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Judgment
Original Application No.33 of 2013 was filed by theapplicant registered Association of residents of Sri Sankara Nagar within the limits of Pammal Municipality for a direction to respondents 1 to 8 to act on the representations of the applicant dated 01.10.2009, 05.10.2009 and 08.11.2012 in respect of illegal stone crushing units operating within the residential localities of Pammal Municipality of Tambaram Taluk, Kancheepuram District and direct closure of the units as they are operating in violation of the norms of the Tamil Nadu Pollution Control Board on operation of stone crushing units in residential localities and against the provisions of Air (Prevention and Control of Pollution) Act 1981.
The applicant would contend that Sri Sankara Nagar is situated next to Sengazhuneermalai hill which was once ear- marked and used for quarry operations. Quarrying operations were stopped pursuant to the orders of the Tahsildar, dated 14.12.2000. Over a period of three decades, the residential colony had grown substantially with over 1000 houses constructed after obtaining requisite building permissions and approvals from the local authorities. After the stopping of the quarrying operations, respondent No.3, Executive Officer of the Pammal Municipality, in co-ordination with respondent No.6, Chennai Metropolitan Development Authority (CMDA) and respondent No.7, the Tamil Nadu Electricity Board (TNEB), proceeded to grant numerous building permits, pursuant to which, more residential houses came up in the locality. Apart from the residential houses, there are several public institutions and public utility service organisations like Sri Sankara Vidyalaya Matriculation Higher Secondary School, Sri Meenakshi Krishnan Polytechnic College, Satsangh Vihar, a religious meditation centre, Ammani Ammal Matriculation School, Sarada Matriculation School, Sri Bhuvaragan Nursery School, Sri Sankara Eye Hospital, Sri Sankara Vinayaka Sundara Anjaneyar Temple, Lord Shiva Temple, Lord Sri Iyyappan temple etc. Residential colonies like VOC Nagar, Moovendhar Nagar, LIC colony, Kamarajapuram, Adham Nagar, Thendral Nagar, Vinayaka Nagar etc, with over 2,000 residential houses have been developed within a radius of 1 km. The State Government has laid a new radial by-pass road between Irumbuliyur and Maduravoayal. That road is situated immediately adjacent to Sengazhuneermalai hill where there is heavy vehicular traffic day and night. Sengazhuneermalai hill is on the fly path of all aeroplanes coming from the west and south. In view of the fast development in the area, former Pammal Panchayat within which Sri Sankara Nagar layout is situated, has been upgraded as Municipality. Sri Sankara Nagar forms Ward No.1 of the Pammal Municipality. With the intense development of Sri Sankara Nagar residential colony, quarrying operation at Sengazhuneermalai hill is rendered impossible in the light of the order passed by the Hon'ble Supreme Court in Civil Appeal No.10732 of 1995 dated 25.04.1996, wherein the Supreme Court prohibited any quarrying or allied operations within 500 m of an approved housing project. The directions of the Hon'ble Supreme Court and subsequent resolution of respondent no.8, Tamil Nadu Pollution Control Board (TNPCB) have been crystallized in the form of norms for location of stone crushing industries in Board Proceedings Ms.No.4 dated 02.07.2004 . Unfortunately, the illegal stone crushing units got support from the local authorities. This led to filing of various Writ Petitions before the Hon'ble High Court. The respondent No.2, District Collector passed an order on 13.10.2006, after analysing the facts and on the recommendations of the Special Committee constituted and permanently deleted the lands in S.No.144/1 of Pammal Village from the quarry list of Kancheepuram District for the reason that the village Natatham in Anakaputhur village is situated at a distance of 250 metres on the north of the proposed stone quarry area, there are about 50 residential units duly approved within a radial distance of 150-300 metres from the quarry area, on the eastern side of the quarry, VKK Ammani Ammal Matriculation School is being constructed, there is an approved site at a distance of 150 metres on the eastern side of the quarry site owned by the Dharma Sastha Trust, the stone quarry has already been exploited to the maximum, upto the depth of 10 metres in the central portion and therefore it is not suitable for quarrying operations by adopting safety measures.
Respondent No.6 CMDA vide letter dated 18.04.2007, directed the Executive Officer, Pammal Municipality not to grant permission for constructing houses in Pammal. Being aggrieved by that order, Pammal Sengazhuneermalai Mahalir Kal Udaikkum Suya Udhavi Nala Sangam filed Writ Petitions in Nos.12185 of 2007 and 18625 of 2007. During the pendency of the Writ Petitions, an appeal filed by Pammal Sengazhuneermalai Mahalir Kal Udaikkum Suya Udhavi Nala Sangam before the Director of Geology and Mining against the order of the District Collector was dismissed. The Hon'ble High Court by common order dated 29.04.2008, dismissed the writ petitions 12185 and 18625 of 2007. The Writ Appeals W.A.Nos.641 and 642 of 2008 filed against the said common order by the Pammal Sengazhuneermalai Mahalir Kal Udaikkum Suya Udhavi Nala Sangam were also dismissed. The Second Appeal preferred before the State Government by the Pammal Sengazhuneermalai Mahalir Kal Udaikkum Suya Udhavi Nala Sangam against the dismissal of the appeal challenging the order of the District Collector was also dismissed on 02.03.2010. Thus, stone quarrying or stone crushing activities are not permitted by any person in and around Sankara Nagar and its adjoining Sengazhuneermalai hill area by any person. But, even during the pendency of these proceedings, illicit stone crushing activities were in existence in Sankara Nagar and its adjoining areas, causing grave hardship to the entire residents due to the dust/smoke emanated by the stone crushing, which seriously affects the health and hygiene in the locality. The dust that emanates on account of stone crushing spreads in the entire layout to a distance of more than 1000 metres. Drinking water, overhead tanks and other water saving tanks got polluted by deposit of dust emanating from the stone crushing units.
When the details of the illegal stone crushing units operated in the area was sought for from respondent no.8, Board, who, by letter dated 03.09.2007, informed that there are 52 stone crushing units located in Kamarajapuram and none of the 52 units except M/s.Peter Blue Metals obtained Consent from the State Pollution Control Board. Directions for closure was issued to 6 stone crushing units located within the prohibited area and operating without adequate air pollution control measures. But directions to 3 out of six units were suspended. Directions were issued to 36 units to provide adequate air pollution control measures under Section 31-A of the Air (Prevention and Control of Pollution) Act, 1981 and show cause notices were issued to 8 units under Section 21 of the Air Act for operating without providing adequate air pollution control measures.
By proceedings B.P.Ms.No.48 dated 09.09.1998, respondent no.8 Board directed that in respect of residential area, no stone crushing units are to be allowed to operate, within a distance of 500 metres from the residential area as directed by the Hon'ble Supreme Court in Civil Appeal No.10732 of 1995. By order dated 10.05.1999, in SLP (C) No. 13564 of 1998, the Hon'ble Supreme Court directed that the existing stone crushers, who have valid licences, are permitted to carry out their work subject to complying with the conditions provided in the report of the National Environmental Engineering Research Institute (NEERI). By proceedings B.P.Ms.No.4 dated 02.07.2004, the Board fixed norms for the existing as well as new stone crushing units in Tamil Nadu. In terms of the Explanation to Criteria 1.1, the existing stone crushing units are those units who have valid licence on the date of the judgment of the Supreme Court i.e.10.05.1999. Under clause 2.1 respondent No.8, Board fixed the norms for new/proposed stone crushing units, providing that no new/proposed stone crushers should be located within 500 metres from National Highways or State Highways or inhabited site or places of public and religious importance. Under the "Note" to the said clause, the inhabited site has been defined to mean a village site or town site or a house site or layout approved by a local body or Town or Country or Metropolitan Planning Authority. The minimum distance between the new/proposed stone crushers should be 1 km to avoid dust pollution influence of one over the other. The stone crushing unit shall provide adequate green belt cover around the periphery as suggested by the Board depending on the site and meterological conditions. The existing and new/proposed stone crushing units should provide dust containment and dust suppression systems as suggested by the National Productivity Council which is annexed to the proceedings B.P.Ms.No.4 dated 02.07.2004 and should also adhere to the recommendations of NEERI.
The applicant would therefore contended that all crushing units which have been and are operating, do not have the valid licences on the date of the order of the Hon'ble Supreme Court and therefore, they have failed to satisfy the norms prescribed by respondent No.8. The applicant-Association made an application under RTI Act in September 2009 to the Commissioner of St.Thomas Mount Panchayat Union under whose jurisdiction, Pammal Village was then situated, regarding the authorities whose permission was required for running of power driven stone crushing units. By reply dated 22.10.2009, it was informed that such units would require permission from Fire Service Department, Kancheepuram Circle, Public Health Department, Deputy Chief Inspector of Factories and the Pollution Control Board. The applicant would contend that most of the stone crusher units have not obtained any such permissions/license from the concerned authorities and their operations are therefore illegal. In spite of the request, as no action was taken, as directed by the Hon'ble High Court in Writ Petition No.30455 of 2008, the applicant submitted the representation dated 01.10.2009 to respondent No.2, The District Collector, to issue suitable orders to remove the illegally operating crusher units and to save the residents of the area from the grave effects of air pollution. Again the applicant made a representation dated 05.01.2009 to the respondent No.2, drawing the attention to the earlier representation dated 01.10.2009 and requesting to take immediate action. The respondent No.2, thereafter, issued an enquiry notice dated 13.11.2009 fixing the enquiry on 07.12.2009.But, it was later cancelled. As no action was taken for five months, another letter dated 19.02.2010 was addressed to the respondent No.2, to take urgent action in this regard. But, no action was taken. Therefore, the applicant would contend that no stone crushing units should be permitted to operate illegally and a direction is to be issued to close all the stone crushing units operating, in violation of the norms of the Tamil Nadu Pollution Control Board as well as without the order of consent from the State Pollution Control Board.
Respondents 9 to 21 stone crushing units got themselves impleaded as additional respondents, contending that the order that would be passed in the application 33 of 2013 would affect all these stone crushing units.
Respondent No.1 , State of Tamil Nadu filed a reply contending that the disputed stone crushing units are situated at Sengazhuneermalai hill, which falls under the Municipal limits of Pammal Municipality and the Tamil Nadu Pollution Control Board is the competent authority and the respondent No.1 would abide by any direction passed by the Tribunal.
Respondent No.3, Commissioner of Pammal Municipality filed a reply contending that complaints have been received from the public and also from the applicant to take action against the illegal stone crushing units situated within the limits of Pammal Municipality and the respondent issued notices on 12.11.2011, 06.02.2012 and 20.03.2012 to all stone crushing units, which are located within the municipal limits of Pammal Municipality. It is contended that the Tamil Nadu Pollution Control Board had issued closure orders to all the illegal stone crushing units and aggrieved by the same, all the units have filed appeals before the Tribunal to quash the closure order and the Tribunal had directed respondent No.8, Tamil Nadu Pollution Control Board to maintain status quo and the Pammal Municipality would abide by any directions of the Tribunal.
Respondent No.4 the Executive Officer of Anakaputhur Municipality filed a reply submitting that this respondent is wrongly impleaded as a party in this application, as the stone crushing units in question are within the limits of Pammal Municipality.
Respondent No.5, the Tahsildar, Alandur Taluk filed a reply stating that verification of the accounts show that the land in Survey No.144/1 -Sengazhuneermalai hill, of Pammal village is classified as Dry Assessed Waste Land i.e. poromboke land. On ground, there are 17 stone crushers operating in S.No.144/1 and 27 stone crushers in S.No.145 and 165 and altogether 49 stone crushers were in operation. The distance between the said stone crushers and the habitation area of Sankara Nagar is about 400 meters. Most of the stone crushing units were covered with Asbestos sheets and it was stated that water was being sprayed to ensure that there is no dust pollution. Few stone crushing units were not covered properly and there was no water spraying. The adjoining survey No.143 is a patta land belonging to M/s. Appasamy Real Estate Pvt Ltd. where constructions of apartment complexes were being carried out. The distance between the compound wall and the stone crushers is about 400 meters. The representations of the applicant dated 01.10.2009 and 05.10.2009 were received by Tahsildar and it was not forwarded to the office of this respondent.
Respondent No.6, Chennai Metropolitan Development Authority (CMDA) submitted a reply contending that Section 10 of Development Regulations forming part of the second Master Plan for Chennai Metropolitan area (CMA) 2026, provides that no sub- division or layout shall be laid out or building for residential, commercial, industrial and institutional or any structure for occupation, shall be constructed within 500 m from an existing live quarry, no sub-division or layout shall be laid out or residential or commercial of institutional building shall be constructed within the radius of 500 meters from an existing crusher and no crusher is permissible within a distance of 500 metres from an existing residential area. On verification of plans with regard to land use zone of S.No.144 of Pammal Village, Pammal Village is zoned as partly non-urban use and partly industrial use zone. Adjoining S.Nos.141, 142, 143 part, 145, 146, 163, 165 and 167 are zoned as Primary Residential use zone.
Respondent No.8, Tamil Nadu Pollution Control Board submitted a reply that there are 49 stone crushing units functioning as a cluster in Kamarajapuram area of Pammal Village. The stone crusher cluster was surrounded by a hillock on the Eastern side, Tambaram-Maduravoyal by-pass road on the Western side, Jain housing construction project having multi storied flats under construction on the Southern side and Fathima Nagar having residences on the Northern side. Pammal Sankara Nagar residential area is located at the rear side of the hillock on the Eastern side. Complaints have been received from the nearby residents including the applicant regarding the dust and noise pollution from the stone crushing units. During inspections, it was found that 49 stone crushing units were operated without providing adequate Air Pollution Control (APC) measures like dust containment and dust suppression system as prescribed by the NEERI. Hence, show cause notices were issued to all the 49 stone crushing units. Out of these, 17 units have been issued with Consent of the Board. Out of these 17 units, applications filed by 14 units are rejected by the Board for the reason that they were located in the poromboke land. The units have preferred appeals before the Appellate Authority and the Appellate Authority by order dated 10.02.2009 directed the Board to grant Consent to the units. Consequently, Consent orders were issued to those 14 units. Applications filed by other 12 units were rejected as they are located in the Primary residential user zone. All those 12 units preferred appeals before the Appellate Authority and those appeals are pending with the Appellate Authority. Out of remaining 20 units, 19 units have applied for consent and their applications were rejected by the Board and one unit has vacated the premises. During subsequent inspections, it was found that they continued to operate without providing adequate APC measures. Hence, the Board issued directions under Section 31 A of the Air (Prevention and Control of Pollution) Act 1981 dated 04.10.2012, for closure and disconnection of power supply to 20 stone crushing units, which have not applied for the Consent of the Board and not provided adequate APC measures. Power supply to 19 stone crushing units was dis-connected on 23.04.2013 by TNEB and one unit dismantled the machineries and vacated the premises. In the meantime, a complaint was received from Pammal Sri Sankara Nagar females, children & senior citizens through Chief Minister Special Cell regarding dust and noise pollution due to the operation of the stone crushing units. During inspection it was noticed that all the 49 stone crushing units were in operation. To ascertain the impact of Air Pollution to the nearby residences, it was decided to conduct Ambient Air Quality (AAQ) survey in the vicinity of the cluster and in the complainant area. The AAQ survey was conducted on 28.01.2013 when the units were in operation and on 29.01.2013, when the units were not in operation. The report of the Analysis of the Ambient Air Quality survey and Noise Level survey reveals that the level of PM10, while the stone crushing units are in operation, is comparatively higher than the AAQ standards prescribed in three stations in Southern, South Western and North Western directions. Regarding Ambient Noise Level (ANL) is concerned, the Leq is invariably higher than the ANL standards prescribed by the Board, when all the units were in operation.
It is thus clear that APC measures provided by the stone crushing units are not adequate to meet the standards prescribed by the Board. The Board by its proceedings dated 19.02.2013 issued directions to 17 stone crushing units which are having orders of consent to operate by providing APC measures as per NEERI norms under Section 31 A of the Air (Prevention and Pollution Control) Act 1981. Directions for closure and disconnection of power supply to 12 stone crushing units, whose applications for Consent were rejected, were issued and they preferred appeals before the Appellate Authority. By order dated 09.04.2013, the Tribunal directed to maintain Status Quo until further orders. It is contended that this respondent ordered for closure and disconnection of power supply to 32 stone crushing units, the power supply has been disconnected by TNEB to 19 stone crushing units and one unit has been dismantled. Remaining 12 stone crushing units have preferred appeals before the Tribunal and the Tribunal by its order dated 09.04.2013 directed to main Status Quo and hence, the power supply was not disconnected to these 12 units. All remaining 17 stone crushing units which are operating with the Consent of the Board, were issued directions under Section 31 A of the Air (Prevention and Pollution Control) Act 1981 to improve their APC measures as per NEERI norms. It is contended that the act of granting consent to 17 stone crushing units, rejection of consent in respect of other units is in accordance with the provisions of the Act. Similarly, directions for closure of the unit and disconnection of power supply to 32 units are issued in accordance with the provisions of the Act.
Respondents 9 to 21 filed a joint reply contending that they have been running their stone crushing units since 1995 or earlier. Some of the units have been established and running since 1964-65. There are totally 52 stone crushing units running in Kamarajapuram area since 1995 and some even prior to that. The Tamil Nadu Pollution Control Board issued B.P.Ms.No.609 dated 09.12.1992 fixing norms for location of new stone crushing units in the State of Tamil Nadu. Subsequently, pursuant to the orders passed by the Hon'ble Supreme Court in Civil Appeal No.10732 of 1995 dated 25.04.1996, and representations received from various stone crushing industries, the Tamil Nadu Pollution Control Board entrusted study to National Environmental Engineering Research Institute (NEERI), Nagpur to assess the performance of APC measures provided by the stone crushing industries and also arrive at the optimum distance from the National/State Highways and residential areas. NEERI conducted the study during September 1997 -October 1997 and submitted their report along with their recommendations. During the said study period, the functioning of the 52 units situated in Kamarajapuram, Pammal village were monitored and assessed as a bench mark for the entire State. NEERI made several recommendations including advisable distance between crushers and cluster of crushers, formation of green belt, etc. NEERI left open the issue relating to minimum distance criteria for new / proposed crushers near State or National Highways to be fixed by the appropriate authority. The Board accepted the recommendations of the NEERI and passed B.P.Ms.No.48 dated 09.09.1998 whereby revised norms for location of new stone crushers were fixed. It was decided that in future, in respect of residential area no stone crushing industry will be allowed to run within 500 meters.
By a resolution dated 31.03.2003 the Pammal Town Panchayat resolved not to permit any construction upto a distance of 300 meters around Sengazhuneer, hillock considering the same as quarry site, following the guidelines stipulated in G.O.Ms.No.88 dated 18.10.2002. The subject of revision of norms for the location of stone crushing units that was recommended by NEERI was adopted by the Tamil Nadu Pollution Control Board by its resolution No.102-3-9 dated 22.12.2000. The recommendations were accepted for the existing stone crushing units and in respect of new units it stipulated a distance of 500 metres from the residential area. It was stipulated that the same should be located atleast 500 metres away from habitations. Thereafter, B.P.Ms.No.4 dated 02.07.2004 was issued by the Board stipulating further norms relating to location of stone crushing units.
It has been clearly stated in B.P.Ms.No.4 dated 02.07.2004 that norms prescribed in B.P.Ms.No.609 dated 09.12.1992 have been relaxed in B.P.Ms.No.48 dated 09.09.1998 based on the studies conducted by NEERI in respect of the existing stone crushing units. It is further stated in B.P.Ms.No.4 that B.P.Ms.No.48 dated 09.09.1998 has stipulated a specific criteria of 500 metres from the residential area in respect of new stone crushing units. It is also stated that B.P.Ms.No.48 did not provide any distance criteria from National Highways / State Highways. Therefore, B.P.Ms.No.4 proceeded to fix distance criteria for existing stone crushing units in a cluster of 50 crushers to 300 metres from habitations or National Highways or State Highways. The said proceedings has taken into account the date of the order of Hon'ble Supreme Court dated 10.05.1999 as the relevant date to determine whether an unit is an existing one or a new unit. At the time when the existing units were running their operations in the year 1995 and beyond, there were neither any residential habitation nor any National or State Highways at a distance of 300 metre from the location of the stone crusher unit. A resolution was passed on 31.03.2003 prohibiting constructions upto a distance of 300 metres from Sengazhuneer hillock. On 25.02.2007, the Pammal Municipality passed resolution that no building permission should be given in 300 meters radius in and around the stone crushing units. Therefore, any development in the form of residential habitation after 2003, is clearly not approved. Moreover, in respect of existing units the distance criteria mentioned in B.P.Ms.No.4 cannot be applied, as they fall under a completely different category.
A Division Bench of the Hon'ble High Court of Madras, while dealing with the application of B.P.Ms.No.4 dated 02.07.2004 has clearly observed in Parvathamma Granites case that the issue will be entirely different in the case of stone crushing units established prior to the said Board proceedings. It is also contended that the entire Sankara Nagar and other layouts in and around Pammal Village are all unapproved and have mushroomed in recent years unmindful of the industrial activity being carried on in the locality already. Such illegal habitations cannot claim the benefit of B.P.Ms.No.4 even assuming that subsequently such development of residential layouts have been approved by the appropriate authority. Such approvals do not have the sanction of law, as layouts could not have been formed at all in the said area that was originally classified as industrial area. Therefore, no distance criteria can be applied based on such habitations that have been approved much later to the establishment of the stone crushing units. It is contended that the development of layouts at a subsequent point of time cannot take away the rights to run stone crushing units that have been vested with the appellants and other units for so many years. The reference to the Master Plan of the CMDA issued in proceedings dated 28.04.2008 classifying the area as primary residential zone is also not applicable in view of the fact that the units of the respondents had been in existence much prior to the preparation of second Master Plan. It is also contended that appeals challenging refusal to grant Consent, and the orders for closure of the units when the appeals against rejection of application for consent were challenged before the Appellate Authority, are all pending before the Tribunal. The applicant has not addressed the issue vis-a-vis the doctrine of sustainable development. It is contended that as these respondents are running the stone crushing units for several years by following all pollution control norms, they shall not be disturbed. They had undertaken to abide by any conditions that may be prescribed by the Pollution Control board or the Tribunal. It is, therefore, contended that the application be dismissed.
The appellants in Appeal Nos.4 of 2012, 5 of 2012, 6 of 2012 and 7 of 2012 applied for Consent to operate before the Tamil Nadu Pollution Control Board (Board) on 05.07.2010 and 08.07.2010 respectively. Units were inspected by the Board on 10.07.2010 and thereafter, by order dated 16.07.2010, Consent was refused by the Board. The above appeals were filed challenging the order dated 16.07.2010 before the Tribunal as the Appellate Authority was not in existence to challenge the order in appeal at that time.
The applications filed for Consent to Operate by the appellants in Appeal Nos.47, 49, 55, 57, 58, 60, 61, 63, 64, 65, 67, 68, 70, 71, 74, 75, 77, 78, 79, 81, 84 and 86 of 2016 were rejected by the Board on 03.09.2010. Challenging the rejection order, they filed appeals, before the Appellate Authority as Appeal Nos.137 of 2010, 138 of 2010, 140 of 2010, 139 of 2010, 142 of 2010, 141 of 2010, 121 of 2010, 122 of 2010,124 of 2010, 123 of 2010 , 135 of 2010, 136 of 2010, 125 of 2010, 126 of 2010, 127 of 2010, 128 of 2010, 130 of 2010, 129 of 2010, 134 of 2010, 133 of 2010, 132 of 2010 and 131 of 2010 respectively.
While these appeals were pending, closure orders were issued by the Board on 19.02.2013 based on an inspection, finding that the said units are operating without Consent to Operate. The appellants challenged those orders before the Tribunal without approaching the Appellate Authority Though originally the Tribunal passed an interim order directing to maintain Status Quo, later the appeals were dismissed directing the Appellate Authority to dispose of the pending appeals before it and also holding that the appellants before the Tribunal are not entitled to bypass the Appellate Authority and approach the Tribunal directly.
The appellants, thereafter filed appeals before the Appellate Authority in Appeal Nos.48, 56, 59, 62, 66, 69, 72, 73, 76, 80 and 85 of 2016 are filed challenging the orders of the Appellate Authority confirming the closure order of the Board dated 19.02.2013. All those appeals were heard along with the other appeals filed challenging the orders of rejection of the applications for grant of Consent to Operate. The appellate Authority by a common order, dismissed all the appeals challenging the rejection orders and all the closure orders. Aggrieved by the same, these appeals are filed challenging the order of the Appellate Authority confirming the rejection of the application for grant of consent to operate both under Air (Prevention and Control of Pollution) Act 1981 and Water (Prevention and Control of Pollution) Act 1974 and also against the dismissal of the appeals challenging the orders for closure of the units.
Applications filed for grant of Consent to Operate by the appellants in 50, 51, 52,53, 82, 83, 87, 88, 91, 92, 93, 94, 95, 96,97 and 98 of 2016 were rejected by the Pollution Control Board by order dated 26.03.2013. Those orders were challenged before the Appellate Authority in Appeal Nos. 44/15, 45/15, 46/16, 47/15, 35/15, 34/15, 42/15, 43/15, 30/15, 31/15, 40/15, 41/15, 39/15, 38/15, 36/15, 37/15 respectively. Those appeals were dismissed by the Appellate Authority on 27.01.2016. Challenging the order of the Appellate Authority, Appeal Nos. 50 to 53 of 2016, 83/16, 87 & 88 of 2016 and 91 to 98 of 2016 were filed before this Tribunal.
Challenging the order of the Board dated 02.04.2013, rejecting the applications for grant of Consent, the appellants in Appeal Nos. 89 and 90 of 2016 have filed Appeal Nos. 33 of 2015 and 32 of 2015 respectively before the Appellate Authority. The appellate authority dismissed both the appeals confirming the orders of the Board. Challenging the dismissal orders of the appellate authority, Appeal Nos. 89 and 90 of 2016 have been filed before this Tribunal.
Thus in all 55 appeals were filed before the Tribunal. Of these, 44 appeals are challenging the orders passed by the Appellate Authority, conforming the orders of the Pollution Control Board in appeals challenging the order passed by the Board rejecting the application filed by the units in 2010 and 2013, for Consent to Operate. The remaining 11 appeals are filed challenging the orders passed by the Appellate Authority confirming the orders of closure of units passed by the Board for operating the stone crushing units without the necessary Consent under the Air (Prevention and Control of Pollution) Act 1981 and Water (Prevention and Control of Pollution) Act 1974.
The case of the original applicant is that though the stone crusher units do not have the required Consent to operate complying with the parameters provided by the Board, under the Air (Prevention and Control of Pollution) Act 1981 and Water (Prevention and Control of Pollution) Act 1974, the appellants/industries and other industries are functioning illegally and thereby cause serious pollution of the Air and water. The contesting respondents in the Original Application who got themselves impleaded, would contend that they have been granted orders of Consent and hence, if aggrieved, the remedy of the applicant is to challenge the orders granting Consent. But with regard to those industries, who do not have the required Consent under the Air (Prevention and Control of Pollution) Act 1981 and Water (Prevention and Control of Pollution) Act 1974 and whose applications for Consent from the Pollution Control Board have been rejected, their right to operate, depend on the success of the appeals preferred by them challenging the orders of the Appellate Authority confirming the orders rejecting the applications for Consent.
Mr.Viswanthan, the learned counsel appearing for the appellants vehemently argued that the disputed stone crushers situated at Kamarajapuram of Pammal village are all mini stone crushers as major part of the stone crushing operations has been done manually and it is not a fully mechanised stone crushers. Since the said stone crushers are mini-stone crushers, the air pollution level will be less than that of fully mechanised stone crushing units. It was also argued that while considering the pollution level caused by the running of the stone crushing units, two important elements are to be looked into. They are dust containment and dust suppression. For dust containment water sprinklers have been installed and for dust suppression, green belt area has been developed. It is argued that the TNPCB cannot simply state that since the units are having no consent, they cannot run the same. The argument was that even during 1997 and 2001, the stone crushing units were asked to install all necessary Air Pollution Control (APC) measures by the TNPCB and the appellants/units have installed APC measures during 1997-2002. It was also pointed out that NEERI conducted a study of the stone crushing units in question, in Kamarajapuram and came out with guidelines and the same was accepted by the Board. It is not in the interest of justice, the TNPCB ordered closure of the stone crushing units, when NEERI did not recommend to close down the units. It was argued that in fact, NEERI used the data collected from the appellants/units for the study and to give the recommendations. The learned counsel also argued that the fact that Chennai Metropolitan Development Authority (CMDA) Master Plan classified the area near the stone crushing units as Primary Residential area, will not dis-entitle the stone crushers/units from operating, as the Master Plan will not affect the existing units. It was argued that moreover, the local body, after the findings of NEERI, categorically passed resolution in 2003 that there should not be any approval for construction of building within 300 meters from the stone crushing units and the buildings situated within 300 meters from the stone crushing units are not approved the residential units. It was also argued the bypass road NH45 was laid only during 2003-2005, much after the establishment of the stone crushing units by the appellants and some of them were in existence since 1962. Learned counsel also argued that appellants are prepared to install any APC measures, if the APC measures already undertaken by them are not sufficient to attain the environmental requirements and therefore, the orders passed by the TNPCB to close the units are to be set aside and the TNPCB shall be directed to grant the Consent under the Air (Prevention and Control of Pollution) Act 1981 and Water (Prevention and Control of Pollution) Act 1974, sought for by the respective appellants.
Learned counsel appearing for respondents 9 to 21 also reiterated the above arguments and in addition, contended that those respondents have already obtained Consent from the TNPCB and the orders of Consent have been renewed till 2017/2018 and therefore, their units are not operating illegally and if at all the applicant is aggrieved by the orders of consent granted, the remedy is to challenge the consent order in accordance with law.
Learned counsel appearing for the respondent, TNPCB argued that none of the appellants/industries have obtained Consent of the Board under Air (Prevention and Control of Pollution) Act 1981 and Water (Prevention and Control of Pollution) Act 1974, and even, if they were operating without a valid Consent, in the eye of law, they are not existing units and therefore, they are not entitled to contend that they are not bound to obey the directions of the Board.
Learned counsel pointed out that though the appellants/units applied for Consent in 2010 or 2013, none of them could be treated as existing units as they could 'exist legally' only if they have all the legally required permission, licences and consent. It was pointed out that all the stone crushing units operating in Pammal village including the appellants are located in a cluster. Therefore, as provided in B.P.Ms.No.4 dated 02.07.2004, the distance criteria for the existing stone crushing units located in cluster should be more than 300 meters, from the habitations/National Highway/State Highway. As all the appellant stone crushing units are within a distance of 300 meters from the habitation, Consent cannot be granted. So also, the stone crushing units are located within 300 metres from the NH 45 bypass road. It is therefore argued by the learned counsel that the Board rejected the applications submitted by stone crushers for Consent. Learned counsel also argued that when the appellants challenged the orders refusing to grant Consent before the Appellate Authority, during the pendency of the said appeals, units were inspected by the officials of the Board, and found that the units were operating without necessary Consent. As none of them could legally operate without valid consent under the Air (Protection and Control of Pollution) Act 1981 and water (Protection and Control of Pollution) Act 1974, the Board directed to close the units by separate orders which were also challenged and as none of appellants/units are having valid Consent, they cannot be allowed to operate and therefore, all the appeals are only to be dismissed.
By B.P.Ms.142 dated 10.10.1986, the TNPCB fixed the norms for location of new stone crushing units in the State of Tamil Nadu, finding that the stone crushing units generate considerable dust and the Central Pollution Control Board (CPCB) conducted an Ambient Air Quality (AAQ) survey in and around various stone crushing units in Haryana State and suggested remedial measures and the TNPCB decided to adopt the following norms fixed by CPCB:
No stone crushers should be located within two kms from any National and State Highways;
The distance between two stone crushers should be 4 kms to avoid dust pollution influence of one over the other.
If for other pressing reasons more than one stone crushers are required to come in existence, then they should be as much close to each other as may be permitted without causing difficulty in operation. In such a situation, the source would be recognized as a collective one and the distance is to be estimated accordingly."
The Tamil Nadu Pollution Control Board by B.P.Ms.No.609 dated 09.12.1992 based on the report of analysis of AAQ survey conducted for one of the stone crushing units locating the AAQ stations at various distances from the sources for Suspended Particulate Matter concentration, re-fixed the norms earlier fixed under B.P.M.142 dated 10.10.1986 as follows:
No stone crushing units should be located within 500 m from any National Highway or State Highway or primary residential area or mixed residential area or placed of public and religious importance.
The minimum distance between two stone crushers should 1 km to avoid dust pollutional influence of over the other."
Based on the decision of the Hon'ble Supreme Court dated 25.04.1996 in Civil Appeal No.10732 of 1995 upholding the judgment of the Hon'ble High Court of Madras, banning the operation of stone crushers and quarries within the radius of 500 meters of the residential area and the study conducted by the NEERI and its recommendations, by B.P.Ms.No.48 dated 09.09.1998, the TNPCB accepted the recommendations of the NEERI with regard to the norms for APC measures to be provided by the stone crushing units and the distance criteria from the National Highways/State Highways. But the recommendation with regard to the residential area was not accepted as such. The relevant portion of the B.P.No.48 dated 09.09.1998 reads:
" The Board in Resolution No.166-3-2 dated 19.08.1998 decided to accept the recommendations of National Environmental Engineering Research Institute (NEERI), Nagpur based on the stud conducted by the Institute to assess the dust emission from the Stone Crushing Industry and to arrive at the norms for the Air Pollution Control Measures to be provided by the Stone Crushing Units and the distance criteria from the National Highways, State Highways and the Residential Areas and decided to accept the following norms:
All the stone crushing units should provide Air Pollution Control Measures as suggested by the National Productivity Council.
If the distance between two crushers is more than 100 meters, it will be considered as a single crusher. If the distance between the crusher boundaries is less than 100 metres, it will be considered as a cluster.
The distance between the crusher boundaries and the boundary of the National/State Highways shall be as specified below.
Sl. No.
Cluster of Crushers
Distance between Crusher/Cluster
Green belt area Of the periphery
1.
Single Crusher
50 mts
10 mts
2.
10 Crushers
150 mts
30 mts
3.
25 Crushers
250 mts
60 mts
4.
50 crushers
30 mts
100 mts.
Note:
(a) There should be bilane road system to approach the crushers.
(b) Within the cluster a minimum distance of 20 meters should be made for roads.
(c) The crusher boundary implied the line joining all the emission sources such as jaw crusher, conveyer belt, head, rotary screen etc. in the crushing unit.
(d) Existing crushers, which are near the National or State Highways and not meeting the above criteria should provide a 15 to 20 feet wall on all the three sides (Parallel to National/State Highways and both the sides) and upto the length to be stipulated on the alignment of road and boundary of the crusher.
(e) In respect of Residential area, No stone crushing industries are to be allowed to operate within 500 meters from Residential areas as per the orders of Honourable Supreme Court of India in the Civil Appeal No.10732/1995 dated 25.04.1996.
The Board also decided that health aspects of the employees exposed to the stone crushing units must also be carried out in consultation with the Director of Public Health and Preventive Medicines."
Therefore, it is clear from Board Proceedings dated 09.09.1998 that the norms provided in B.P.Ms.No.48 shall prevail with regard to the establishment of any new stone crushing units. But, the norms for location of the stone crushing units were again refixed by B.P.Ms.No.4, dated 02.07.2004. The said proceedings makes it absolutely clear that in the order dated 10.05.1999, the Hon'ble Supreme Court issued directions in SLP.(C) No.13564 of 1998 that the existing stone crushers, which have valid licenses are permitted to carry out their work subject to complying with the conditions of the report of NEERI and later by order dated 08.08.2000, the Supreme Court in the same SLP has clarified that the earlier decision is confined to the facts of that case and will not stand in the way of the Pollution Control Board/State Government to reconsider the amendment of Notification and or resolution or rule as the case may be and option is given to take into consideration the earlier Expert Committee report dated 03.07.1991 and also NEERI report for framing appropriate Rule.
The Government order also shows that by resolution No.102-3-9 dated 22.12.2000 it was decided to adopt the NEERI recommendations in case of existing stone crushing industries and in case of new stone crushing industries, it should be located at least 500 meters away from habitations as per recommendations of the Expert Committee. Though the Board has adopted the norms for new stone crusher units as per B.P.Ms.No.609 dated 09.12.1992, for existing stone crushing units, the norms stipulated in B.P.Ms.No.48 dated 09.09.1998 was adopted. But, considering the fact that the above B.P.48 was issued based on the studies on the existing stone crushing units who have given representation to relax the norms stipulated in B.P.Ms.No.609 dated 09.12.1992, in B.P.Ms.No.48 it was strictly ordered that no new stone crushing units should be allowed to operate within 500 meters from the residential area. As B.P.Ms.No.48 was silent on the distance criteria for new stone crushing units from National Highway and State Highway, the distance criteria for new stone crusher units fixed in B.P.Ms.No.609 was continued to be adopted by the Board. Taking into consideration the decision of the Appellate Authority dated 03.03.2004, that new norms was fixed for existing and proposed or new units and it was never the intention to maintain the norms fixed in B.P.Ms.609 dated 09.12.1992 and therefore, is to be considered under B.P.Ms.48, by which it was not clearly specified that the relaxation is applicable to the existing stone crushing units only, which has resulted in allowing mushrooming of new stone crushing units near the National Highway / State Highway, affecting the visibility of the motorists and health of the public, it was decided to remove the ambiguity. Thus, following the recommendation of the NEERI, new criteria for existing stone crushing units were fixed as follows.
" Distance Criteria
SI. No
Type of Clusters
Distance between crusher / cluster of crushers and habitations / NN or SH
Green belt area at the periphery
1.
Single crusher
50 mts.
10 mts.
2.
10 crushers
150 mts.
30 mts.
3.
50 crushers
250 mts.
50 mts.
4.
50 crushers
300 mts.
100 mts.
Note:-
(a) For single crusher, the distance is to be measured from crusher boundary.
(b) In the case of cluster of crushers the distance is to be measured from the last crusher boundary.
(c) The crusher boundary implies the line joining all the emission sources in the crushing unit such as jaw crusher, conveyer belt, head, Rotary screen etc.,
1.1 If the distance between two existing crushers us more than 100 metres, it will be considered as a single crusher. If the distance between the existing crusher boundaries is less than 100 meters, it will be considered as a cluster.
1.3 Existing crushers, which are near the National or State highways and not meeting the distance criteria should provide a 15 to 20 feet wall on all the three sides (parallel to National / State highways and both sides) and upto the length to be stipulated on the alignment of road and boundary of the crusher in addition to the air pollution control measures.
Explanation
Existing stone crushing units are those which have valid licenses on the date of Supreme Court order namely 10.05.1999.
2.0 CRITERIA FOR NEW / PROPOSED STONE
CRUSHING UNITS
2.1 No new / proposed stone crushers should be located within 500 metres from any National highways or State highways of 'inhabited site' or places of public and religious importance.
Note:-
'Inhabited site' shall mean a village site or town site or a house site as referred to in the revenue records or a house site or layout approved by a Local Body or Town or Country or Metropolitan Planning Authority, where the said Body or Authority is created under a statue and empowered to approve such an area as a house site or layout area (as desired in Rule 35 of Tamilnadu Minor Minerals Concession Rules, 1959).
2.2 The minimum distance between new / proposed stone crushers should be 1 km to avoid dust pollutional influence of one over the other.
2.3 Green belt development:
The stone - crushing unit shall provide adequate green belt cover around the periphery as suggested by the Board depending on site and meteorological conditions.
3.0 AIR POLLUTION CONTROL MEASURES
3.1 The existing and new / proposed stone crushing units should provide dust containment and dust suppression systems suggested by National Productivity Council as furnished in Annexure - I and should also adhere to the recommendations furnished in NEERI Report (vide Annexure - II).
The above consolidated proposal of earlier B.P.Ms.No. 609, dated 09.12.1992 and B.P.Ms.No. 48, dated 09.09.98 is contemplated to make clear the decisions of the Board regarding the siting criteria of the existing and new / proposed stone crushing units and hence this proposal may take effect from 10.05.1999, the date of Supreme Court order defining existing stone crushing units."
It is thus clear that there is no ambiguity subsequent to B.P.Ms.No.4 dated 02.07.2004. As per the new norms, the existing stone crushing units can only be those units which have valid licences on 10.05.1999. So also it is clear that 'inhabited site' means a village site or town site or a house site as referred to in the revenue records or a house site or a layout approved by the local authority or town or country or metropolitan planning authority who are empowered to approve such area to such house site or lay out area.
If the appellants units were existing as on 10.05.1999, the arguments of the learned counsel appearing for the appellants are to be accepted. The question is whether, stone crushing units which were operating without any legal requirements can be taken as existing units for the purpose of applying B P Ms.4 dated 02.07.2004.
It cannot be disputed that no stone crushing units could legally exist and operate without having the necessary Consent under the Air (Prevention and Control of Pollution) Act, 1981 and Water (Prevention and Control of Pollution) Act, 1974 from the TNPCB. There should be a Consent to establish and a Consent to Operate. Admittedly, none of the appellants units have even applied, much less obtained Consent to Establish. Though they have filed applications for grant of Consent to Operate, all those applications were, admittedly, filed much after B.P.No.4 dated 02.07.2004. Even though the arguments of the learned counsel appearing for appellants is to be accepted and the residential units came into existence after 2003, the records produced by the appellants units show that CMDA itself pointed out that residential houses were in existence much prior to the filing of the applications for Consent. It is not disputed that if the distance from those residential area is taken into consideration, it would offend the siting criteria fixed for stone crushing units from the inhabited sites fixed under B.P.Ms.4 dated 02.07.2004. If that be so, the Board is fully justified in refusing to grant the Consent applied to operate the stone crushing units by the appellants. So also, as none of the appellants units are entitled to operate without a valid Consent, the orders passed by the Board directing closure of the units are perfectly in order.
We find that the Appellate Authority had properly considered all the relevant aspects in proper perspective and dismissed the appeals holding that the distance criteria fixed in B.P.Ms.4 dated 02.07.2004 is applicable to the appellants/units as all of them have applied for Consent to Operate only more than 5 years after B.P.Ms.4 dated 02.07.2004 came into existence.
The learned counsel appearing for the appellants vehemently argued that the appellants units have spent lot of money for the establishment of the units and are employing thousands of labourers and if they are not permitted to work, it would cause serious loss to the units and its employers and for sustainable development, the appellants are prepared to install all the required necessary stringent APC measures and they be permitted to operate. It was also pointed out that even the NEERI had based its recommendations on the study conducted on the appellants units and hence a liberal view is to be taken. we cannot hold that the appellants units can be permitted to operate without a valid Consent from the TNPCB. When the siting criteria fixed by B.P.Ms.No.4 is applicable to the appellants, who admittedly did not have a consent to operate either before 10.05.1999 or even on 02.07.2014, but had applied for Consent to Operate for the first time only in the year 2010 or thereafter, the appellants units are not entitled to contend that siting parameters are not applicable to them. We cannot agree that by installing the stringent APC measures, the appellants could be permitted to Operate in violation of the law. Therefore, we find no merit in the appeals.
In view of the above findings, it can only be found in application No.33 of 2013 that the official respondents are bound to close all the units illegally operating in the area as they are not entitled to operate without valid Consent under Air (Prevention and Control of Pollution) Act 1981 and Water (Prevention and Control of Pollution) Act 1974. From the records, it is clear that the TNPCB had already passed orders for closure of those units. If any other units are operating without the necessary required Consent under the Air (Prevention and Control of Pollution) Act, 1981 and Water (Prevention and Control of Pollution) Act, 1974, the Board to take immediate action to close them.
As regards the units which are having valid Consent issued by the Board, they are entitled to operate subject to the compliance of strict APC measures. If they are found operating in violation of the APC measures, the Board shall take immediate action to close them. If the Applicant in Original Application 33 of 2013 is aggrieved by any of the orders granting Consent to Operate to stone crushing units, they have to challenge the same in accordance with law.
The Original Application and Appeals are disposed as follows:
The Original Application No.33 of 2013 is disposed of directing respondents 1,2 and 8 to close all the stone crushing units operating in Pammal Municipality of Tambaram Taluk of Kancheepuram District, without the necessary orders of Consent under Air (Prevention and Control of Pollution) Act, 1981 and Water (Prevention and Control of Pollution) Act, 1974. The parties to bear their respective costs.
All the Appeals are dismissed confirming the orders of the Appellate Authority and the Tamil Nadu Pollution Control Board. Parties to bear their respective costs.