M/s. Amudha Textiles vs Chairman And Ors

These appeals have been filed by the appellant herein challenging the order of the 3rd respondent Appellate Authority in Appeal Nos. 1 and 2 of 2014 dated 22.08.2014. The brief facts of the case as could be summarized from the appeal memoranda filed herein are that the appellant's father started the unit in S.F.No. 34/4, 31/1A1 at Komarapalayam in Tiruchengodu Taluk of Namakkal District in the year 1977 as a proprietary concern for bleaching and dyeing cotton yarns and fabrics. The unit was registered with the Registrar of Firms for the purpose of manufacturing textiles and was also registered under Sales Tax (Registration and Turnover) Rules, 1957 on 23.08.1977. Subsequently, by the proceedings dated 07.06.1988, C Form declaration has been obtained from the Deputy Commercial Tax Officer, Sankagiri. These facts would show that the unit was in existence even before the G.O.Ms.No.213, Environment and Forest Department dated 30.03.1989 and G.O.Ms.No. 127, Environment and Forest Department dated 08.05.1998 were issued. After the demise of the appellant's father, the appellant took over the business and proprietary concern was converted into a partnership firm with the appellant and her husband as the partners of the firm.

The place where the business is carried on is construed as an unclassified area as could be seen from the certificate dated 12.07.2010 issued by the Deputy Director, Town and Country Planning, Salem Region. The unit was also registered in the Department of Industries and Commerce of the State of Tamil Nadu as a small enterprise vide memo No. 3300912/04306E/ Part II dated 12.12.2012. The electric power supply has been changed in the name of the appellant on 27.11.2007. Apart from the above, the license of the unit was renewed by Pallipalayam Panchayat Union on 29.07.2003 and these facts have not been appreciated by the respondent TNPCB before issuing the closure order dated 29.06.2010 challenged before the 3rd respondent.

The TNPCB inspected the unit on 17.03.2010 and reported that the unit was operating without consent and discharging untreated trade effluent outside its premises. The appellant submitted an application to the 2nd respondent seeking the grant of CTO. However, no order has been passed on the application. When the unit of the appellant is in existence from the year 1977 which is the factual position, the restrictions imposed in the Government orders dated 30.03.1989 and 08.05.1998 cannot be applied to the detriment of the unit. Subsequently, the TNPCB passed an order of closure of the unit on 29.06.2010 under section 33 A of the Water Act along with disconnection of power supply.

Aggrieved over the said closure order, the appellant filed a writpetition before the Hon'ble High Court, Madras in W.P.No. 22226 of 2010 challenging the proceedings of the TNPCB dated 29.06.2010 and pursuant to the order made by the Hon'ble High Court, the appellant filed an application in Application No. 19 of 2012 (SZ) before this Tribunal. The said application was dismissed on 30.09.2013 by the Tribunal on the ground that the appellant's unit was functioning without consent. The appellant filed a review application in R.A. No. 5 of 2013 against the order dated 30.09.2013 passed by the Tribunal in Application No. 19 of 2012. Pending the above review application, the appellant filed a fresh application to the TNPCB for granting CTE under Water Act and Air Act on 19.11.2013. The review application was dismissed on 16.12.2013 in view of the impugned order passed by the 2nd respondent on 03.12.2013.

The appellant has now provided ETP and RO facilities besides installation of further facilities like nano filtration and solar evaporation plant for treating 50 KLD of effluent and the same is not disputed. An opportunity to ensure that the unit maintains the desired standards of emission and effluent has to be given to the appellant by the respondent TNPCB by granting consent. Now the deficiencies have been attended to and there will not be any risk or harm to the water bodies and environment. Therefore, declining to grant CTO would mean closure of the unit and such denial would go against the Principles of Sustainable Development. The TNPCB ought to have considered the appellant's application for the grant of CTO in view of its existence since 1977 and because of the non-applicability of the G.O.Ms.No. 213 dated 30.03.1989 and G.O.Ms.No. 127 dated 08.05.1998. Therefore, the only obligation of the Appellate Authority was to verify whether the appellant unit existed prior to the issuance of the Government orders under which the appellant's request for the grant of CTO under Water Act and Air Act has been rejected and without considering the same, the 3rd respondent Appellate Authority dismissed the appeals on 22.08.2014 and therefore the orders of the Appellate Authority are liable to be set aside as set forth in the grounds of the appeals filed herein.

Per contra, the 2nd and 3rd respondents, TNPCB would state in reply that the unit of the appellant was engaged in bleaching and dyeing of cotton yarn. The unit has not obtained consent of the TNPCB and existing in violation of the G.O.Ms.No.213, Environment and Forest Department, dated 30.03.1989 and G.O.Ms.No.127, Environment and Forest Department, dated 08.05.1998. The unit is located at a distance of 0.66 km from the Mettur Canal East, and 1.6 Km from the River Cauvery, a water source specified in G.O.Ms.No. 213, Environment and Forest Department, dated 30.03.89 and G.O.Ms.No. 127, Environment and Forest Department, dated 08.05.98. The unit has been issued with closure directions vide TNPCB Proceedings No.T2/TNPCB/F.16672/37 units -16/10-1 dated: 29.06.2010 for discharging untreated trade effluent outside its premises and also the unit has not been included in the status report filed before Hon'ble High Court of Madras in W.P.No.13433 of1996. The unit has filed a Writ petition in the Hon'ble High Court of Madras in W.P.No.22226 of 2010 as the Chairman, TNPCB, Chennai first respondent and the DEE, TNPCB, Namakkal as the second respondent to quash the closure order issued by the TNPCB and to restore the power supply. The same was transferred to this Tribunal and this Tribunal took the above writ petition in the registry as Application No. 19 of 2012 (SZ). The Tribunal in its order dated 30.09.2013 has dismissed the application by stating thus:

"While the applicant's unit was carrying its operation even without making an application and without obtaining consent to establish and operate for more than a decade, the authorities of the TNPCB were perfectly correct in passing an order to closure which does not requires any interference by the Tribunal".

The appellant unit M/s. Amudha Textiles, S.F.No. 31/1A1, 1C of Komarapalayam Amani village, Tiruchengode Taluk and Namakkal District made an application to TNPCB on 19.11.2013 for the grant of consent to carryout bleaching and dyeing cotton yarn of 21.58 T/Month and to generate trade effluent of 50 KLD under section 25 of the Water Act, and under section 21 of the Air Act. The applications furnished by the unit have been rejected for the following reasons vide TNPCB letter dated 03.12.2013:

- The applicant's unit is located at a distance of 0.66 km from the Mettur Canal East and 1.6 km from the River Cauvery, a water source specified in G.O.Ms.No. 213, Environment and Forest Department, dated 30.03.89 and G.O.Ms.No. 127, Environment and Forest Department, dated: 08.05.98. The G.O.Ms.No.213, Environment and Forest Department, dated: 30.03.89 and G.O.Ms.No. 127 E&F Dept. dated: 08.05.1998 prohibit setting up of certain types of industries particularly tannery and textile dyeing units within 1 km and 5 km respectively from certain specified water sources including Cauvery River and its tributaries.

- The name of the unit is not included in the list of units furnished before the Hon'ble High Court of Madras in W.P.No. 13433 of 1996. (i.e., the existence of the applicant's unit was only after 1996).

- The unit, M/s. Amudha Textiles, SF.No. 31/1A1, 1C of Komarapalayam Amani village, Tiruchengode Taluk and Namakkal District has furnished a certificate of registration from Central Sales Tax and Form C of declaration from Deputy Commercial Tax Officer, and whereas from the above proofs, only name of the industry without the address has been mentioned as proof of existence prior to the issuance of the G.O.Ms.No. 213 dated 30. 03.1989. The unit has not furnished any of the following documents as proof of its existence prior to the issuance of said Government orders:

i. Local Body Licence.

ii. TNEB connection details / E.B. Bills in the name of industry.

iii. Income tax / Sales tax receipt in the name of the unit.

iv. SSI Registration Certificate from DIC (Permanent Certificate)

The unit has filed an appeal before the Appellate Authority, Tamil Nadu Pollution Control in Appeal Nos.1 and 2 of 2014 challenging the rejection of the application by the TNPCB. The Hon'ble Appellate Authority in its order dated 22.08.2014 dismissed the appeals on the grounds that the appellant unit had not furnished reliable documents like Local Body License, TNEB connection details/Electricity bills in the name of the Industry, Income Tax/Sales Tax receipts in the name of the unit and SSI Registration certificate from the District Industries Centre (DIC) (Permanent Certificate) so as to prove the existence of the unit prior to the issuance of Government orders referred to above.

Advancing the argument on behalf of the appellant, the learned counsel would submit that the appellant's unit was carrying on dyeing process engaged in bleaching and dyeing of cotton from the year 1973 and the same was registered with the Registrar of Firms in the year 1973 itself for the purpose of manufacturing textiles. The same was assessed under the Sales Tax (Registration and Turnover) Rules, 1957 and C Form Declaration was give even during that period and thus, the unit was in existence even prior to G.O.No.213 dated 30.03.1989 and G.O.No. 127 dated 08.05.1998. The license of the unit was renewed by Pallipalayam Panchayat Union in the year 2003. While the matter stood so, following an inspection made by the TNPCB authorities on 17.03.2010 on finding that the unit was operating without consent and discharging untreated trade effluent, the appellant made an application to the 2nd respondent on 20.04.2010 seeking CTO the unit. But, no order came to be passed. On the contrary, the TNPCB passed an order of closure of the unit on 29.06.2010 along with disconnection of power supply.

Aggrieved, appellant filed W.P.No. 22226 of 2010 challenging the closure order before the Hon'ble High Court of Madras which was transferred to this Zonal Bench of National Green Tribunal (NGT) which was numbered as Application No. 19 of 2012 (SZ) (THC) . The above application was dismissed by this Bench on the ground that the unit was operating without consent and apart from that as per the inspection of the applicant's unit by the authorities of the TNPCB in August, 2013, certain deficiencies were noticed on taking the required pollution control measures. A Review Application was filed before this Zonal Bench of NGT by the applicant in R.A. No. 5 of 2013 against the order passed in the above Application No. 19 of 2012 (SZ) (THC) which was also dismissed.

Pending the Review Application, the appellant had filed a fresh application for CTO under the Water Act and the Air Act. The learned counsel would further add that the application by the appellant seeking CTO from the TNPCB should have been ordered in his favour since the appellant provided all the adequate ETP and RO facilities in his unit. The authorities of the respondents TNPCB at the time of inspection had observed that all the pollution control measures were taken by the unit.

Hence, there was no reason to decline to grant CTO. The refusal of the consent in the instant case would be against the Principle of Sustainable Development. Since the appellant's unit was in existence in the year 1977, the G.O.No.213 dated 30.03.1989 and the G.O.No.127 dated 08.05.1998 cannot be applied to the appellant's unit. The learned counsel for the respondent TNPCB placed their reply argument.

The Tribunal made anxious consideration and submissions made and looked into all the materials made available. Though it is elaborated by the appellant that the unit came into existence in the year 1977, it is well admitted that no consent was ever applied for or obtained. Thus, it would be quite evident that the appellant's unit was carrying on its activities illegally for decades and also causing pollution to the detriment of ecology besides degradation to environment. The main contention put forth by the appellant is that pending Application No. 19 of 2012 (SZ) (THC) filed before this Zonal Bench of NGT, an inspection of the unit was made by the 2nd respondent of the TNPCB and consequent report indicated certain deficiencies in taking the pollution control measures which according to the appellant have now been set right and hence fresh application filed by the appellant for CTE in 11/2013 should have been considered positively and consent should have been given to him. It remains to be stated that the earlier closure order made by the TNPCB was confirmed by the Tribunal in Appeal No. 19 of 2012 (SZ) (THC) on the main ground that the unit was operating without consent. The contention put forth by the appellant that the unit was in existence prior to G.O.No.213 dated 30.03.1989 and the G.O.No.127 dated 08.05.1998 cannot be countenanced for more reasons than one. The status report filed before the Hon'ble High Court of Madras in W.P.No. 13433 of 1996 contains the list of units in respect of all dyeing and bleaching units which did not include the appellant's unit which would be indicative of the fact that the unit was not in existence prior to the year 1996. It is not the case of the appellant that the appellant's unit was also a party to the writ proceedings. When a show cause notice was served upon the appellant on 19.03.2010, the appellant had not cared to reply the same. No explanation is tendered or reason adduced why the appellant had not chosen to apply for and obtained the consent from the TNPCB for decades past. The learned Appellate Authority, Tamil Nadu Pollution Control has rightly relied upon the direction issued by the Hon'ble High Court of Madras in W.P. 5494 of 1998 and 30153 of 2003 which necessitated the TNPCB to make an inspection of the appellant's unit and pass closure order. It is not disputed by the appellant that the unit is located within 0.66 km from Mettur Canal East and 1.6 km from River Cauvery specified in G.O.No.213 dated 30.03.1989 and the G.O.No.127 dated 08.05.1998 which prohibit setting up of highly polluting industries like tanneries and textile dyeing units within 1 km and 5 km, respectively.

In view of the fact that the unit of the appellant falls within the clutches of the G.O.No.213 dated 30.03.1989 and the G.O.No.127 dated 08.05.1998 in respect of siting criteria and also the appellant has been carrying on his unit illegally for decades together without obtaining any consent, the denial of consent by the TNPCB and subsequent dismissal of the appeals by the Appellate Authority, Tamil Nadu Pollution Control confirming the order of the TNPCB, the appeals are dismissed as devoid of merits. No cost.