Authority has assessed the compensation amount at Rs. 24,79,98,548/- as payable to the said 28,596 individuals.
The Loss of Ecology Authority had hired the services of the Centre for Environmental Studies, Anna University, an expert body which assisted the
Loss of Ecology Authority in assessing the loss suffered by the farmers in Noyyal river basin and estimated the loss at Rs. 114.91 Crores as
payable by way of compensation. However, the Loss of Ecology Authority, without any ostensible reason, reduced the compensation payable to
only Rs. 24,79,98,548/-. In some cases, the compensation granted by the Loss of Ecology Authority is as low as Rs. 49/- per acre per year. Even
this amount has also not been deposited. Instead the units have filed writ petitions questioning the award and have deposited only the first
installment of Rs. 1.80 Crores and the balance amount of Rs. 22,99,98,548/- has not been paid till this date. The Association of farmers and some
individual farmers have also filed writ petitions complaining that the compensation awarded by the Loss of Ecology Authority is hopelessly
inadequate and prayed for enhancement of compensation. The Loss of Ecology Authority has assessed the loss only upto 31.12.2004. There is no
assessment of loss for the subsequent period. Moreover, the assessment has been made only on the basis of loss to crops and not on the basis of
loss to ecology and restoration of ecology. Having regard to the above facts, we are inclined to fix an ad-hoc amount of compensation for the
subsequent years i.e., 2005, 2006 and 2007.
(underlining added)
The First Bench issued the directions in paragraph No. 30 keeping in view the plight of all agriculturists along the course of Noyyal river. In the
appeal preferred against the Order in W.P. No. 29791 of 2003 in C.A. Nos. 6776 of 2009 and 6777 of 2009 Tirupur Dyeing Factory Owners
Association Vs. Noyyal River Ayacutdars Protection Association and Others, the Hon''ble Supreme Court also elaborately referred to the terms
of reference to the Expert Committee as well as the Monitoring Committee and also referred to the award passed by LoEA dated 17.12.2004 in
respect of 28596 affected agriculturists, which reads as under:
So far as imposition of fine @ 6 paise per litre and then enhancing to 8 paise and subsequently to 10 paise per litre periodically is concerned,
the High Court imposed it on the basis of award/report dated 17-12-2004 by the Expert Committee under the heading ""Loss of Ecology
(Prevention and Payments of Compensation) by the Authority"". The Expert Committee consisted of Hon''ble Mr. Justice P. Bhaskaran, a retired
Judge of the Madras High Court, the Secretary of the Department of Environment, Government of Tamil Nadu and member-Secretary, Central
Pollution Control Board, New Delhi as its Member and Dr. K.R. Ranganathan, former Member-Secretary of the Central Pollution Control Board.
The Committee had taken note of all the previous developments and assessed the loss to ecology and environment in the affected area. It also
identified the individuals and families who suffered because of pollution and further determined the amount of compensation to be paid to each
affected individual or family. It also fixed the liability for making the payment of compensation.
The award mainly provided as under:
(a) The Authority assessed loss to the ecology and environment in terms of use value of the groundwater resources polluted with excessive total
dissolved solids (inorganic) utilised for irrigation as a result of the pollutional impact of effluents discharged by textile industries located in and
around Tirupur and its vicinity falling in Noyyal River basin. Extent of the so irrigated land is arrived at 28,449.816 hectares in 68 villages
comprised in seven taluks of Coimbatore, Erode and Karur Districts.
(b) The Authority identifies 28,596 individuals, affected because of the pollution as eligible for compensation.
(c) The Authority assesses the compensation to be paid to the aforesaid individuals as in (b) supra, at a total sum of Rs. 24,79,98,548 for the
period from 28-8-1996 to 31-12-2004.
It is pertinent to point out that thrust of the work for reversal is preventing further pollution of the groundwater which requires a number of cleaning
technology and treatment measures to be undertaken by the industries with their own funds.
Pointing out that the unabated pollution by the members of Tiruppur Dyeing Factory Owners Association has affected large number of farmers,
in paragraph No. 35, the Supreme Court held as under:
A large number of farmers have suffered because of the pollution caused by them. They could not cultivate any crop in the said land. The
Committee had made a complete survey and assessed the loss and identified the families which are entitled to compensation. This Court only
stayed the operation of the direction of the High Court to the extent that the units of the members of the appellant Association would be closed on
31-7-2007. The said interim order has been extended from time to time. None of the other directions have been interfered with. A period of more
than two-and-a-half years has been passed.
When the First Bench and Hon''ble Supreme Court have taken note of plight of large number of agriculturists with particular reference to
28596 farmers identified by LoEA, the amount collected by way of fine/deposited towards adhoc compensation and in pursuance to the directions
of the Hon''ble Supreme Court is certainly intended for the benefit of all the affected agriculturists.
As pointed out earlier, W.P. No. 29791 of 2003 was filed as a public interest litigation, thereby representing all the affected agriculturists of
Noyyal river basin and not by any individual group of agriculturists. Interest bearing advance of Rs. 75.00 Crores sanctioned to TNPCB is
recoverable from the amount collected/deposited as per the direction in W.P. No. 29791 of 2003 and the direction of the Hon''ble Supreme Court
in C.A. Nos. 6776 of 2009 and 6777 of 2009, which were the appeals arising from environmental public interest litigation. In the public interest
litigation, directions were issued to collect the fine amount/deposit the money to compensate the damages caused due to pollution which is to
benefit the agricultural community as a whole. A public interest litigation is brought before the Court not for the purpose of enforcing the right of
one individual against another, but is intended to promote and vindicate public interest which demands that violations of constitutional or legal rights
of large number of people who are poor, ignorant or in a socially or economically disadvantaged position should not go unnoticed and
unredressed. [Vide People''s Union for Democratic Rights and Others Vs. Union of India (UOI) and Others,
In Sheela Barse Vs. Union of India (UOI) and Others, the Supreme Court held as under:-
In a public interest litigation, unlike traditional dispute-resolution-mechanism, there is no determination or adjudication of individual rights. While in
the ordinary conventional adjudications the party structure is merely bi-polar and the controversy pertains to the determination of the legal
consequences of past events and the remedy is essentially linked to and limited by the logic of the array of the parties, in a public interest action the
proceedings cut across and transcend these traditional forms and inhibitions.......... The technique of public interest litigation serves to provide an
effective remedy to enforce these group rights and interest............... the relief to be granted looks to the future and is, generally, corrective rather
than compensatory which, some times, it also is. The pattern of relief need not necessarily be derived logically from the rights asserted or found.
More importantly, the court is not merely a passive, disinterested umpire or onlooker, but has a more dynamic and positive role with the
responsibility for the organisation of the proceedings, moulding of the relief and this is important also supervising the implementation thereof. The
Court is entitled to, and often does seek the assistance of expert-panels, Commissioners, Advisory Committees, Amici etc. This wide range of the
responsibilities necessarily implies correspondingly higher measure of control over the parties, the subject-matter and the procedure. Indeed, as the
relief is positive and implies affirmative action the decisions are not ''one-shot'' determinations but have on going implications. Remedy is both
imposed, negotiated or quasi-negotiated.
(underlining added)
Tracing the history of environmental public interest litigation and referring to various decisions in State of Uttaranchal Vs. Balwant Singh
Chaufal and Others, the Supreme Court held as under:-
We give a brief resume of some of the important cases decided by this Court. One of the earliest cases brought before the Supreme Court
related to oleum gas leakage in Delhi. In order to prevent the damage being done to the environment and the life and the health of the people, the
Court passed a number of orders. This is well known as M.C. Mehta and another Vs. Union of India and others, . The Court in this case has
clearly laid down that:
31......... an enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of
the persons working in the factory and residing in the surrounding areas owes an absolute and non-delegable duty to the community to ensure that
No. 9 such) harm results to anyone on account of hazardous or inherently dangerous nature of the activity which it has undertaken.........
In Vellore Citizens Welfare Forum Vs. Union of India and others, this Court ruled that precautionary principle and the polluter pays principle
are part of the environmental law of the country. This Court declared Articles 47, 48-A and 51-A(g) to be part of the constitutional mandate to
protect and improve the environment.
In M.C. Mehta Vs. Union of India (UOI) and Others, this Court observed that the effluent discharged in River Ganga from a tannery is ten
times noxious when compared with the domestic sewage water which flows into the river from any urban area on its banks. The Court further
observed that:
14........ The financial capacity of the tanneries should be considered as irrelevant while requiring them to establish primary treatment plants. Just
like an industry which cannot pay minimum wages to its workers cannot be allowed to exist, a tannery which cannot set up a primary treatment
plant cannot be permitted to continue to be in existence for the adverse effect on the public at large........
In another important decision of this Court in M.C. Mehta Vs. Kamal Nath and Others, this Court was of the opinion that Articles 48-A and
51-A(g) have to be considered in the light of Article 21 of the Constitution.
8....... Any disturbance of the basic environment elements, namely, air, water and soil, which are necessary for ''life'' would be hazardous to ''life''
within the meaning of Article 21.
In the matter of enforcement of rights under Article 21, this Court, besides enforcing the provisions of the Acts referred to above, has also given
effect to fundamental rights under Articles 14 and 21 and has held that if those rights are violated by disturbing the environment, it can award
damages not only for the restoration of the ecological balance, but also for the victims who have suffered due to that disturbance. In order to
protect ''life'', in order to protect ''environment'' and in order to protect ''air, water and soil'' from pollution, this Court, through its various
judgments has given effect to the rights available, to the citizens and persons alike, under Article 21.
The Court also laid emphasis on the principle of polluter pays. According to the Court, pollution is a civil wrong. It is a tort committed against the
community as a whole. A person, therefore, who is guilty of causing pollution has to pay damages or compensation for restoration of the
environment and ecology.
A public interest litigation is for the betterment of the public at large. That is why in public interest litigation, role of the Court is more assertive
than in the traditional litigations. i.e., the Court plays a positive role with the responsibility for organisation of the proceedings, moulding the relief
and also supervising the implementation thereof. The Court is entitled to often seek the assistance of Expert/Panels/Commissioners/Advisory
Committees and Monitoring Committees. This wide range of responsibilities and the relief granted is on a large scale redressing the grievance of all
the affected persons.
In Public Interest Litigation W.P. No. 29791 of 2003, formulating terms of reference, the First Bench appointed Expert Committee and also
Monitoring Committee and also kept in view the plight of farmers in continuing agricultural operations and also contamination of drinking water.
The First Bench also monitored the volume of polluted water discharged into the river everyday. The First Bench also obtained suggestions of
ways and means for de-silting or removing sludge that has formed in the dam area and further obtained ways and means for preventing discharge
of polluted trade affluents either directly and indirectly into the Noyyal river. Considering the dynamic and positive role played by the First Bench in
W.P. No. 29791 of 2003, we have no difficulty in holding that the relief granted in the Public Interest Litigation is intended to vindicate and
effectuate the interest of all the affected agriculturists. The directions issued to collect fine amount/deposit adhoc compensation is certainly to
effectuate the rights of all the affected farmers.
Right of 4th respondent, who brought action, could only be stated to be on behalf of all the affected agriculturists. At this juncture, we may
usefully refer to the decision of the Supreme Court in Sheela Barse Vs. Union of India (UOI) and Others, , wherein the Supreme Court held as
under:
6...... The dispute is not comparable to one between private parities with the result there is no recognition of the status of a Dominus Litis for any
individual or group of individuals to determine the course of destination of the proceedings, except to the extent recognised and permitted by the
Court. The ""rights"" of those who bring the action on behalf of the others must necessarily be subordinate to the ""interests"" of those for whose
benefit the action is brought.
The compensation/fine amount was collected only in pursuance to the direction in Paragraph No. 30 of W.P. Nos. 29791 and 39368 of 2003.
W.P. No. 29791 of 2003 was a Public Interest Litigation and not by any particular individual. The 4th respondent Association was only a
petitioner in the Public Interest Litigation espousing the cause of all affected agriculturists. It cannot claim the status of a plaintiff or a decree-holder
to claim for itself the benefits accrued in a public interest litigation. The direction in paragraph No. 30(f) that the petitioners are at liberty to seek
appropriate directions for disbursement of the amount of compensation is intended to effectuate the rights of all the affected farmers. The directions
in para 30(f) cannot be narrowly interpreted to mean only the members of 4th respondent Association.
Validity of Government Order:- It is the contention of the writ petitioners that when Loss of Ecology Authority has passed an award covering
28596 individuals, whose lands are located in the Noyyal basin, G.O. passed by the Government granting Rs. 75 crores as compensation by way
of interest free loan to the Pollution Control Board to distribute the same to 535 members of the 4th respondent Association is highly arbitrary. On
behalf of the writ petitioners, it was contended that the amount collected as fines and the sums directed to be deposited by the Supreme Court are
to be deposited in a reserve fund to be utilised for cleaning the dam and for distribution to the affected agriculturists towards the final compensation
to be determined. It is the further contention that the impugned G.O. Ms. No. 209, Environment and Forests (EC-1) Department dated
31.12.2011 is in the nature of tripartite private arrangement between the Government of Tamil Nadu, TNPCB and the 4th respondent Association
with the illegal purpose of appropriating the funds meant for 28,596 farmers affected by pollution to 535 members of 4th respondent Association.
The impugned Government Order is assailed as being violative of Article 14 of the Constitution of India as it purports to give a preferential
treatment to the members of 4th respondent Association and that they have been unfairly chosen in preference to all other affected agriculturists. In
support of their contention, the writ petitioners placed reliance upon the decisions of the Supreme Court in Common Cause A Registered Society
Vs. Union of India and others, and Zenit Mataplast P. Ltd. Vs. State of Maharashtra and Others,
Resisting the writ petitions and contending that no such preferential treatment was given to the members of 4th respondent Association, Mr. S.
Gurukrishna Kumar, the learned Additional Advocate General submitted that the decision to sanction Rs. 75.00 Crores to TNPCB was taken on
the basis of representation made by the 4th respondent Association, which has been waging a legal battle in this regard upto the Supreme Court of
India. The learned Additional Advocate General further submitted that in the event the writ petitioners and other affected agriculturists submit
applications enclosing necessary documentary evidence, the Government will consider the payment of compensation and when Government is
ready to settle the claims of the affected farmers, the writ petitioners cannot make grievance of the impugned Government Order. It was argued
that there is no preferential treatment to members of 4th respondent Association and the Government is interested in the welfare of all the affected
farmers in settling the compensation for the loss and damage suffered.
Reiterating the stand of Government that in the event of other agriculturists making necessary applications with relevant particulars, the
Government would settle their claims for the loss and damage suffered by those agriculturists, on behalf of TNPCB, Mr. A. Navaneethakrishnan,
learned Advocate General submitted that no prejudice has been caused to the writ petitioners on account of disbursement of the amount of
compensation to members of 4th respondent Association.
It is the contention of the 4th respondent Association that the writ petitioners have no locus standi to question the G.O. issued by the
Government since the compensation payable to the lands of writ petitioners have not been quantified, whereas compensation due to the lands of
the 4th respondent have been quantified and payment has also been made without causing prejudice to the rights of the petitioners to secure the
compensation from the Government on making due application. That apart, it is the contention of the 4th respondent that they have been agitating
the issue right from the year 2004 whereas the writ petitioners formed an Association only in the year 2012 i.e. after the G.O. has been passed and
filed the present writ petition only in order to deprive the legitimate right of the members of the 4th respondent Associating in getting compensation.
All the learned counsel appearing for the 4th respondent Association in various writ petitions submitted that the impugned Government Order
had clearly drawn a distinction between the petitioners and the 4th respondent Association, who are 535 members worst affected by the pollution
caused by Dyeing Units and the 4th respondent was the one, who has been waging the litigation against the Polluting Units since 1996, before
LoEA, High Court and the Supreme Court. The learned counsel submitted that the impugned Government Order makes a clear distinction
between the group of persons, who have suffered greater harm from those who have not suffered to a similar extent and therefore, the impugned
Government Order cannot be said to be violative of Article 14 of the Constitution of India. It was further argued that the impugned Government
Order fulfils two essential conditions of Article 14 of Constitution of India i.e., (i) the classification is founded on an intelligible differentia, which
distinguishes the 4th respondent Association from others; (ii) the said differentia is rational in relation to the object sought to be achieved i.e., to
compensate the worst affected farmers. There is no force in the contention that the members of the 4th respondent Association are the worst
affected and that they alone were waging a legal battle and hence entitled to preferential treatment.
Noyyal river is the contributory of Cauvery river, which originates in the Velliangiri Hills of the Western Ghats. The river flows through
Coimbatore, Palladam, Dharapuram, Perundurai, Kangeyam and Karur Taluks to a distance of 160 kms and confluences with the river Cauvery
near Noyyal village of Karur Taluk. Evidently, the lands abutting Noyyal river are all affected and totally unfit for agriculture. The writ petitioners
and other affected agriculturists, who got award from the LoEA, are having lands on the banks of Noyyal river. By continuous discharge of
polluted effluent from all the dyeing and bleaching units located in Tiruppur and its surroundings, water in the wells became saline and totally unfit
for irrigation and drinking purposes. We have perused the topo-sketch of course of Noyyal river, where the river confluences with river Cauvery
near Noyyal village of Karur Taluk. By perusal of the topo sketch, it is seen that the members of the 4th respondent Association are having lands
located near the Noyyal River Basin in survey numbers 16, 38, 39, 43, 48, 70, 71, 305, 309 and 310 on the banks of Noyyal river and are
chosen for payment of compensation. It was pointed out that the lands in various survey numbers like S.F. Nos. 46, 47, 49, 50, 52, 53, 54, 303,
304, 307, 308 and other survey numbers, though are just adjacent to Noyyal river and are affected those land owners are not awarded any
compensation. We do not find any rational basis for selecting only the members of 4th respondent Association in preference to the other
agriculturists, who are owning lands just adjacent to the Noyyal river and whose lands are also affected due to pollution.
The Loss of Ecology (Prevention and Payment of Compensation) Authority is a body set up under a statutory notification in S.O. 671 (E)
dated 30.09.1996 issued by the Central Government under the Environmental Protection Act. This Authority has been specifically conferred with
the powers to assess the loss of ecology and to assess the damages caused to individuals on account of pollution. With the help of an expert body
of Anna University and also Revenue officials, LoEA took up the work to identify the affected individuals/families in the areas affected by Textile
Industries located in Tiruppur cluster of Textile Industries in Noyyal river basin and Amaravathi river basin. After conducting due enquiry, LoEA
identified 28,596 agriculturists affected because of pollution as eligible for compensation.
We have directed the Loss of Ecology Authority to submit list of 28596 farmers identified by LoEA. In separate six volumes of typed set of
papers, LoEA filed list of 28596 affected agriculturists who are spread over in various villages in the following taluks:-
Taluk Number of persons
Kangeyam 5804
Erode 2655
Perundurai 2340
Karur 7473
Aravakurichi 5914
Tiruppur 1708
Avinashi 329
LoEA identified 28,596 individuals affected and the extent of irrigated lands so affected was arrived at 28,449.816 ha. The Authority identified
28,596 individuals after due enquiry and awarded compensation to the tune of Rs. 24,79,98,548/- to the identified 28,596 individuals for the
period from 2002 to 2004.
The Writ Petitioners and 398 members of 4th respondent Association are among those 28,596 identified affected agriculturists and are
similarly placed. The writ petitioners as well as the 4th respondent Association have filed batch of writ petitions challenging the award of LoEA on
various grounds inter alia on the ground of inadequacy of compensation and violation of principles of natural justice and failure to pass orders
preventing future pollution. Challenging the award of LoEA, the writ petitioner in W.P. No. 3553 of 2012 along with 334 others filed W.P. No.
46632 of 2006. The 4th respondent Association and its members filed W.P. No. 12999 of 2005, W.P. No. 39722 of 2005 and 13549 of 2005.
When both the writ petitioner in W.P. No. 3553 of 2012 and the members of the 4th respondent Association filed writ petitions challenging the
award passed by LoEA on the ground of inadequacy of compensation, the Government is not right in selecting only the members of 4th
respondent association for distributing the amount collected by way of fine from the polluting units on Polluter Pays principle/amount deposited in
pursuance to the order of the Supreme Court. In our considered view, the group of identified 28,596 affected agriculturists, which includes 398
members of 4th respondent Association, are all entitled to the fine amount collected from the polluting units on Polluter Pays principle and also the
amount of Rs. 25.00 Crores deposited in the High Court and adhoc compensation. We do not find any rational basis for selecting only the
members of 4th respondent Association for distributing the entire compensation of Rs. 75.00 Crores, which is intended to compensate all the
affected agriculturists.
Locus standi of the petitioners:- On behalf of the 4th 4 respondent Association, it was contended that the writ petitioners are not parties in
W.P. No. 29791 of 2003 and the writ petitioners were not at all in the picture earlier and they are third parties and as such they have no locus
standi to file the writ petitions challenging the Government Order. It was further contended that the petitioners have no legal right to challenge the
Government Order embodying the compromise entered into between the 4th respondent and the Government. The arguments advanced raising the
objection as to the legal right of the writ petitioners to challenge the Government Order cannot be sustained. As discussed earlier, the amount lying
with the District Collector, Tiruppur/lying in deposit in the High Court and the amount, which ought to be collected are all meant for cleaning the
Noyyal river, Orathapalayam Dam, as well as for compensating all the affected farmers. The impugned Government Order permits appropriation
of funds lying with the District Collector, Tiruppur and also the deposit in the High Court. In case if TNPCB is not able to get the amount released,
TNPCB is to make alternative arrangement and subsequently adjust the amount as and when it is released and also by collecting the fines due from
the polluting units following the Polluter Pays Principle. As pointed out earlier, as per the award passed by LoEA dated 17.12.2004, as many as
28,596 agriculturists in Noyyal river Basin are affected. All affected agriculturists including the members of 4th respondent Association are similarly
placed. The degree of damage caused to them might vary. But the fact remains that all the identified affected agriculturists are entitled for
distribution of fine amount collected by District Collector, Tiruppur and the amount lying in deposit with the High Court. When the LoEA passed
the award in respect of the writ petitioners including 334 agriculturists, (who are the writ petitioners in W.P. No. 46632 of 2006) and other
affected agriculturists, the respondents are not right in raising objection as to the locus standi of the writ petitioners. This is more so when the writ
petitioners and other agriculturists have challenged the award of LoEA on the ground of inadequacy of compensation and those writ petitions are
still pending.
Mr. V. Raghavachari, learned counsel appearing for 4th respondent Association submitted that 4th respondent Association was the one who
fought out the rights of the affected agriculturists in Noyyal River Basin and on seeing the Government paying loan to polluting units, 4th respondent
Association thought fit to approach the Government. After formation of the present Government in May 2011, delegation of 4th respondent
Association met the Minister for Industries and other concerned Secretaries to Government and also the delegation met the Hon''ble Chief Minister
of Tamil Nadu on 28.7.2011. It was further argued that as against the Claim of Rs. 49.00 Crores claimed by the members of 4th respondent
Association, LoEA awarded only 2.62 Crores. Therefore, considering the representation of the 4th respondent Association and also the
inadequacy of the compensation awarded by LoEA, Government passed G.O. Ms. No. 209 dated 31.12.2011 sanctioning interest bearing
advance to TNPCB.
On behalf of 4th respondent Association, it was submitted that so long as the members of 4th respondent Association are affected due to
pollution and considering the grievance of 4th respondent Association, Government passed G.O. Ms. No. 209 dated 31.12.2011 sanctioning
interest bearing advance to TNPCB for distribution to the members of 4th respondent Association and that the Government Order is in the nature
of compromise and Writ Petitioners who are third parties cannot reopen the said compromise arrived with the Government. It was further
submitted that the arrangement which is in the nature of compromise arrived at between the Government and the 4th respondent Association and
the TNPCB cannot be reopened by any third parties and Writ Petitioners are precluded from challenging the compromise. It was also contended
that so long as the members of 4th respondent Association are also affected agriculturists, there is no reason to reopen the matter at the behest of
the Writ Petitioners.
As discussed earlier, members of 4th respondent Association are similarly placed with the other affected agriculturists. On 17.12.2004, LoEA
passed award not only in respect of 535 members of the Association and Writ Petitioners as well as the other agriculturists. The amount ordered
to be collected by way of fine/adhoc compensation ordered by the First Bench and the amount compensated in pursuance to the order of the High
Court, the same cannot be diverted to the benefit of only few farmers. It is not as if the 4th respondent Association alone made the Claim for higher
amount. Petitioners in W.P. No. 46632 of 2006 also made a Claim of Rs. 76,86,76,211/- while so, LoEA awarded a sum of Rs. 1,22,79,529/-.
Re-contention of Government that it is ready to settle the claims to other agriculturists:- Drawing our attention to the averments in the counter in
paragraph No. 17 and 24, learned Additional Advocate General Mr. Guru Krishna Kumar submitted that the Government is interested in the
welfare of the affected farmers and it is open to the affected farmers to approach the Government seeking compensation with necessary documents
as required and the same would be duly considered by the Government. The learned Additional Advocate General would further submit that the
writ petitioners have not submitted any application to the Government giving particulars with regard to their lands and in the absence of the same,
Government will not be in a position to consider the case of writ petitioners or others for payment of compensation and in the event the writ
petitioners and others submit applications enclosing necessary documentary evidence, the Government will consider payment of compensation to
those affected agriculturists.
As discussed earlier, in paragraph No. 36, interest bearing advance of Rs. 75.00 Crores given to TNPCB for distribution to the members of
the 4th respondent Association is only fine amount collected/adhoc compensation amount deposited in pursuance to the directions in P.I.L W.P.
No. 29791 of 2003 and the amount of Rs. 25.00 Crores deposited in High Court in pursuance to the order of the Hon''ble Supreme Court. The
amount lying with District Collector, Tiruppur and the amount deposited in High Court are the amounts collected following Polluter pays Principle,
which is intended to compensate all the affected agriculturists. Compensating individual affected agriculturists by the Government is independent of
the said amount collected following Polluter Pays Principle. When the amount lying with the District Collector, Tiruppur and the amount deposited
in High Court is intended to benefit all 28,596 affected agriculturists, the Government is not right in diverting the said amount through TNPCB for
distributing to a small group of agriculturists i.e., 535 members of 4th respondent Association. When the impugned Government Order is under
challenge, the question whether the Government is ready to compensate other agriculturists is not relevant in examining the validity of Government
Order.
In the impugned Government Order, interest bearing advance of Rs. 75.00 Crores was given to TNPCB for distributing it to the members of
4th respondent Association and Government Order states that members of 4th respondent Association are highly affected by pollution. Learned
counsel for Writ Petitioners submitted that to say that members of 4th respondent Association are highly affected by pollution is factually incorrect.
Writ Petitioners contend that for several members of 4th respondent Association Electrical Conductivity levels are less than nine. Volume No. IV
(Page No. 533 to 605) of typed set of papers contain names and particulars of members of 4th respondent Association. Drawing our attention to
the said list, learned counsel for Writ Petitioner Ms. Nagasaila submitted that the Electrical Conductivity levels are less than nine in Serial Nos. 2,
4, 10, 11, 28, 29, 35, 38, 39, 43, 44, 45, 46, 47, 49, 52, 53, 56, 59, 60, 62, 63, 68, 77, 80, 84, 86, 95, 96 to 99, 119, 136, 142, 148, 149,
179, 182, 184, 189, 190, 191, 192 to 196, 198, 208, 212, 215, 217, 223, 224, 225, 229, 230, 231, 233, 234 to 236, 238, 241, 244, 245,
247, 252, 254, 256, 262, 263, 265, 269, 275, 276, 279, 281, 285, 290, 291, 292, 306, 308, 310, 311, 314, 318, 319, 330, 338, 341, 344 to
346, 379, 431, 435, 480. It was submitted that when there are thousands of farmers whose well water record electrical conductivity levels of
more than nine, the Government is not justified in accepting the list of members of 4th respondent Association and sanctioning the amount for being
disbursed to the members of 4th respondent Association.
Re-contention Government Order is without jurisdiction:- Earlier in W.P. M.P. No. 185 to 187 of 2011 in W.P. No. 39368 of 2003, seeking
permission of the Court to disburse the amount lying with the District Collector, Tiruppur and also the amount of Rs. 25.00 Crores lying in the High
Court to all the affected agriculturists identified by LoEA. In the said Petitions, Government prayed to constitute a Committee with the following
Officers for disbursement of the amount to all the affected agriculturists:-
(1)Principal Secretary to Government Chairman Environment & Forests Department, Chennai-9.
(2)Commissioner of Agriculture, Chennai-5.
(3)Chairman, Tamil Nadu Pollution Control Board, Chennai-32.
(4)Special Secretary to Government, Finance Department, Chennai-9.
(5)Collectors of the District (Coimbatore, Tiruppur, Erode & Karur) Covenor.
In the said Petitions, Government prayed that the Court may authorise the Committee to undertake the following functions:-
(a) to call for the applications from the affected agriculturists with regard to the compensation.
(b) to decide the quantum of compensation to be disbursed to the affected agriculturists depending on the extent of damage as considered by the
LoEA and disburse the available fine amounts with the District Collectors concerned.
(c) to take decision on any other relevant issues.
In the said Petitions, it was further prayed that the amount lying with the District Collectors, Coimbatore, Tiruppur, Erode and Karur and also the
amount of Rs. 25.00 Crores lying in the deposit of High Court be disbursed to Noyyal Ayacutdars and affected agriculturists. By the order dated
29.03.2011, those Petitions (WP MP. Nos. 18 to 187 of 2011 in W.P. No. 39368 of 2003) were dismissed.
Thus earlier Government itself proposed to constitute a Committee of high level officers including the District Collectors and while so, now
there is no change of circumstance to divert the amount to TNPCB to distribute the amount to a smaller group of agriculturists. The Government
ought not to have sanctioned the sum of Rs. 75.00 Crores to TNPCB for distribution of the amount only to the members of 4th respondent
Association.
Loss of Ecology (Prevention and Payment of Compensation) Authority for the State of Tamil Nadu is a body set up under a statutory
notification in S.O. No. 671 (E) dated 30.09.1996 issued by the Central Government under the Environmental Protection Act. The Authority has
been specifically conferred with the powers to assess the loss of ecology and to assess the damages caused to individuals on account of pollution.
Tamil Nadu Pollution Control Board has been constituted u/s 4 of Water (Prevention and Control of Pollution) Act, 1974. The functions of the
Board are set out in Section 17 of the Act and they all relate to the prevention, control and abatement of pollution. As per Section 37(A), the
Board may borrow money with the consent of the Government for the performance of all or any of its functions under the Act.
On behalf of Writ Petitioners, it was submitted that neither assessment nor disbursement of compensation amount form part of the statutory
functions of TNPCB and therefore, G.O.(Ms) No. 209 dated 31.12.2011 is without jurisdiction as it has assigned the function of awarding and
distributing compensation to the affected farmers to the Board.
As per G.O.(Ms) No. 209 dated 31.12.2011, Government directed distribution of funds to the members of 4th respondent Association
should be carried out by the District Collectors. But TNPCB transferred the money directly to the 4th respondent Association without reference to
the Collectors. As per the written instructions of TNPCB, on 13.02.2012 the compensation is said to have been released to majority of the
members of 4th respondent Association of which 360 farmers are said to have encashed the cheques.
G.O. Ms. No. 174 dated 16.7.2012 Ratification of action of TNPCB:- After the matter was heard at length and reserved for orders, on
19.10.2012, learned Special Government Pleader has filed a Memo stating that Clause (2) of Para 8 of the impugned Government Order has been
amended vide G.O.(Ms) No. 174 dated 16.7.2012 and that the action of TNPCB in disbursing the compensation is said to have been ratified by
the Government of Tamil Nadu by issuing an amendment. The amended Clause (2) of Para 8 of the impugned Government Order reads as under:-
Amendment
For the words existing in para 8 clause (2)
The disbursement shall be done by Tamil Nadu Pollution Control Board to the Noyyal River Ayacutdars Protection Association through the
respective District Collectors who shall obtain proper acknowledgement for the amount received
the following words shall be substituted.
The disbursement shall be done by Tamil Nadu Pollution Control Board to the Noyyal Ayacutdars Protection Association directly after due
verification of the documents as proof of land ownership and on getting proper acknowledgement for the amount received.
2) The amendment is deemed to have come into effect from 31.12.2011.
On 29.10.2012, on behalf of Writ Petitioners reply memo was filed where the Writ Petitioners have raised strong objection to the amended
G.O. Ms. No. 174 dated 16.7.2012. As rightly pointed out by the Writ Petitioners, arguments were heard at length for two weeks from
03.10.2012 to 18.10.2012. Neither TNPCB nor the Government brought to the notice about the amended G.O. Ms. No. 174 dated 16.7.2012.
It is pertinent to note that even long prior to the amendment of G.O., on 23.1.2012, TNPCB has deposited a sum of Rs. 75.00 Crores in the S.B.
Account of 4th respondent Association bearing No. 6120-201-51354. As per the written instructions of TNPCB on 13.2.2012, a sum of Rs.
62,29,54,416.98 was released to 475 agriculturists out of 535 agriculturists. Directly releasing the amount to the agriculturists by TNPCB is in
clear deviation from G.O. Ms. No. 209 dated 31.12.2011 which stipulates that the amount is to be disbursed only through the District Collectors.
In any event, as per the amended Government Order, disbursement shall be done by TNPCB to Noyyal River Ayacutdars Protection
Association directly after due verification of the documents of proof of land ownership and on getting proper acknowledgement for the amount
received. No material was produced before us to show that TNPCB had duly verified the documents or obtained proper acknowledgement for
the amount so received. In such circumstances, G.O. Ms. No. 174 dated 16.7.2012 amending earlier G.O. does not in any way advance the case
of the Respondents.
Re-contention No fairness in distribution of the amount amongst members of the 4th respondent Association:- On behalf of Writ Petitioners
inter alia raised the following submissions:-
(i) 4th respondent Association was registered in the year 2003. On 01.03.2012 i.e. after the Government Order was issued, it submitted a list of
164 new members said to have been joined the Association on 22.06.2011 and another list of 23 new members said to have been joined on
03.07.2011.
(ii) As per copies of resolution of the Association dated 27.01.2012, 20% of compensation which is approximately about Rs. 15.00 Crores is to
be paid to the Association by the members towards legal and other miscellaneous expenses. It is stated that the said commission payable to the
Association has been enhanced to 31% which is approximately about Rs. 23 Crores.
(iii) Some of the members who claimed compensation from 1996 to 2011 became owners of the land only in the years 2006, 2008 2010. One
Suryakala (Sl. No. 344 in the list of 535 of LoEA) purchased lands in the year 2006. Saravanan (Sl. No. 345) and Jeya Sathya, wife of
Saravanan (Sl. No. 345) have purchased lands in the years 2008 -2010. Both Saravanan and his wife Jeya Sathya are said to have received
compensation of Rs. 1,42,54,491.54 for the period 1996 2011.
(iv) Out of 535 members of 4th respondent Association who filed Claim Petitions before LoEA, compensation has been awarded to only 338
members by LoEA and for the remaining members, LoEA did not award any compensation [Vide counter-affidavit filed by LoEA].
(v) When several persons are joint owners of the land, compensation was paid only to one or two of those joint owners.
Since we have held that the Government Order sanctioning interest bearing advance of Rs. 75.00 Crores to TNPCB for the distribution of the
members of 4th respondent Association as against large number of 28596 affected agriculturists identified by LoEA is unsustainable, we do not
propose to elaborate upon the above aspects. Suffice it to note that huge amount of compensation has been paid to the subsequent purchasers.
That apart under the guise of the legal and other expenses, a huge amount of more than Rs. 15.00 Crores has been diverted to the Association
itself cannot be endorsed.
Status of the money now available in Syndicate Bank, Coimbatore Main Branch as follows:-
(i) Amount available in Current Account of 4th respondent ... Rs. 36,83,00,000.00
Association in Current Account No. 6120-101-
5800(Now as per the order of the Court kept in fixed
deposit)
(ii) Amount available in Savings Bank Account of the 4th ... Rs. 12,87,58,001.79
respondent Association in Savings Bank Account No.
6120-201-51354 (Now as per the order of the Court
kept in fixed deposit)
(iii) Actual amount now in Current ... Rs. 76,228.00
Account of 4th respondentAssociation
Conclusion:-
The order of the First Bench in the Public Interest Litigation in W.P. No. 29791 of 2003 (dated 22.12.2006) and the Hon''ble Supreme Court in
C.A. Nos. 6776 of 2009 and 6777 of 2009 Tirupur Dyeing Factory Owners Association Vs. Noyyal River Ayacutdars Protection Association
and Others, have taken note of the plight of 28596 affected farmers, identified by LoEA due to the pollution caused in Noyyal River. The fine
amount collected/amount deposited in pursuance to the order of the First Bench and the Hon''ble Supreme Court is intended to compensate
28596 affected agriculturists, identified by LoEA. When the amount is intended to compensate the larger group of agriculturists, by the impugned
G.O. (Ms) No. 209 Environment and Forests (EC-1) Department dated 31.12.2011, the amount is paid to a small group of agriculturists i.e. 535
members of 4th respondent Association Noyyal River Ayacutdars Protection Association and the impugned G.O.(Ms) No. 209 dated
31.12.2011 is against the spirit of the order of the First Bench in W.P. No. 29791 of 2003 (dated 22.12.2006) and the Hon''ble Supreme Court
in C.A. Nos. 6776 of 2009 and 6777 of 2009 (dated 06.10.2009) and the impugned G.O.(Ms) No. 209 Environment and Forests (EC-1)
Department dated 31.12.2011 is quashed and all the Writ Petitions are allowed.
Consequently, the following directions are issued:-
4th respondent Association Noyyal River Ayacutdars Protection Association and each of its 360 members who encashed the cheques are directed
to repay the amount respectively paid to each of them to Tamil Nadu Pollution Control Board within a period of six weeks from the date of this
order. On failure to repay the said amount, the 4th respondent Association Noyyal River Ayacutdars Protection Association and each of the said
360 members who encashed the cheques are jointly and severally liable to pay the amount respectively paid to them with interest at the rate of 9%
per annum for the said amount from the date of expiry of six weeks till the date of payment. On recovery of the amount, Tamil Nadu Pollution
Control Board shall transmit the said amount to the Government which shall be credited to the head of account stated infra. In case, if the amount
is not paid within the stipulated period, the same shall be recovered with interest from the concerned agriculturists and also the 4th respondent
Association as arrears of land revenue under Revenue Recovery Act, 1864.
4th respondent Association Noyyal River Ayacutdars Protection Association is directed to furnish list of 360 agriculturists to whom the amount
was distributed, in the Court within a period of two weeks from today.
The amount of Rs. 36,83,00,000/- along with accrued interest lying in Syndicate Bank, Coimbatore Main Branch in Current Account No. 6120-
101-5800 (now invested in fixed deposit bearing No. 6120-457-10 as per the order of the Court) of the 4th respondent Association and the
amount of Rs. 12,87,58,001.79 along with accrued interest lying in the 4th respondent Association''s Savings Bank Account No. 6120-201-
51354 (now invested in fixed deposit as per the order of the Court) and also Rs. 76,228.00 along with accrued interest lying in the Current
Account of 4th respondent Association shall immediately be transferred to Tamil Nadu Pollution Control Board, who in turn shall forthwith transmit
the said amounts to the Government which shall be credited to the following head of account:-
6402.00. Loans for soil and water conservation 204. Water conservation 1. Non Plan AA Ways and Means Advance to Tamil Nadu Pollution
Control Board for distribution of compensation amount to the affected farmers of Noyyal River Basin (DPC 6402-00-204-AA-0000) Outgo
(DPC 6402-00-204-AA-000A) Receipts.
Distribution of the amount:-
Loss of Ecology Authority has awarded compensation of Rs. 24,79,98,548/- to 28596 affected agriculturists. Now the amount lying with the
District Collector, Tiruppur as indicated in Paragraph - 35 [as per the order of the First Bench in W.P. No. 29791 of 2003] and the amount of Rs.
25.00 Crores in the High Court deposit [as per the order of Hon''ble Supreme Court in C.A. Nos. 6776 of 2009 and 6777 of 2009] along with
accrued interest shall be utilised for paying the compensation amount awarded by LoEA to 28596 affected agriculturists identified by LoEA less
the compensation amount if any already paid to them. Any other affected agriculturists of Noyyal River Basin in favour of whom Award has been
passed by LoEA shall also be paid the compensation amount awarded by LoEA. An amount of Rs. 15.00 Crores shall be kept in reserve to
compensate the other affected agriculturists in favour of whom Award may be passed by LoEA in pending Claim Petitions. Compensation shall
only be paid to agriculturists in respect of whom the award passed/to be passed by LoEA in claim applications pending before LoEA till
31.10.2012. The remaining amount of compensation shall be re-distributed to the affected agriculturists on pro rata increase to the amount
awarded by LoEA to each of the affected agriculturists. Amount intended for cleaning of Orathapalayam dam shall be kept separate and utilised
only for the said purpose.
State Government is directed to file a Memo suggesting the modalities for distribution of the amount within a period of four weeks from today
before this Court.
It is made clear that this Court shall not entertain any individual Claim Petitions from any agriculturists or Association nor shall entertain any inter se
dispute between the agriculturists in respect of payment of compensation.
Consequently, all connected miscellaneous petitions are closed. There is no order as to costs.