M/s. Sri Sangeetha Dyeing vs Chairman And Ors

The appellant in Appeal Nos. 43 and 44 of 2014 (SZ) herein has filed these appeals against the orders dated 21.03.2014 dismissing the Appeal Nos. 6 and 7 of 2012 passed by the 3rd respondent, namely, the Appellate Authority, Tamil Nadu Pollution Control, Chennai (Appellate Authority) upholding the orders passed by the Tamil Nadu Pollution Control Board (TNPCB) in Letter No. T2/TNPCB/F.1917/ERD/2011 dated 11.08.2011 under Water (Prevention and Control of Pollution) Act, 1974 (Water Act) and Letter No. T2/TNPCB/F.1971/ERD/2011 dated 11.08.2011 under Air (Prevention and Control of Pollution) Act, 1981 (Air Act) wherein the application of the appellant for granting consent to operate the dyeing unit of the appellant situated in S.F. No. 40/1 and 40/3 of Andikulam Village, Bhavani Taluk in Erode District, Tamil Nadu was rejected.

The brief facts of the case as seen from the memorandum of appeals filed before this Tribunal, are that the appellant's unit is a manual dyeing unit which was established by the father of the appellant in the year 1986 and subsequently operated by the appellant. The unit is the only source of livelihood for the appellant and also for all the employees working since the inception of the unit. There are no machines used in the unit for the manual dyeing process. The unit has 1 HP motor for drawing water. The unit is receiving only cotton yarn from the clients and dyeing the same with a particular colour as required and the charges for labour alone are levied by the unit. As per the directions of the TNPCB and in compliance of the orders of the Hon'ble High Court, Madras in separate batch of cases, the appellant's unit has also set up various installations in the premises of the unit to ensure that no pollution is caused by the activities in the unit and no effluent is let out. The unit has also the requisite treatment plant to ensure that there is no discharge. The unit has also set up the Effluent Treatment Plant (ETP) following the G.O.Ms.No. 213, Environment and Forest Department, dated 30.03.1989 of the Government of Tamil Nadu and also as per the orders of the Loss of Ecology (Prevention and Payment of Compensation) Authority (LoEA). The unit was also granted consent in the year 2004 under the Hazardous Wastes (Management and Handling) Rules, 1989 by the TNPCB.

In spite of the above, the unit was issued with a closure order dated 25.11.2008 by the TNPCB alleging that the unit has not met the pollution control norms as per the Government orders as well as the orders of the Hon'ble High Court. The unit has preferred to challenge the same in W.P.No. 874 of 2009 before the Hon'ble High Court and as per the report filed by the TNPCB in the above writ petition, the unit was required to fine tune and suitably connect the Reverse Osmosis (RO) and Reject Management System (RMS) which was subsequently done. The unit, thereafter, had also constructed several other treatment systems including a solar evaporator to ensure that there is no liquid discharge from the unit. Subsequently, the unit applied for consent with all requirements having been met by submitting an application dated 08.09.2010 to the TNPCB. The TNPCB officials conducted inspection of the unit based on the application and observed that the installation of all the necessary treatment plants has been completed as required by law and as per the orders of the Hon'ble Courts. However, to the shock of the appellant, his application was rejected by the TNPCB stating that the unit is considered as a new one and thus prohibited from establishing at the present premises which is situated within 400 m from Bhavani River and thus attracts the Government order. The application was rejected for the reason that the applicant unit did not furnish the proof of its existence prior to the year 1989 when the Government order came to be passed and the documents submitted on the existence of the unit from the year 1986 were not authentic.

Hence, challenging the order of rejection made by the TNPCB, the appellant preferred appeals before the Appellate Authority with necessary documents to show the proof of existence of his unit from the year 1986. However, the appeals were dismissed by the Appellate Authority and hence the appellant has preferred these Appeals before this Tribunal to set aside the order of the Appellate Authority dated 21.03.2014 in Appeal Nos. 6 and 7 of 2012, to aside the orders of the TNPCB made in Letter No. T2/TNPCB/F. 1917/ERD/2011 dated 11.08.2011 and to direct the 1st and 2nd respondents to permit the Appellant to operate the unit.

The TNPCB, the 1st and 2nd respondent herein, has filed reply affidavit stating that the activity of the appellant's dyeing unit is one among the industries included in the list of highly polluting industries located within 1 km from Bhavani River as per the G.O.Ms.No. 213, Forest and Environment Department dated 30.03.1989 and included in the status report filed in connection with W.P.No. 13433 of 1996 of the Hon'ble High Court of Madras. The unit has not provided ETP to treat the effluent discharged from the dyeing activity and has not applied for consent of the Board as required under sections 25 and 26 of the Water Act and section 21 of the Air Act and hence the unit was served with closure order vide Board's Proc.No. F5/TNPCB/NA/ERD/77/98 dated 11.11.1998. The LoEA, in connection with the W.P.No. 13433/1996 furnished to the Hon'ble High Court of Madras to issue certain directions on 12.10.1999 for those units which have not provided ETP and attracting G.O.Ms.No.213, Environment and Forest Department, dated 30.03.1989 and are to be relocated in an industrial area. Since the unit of the appellant was under closure and did not provide ETP, directions were issued to shift the unit to an industrial area vide Proc.No. TNPCB/LOE/C.48627/98 dated 30.05.2000. Thereafter, the appellant unit constructed ETP and applied for consent of the TNPCB on 18.02.2013 and it was recommended to reject the application filed by the unit since the unit had removed the seal and operating illegally. The proofs submitted by the appellant stating that the unit was in existence before the Government order dated 30.03.1989 were not sufficient enough to agree with the contention of the appellant that the unit was established before the date of issue of G.O.No.213 dated 30.03.1989. Meanwhile, the appellant's unit had applied for authorization of the TNPCB under Hazardous Waste (Management and Handling) Rules, 1989 and authorization was issued vide Board's Proc.No. HWM/10615/04/Erode dated 30.04.2004 for a period of five years up to 29.04.2009. The closure directions were issued along with orders for disconnection of power supply to the appellant's unit in TNPCB Proc. No. T2/TNPCB/F. 33176/17 units-8/08-01 dated 25.11.2008 as per the orders of the Hon'ble High Court, Madras in W.P.No. 5494 of 1998 and 30153 of 2003 made on 04.07.2007 and 09.08.2007, respectively.

Subsequently, the appellant filed W.P.Nos. 874 and 875 of 2009 before the Hon'ble High Court, Madras and the Hon'ble High Court directed the TNPCB to make spot inspection of the unit and in case there was no defect, it would be open to the TNPCB to recall the impugned order. The appellant's unit was inspected on 09.02.2009 and it was noticed that the unit was in operation and the RO and RMS were not connected suitably. The W.P.Nos. 874 and 875 of 2009 were dismissed on 12.06.2009 for non-prosecution.

The appellant filed a fresh application on 08.09.2010 to obtain consent of the TNPCB for his unit by enclosing a letter dated 19.10.2006 of the Junior Engineer, Tamil Nadu Electricity Board, Gobichettipalayam, Bhavani (West) and Profession Tax receipt for the year 1986-87 as documents in proof for its existence prior to the issue of Government Order dated 30.03.1989. The said documents were not one among the statutory requirements to establish and commence the industry. Hence, the TNPCB refused to grant consent to the appellant's unit vide Proc. No. T2/TNPCB/F.1917/ERD/2011 dated 11.08.2011 on the grounds of location of the unit at a distance of 400 m from River Bhavani against the distance criteria imposed in the Government order dated 30.03.1989 and included in the status report in W.P.No. 13433 of 1996 filed before the Hon'ble High Court, Madras and as per this status report, the date of commissioning of the unit was January 1995. The appellant's unit was found functioning without obtaining consent from the TNPCB and without providing ETP and direction for closure with disconnection of power supply were issued vide proceedings dated 26.11.1998 as per the order dated 11.11.1998 of the Hon'ble High Court of Madras. The LoEA had also directed the appellant to shift his unit to an industrial area as per the proceedings dated 03.05.2000 as the unit had not provided ETP which attracted the provisions of the Government order dated 30.03.1989. The appeals filed by the appellant in Appeal Nos. 6 and 7 of 2012 before the Appellate Authority were dismissed on 21.03.2014.

As seen above, in Appeal Nos. 43 and 44 of 2014 (SZ), the appellant challenges a common order made by the Appellate Authority, Tamil Nadu Pollution Control shown as 3rd respondent confirming the orders of the 1st respondent, TNPCB refusing to grant the CTO the dyeing units of the appellant and in Appeal Nos.85 and 86 of 2014 (SZ), the appellant challenges the order of the 3rd respondent, Appellate Authority, confirming the order of the 1st respondent, TNPCB, whereby the application made by the appellant for CTO was refused.

The only question that arises for consideration in Appeal Nos. 43 and 44 of 2014 and 85 and 86 of 2014 is whether the orders of the 3rd respondent, Appellate Authority dismissing the appeals are liable to be set aside for all or any of the reasons put forth by the appellants.

Heard the learned counsel for the appellant and also of the

Advancing the arguments on behalf of the appellant, the learned counsel would submit that the appellant's unit is a manual dyeing unit established in the year 1986 when no machinery was used in the unit. The unit was using 1HP motor for drawing water and no machinery was required for the dyeing process. The unit was receiving cotton yarns from its clients and dyeing the same with a particular colour as required. As per the direction of the TNPCB and in compliance of the orders of the Hon'ble High Court of Madras, the appellant has set up various installations at the unit's premises to ensure that no pollution was caused by the activities of the unit and no effluent is let out. Thus, the unit has installed the RO and RMS to ensure that there was no discharge. Following the G.O.Ms.No. 213 dated 30.03.1989, as per the orders of the LoEA, the unit was instructed to provide ETP initially in the year 1998. Thereafter, in the year 2003, the unit had set up ETP and the consent was granted by TNPCB during the year 2004 under Hazardous Wastes (Management and Handling) Rules, 1989. Despite the same, the unit was issued with a closure order on 25.11.2008 by the TNPCB alleging that the unit had not met the pollution control norms as per the Government order and the orders of the Hon'ble High Court of Madras in a separate batch of cases. As per the report filed by the TNPCB in the writ petitions, the unit was required to fine tune and suitably connect RO and RMS systems which was subsequently done. The unit has also constructed several other treatment systems. Thereafter, the unit applied for consent on 08.09.2010. Following an inspection by the authorities of the TNPCB, it was observed that the installation of all the necessary treatment plants was completed. While so, the application made by the appellant was rejected stating that the unit was a new one and stands prohibited from establishment since it is situated within 400 m from River Bhavani attracting the conditions laid down in G.O.Ms.No. 213 dated 30.03.1989 and also on the reason that the appellant had not furnished the proof of establishment of the unit prior to 1989 when the Government order was issued.

Aggrieved, appellant preferred appeals before the Appellate Authority, Tamil Nadu Pollution Control which were dismissed on the ground that the unit of the appellant was not in existence prior to the date of issue of the aforesaid Government Order. The said finding of the Appellate Authority was against the documentary evidences filed and relied on by the appellant. The electric service connection was given by the Tamil Nadu Electricity Board to the unit as early as in 1986. On the contrary, the Appellate Authority had held that it was not sufficient for the reason that the tariff under which it was granted was different to the one that was required. The said finding was unreasonable since the Tariff V electricity connection was sufficient for conducting the activities of the unit which were manual in nature. A resolution made by the local panchayat was also placed to prove that the appellant's unit was in existence from the year 1986 since the documents furnished by the appellant were issued in the year 1986 itself which would clearly prove the existence of the unit from the year 1986 and if so, the G.O. No. 213 dated 30.03.1989 is not applicable to the pre-existing units. Thus, there was no proper appreciation of evidence placed and relied on by the Appellate Authority and also the compliance of the pollution control norms taken and instruments set up to ensure no discharge of effluent. Hence, the order of the Appellate Authority has got to be set aside and a direction to be issued to the 1st and 2nd respondents to permit the appellant to operate his unit.

The learned counsel for the respondents was given opportunity to place their replies on the above submissions. In short, they contended that the appeals were devoid of merits.

Admittedly, the appellant carried on the dyeing operations in his unit from1986 onwards though it was without consent of the TNPCB either for establishment or for operation for decades past. Perusal of the order which was challenged before the Appellate Authority indicate that the textile dyeing operation was carried on without obtaining consent under the provisions of the Water Act and the Air Act and the same is not disputed by the appellant. The case of the TNPCB is that the dyeing unit of the appellant which fell under Red Category of Industries is situated within a distance of 400 m from River Bhavani and it is not disputed by the appellant. But, what is contended by the appellant is that the siting criteria that the unit is situated within 400 m from River Bhavani cannot be a reason to refuse to grant the consent since G.O.No. 213 dated 30.03.1989 has no application to the unit since it came into existence even prior to the said Government order. This contention that the unit came in to existence prior to G.O.No. 213 dated 30.03.1989 cannot be countenanced. As could be seen from the available materials, the unit of the appellant was included in the status report in W.P.No. 13433 of 1996 filed before the Hon'ble High Court of Madras wherein the unit of the appellant was shown at Serial No. 186. From the status report it is an indisputable fact that the unit of the appellant was located within 400 m from the River Bhavani and also the date of commissioning of the unit was shown as January, 1995.

The contention in the status report was never challenged by the appellant anywhere at any point of time. Hence, this by itself would suffice to reject the contention that the appellant's unit came into existence prior to the issue of G.O.No. 213 dated 30.03.1989. As per the orders of the Hon'ble High Court of Madras a direction for closure of the unit and also disconnection of power supply was made in November 1998. The order was also served upon the unit to shift its activities to an industrial area by the proceedings of the TNPCB dated 03.05.2000. It is pertinent to point out that the writ petitions filed by the appellant in W.P.Nos. 874 and 875 of 2009 against the closure order dated 25.11.2008 under Water Act and Air Act were dismissed by the Hon'ble High Court of Madras following an inspection of the unit by the TNPCB authorities.

While the matter stood thus, an application seeking consent was made by the appellant on 08.09.2010 which was refused. The main contention put forth by the appellant's side is that there was no proper appreciation of evidence pointing to the existence of the unit prior to 30.03.1989. The Appellate Authority, Tamil Nadu Pollution Control has considered every one of the documents and adduced reasons as to why it should not be accepted. The TNPCB was not ready to accept the proceedings of the Tamil Nadu Electricity Board dated 19.10.2006 issued in the name of the individual capacity for providing power supply to 1 HP motor since as per the guidelines issued for determination of the tariff to generation and distribution that the Lower Tension Tariff V was applicable strictly for the use of electricity for agriculture and allied activities. Hence the appellant cannot claim that it was either taken or used for industrial purpose for running the dyeing unit. Equally, the certificate given by the local body to the effect that the appellant's unit was carrying on its operation from 1986 was rightly rejected on an acceptable ground that the local body passed the resolution only on 20.07.2011. It goes without saying that it was a document created to suit to the convenience of the appellant. Thus, the documents relied on by the appellant were rightly rejected by the Appellate Authority, Tamil Nadu Pollution Control since they could not be given credentials with evidentiary value. Thus, in short from the status report, it was clear that the unit was carrying on its operations from January, 1995 which was not challenged. Subsequently, the writ petitions were also dismissed. The documents relied on did not prove the case of the appellant that the unit was in existence prior to 1989. The available materials clearly indicate that the unit fell within the clutches of the prohibitive siting criteria as envisaged in the G.O.No. 213 dated 30.03.1989 and situated within a distance of 400 m from River Bhavani. It is also pertinent to note that the appellant has been carrying on his activities of the dyeing unit for decades without obtaining consent from the TNPCB as required in law which has to be termed as illegal. At no stretch of imagination, the unit can be termed as an existing unit.

Hence, the Tribunal is unable to notice any reason to interfere in the reasoned order of the Appellate Authority, Tamil Nadu Pollution Control confirming the order of the TNPCB dated 25.11.2010 wherein closure direction along with disconnection of power supply to the appellant's unit was issued. The appeals are dismissed as devoid of merits.

No cost.