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Judgment
We have heard learned counsel appearing for the appellants as well as respondents in these appeals. These appeals are directed against the impugned order passed by Tamil Nadu State Pollution Control Board (Board) on 28.03.2017 by virtue of the powers conferred under Section 33A of the Water (Prevention and Control of Pollution) Act, 1974 and Section 31A of the Air (Prevention and Control of Pollution) Act, 1981 directing the closure and disconnection of power supply to the appellants' units who are carrying on the business of packaged drinking water in various places at Mathur, Manjambakkam, Madhavaram and Vadaperumbakkam Villages. The reason assigned in the impugned orders of the Board is that these appellant units who have participated in a public hearing, have given an undertaking that they will not continue the operations without obtaining valid consent from the Board. In spite of such undertaking, the appellant units are carrying on the operations of packaged drinking water business without obtaining 'consent'. It is the case of the appellants that in so far as it relates to extraction of groundwater in these areas, the Government has passed certain orders which are the subject matter of dispute in the Hon'ble High Court of Madras and it is stated that the Hon'ble High Court has granted an interim order with the result that the parties are unable to get NOC from PWD.
It is in those circumstances the parties have approached the Chennai Metropolitan Water Supply and Sewage Board (CMWS&SB) for the purpose of obtaining NOC for transporting water as per the provisions of Chennai Metropolitan Area Ground Water (Regulation) Act, 1987. It is the case of the appellants that they have applied to the said Authority and the Authority has not taken any decision within the time stipulated and therefore as per the provisions, deemed NOC to have been given in their favour. Therefore, it is the case of the appellants that the Board should have considered the said legal issue and passed orders on the Application for Consent stated to have been filed by these appellants.
In this regard, it is relevant to note that in the batch of cases which were taken up suo motu in Application No.40 of 2013 relating to packaged drinking water units in Chennai City, the Tribunal has disposed of them in the order dated 29.01.2016 wherein the packaged drinking water units in the State are divided into 3 categories viz.,
The categories in whose favour no interim orders were granted and who does not carry on any operation viz., the units which are to be kept closed.
The Units permitted to have electricity connection only for the protection of membrane and for the maintenance of the machinery.
Units which are permitted to continue their operation on the basis of the conditions imposed by the PWD and to be operated for a limited number of hours per day in view of the need of the public at large and also the employees' of the units whose livelihood depends on it.
It was based on the said categorisation, the Tribunal has grouped various applicants into 3 categories and passed orders. It is the case of the appellants before us that they come under the 3rd category and they are entitled to operate their business for limited number of hours as per the conditions imposed by PWD. We have in our order dated 08.05.2017, while considering the contention of the learned counsel appearing for the appellants that there are nearly 33 similar units under operation in Mathur, Manjambakkam, Madhavaram apart from Puzhal and Vadaperumbakkam running without 'consent', directed the Board to effect closure of those units also. The Tahsildar, Madhavaram who is in the Tribunal, also stated that in the units where the drinking water is being either transported or drawn without the 'consent', he has taken measures for the purpose of closing those water lines.
In so far as it relates to the 8 appellants who are before us, it is his case that even though few of them on earlier occasions have illegally drawn water in the same area after the same was closed, in the Writ Petition filed before the Hon'ble High Court, the said parties have given an undertaking that they will not draw the groundwater from the area where they are carrying on the activity. It was by virtue of the said undertaking the said appellants are not drawing water and he also assured that in respect of these appellants he will ensure that they shall not draw water from the ground in the premises where they are carrying on the packaged drinking water business. We make it clear that even in cases where the transportation of water is permitted, the same must be only after obtaining 'consent' from the Board. In that regard, the Board has filed the copy of a letter of District Environmental Engineer, Ambattur dated 24.05.2017 addressed to the Member Secretary, Tamil Nadu Pollution Control Board wherein the particulars relating to all the 8 appellants are annexed which are as follows:
Annexure I
Status of application filed for the consent of the Board through online (OCMMS) by the 8 packaged drinking water units at Mathur, Manjambakkam and Madhavaram Village which have made an application before the Hon'ble National Green Tribunal (Southern Zone), Chennai.
S.
Hon'ble NGT
Date of
Status of
Name and address of the Unit
Application
application
No
Application
No
for consent
1
M/s. Sri Venkateswara Enterprises,
Appeal No. 34
24.05.2017
Application is
No.1 Perumal Koil Street,
of 2017 (SZ)
under process
Elumalai Thottam, Near AVM Nagar,
Madhavaram Village,
Madhavaram Taluk, Tiruvallur District
2
M/s. KK Aqua Product,
Appeal No. 30
23.05.2017
Application
No. 132/1C1, Telephone Colony
of 2017 (SZ)
returned for want
Mathur, Chennai - 600 068
of additional
particulars on
24.05.2017
3
M/s. J M N Traders,
Appeal no. 26
14.05.2017
Application
No. 34 Kamarajar Salai,
of 2017 (SZ)
returned on
Manjambakkam, Chennai - 600 060
22.05.2017
(Resumbitted on
24.05.2017 and
the application is
under process)
4
M/s. Ambiga Enterprises,
Appeal No. 33
24.05.2017
The application is
No.428/2, Agarson College Road, Om
of 2017 (SZ)
under process
Sakthi, Chelliamman Koil Street,
Manjambakkam, Chennai - 600 060
5
M/s. APD Gomala Enterprises,
Appeal No. 31
24.05.2017
Application is
No. 115/2A1, Pillaiyar Koil Street,
of 2017 (SZ)
under process
Kamarajar Salai, Mathur Village,
Chennai - 600 068.
6
M/s. Pandia's Aqua Leela Agro
Appeal No. 32
24.05.2017
Application is
Products,
of 2017 (SZ)
under process
No. 410/4, Aziznagar, Madhavaram
Village, Chennai - 600 060
7
M/s. S.S. Aqua Products,
Appeal No. 28
16.05.2017
Application is
No. 103, Kamaraj Salai, Periyamathur,
of 2017 (SZ)
returned for want
Chennai - 600 068, Madhavaram Taluk,
of additional
Tiruvallur District
particulars on
24.05.2017
8
M/s. Ever Green Enterprises,
Appeal No. 29
15.05.2017
24.05.2017
No.143/4, Madhavaram Milk Colony
of 2017 (SZ)
(Resubmitted on
Road, Madhavaram Village,
24.05.2017 and
Madhavaram Taluk, Tiruvallur District
the application is
under process)
Annexure II
Status of application filed for the consent of the Board through online (OCMMS) by the remaining 27 packaged drinking water units in Mathur, Manjambakkam, Madhavaram, Vadaperumbakkam and Pulhal areas of Madhavaram Taluk, Tiruvallur District.
Status of issue
Whether
Unit has
S.
of show cause
Status of
Name and address of the Unit
replied for
No
notice / closure
Consent
show cause
direction
notice
1
M/s. PAVITHRA AQUA TECH
Show cause notice
No
Applied for the
No. 104/131, Kanniamman nagar,
issued vide Proc.
consent of the
Vadaperumbakkam Village, Puzhal
Dated 08.05.2017
Board on
block, Madhavaram Tk, Chennai -
08.10.2014,
600 060.
Application
returned on
29.10.2014
2
M/s. SHAH AQUA PRODUCTS
Show cause notice
Yes
Not applied for
No. 18/20, Valluvar Street,
issued vide Proc.
the consent of
Kavangarai, Puzhal, Chennai - 66
Dated 08.05.2017
the Board
3
M/s. D G AQUA PRODUCTS
Show cause notice
Yes
Not applied for
(Presently M/s. PRAVEEN RAJ AQUA
issued vide Proc.
the consent of
TECH) No. 247, V. S. Mani Nagar, 1st
Dated 08.05.2017
the Board
Gate, Madhavaram, Chennai 600060
4
M/s. THARAG AQUUA PRODUCTS
Show cause notice
Yes
Applied for the
No. 49/44, Nethaji Main Road,
issued vide Proc.
consent of the
Ponniamman medu po, Chennai -
Dated 08.05.2017
Board on
600 110
02.01.2014,
Application
returned on
10.01.2014
5
M/s. KARUNYA ENTERPRISES
Show cause notice
Yes
Applied on
No.420A, Panchayat road,
issued vide Proc.
14.05.2017 and
Ellaiyamman koil street,
Dated 04.08.2016
Application is
Manjampakkam, Chennai - 600060
returned for
want of
additional
particulars on
22.05.2017
6
M/s. SRI PADMAVATHY FOODS AND
Show cause notice
Yes
Applied on
BEVERAGES No.98, GNT road,
issued vide Proc.
14.05.2017 and
Puzhal, Chennai - 600066
Dated 08.05.2017
Application is
returned for
want of
additional
particulars on
22.05.2017
7
M/s. G.D.AQUA FARM No. 1/21,
Consent to
Madhavaram - Red hills road,
operate issued
Vadaperumbakkam,
---
---
vide proc dated
Chennai - 600 060
10.07.2009
valid upto
31.03.2010 and
applied for
renewal on
06.05.2017 and
application
returned on
23.05.2017
8
M/s. YOGA AQUA MINERALS
Show cause notice
Yes
Not applied for
No.19/A, Rajiji Salai, 4th Street,
issued vide Proc.
the consent of
Pukraj nagar, Madhavaram,
Dated 08.05.2017
the Board
Chennai - 600060
9
M/s. VARUNA AQUA FARMS Plot
Show cause notice
Yes
Not applied for
No.1 & 2, Gandhi Road,
issued vide Proc.
the consent of
Balaji Nagar, Puzhal,
Dated 08.05.2017
the Board
Chennai - 600066
10
M/s. AQUAA FINE No.744, GNT
road, Rehills, Chennai - 52
Show cause notice
issued vide Proc.
Dated 15.05.2017
No
Not applied for
the consent of
the Board
11
M/s. VARNAM AQUA FARM
Show cause notice
Yes
Applied on
No.101,13th Street, K.S. Nagar,
issued vide Proc.
14.05.2017 and
Kavangarai, Puzhal, Madhavaram,
Dated 08.05.2017
Application is
Chennai - 600052
returned for
want of
additional
particulars on
22.05.2017
12
M/s. TAMIL AQUA ENTERPRISES,
Show cause notice
Yes
Application
No.4/179, Puzhal Ambattur Road,
issued vide Proc.
filed on
Puzhal, Chennai - 600066
Dated 08.05.2017
24.05.2017 and
Application is
under process
13
M/s. HI-FI AQUA, No.5/89,
Show cause notice
Yes
Not applied for
Thirupathi Devasthanam nagar,
issued vide Proc.
the consent of
Vadaperumbakkam,
Dated 08.05.2017
the Board
Chennai - 600060
14
M/s. PUSHPAM ENTERPRISES, No.5,
Show cause notice
--
Not applied for
Seliamman Nagar, Madhavaram
issued vide Proc.
the consent of
Taluk, Chennai - 600 060
Dated 04.08.2016
the Board
and closure
direction issued
vide proc. Dated
28.03.2017
15
M/s.SWAN AQUA, No.55,
Show cause notice
Yes
Not applied for
Theyampakkam road,
issued vide Proc.
the consent of
Vilankattupakkam, Revathi nagar,
Dated 08.05.2017
the Board
Redhills, Chennai - 600052
16
M/s. HYDRO FOOD PRODUCTS
Show cause notice
Yes
Not applied for
No.83 & 84 Yousuf Colony,
issued vide Proc.
the consent of
Vadaperumbakkam,
Dated 08.05.2017
the Board
Chennai - 600060
17
M/s. SHREE BALAJI AQUA FARMS,
Show cause notice
Yes
Application
No.27, New Krishna Nagar, Puzhal
issued vide Proc.
filed on
Village, Madhavaram Taluk,
Dated 08.05.2017
24.05.2017 and
Chennai - 600 066
Application is
under process
18
M/s. MALLIKA WATER PRODUCTS,
Show cause notice
Yes
Not applied for
(Kamall aqua), No.48, Devi Nagar,
issued vide Proc.
the consent of
200 feet road,
Dated 08.05.2017
the Board
Near Retteri Junction,
Kolathur, Madhavaram,
Chennai - 600099
19
M/s. MOSES ANTHONY AQUA,
Show cause notice
Yes
Application
KAVANGARAI No.6, 1st cross street,
issued vide Proc.
filed on
K.S. Nagar, Kavankarai,
Dated 08.05.2017
24.05.2017 and
Chennai - 600066
Application is
under process
20
M/s. WHITE HORSE AQUA FARM
Show cause notice
Yes
Not applied for
No.19A, Ettiyappan Naicker Nagar,
issued vide Proc.
the consent of
Secretariat Colony,
Dated 08.05.2017
the Board
Kolathur, Chennai - 600099
21
M/s. VICKY TRADERS No.150, GNT
Show cause notice
No
Not applied for
Road, Madhavaram,
issued vide Proc.
the consent of
Chennai - 600110
Dated 08.05.2017
the Board
22
M/s. HIMALAYAN AQUA FARM
Show cause notice
Yes
Application
No.486-A, GNT road,
issued vide Proc.
filed on
Thendalkalani, Redhills,
Dated 08.05.2017
24.05.2017 and
Chennai - 600052
Application is
under process
23
M/s. ROYAL AQUA PRODUCTS No.4,
Show cause notice
Yes
Not applied for
Canal road, Kolathur,
issued vide Proc.
the consent of
near DRJ hospital,
Dated 08.05.2017
the Board
Chennai - 600076
24
M/s. A5 AQUA, S.No.49/1, Plot
Show cause notice
Yes
Application
No.11, Selvavinayagar Nagar,
issued vide Proc.
filed on
Ananex-1, Azhnijvakkam Village,
Dated 08.05.2017
16.05.2017 and
Madhavaram, Chennai - 600 052
Application
returned for
want of
additional
particulars on
23.05.2017
25
M/s. ARVINTH AQUA (APSAR
Show cause notice
Yes
Consent to
WATER), Old No.220/1B,
issued vide Proc.
Operate Issued
New No.1/232,
Dated 08.05.2017
vide Proc dated
Madhavaram high road,
23.05.2017
Vadaikarai, Redhills,
Chennai - 600052
26
M/s. Sai Aqua Enterprises (BIZLEY)
Show cause notice
Yes
Application
No.1/21, Redhills - Madhavaram
issued vide Proc.
filed on
High Road, Vadakarai,
Dated 08.05.2017
24.05.2017 and
Chennai - 600 052
Application is
under process
27
M/s. M.J. Foods, No.262 & 345,
Show cause notice
Yes
Not applied for
Santhaprabhu Vegetarian Village,
issued vide Proc.
the consent of
Puzhal, Chennai - 600066
Dated 08.05.2017
the Board
A reading of the said annexure-1 shows that in respect of these appellants, the applications are pending before the Board for appropriate orders. Eventhough in respect of some of the appellants where the applications were returned for want of additional particulars it is submitted by the learned counsel for the appellants that the applications are ready with particulars and it is the duty on the part of the Board to pass appropriate orders. It is the fact that the Tahsildar who is under the control of District Collector has ensured that these 8 appellants shall not be permitted to draw ground water from the area where they are carrying on their activity and it is the case of the appellants that they are transporting water from elsewhere. We make it clear that such activity can be permitted after the Board passes appropriate orders on the pending applications which are admittedly being processed by the Board.
The learned counsel for the Board submits that in respect of applications where full particulars are available, the Board will pass appropriate orders expeditiously within a period of one week from today. Therefore, we make it clear that as and when the Board passes order granting 'consent' to the appellants, it is for them to carry on the activity in accordance with such consent order.
The District Environmental Engineer, Ambattur Mr.Vasudevan who is present in the Tribunal, would submit that the Board while processing the application will take into consideration 3 aspects.
Land Use classification
Clearance from the Groundwater Authority
Approval from the Food Safety and Standards Authority of India (FSSAI) Needless to state that it is for the Board to consider those aspects and pass orders.
However, the learned counsel appearing for the CMWSSB would state that in respect of Appellants, only 3 applications are pending before the Authority. While granting the consent, the Board shall also verify that the water drawal and the water transported places should be from safe area.
It is also brought to the notice of this Tribunal that a Writ Petition has been filed before the Hon'ble High Court of Madras in W.P.No.36763 of 2016 and W.M.P.No.31607 of 2016 by one of the appellants herein. In the final order dated 21.10.2016, the Hon'ble High Court has made it abundantly clear that even if NOC is to be given by Metropolitan Area Ground Water (Division) of CMWS&SB, it is stated that the Board has to make impact assessment before the request of NOC is processed to the Drinking Water packaging units. The relevant para of the order dated 21.10.2016 passed by the Hon'ble High Court of Madras is extracted below:
"In the light of the above, the writ petition is disposed of by directing the 2nd respondent to nominate a Senior Environmental Engineer and to form a team to carry out an assessment of the impact on the environmental- groundwater table in the area in question and the team appointed by TNPCB, shall work in co- ordination with the officials of respondents 4 & 5. The above team shall be constituted by the 2nd respondent viz., the Chairman, Tamil Nadu Pollution Control Board, Chennai, preferably within a period of three weeks from the date of receipt of a copy of this order, which team in turn will involve the officials of Public Works Department, Water Research Organisation, State Ground & Surface Water Resources Data Centre, Chennai, the 4th respondent as well as Chennai Metropolitan Area Ground Water (Division), CMWS&SB, Chennai the 5th respondent and the inspecting team shall endeavour to complete the impact assessment of the area where the petitioner has sought for No Objection Certificate within a period of two months from the date on which the team is constituted and thereafter, based on the report submitted by the team, the 5th respondent/competent authority shall take a decision on the petitioner's request for grant of No Objection Certificate after following due process of law. Till then, the status quo shall be maintained. Consequently, the connected miscellaneous petition is closed. No costs".
In the event of the Board passing any order on the consent applications, we make it clear that each of the project proponents shall strictly follow all the conditions and all the units have to maintain records in respect of transport of water and quantity of water utilised which are to be made available to the officials of the Board at any time for inspection. That apart, the Tahsildhar shall always be entitled to visit the units to ensure that water is not illegally drawn in places where the packaged drinking water activities are being carried on.
In so far as it relates to the other persons who are categories in Annexure 2 of the letter of the District Environmental Engineer, Ambattur dated 24.05.2017, we make it clear that it is for the affected parties to approach the Hon'ble High Court for obtaining necessary order in the pending application and thereafter any application pending with the Board is for the Board to process merit and in the manner known to law.