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Judgment
The Application No. 73 of 2013 (SZ) is filed by the applicant herein seeking Tamil Nadu Pollution Control Board (Board) and the District Environmental Engineer (DEE), Coimbatore South shown as 1st and 2nd respondents to revoke the Consent Order granted to the 4th respondent Sri Gokulam Blue Metals and issue closure order to close the 4th respondent's stone crushing unit described in the Application, while the said applicant has also filed Review Application No. 2 of 2013 (SZ) to review the final judgment made by the Tribunal in Appeal No. 42 of 2013 (SZ) dated 12.07.2013. The Review Applications No. 3 of 2013 (SZ) has been filed by two applicants who are third parties seeking review of the final judgment dated 12.07.2013 made in Appeal No. 42 of 2013 (SZ). The following would emerge as facts admitted.
The said Appeal No. 42 of 2013 (SZ) was filed by Shri Gokulam Blue Metals situate at Azhagu Nachiamman Koil Road, S.F.No. 3, Palathurai Village, Mdukkarai, Coimbatore South Taluk,, Coimbatore represented by its partner against the Board, DEE concerned and the Superintending Engineer, Tamil Nadu General Electricity Distribution Company (TANGEDCO) as respondents challenging a closure order issued by the 1st respondent Board dated 25.04.2013. On notice, the respondents entered appearance and contested the appeal. The Tribunal by a judgment dated 12.07.2013 closed the appeal and permitted the appellant to run the unit by recording a finding that the unit was entitled to run to its full capacity, of course, in accordance with law and as per the directions of the Board along with a direction to the Board to exercise its regulatory powers on the unit in respect of the direction given in the judgment within a period of 4 months. Aggrieved over the said judgment, both the R.A.Nos. 2 and 3 of 2013 have been filed. The 3rd party applicant in R.A. No. 2 of 2013 (SZ) has challenged the Consent Order dated 19.05.1995 granted by the 1st and 2nd respondents to the 4th respondent unit, namely, Shri Gokulam Blue Metals and also sought for closure of the unit along with disconnection of power supply.
Advancing the arguments on behalf of the applicant in Application No. 73 of 2013 (SZ), who is also the applicant in R.A. No. 2 of 2013 (SZ), the learned counsel would submit that he is an agriculturist residing at Palathurai Village and his lands are under cultivation which include coconut grove also. All the neighbouring lands of the applicant are also under cultivation. The lands in the said village and Madukkarai Village were brought under the Coimbatore Local Planning Authority in the Coimbatore City Master Plan 1994. The 4th respondent who is the appellant in Appeal No. 42 of 2013 (SZ) and a partnership firm established a stone crushing unit in the lands comprised in S.F. Nos. 3, 3/1, 3/1 A, and 3/1 B of Palathurai Village by obtaining renewal of Consent Order dated 02.05.2000. The said unit is within the prohibited distance of 500 m from existing Palathurai Village which is having more than 1,000 houses, an ancient Azhaghu Nachiamman Temple and an Engineering College. According to the Board norms pursuant to the order dated 30.11.1990 of the Hon'ble High Court, Madras (High Court), no stone crushing units shall be located within a distance of 500 m from any primary residential area or mixed residential area or place of public and religious importance. The Hon'ble Supreme Court of India in its order dated 10.05.1999 made in S.L.P.(C). No. 13564 of 1998 permitted only the crushing units who have valid licenses as on 10.05.1999 to comply with the conditions of National Environmental Engineering Research Institute (NEERI). The Board, in its B.P.Ms.No. 4 dated 02.07.2004 defined the 'existing crushing units' criteria as those which have valid licenses on the date of order of the Hon'ble Supreme Court viz., 10.05.1999 and it was also made clear that no new or proposed stone crushing unit should be located within 500 m from any National Highway (NH), State Highway (SH) or inhabited site or places of public and religious importance. Thus, in view of all the above, the 4th respondent unit is within the prohibited area. While it stood so, the 4th respondent drastically increased its production capacity by more than 10 times of the consented capacity as per the order of the Board and established a tar mixture plant and ready mix concrete plant without consent and license, thereby started emanating huge quantities of dust causing pollution and serious health hazards to the general public of Palathurai Village which is having a population of the village is around 4,000 and also affecting surrounding agriculture lands and livestock. The applicant and the villagers made a written representation to the Board on 06.02.2013 and 20.02.2013 to issue closure order to the 4th respondent crushing unit. Since the authorities failed to take appropriate action, the applicant approached the Tribunal by filing the Application No. 73 of 2013 (SZ) on 17.04.2013 seeking a direction to the Board to revoke the consent order given to the 4th respondent and issue closure order to the 4th respondent/Sri Gokulam Blue Metals and also a direction to disconnect power supply. In the meanwhile, the Board issued closure order dated 25.04.2013 to the 4th respondent unit on the ground of violation of certain norms of the Board, operation of hot mix plant and ready mix concrete plant without obtaining consent from the Board and on the complaints received against operation of the 4th respondent's unit. The 4th respondent challenged the said closure order before the Tribunal in Appeal No. 42 of 2013 (SZ) and an interim order to maintain status quo was passed by the Tribunal on 09.05.2013. When the application filed by the applicant herein in Application No. 73 of 2013 (SZ) came up for admission on 14.05.2013, the counsel for the 1st to 3rd respondents, namely, Board, DEE and TANGEDCO, respectively, took notice and the Tribunal ordered notice to the 4th respondent. On 28.06.2013, the notice was served on the 4th respondent crushing unit who entered appearance through his counsel on 03.07.2013. In Appeal No. 42 of 2013 (SZ) filed by the 4th respondent herein, the applicant herein was not made as a party, even though he made representation to the authorities for permanent closure of the 4th respondent's unit. Thus, the applicant herein is not aware of the appeal proceedings initiated by the 4th respondent herein before the Tribunal.
While the matter stood thus, when the Appeal No. 42 of 2013 (SZ) came up for further hearing before the Tribunal on 12.07.2013, neither the Board nor the 4th respondent brought to the notice of the Tribunal about the pendency of the Application No. 73 of 2013 (SZ) filed by the applicant herein and obtained an order of setting aside the closure order behind the back of the applicant herein. The Tribunal held that the 4th respondent's crushing unit is an existing unit on the basis of the submissions made by the Board, when the fact remains that the 4th respondent's unit is not an existing unit as on 10.05.1999 , i.e., the date of order of the Hon'ble Supreme Court of India. The applicant herein came to know about the orders passed in Appeal No. 42 of 2013 (SZ) only when the 4th respondent filed its reply affidavit on 18.07.2013. Immediately, the applicant herein filed a Review Application which is taken on file and numbered as R.A. No. 2 of 2013 (SZ) seeking the Tribunal that the said order made in Appeal No. 42 of 2013 (SZ) has to be reviewed and set aside on the ground that the 4th respondent and the Board have deliberately suppressed the pendency of the applicant's Application No. 73 of 2013 (SZ) for closure of the 4th respondent's unit as the same is functioning within the prohibited distance of 500 m and thus, the 4th respondent and the Board have played fraud on the Tribunal. The 4th respondent's crushing unit came to be established during the year 2000 and is operating within the prohibited distance of 500 m which is contrary to the Board's Proceedings in B.P.Ms.No. 4 dated 02.07.2004. The Tribunal has also rendered a finding that the 4th respondent's unit is admittedly an existing unit based on the submissions made by the Board which is contrary to the factual position since the unit was not in existence as on 10.05.1999 viz., the date of order of the Hon'ble Apex Court.
The learned counsel would further add that the contentions put forth by the 4th respondent that it has purchased the land and the crushing unit under sale deeds dated 30.05.1999 and 31.01.2001 from the applicant's brother and hence the applicant is estopped from raising objection with regard to the functioning of the crushing unit. What were sold by the applicant's brother P.S. Muthuramalingam in favour of K. Rajkumar under the sale deed dated 30.05.1999 are only agricultural lands and a farm house and there was no reference or recital whatsoever relating to transfer of any industrial building, structures or machinery thereon. Hence, there is no estoppel as against the applicant who is really one amongst those villagers affected by the enormous emission of air pollutant from the 4th respondent's unit, to approach the Tribunal seeking permanent closure of the unit. The Advocate Commissioner appointed by the Tribunal in his report has categorically stated that the distance between the felling point of 4th respondent's unit and the Azhagu Nachiamman Temple is 146.2 m, the distance between the felling point and the main building of Kalaivani College of Technology is 427.4 m and the distance between the felling point of 4th respondent's unit and the village is 477. 4 m. Thus, it would be quite clear that the crushing unit of the 4th respondent is situated within 500 m. The 4th respondent unit was not an existing unit as on 10.05.1999, i.e., the date of order of the Hon'ble Supreme Court. The order of consent to operate obtained by Ponnimaan Blue Metals on 19.05.1995 not only came to an end as early as on 31.03.1996, but also was not renewed thereafter. In the absence of any renewal of Consent between 01.04.1996 and 02.05.2000, the alleged order of renewal of consent dated 02.05.2000 in the name of the 4th respondent can be construed only as a fresh consent. The 4th respondent has not produced any document to establish that it had a valid license as on 10.05.1999. M/s. Ponnimaan Blue Metals and the 4th respondent which obtained the renewal on 02.05.2010 are different entities in law and the 4th respondent has not produced any document to show the transfer of assets and the licenses of Ponnimaan Blue Metals to 4th respondent, Sri Gokulam Blue Metals. Moreover, the 4th respondent, Sri Gokulam Blue Metals commenced its business only on 01.06.1999 under a partnership deed dated 01.06.1999 which was registered on 01.07.2000. Shri Rajkumar, after purchasing the vacant land from Muthuramalingam could have purchased crushing machines separately and established the crushing unit after entering into a partnership deed on 01.06.1999. The application for consent dated 27.04.2000 along with the documents would have to be construed only as a fresh application for consent to establish a new crushing unit since there was no crushing unit in existence either on 10.05.1999 or on the date of sale deeds. Thus, the finding recorded by the Tribunal in Appeal No. 42 of 2013 (SZ) that it was an existing unit is not in consonance with the factual position. Both the Board and the 4th respondent have purposefully and deliberately suppressed all the above material facts and hence played fraud on this Tribunal. Any order obtained by playing fraud on the Court is a nullity and non est in the eye of law as held by the Hon'ble Supreme Court in A.V. Papayya Sastry and others v. Government of Andhra Pradesh and others reported in 2007(4) SCC 221. Equally, the suppression of material fact would also amount to fraud on Court as held by the Hon'ble Apex Court in Meghamala and others v. G. Narasimha Reddy and others reported in 2010 (8) SCC 383. Hence, for the above reasons, the order made by the Tribunal in Appeal No. 42 of 2013 (SZ) has to be set aside and the appeal has to be dismissed by allowing the R.A. No. 2 of 2014 (SZ) and allow the Main Application No. 73 of 2013 (SZ) as prayed for.
The learned counsel appearing for R.A. No. 3 of 2013 (SZ) would contend that the Appeal No. 42 of 2013 (SZ) is not maintainable before the Tribunal since the said application was filed by the 4th respondent against an order of closure dated 20.05.2013 which could not be entertained by the Tribunal under Section 16 of the National Green Tribunal Act, 2010. The 4th respondent should have challenged the same before the Appellate Authority, Tamil Nadu Pollution Control under the relevant provisions of the Water (Prevention and Control of Pollution) Act, 1974 (Water Act) and Air (Prevention and Control of Pollution) Act, 1981 (Air Act). In order to substantiate his contentions, the learned counsel relied on the order datted 14.12.2011 made by the Tribunal in Application No. 30 of 2011 M/s. Athiappa Chemicals (P) Ltd., v. Pudhucherry Pollution Control Committee in which it was held as follows:
"Apart from this, against the impugned order, an appeal is provided under Section 31 of the Air Act as noticed above. Merely because the Appellate Authority under Section 31 of the Air Act conducts sittings periodically, this Tribunal cannot assume jurisdiction Under Section 14 of the NGT Act, 2010. The question of entertaining a Application under section 14 of the NGT Act, bypassing the effective appeal provided under Section 31 of the Air Act does not arise. In fact, against an order passed by the Appellate Authority under Section 31 of the Air Act, an appeal is provided under Section 16 (f) of the NGT Act which reads as under:
Tribunal to have Appellate jurisdiction: -- Any person aggrieved by .....
(f) "An order or decision made, on or after the commencement of the National Green Tribunal Act, 2010, by the Appellate Authority under Section 31 of the Air (Prevention and Control of Pollution) Act, 1981 (14 of 1981)".
Thus, entertaining an application of this nature amounts to allowing the applicant to jump the statutory appeal which is not permissible under law. Unless, the entire forum available under the Act are exhausted by the Applicant including the appeal under Section 31 of Air Act, it cannot approach this Tribunal directly - whatever may be the merits and the questions of Law raised and arise for consideration. This Tribunal being statutory in its nature, cannot entertain the Application of this nature much less any substantial question of law has arisen under Section 14 of the NGT Act for consideration. Therefore, we are of considered opinion that the Application is not maintainable and being devoid of merits and is liable to be dismissed".
The learned counsel also relied on the orders pronounced on 07.01.2013 in Application No. 4 of 2012 (SZ) in the matter of M/s. Ohm Sakthi Engineering Works v. The Chairman, Tamil Nadu Pollution Control Board and also on the following cases:
(i) Lazarus Estate Ltd. v. Besalay, 1956, All E.R. 349
(ii) Andhra Pradesh State Financial Corporation v. M/s. GAR Rerolling Mills and another, AIR 1994 SC 2151
(iii) State of Maharashtra and others v. Prabhu (1994) 2 SCC 481
(iv) Smt. Shrisht Dhawan V. M/s. Shaw Bros., AIR 1992 SC 1555
(v) The United India Insurance Co., Ltd., v. Rajendra Singh and others, AIR 2000 SC 1165
(vi) M.P. Mittal v. State of Haryana and others , AIR 1984 SC 1888
(vii) Ram Chandra Singh v. Savitri Devi and others, AIR 2004 SC 4096
(viii) Vice Chairman, Kendriya Vidyalaya Sangathan and another v. Girdharilal Yadav, (2004) 6 SCC 325.
The 4th respondent, when he preferred the appeal has made fraudulent and misrepresentation of facts and has played fraud on Tribunal. The judgment has got to be reviewed by the Tribunal as held by the Hon'ble Apex Court in Vice Chairman, Kendriya Vidyalaya Sangathan and another v. Girdharilal Yadav, (2004) 6 SCC 325.
According to the counsel, it is an admitted fact that the Application No. 73 of 2013 (SZ) is pending on the file of the Tribunal in which the Board and the 4th respondent have obtained an order in Appeal No. 42 of 2013 (SZ). Thus, the 4th respondent has failed in his duty and has not come with clean hands. The Tribunal alone can decide whether the Application No. 73 of 2013 (SZ) and Appeal No. 42 of 2013 (SZ) to be heard together or not and it is not for the 4th respondent to decide the same. The 4th respondent did not have a valid consent to operate. While so, the order of the Tribunal amounts to extension of consent to the 4th respondent which cannot be done. The Tribunal, on the strength of the report on the Expert allowed the 4th respondent to function without considering the legality of the functioning of the 4th respondent since the 4th respondent did not have a valid consent. The contention put forth by the 4th respondent that review applicants were relatives and hence they have filed the Review Applications with vested interest which has got to be rejected as irrelevant since the said fact did not affect the merits of the case. The 4th respondent unit was not an existing crusher unit as on 10.05.1999, i.e., the date of order made by the Hon'ble Apex Court. In view of the Board's Proceedings No. 4 of 2004 based on the order of the Hon'ble Supreme Court of India, the unit of 4th respondent unit was not an existing unit. To qualify as an existing unit, the stone crusher unit it must have been in legal existence on the date of Apex Court's order, i.e., with a valid consent from the Board under Water and Air Acts and other necessary permissions. It is well admitted by the 4th respondent that it applied for consent only on 27,04,2000 in its name and renewal was granted only on 03.05.2000. The Consent Order produced by the 4th respondent was valid only until 2003 and beyond that no consent orders have been produced. This would indicate that the 4th respondent is operating the unit in contravention of law. The only evidence relied on by the 4th respondent is a license from the Panchayat which document purported to show the office building but it does not show whether any license to run the unit was obtained. Even assuming for the sake of argument that the 4th respondent's unit is based on a running license, the same is not sufficient to show that the 4th respondent unit is a running unit. Hence, the case of the 4th respondent that he was not amenable to siting criteria as though of a pre-existing unit has to be rejected. The 4th respondent unit is located within 500 m from the residences, a college and temples and other areas of public utility. The Tribunal without considering all the above aspects have allowed the appeal. Hence, the judgment made in Appeal No. 42 of 2013 (SZ) has to be reviewed and set aside.
Countering all the above contentions put forth by the applicants' side in R.A.Nos 2 and 3 of 2013 (SZ) and also Application No. 73 of 2013 (SZ) the learned counsel for the 4th respondent Shri Gokulam Blue Metals would submit that the review applications are not maintainable and they are to be dismissed. Pointing to the documents relied on by both sides the counsel would contend that the stone crusher unit was set up by a member of the applicants' family before a long time and they sold the crusher unit along with the lands to the 4th respondent and thus it was an existing unit and hence, the B.P.Ms.No. 4 of 2004 has no application in view of the permission granted by the Hon'ble Apex Court in S.L.P (C) .No. 13564 of 1998 dated 10.05.1999. After obtaining renewal of consent order dated 02.05.2000, the 4th respondent partnership firm established the stone crushing unit when the Board issued a closure order dated 25.04.2013 on the ground of violation of Board norms. This respondent preferred the Appeal No. 42 of 2013 (SZ) which was filed against the Board since the 4th respondent was aggrieved against the order of the Board. There was no need to implead the review applicants as they were not necessary parties to those proceedings. The Tribunal appointed a Single Member Expert Committee in M. A. No. 93 of 2013 (SZ) by an order dated 09.05.2013 and based on the report and recommendations of the Expert, the Tribunal disposed of the Appeal by setting aside the closure order and directions to the 4th respondent unit to comply with the recommendations of the Single Member Expert Committee and granted four months time and all the recommendations of the Committee were complied with by spending Rs. Forty Lakhs.
Neither this respondent/appellant nor the Board suppressed any fact as contended by the applicants. The Tribunal was perfectly correct in holding the unit of the 4th respondent is an existing unit for which Consent to Operate was issued by the Board on 19.05.1995. All the applicants are members of the same family and with an ulterior motive and with a view that the existence of the crushing unit of the 4th respondent stands as an impediment to their plan to plot out their lands which are adjacent to the unit, they have come up with all untenable allegations. Hence, all the applications have to be dismissed.
The Tribunal paid its anxious consideration on the submissions made by the counsel on either side and also made a thorough scrutiny of the documentary evidences.
As noticed above, the applicant in Application No. 73 of 2013 (SZ) and R.A. No. 2 of 2013 (SZ) have sought for the revocation of the Consent Order granted to the 4th respondent Shri Gokulam Blue Metals by the Board and also direction for the closure of the 4th respondent's unit and disconnection of power supply. At the outset, it has to be pointed out that both the Application No. 73 of 2013 (SZ) seeking the above reliefs and also seeking review of the judgment made in Appeal No. 42 of 2013 (SZ) preferred by the 4th respondent Shri Gokulam Blue Metals have been filed by one P.S. Ravindranath, S/o. P.C. Sivasami of Palathurai Village in his individual capacity and not representing the villagers. Equally, the R.A. No. 3 of 2013 (SZ) is also filed by the P.S. Jayachandran, S/o P.C. Sivasamy of Palathurai village complaining of unbearable air pollution due to the dust emanating from the 4th respondent's crushing unit and also the health hazards to the general population of Palathurai village having 4000 persons and also affecting surrounding agricultural lands and livestock. The applicants have sought for revocation of the Consent granted in favour of the 4th respondent's unit mainly on the ground that it is situate within the prohibited distance of 500 m as envisaged under Board's Proceedings in B.P.Ms.No. 4 dated 02.07.2004. It is also pleaded by the applicant that the said unit is situate within the prohibited distance of 500 m from Palathurai village where there are 1000 houses , ancient temple, Engineering College etc. The main defence of the 4th respondent is that the B.P.Ms.No. 4 dated 02.07.2004 has no application to the unit of the 4th respondent since it is an existing unit even in the year 1999 which was permitted to have the crushing operations as per the order of the Hon'ble Apex Court. Hence, the question that would arise is whether it is a new unit as contended by the applicant or an existing unit as contended by the 4th respondent.
It is the specific case of the 4th respondent that he did not set up or establish a fresh crushing unit but bought an existing stone crushing unit along with the lands from the family members of the review applicants, one of whom is the applicant in Application No. 73 of 2013 (SZ) during the year 1999. Flatly denying this case, the applicant would contend that what was sold by the applicant's brother P.S. Muthuramalingam in favour of Rajkumar under sale deed dated 30.05.1999 was only agricultural lands with a farm house and it has nothing to do with the crushing unit or machinery.
Admittedly, one Ponnimaan Blue Metals was carrying on its stone crushing operations in the site in question. A receipt found in page No. 117 of the Consolidated Paper Book filed by the applicant reads as follows:
RECEIPTS
PONNIMAAN METALS, DT.03.06.1999
PALATHURAI POST, COIMBATORE
MADUKKARAI VIA,
COIMBATORE 641 105
We,1. Shri P.S. Muthuramalingam S/O. S.Sivasamy Gounder, 2.Hari Hara Sudan S/O. Late Shri P.P.Ramalingam, 3. C.A. Nanjappan S/O. C.N.Arunachala Gounder, Partner of M/S. Ponnimaan Blue Metals do hereby jointly and severally and on behalf of PONNIMAAN BLUE METALS, do confirm receipt of Rs. 4, 20, 000/- (RUPEES FOUR LAKHS TWENTY THOUSAND) in full and final settlement towards sale of stone crushing machinery and accessories (Curser, Motor, Conveyor, Banger) belonging to the firm in cash. Any existing or future liability in respect of sale of this machinery shall be on our account only and it will not bind the buyer SHRI. R.KRISHNASWAMY in any manner whatsoever
for PONNIMAAN BLUE METALS
Sd/-
Partner
The above document would clearly indicate that what was sold was not only lands, but also stone crushing machinery and accessories like crusher, motor, conveyor and banger) belonging to the Ponnimaan Blue Metals for a consideration of Rs. 4.25 lakhs. The very recital of the document would thoroughly falsify the case of the applicant.
The document found in page No. 17 of the typeset of documents filed by the 4th respondent contains the Board's proceedings No. F. T4/F.1902/CBE/O/W/95 dated 19.05.1995 which would make it clear that it was an order of Consent to Operate issued in favour of Ponnimaan Blue Metals. A consent deed dated 03.06.1999 to the effect that the applicant's brother had no objection to the functioning of the crushing unit is found in page No. 46 of the consolidated common index to typeset of documents filed by the 4th respondent.
In pursuance of a communication by the 4th respondent dated 27.04.2000 to the Board regarding the name transfer of the existing stone crushing unit on the strength of the Consent to Operate issued by the Board on 19.05.1995, the DEE, Coimbatore of the Board has issued an amendment of name from Ponnimaan Blue Metals to Sri Gokulam Blue Metals as found in the communication in page No. 64 of the consolidated common index to typeset of documents filed by the 4th respondent which reads as follows:
"Consent to operate to the unit of M/s. Ponnimaan Blue Metals, S.F.No. 3 of Palathurai Village, Coimbatore South Taluk, Coimbatore District under Section 25 of Water (Prevention and Control of Pollution) Act, 1974 as amended vide reference first cited above for the operation of an Industrial Plant subject to the conditions.
The said unit has reported in its letter second cited in reference that the unit has changed its name and requested to issue necessary amendments.
The Assistant Engineer, Tamill Nadu Pollution Control Board, Coimbatore in his inspection report vide third cited reference recommended that necessary amendment may be issued to the unit for the name change.
Hence, as per Section 25 of the Water (Prevention and Control of Pollution) Act, 1974 as amended, the first proceedings cited above is hereby altered and to be read as follows:
Sri Gokulam Blue Metals
All other conditions mentioned in the consent order No. 12626 remain unaltered".
All the above would be indicative of the fact that the family members of the applicant who operated Ponnimaan Blue Metals with land and machinery have given no objection to carry on the crushing operation by the 4th respondent and on the strength of the same, the 4th respondent sought for a name transfer which was accordingly done and renewal of consent has also been ordered. Thus, without any hesitation, it can be held that it was an existing unit. Taking advantage of the fact that the unit did not have a renewal for a short period, the applicant cannot be permitted to say that the character of the unit as an existing unit would be lost for two reasons, firstly during the said brief period, there is nothing to show that the crusher was removed or dismantled or the activities were stopped and secondly, after the said brief, the application for renewal by the 4th respondent was considered and granted. Since there is sufficient evidence to show that the crushing unit of the 4th respondent was continuing its operation without any disruption and thus it was an existing unit during the relevant period, the B.P.Ms.No 4 speaking on the siting criteria cannot have any application to the 4th respondent unit.
It is admitted by the Board that the consent fee has all along been paid from the year 2000 onwards continuously after the consent was renewed in favour of the 4th respondent Sri Gokulam Blue Metals. It is not the case of the Board that any complaint was received from anybody alleging any kind of pollution caused by the 4th respondent's unit. It could be seen from the available materials that when the authorities of the Board made an inspection in February, 2013, they found that the 4th respondent had set up Hot Mix Plant and Ready Mix Concrete Plant without getting prior consent therefor. While the application seeking consent for the Hot Mix Plant and Ready Mix Concrete Plant were pending with the Board, a closure order was served on 25.04.2013 on the 4th respondent following a reply of the 4th respondent to the show cause notice dated 08.02.2013. Aggrieved over the same, the 4th respondent challenged the said order in Appeal No. 42 of 2013 (SZ) which is sought to be set aside.
All the three respondents entered appearance and filed their respective replies. The Tribunal appointed a Single Member Expert Committee which gave a detailed report after making an inspection of the unit. Accepting the report, the Tribunal gave a number of directions to the 4th respondent's unit in respect of precautionary and preventive measures to be taken which according to the 4th respondent have been complied with. It is not the case of the applicant that those directions were not complied with and also the Board has not disputed the compliance in the pending proceedings. The applicant in R.A. No. 2 of 2013 (SZ) who is the applicant in Application No. 73 of 2013 (SZ) cannot have any grievance since he was not impleaded as a party respondent in Appeal No. 42 of 2013 (SZ) as he was not a necessary party. Apart from that, the appellant therein was aggrieved by an order of the Board who should be given an opportunity of being heard as a respondent. Equally, the contention of the applicant that the pendency of Application No. 73 of 2013 (SZ) should have been brought to the notice of the Tribunal by the appellant therein or by the Board at the time of enquiry of Appeal No. 42 of 2013 (SZ) cannot be said to be forceful or a ground to review or set aside the judgement made in Appeal No. 42 of 2013 (SZ) for the simple reason that even the appellant in Appeal No. 42 of 2013 (SZ) had already challenged an order of closure of the unit made by the Board and what was sought for by the applicant in Application No. 73 of 2013 (SZ) was to revoke the consent already given. Apart from that, it is not open to the forum to re-appreciate the evidences and reach a different conclusion even if it is possible, while the conclusion arrived at by the Tribunal on appreciation of evidences as done in the instant case. The applicants cannot assail the same by Review Applications. By filing of the Review Applications, it is quite clear from the averments that the applicants desire a re-hearing of the original matter which can be done only by an appellate forum. The only ground on which the applicants are seeking review of the judgement made in Appeal No. 42 of 2013 (SZ) is that the 4th respondent unit was not an existing unit. But, the Tribunal has recorded a finding on evidence and merits that it was an existing unit and hence the request of the applicants for making a review of the Judgment of the Tribunal made in Appeal No. 42 of 2013 (SZ) does not merit acceptance. Hence, it is rejected.
Accordingly, the applications are dismissed as devoid of merits. Miscellaneous Applications, if any, pending are closed.
No cost.