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Judgment
The counsel for the parties are present. This application has been brought forth by the applicant seeking a direction to the respondents 1 and 2, Tamil Nadu Pollution Control Board and the District Environmental Engineer, Salem District to initiate necessary action against the 3rd respondent Industry for running the Sago Factory or in the alternative to direct the 3rd respondent industry to shift the Sago Factory to any other unobjectionable place.
The case of the applicant, in short, is that the 3rd respondent Sago Factory which is categorised as Red Industry is situate on the embankment of Thirumanimuthar River at Shevapet, Salem, manufacturing Sago/Starch in large quantities . The 3rd respondent has been carrying on the same without consent from the 1st respondent Tamil Nadu Pollution Control Board (Board) all along in the past.
As per G.O.Ms. No.213, Environment & Forest Department dated 30.3.1989, the industry should not be allowed since it is a banned one in view of the fact that it is located within 1 km from the embankment of the water body, namely Thirumanimuthar River. Though representations were made, the 1st respondent Board has not taken any action whatsoever. As per the information received by the applicant, the Consent was applied for and obtained for a short period covering 1999-2000. Thereafter, there is neither any Consent to Operate nor its renewal whatsoever till date. But the 3rd respondent has been carrying on its operation which is illegal. Under such circumstances, it becomes necessary to issue a direction to the 1st and 2nd respondents to initiate action as warranted by law against the 3rd respondent industry or in the alternative to issue a direction to shift the factory from the place where it is being carried on to any other unobjectionable place.
On the contrary, the case of the 3rd respondent is that the industry has been in operation from the year 1967, the necessary applications were made and all along the period the industry has enjoyed the permission from the concerned authorities, the G.O. Ms. No.213 dated 30.3.1989 cannot be applied to the present factual situation since the industry of the 3rd respondent is an existing Unit. It is also not correct on the part of the applicant to state that the industry has been carrying on its operation. Pursuant to the Show Cause Notice, the 3rd respondent has given an undertaking to stop its operation till obtaining consent from the Board. Accordingly, the application for Consent to Operate was made before the Board and the same is pending consideration. Under such circumstances, the application is not only is premature but is also devoid of merits. It is also the case of the 3rd respondent that the applicant and the present owner of the 3rd respondent Unit are cousins. The applicant has already filed a Civil Suit for partition which is pending on the file of the Subordinate Judge, Salem and in that suit an interlocutory application is filed seeking an order of injunction to restrain the proprietor of the 3rd respondent from carrying on any constructional activities. Though an order of status quo was made, the same was subsequently vacated and thus, the applicant who failed in his attempt to get an interim order has filed this application as if there exists a case from the angle of environment. Thus, the entire application is devoid of any merits and hence it has got to be dismissed.
The 1st and 2nd respondents have filed their reply stating that the 3rd respondent industry applied for the Consent to Establish in the year 1985 and the same was granted in the year 1987. Since it was an existing Unit, the G.O. Ms. No.213 dated 30.3.1989 has no application to the 3rd respondent Unit. Apart from the same, when an inspection was made it was found that the effluent was not properly taken outside and it was noticed that the effluent contaminated the nearby water source . Under the circumstances, a Show Cause Notice was issued which brought forth a reply by the 3rd respondent industry on 4.2.2014 along with an undertaking to stop its operation till the safeguard measures are taken and also proper Consent thereon obtained from the Board to operate the Unit on and from that time onwards the 3rd respondent industry is not in operation.
The Tribunal heard the deliberations made by the Counsel to putforth their respective cases relating to the materials placed by either side. It is not in controversy that the 3rd respondent Sago Factory is situate at the place as mentioned by the applicant at Shevapet, Salem. It is the case of the applicant that G.O. Ms. No.213 dated 30.3.1989 would be attracted since it is situate within the prohibited distance of 1 km from Thirumanimuthar River. On the contrary, it is a stand taken by the 3rd respondent that the industry is in operation from the year 1967, has applied for Consent to Operate then and there and obtained the same .
Since it was in operation even prior to the passing of the said G.O, the said G.O. cannot be applied as it is an existing industry. According to the Board shown as the 1st respondent, 3rd respondent has already applied for Consent to Operate in the year 1985 and obtained the same in 1987 and thus, it is an existing industry. At this juncture, the learned Senior Counsel for the applicant would submit that the last Consent was obtained by the 3rd respondent only for the period 1999 - 2000 and hence, it cannot be construed as an existing industry as contended by the Board and also by the 3rd respondent. Apart from this, the parties are in controversy as to whether the location of the 3rd respondent industry would attract the application of G.O. Ms. No.213 dated 30. 3.1989. Apart from the above, it is the case of the applicant that the 3rd respondent industry is carrying on its operational activities. This fact is disputed by the 3rd respondent industry. From the submissions made by the Counsel for the Board and as per the averments made in the reply by the Board, it is seen that following an inspection made in the early months of 2014, a Show Cause Notice was served upon the 3rd respondent which was followed by a reply and the 3rd respondent has also given an undertaking to stop its operation and would not commence its operational activities till the Consent to Operate is obtained from the Board. The contention putforth by the 3rd respondent that the application for Consent to Operate was made before the Board on 21.5.2014 which is pending consideration is admitted by the 1st respondent Board. It is quite evident from the submissions made by the Board that as on to day the 3rd respondent is not carrying on its operational activities. The application made by the 3rd respondent industry is pending in the hands of the 1st respondent Board. In so far as the question as to the application of G.O. Ms No.213 dated 30.3.1989 to the present location of the of the 3rd respondent industry, it is kept open and could be agitated by the parties since it is not a juncture where the Pollution Control Board cannot be directed not to entertain the application but it would be suffice to issue a direction to the Board to consider the application of the 3rd respondent industry and pass appropriate orders in accordance with law. Under such circumstances, it would suffice to dispose of the application with the liberty to the applicant to approach the Tribunal if so advised after the decision is taken by the Board on the application seeking for Consent to Operate by the 3rd respondent Unit. Insofar as the proceedings pending before the Subordinate Court, Salem and the orders made thereon, they do not arise for consideration and have not got no reflection on the disposal of this application. There cannot be any impediment to issue a direction to the 1st respondent Board to monitor that the 3rd respondent industry does not carry on any operational activities till the Consent to Operate is given in accordance with law. With the above direction and observation, the application is disposed of. No cost.