BEFORE THE NATIONAL GREEN TRIBUNAL SOUTHERN ZONE, CHENNAI Application Nos. 138 and 139 of 2013 (SZ) (W.P.Nos. 18835 and 18836 of 2010, High Court of Madras)
In the matters of: Manickkampudur Common Effluent Treatment Plant Pvt. Ltd. rep. by its Chairman V.A. Thanappan S.F.No. 236/2, Mancikampudur Manoor Post, Tiruppur Tamil Nadu ..
Kuppandapalayam Effluent Treatment Private Ltd. rep by its Managing Director C. Duraisamy, S.F. No. 242 Erankadu Tottam, Veerapandi Post Tiruppur- 641 606 ..
Applicant in Application No. 138 of 2013 (SZ)
Applicant in Application No. 139 of 2013 (SZ)
AND 1. The Chairman Tamil Nadu Pollution Control Board Rep. by its Chairman No.76/100, Anna Salai Guindy, Chennai-600 032 2. The District Environmental Engineer Tamil Nadu Pollution Control Board Tiruppur, Comibatore District Tamil Nadu
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3. Noyyal River Aydacutdars Protection Association (Reg.No.64 of 2003) Rep. by its President A.P.Kandasamy Athipalayam Post K. Paramathi -via Karur-639 111 .. Respondents in both the Application Nos. 138 and 139 of 2013 (SZ) (Third respondent impleaded in the order dated Counsel appearing: Applicants: Shri S.V. Jayaraman, Senior Advocate assisted by M/s. J. Karunanidhi and Premanand, Advocates Respondents: Shrimathi Rita Chandrasekar, Advocate for respondent Nos. 1 and 2; and Shri K.M. Santhanagopalan, Senior Advocate assisted by Shri M. Sidhardhan, Advocate for respondent No. 3 ORDER Present: 1. Hon’ble Shri Justice M. Chockalingam, Judicial Member 2. Hon’ble Prof. Dr. R. Nagendran, Expert Member
Date: 5th September, 2014 _________________________________________________________ (Hon’ble Shri Justice M. Chockalingam, Judicial Member)
Application Nos. 138 of 2013 (SZ) and 139 of 2013 (SZ) These applications are taken on file of the Tribunal as Application No. 138 of 2013 (SZ) and Application No. 139 of 2013 (SZ) pursuant to 2
an order of transfer from the file of the Hon’ble High Court of Madras (High Court) filed by the applicants’ herein in W.P.Nos. 18835 and 18836 of 2013, respectively The writ petitions have been filed in the applicant’s capacity as the Chairman of the Manickampudur Common Effluent Treatment Plant, Manickampudur, Manur Post, Tiruppur in Application No. 138 of 2013 (SZ) and Managing Director of Kuppandapalayam Effluent Treatment Plant, Veerapandi Post, Tiruppur in Application No. 139 of 2013 (SZ). As the averments in both the writ petitions are common, the applications are taken together for adjudication. The brief facts of the cases are that, a public interest petition was filed by one P.R. Kuppusamy, an advocate, before the High Court in W.P.No. 1649 of 1996 raising the issue of pollution caused by the bleaching and dyeing units to the Noyyal river and many of the units did not have the Effluent Treatment Plant (ETP) and were discharging the effluent into the river. The High Court gave time to put up ETP as per the recommendations of the Tamil Nadu Pollution Control Board (Board) which was sought to be done by some units on individual basis by installing individual ETP (IETP) and some units collectively by forming companies and put up Common Effluent Treatment Plant (CETP) for treating effluent. In the writ proceedings a compromise was reached on 11.02.1998 which was taken on record by the High Court and the writ petition was disposed on 26.02.1998. The CETP and IETP were put up 3
as per the said order and at that point of time it was believed by all the parties that the concerned ETP put up would meet the required environmental standards. It was found in ETPs that all the parameters except the Total Dissolved Solids (TDS) met the standards. Neither the Board nor the units expected any further treatment to be required. The W.P.No. 29791 of 2003 was instituted in public interest for implementing the joint Memo of Compromise dated 11.02.1998 and recorded on 26.02.1998 by the High Court to clean the dam and prevent future pollution. The High Court appointed an Expert Committee by the order dated 05.05.2005 and the Expert Committee addressed the issue of TDS while recommending the installation of Reverse Osmosis (RO) plants so that the water can be reused and the units will not discharge effluents at all. The Committee, therefore, sought for a direction from the High Court that the individual dyeing units and the CETPs be required to put up RO plants to achieve Zero Liquid Discharge (ZLD), in its interim report dated 20.05.2005. The High Court, acting upon the above report of the expert committee gave a direction to set up RO plants to achieve ZLD. The requirement to install RO plants to achieve ZLD was a development during the course of the writ petition and not prior to filing of the writ petition. As the applicant CETPs could not deposit the required amount towards the cost of installing RO plant, they were closed as per the orders passed by the High Court in W.P.No. 29791 of 4
2003 dated 27.04.2006. Based on the same, the Board vide proceedings dated 22.05.2006 disconnected the electricity service connection to the member unis of the applicant CETPs besides several other CETPs who did not deposit the required amount. Subsequently, on the basis of the sanction letter from the financing agency 6 CETPs were reopened by the order dated 19.07.2006 of the High Court. Since the applicant CETP got the sanction letter from IL and FS towards the project cost of RO plant of the applicant CETP, the applicant CETP filed a writ petition in W.P. No. 9006 of 2008 seeking direction to the respondents to permit the member units of the applicant CETP to reopen the units based on the sanction letter. In the meantime, 17 CETPs were imposed a fine at the rate of 6 paise, 8 paise and 10 paise per litre so as to permit them to run upto 31.07.2006. Challenging the same, the Dyer’s Association representing the above 17 CETPs filed S.L.P before the Hon’ble Supreme Court of India in S.L.P. No. 6963 of 2007 and obtained interim order and based on the same all the member units of the 17 CETPs are running as on today. In view of the pendency of the S.L.P, the above said writ petition filed by the applicant was dismissed directing the applicant CETP to approach the Hon’ble Supreme Court.
2. Challenging the same, the applicant CETP filed S.L.P.No. 19883 of 2008 before the Hon’ble Supreme Court of India and the 5
Hon’ble Supreme Court passed the following order on 12.01.2009: “The petitioners are running bleaching and dyeing units in and around Tirupur and these units are not working. Pursuant to the order passed by this Court, the High court has closed
the
units
for
contaminating
the
neighbouring river and also thereby causing problems in the neighbouring agricultural area. The Tamil Nadu pollution control Board has filed a report indicating the extent of pollution caused by these units and the other units which are not working. Out of the 20 CETPs, about 18 CETPs are working. These two CETPs are not working and the petitioners have approached the High court and the High court has declined to pass any order as the other
connected
matters
are
pending
consideration before this court. Learned senior counsel appearing for the petitioners states that they are taking effective steps for installation of CETPs with the assistance of nationalized bank. Learned senior counsel further submits that they
may be allowed to approach the
High court to pass appropriate orders. We make it clear that the pendency of the special 6
leave petitions in respect of other CETPs would not stand in way of the High court passing appropriate orders. The High court may hear the petitioners and also the respondents and the Tamil Nadu Pollution Control
Board
for
passing
appropriate
directions. We request the High court to dispose of the same at an early date”. 3. After hearing the arguments of both sides, the High Court passed the following orders on 09.07.2009 in W.P.No. 9006 of 2008 and W.P. No. 35977 of 2007: “(a) Only the bleaching units will operate not the dyeing units. This is because we are informed that bleaching comes under orange category and dyeing comes under the red category and therefore highest polluter. (b) Before commencement of operation, the monitoring committee and the pollution control Board officials shall visit the units and make sure that none of the dyeing chemicals are stored in the premises. We first thought that only bleaching machine will be permitted to operate, but we are informed by the expert that the machineries are one and the same and after bleaching, the dyeing chemicals are added. Therefore, the monitoring committee 7
and the Pollution Control Board officials should ensure that the chemicals are not stored in the premises. (c) The units will operate only for three days i.e., on Wednesday, Thursday and Friday of every week. (d) They will operate only for 1 1/2 shift i.e. 8 to 12 hours per day. (e) They will not use ground water. They will use only L&T water. (f)
The
Monitoring
Committee
and
the
Pollution Control Board officials will make surprise inspection regularly to ensure that these directions are scrupulously observed. (g) Any violation of these directions will result in permanently closing of the errant units. Simultaneously, the units will also give their application
for
consent
which
will
be
processed in accordance with law by Pollution Control Board. The units will also show progress
in
installation
of
RO
plants.
Electricity supply should be restored to the units. 2. We repeat, this direction is given only because
unless the units operate, the 8
banks will not sanction loans and only with the loans Zero Liquid Discharge mechanisms can be put in place. It is purely a balancing exercise which will come to an end if the Supreme Court gives directions in the pending matters”. 4. When the matter came up for hearing again on 09.10.2009, the High Court passed the following order: “5 (i) The petitioners shall ensure the compliance of all the directions issued by this Court dated 22.12.2006 and which would include the payment of dues, in case the units operate to the extent
applicable to the petitioner’s
CETPs. (ii) The units shall ensure that no pollution is caused to the river or dam and if cleaning operation has not yet been completed, it will be completed within the said stipulated period. It is the petitioner’s responsibility to carry out their
industrial
activities
without
polluting the water. (iiI) Three months time is therefore given to ensure the compliance of the directions to make the CETPs functional. This is subject
to
the 9
condition
that
the
petitioners
pay
the
amounts
for
cleaning the dam and their share of award to the persons affected. These amounts shall also be paid within a period of three months from today. (iv) The Pollution Control Board is directed to ensure that no pollution is caused, giving strict adherence to the statutory provisions. The petitioners herein have applied for consent, but no consent has been issued. The Pollution Control Board shall process the applications for consent in the light of the order of the Supreme Court. These orders shall also apply to the individual ETPs. The Pollution
Control
Board,
after
inspection, consider the applications for consent filed by the petitioners in W.P.No. 28618/2008. As regards the petitioners
in
W.P.No.7932/2009,
6772/2009 and 147174 to 14717/2009, they are permitted to put up IETP and upon
their
informing
the
Pollution
Control Board that it has been installed, the
Pollution
Control
Board
shall
inspect the same and process their applications for consent”. 5. As per the above order dated 09.10.2009, the applicant CETPs is 10
entitled to run both dyeing and bleaching units as that of other CETPs. In the mean time, the time granted by the High Court was over on 06.01.2010, the applicant CETPs filed petition for the extension of time in M.P.No.2/2009 in W.P.No. 2006/2008 and M.P.No. 1/2009 in W.P.No. 35977/2007, respectively, and the same was granted up to 30.03.2010 vide order dated 01.02.2010. As the time granted by the High Court in the order dated 01.02.2010 expired, the applicants filed another M.P.No. 1 of 2010 in W.P. No. 9006/2008 and M.P.No. 1/2010 in W.P.No. 35977/2007 respectively, seeking extension of time upto 31.03.2011 without closing the member units of the applicant CETPs which were running dyeing and bleaching units so as to enable the petitioner CETP to install RO plants and achieve ZLD as per the Experts Committee report dated 10.06.2009. In the above said M.P, the High Court passed the following order on 05.05.2010. “18. The affidavit of undertaking filed by the petitioners contains details of various stages in the process of erection of reverse osmosis plant.
The
undertaking
petitioners
have
that
installation
the
given
an and
commission of reverse osmosis plant would be completed by April 2011. 19. The
Pollution
Control
Board
is
the
appropriate authority to consider the request 11
of
the
petitioners
as
they
are
having
necessary expertise. The banks have now agreed to provide finance and as such, there will be no difficulty for the petitioners to commence the works of erection of reverse osmosis plants. The documents produced in the typed set of papers show that necessary documents/hypothecation
deeds
have
already been executed by the individual units in
favour
of
the
financial
institutions.
Therefore, we are of the view that the request of the petitioners should be considered by the Pollution Control Board in the light of our observations as well as the order passed by the Division Bench earlier.
20. While considering these applications for extension of time, the Pollution Control Board should consider the larger issues involved in this matter. The third respondent has no intention to kill these industries. They are concerned about the water pollution. It is true
that
the
petitioners
have
caused
extensive damage to the Noyyal River. However, subsequent events have also to be taken into consideration. Originally, banks were
not
prepared
to
give
financial
assistance to the CETPs. It was only when Division Bench issued summons to the 12
concerned
banks
and
the
financial
institutions, they have agreed to honour their earlier commitments in sanctioning loan. Therefore, we are of the considered opinion that the issue requires to be considered by the Board in an open manner with a view to achieve twin objective of permitting the conduct of industries as well as prevention of water pollution.
21. We also make it clear that in case Pollution Control Board is of the view that the petitioners should be given extension of time to erect the reverse osmosis plant and to achieve zero liquid discharge, they should impose strict conditions, including the period. There should be a condition that each of the specified work should be completed before the prescribed period for the said work. The Board should also indicate that they monitor the works carried on by the petitioners as per their undertaking and in case the Board is of the opinion that a particular work is not completed within the time as shown in the undertaking affidavit, or the petitioners are deliberately delaying the matter, it would be open to the Board to withdraw the permission and to disconnect the power supply. It is needless to mention that the petitioners have 13
to pay their share of the amount as indicated in paragraph 2 of this order. 22. Accordingly, we direct the Tamil Nadu Pollution Control Board to consider the application
submitted
by
the
respective
petitioners in M.P.Nos. 1/2010 in W.P.Nos. 35977/2007 and 9006/2008 in the matter of extension of time to erect the reverse osmosis plant. The Pollution Control Board is directed to take a decision in the matter with an opportunity of hearing to the respective petitioners and the third respondent viz., Noyyal River Ayacutdars as expeditiously as possible and in any case within a period of four weeks from the date of receipt of a copy of this order and communicate the same to this court on or before 15 June 2010”. 6. Instead of granting 12 months time to achieve ZLD as per the schedule given by the Expert Committee in its report dated 10.06.2009, the 1st respondent herein negatived the requisition of the petitioner CETPs and passed the impugned order on 05.08.2010 and the same was served on 09.08.2010. Based on the said impugned order, the W.P.No. 9006/2008 was closed on 10.09.2010 by giving direction to the petitioner CETPs to challenge the impugned order dated 05.08.2010 and
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the petitioner CETPs filed the writ petitions challenging the impugned order dated 05.08.2010. 7. The 1st and 2nd respondent Board filed a common counter affidavit in these two writ petitions before the High Court as follows: The Manickampudur Common Effluent Treatment Pvt. Ltd., Tiruppur has been functioning since February 1997 at S.F.No. 236/2, Mudalipalayam Village, Manoor Post, Tiruppur Taluk and Kuppandapalayam Effluent Treatment Company Pvt. Ltd. has proposed a CETP at R.S. NO. 242/2, Veerapandi Village, Tiruppur Taluk for the treatment and disposal of trade effluent have provided conventional primary treatment plants for the treatment and disposal of the trade effluent generated from the member textile dyeing/bleaching units. The CETPs obtained the Consent of the Board under Water (Prevention and Control of Pollution) Act, 1974 (Water Act) and also under Air (Prevention and Control of Pollution) Act, 1981 (Air Act) which was valid upto 31.03.2001 and thereafter the consent was not renewed as the unit did not install the ZLD system. The partially treated effluent from the said CETPs is discharged into River Noyyal which is located at a distance of 250 m from the CETPs.
8. The Noyyal River Ayacutdars Protection Association had filed a writ petition in W.P.No. 29791 of 2003 before High Court seeking direction to the authorities concerned to clean the river water stored at 15
Orathupalayam dam within a stipulated time frame and to prevent future pollution of the river and other consequential reliefs due to the constant discharge of highly toxic trade effluent into the River Noyyal by several dyeing and bleaching units in and around Tiruppur. The conventional treatment system provided by the dyeing and bleaching units in Tiruppur was unable to contain TDS to 2100 mg/L as prescribed by the Board and hence these units were instructed to provide ZLD system either individually or commonly so as to ensure complete recovery and reuse of water and salt from wastewater, thereby preventing the pollution of land and water sources like River Noyyal. The same was also reiterated by the Expert Committee appointed by the High Court and in the order dated 31.01.2006, the High Court directed all the existing and proposed CETPs of Tiruppur to deposit 50% of the project cost including ROs, pipeline, civil work and evaporators. The petitioner CETPs have not shown any significant progress in the work of implementing ZLD system and could not deposit 50% of the cost of RO project and hence the High Court by its order dated 27.04.2006 directed the Board to pass an order of closure of the petitioner CETPs and their member units. Accordingly, the Board passed an order in its proceedings dated 22.05.2006 directing the closure of petitioner CETP and their member units and disconnection of power supply under section 33 A of Water Act.
16
9. The petitioners CETPs have furnished the proposal for implementing the ZLD system and hence, the Consent to Establish (CTE) was issued to the CETPs in the Board’s proceedings dated 23/24.08.2007 under Water Act and Air Act. The petitioner CETPs has filed a W.P.No. 3208 of 2007 before the High Court for resuming operations with its member units and the High Court in the order dated 27.08.2007 has dismissed the petition with instruction to install ZLD. Again, the petitioner CETPs approached the High Court in W.P.Nos. 9006 of 2008, 35977 of 2007, respectively seeking direction to the respondents to permit the member units of the petitioner’s CETPs to reopen their units based on the loan sanction letter issued by their financial institutions. As the other S.L.P No. 6963/2007 filed by the Dyers Association, Tiruppur on behalf of other 17 respondents was pending at the Hon’ble Supreme Court of India, the High Court in its order dated 13.02.2008 dismissed the above petition reserving the petitioner’s liberty to approach the Hon’ble Supreme court for redressal of their grievances. When the CETPs approached the Hon’ble Supreme Court with a prayer for interim relief to allow the member units of the petitioner’s CETPs to be opened, the Hon’ble Supreme Court in its order dated 12.01.2009 directed the High Court to hear the grievances of the petitioners and also other respondents and the Board for passing appropriate directions.
17
10. Hence, the petitioner CETPs filed a fresh writ petition before the High Court in W.P.No. 9006 of 2008 and W.P.No. 35977 of 2007, respectively to pass appropriate direction to the respondents to permit the member units of the petitioner CETPs to reopen their units based on the sanction letter issued by the banking institutions. After hearing the arguments of both sides, the High Court by its order dated 09.07.2009 passed the following order:
1. Only the bleaching units will operate and not the dyeing units. 2. The petitioner CETP’s member units will operate only for three days. 3. The petitioner CETP’s member units will operate only for three days, i.e., on Wednesday, Thursday and Friday in every week. 4. The petitioner CETP’s member units will not use ground water. They will use only L & T water. 5. Any violation of these directions will result in permanently closing of the errant units. 11. Accordingly, the Board suspended in its proceedings dated 19.08.2009, the directions issued for closure and stoppage of power supply to the member units of the petitioner CETPs subject to compliance of the Court directions dated 09.07.2009. Subsequently, when the matter camp up on 09.10.2009, the High Court passed the following directions:
18
1. The petitioners shall ensure that the compliance of all the directions issued by the Court by order dated 22.12.2006 and which would include the payment of dues in case the units to operate to the extent applicable to the petitioner CETPs. 2. The units shall ensure that no pollution is caused to the river or dam and if cleaning operation has not yet been completed, it will be completed within the said stipulated period. It is the petitioner’s responsibility to carry out the industrial activities without polluting the water. 3. Three months’ time is therefore given to ensure compliance of the directions to make the CETPs functional. This is subject to the condition that the petitioners pay the amount for cleaning the dam and their share of the award to the persons affected. These amounts shall also be paid within three months from 09.10.2009. 4. The Board is directed to ensure that no pollution is caused by strictly adhering to the statutory provisions. The Board shall process the application for the consent in the light of the order of the Supreme Court. 12. The time granted by the Hon’ble Supreme Court in its order dated 06.10.2009 in S.L.P.No. 6963 of 2007 for completion of the ZLD system was over for all the CETPs in Tiruppur and hence, the Board had issued directions for closure and stoppage of power supply to the member units of the petitioner CETPs. Based on the petition filed by the petitioner CETPs before the High Court in M.P.No. 2 of 2009 in W.P.No. 9006 of 2008 and M.P.No. 2 of 2009 in W.P.No. 35977 of 2009, 19
respectively, the High Court by its order dated 01.02.2010 passed orders extending the time limit till 30.03.2010 pursuant to which the Board issued directions for suspension of closure and stoppage of power supply to the member units of the petitioner’s CETP.
13. Meanwhile, the petitioner CETP filed M.P.No. 1 of 2010 in W.P.No. 9006 of 2008 and M.P.No. 2 of 2009 in W.P.No. 35977 of 2007 respectively, before the High court seeking extension of time upto 30.04.2011 so as to install ZLD without closing down the member units of the petitioner CETP as per the Expert Committee report dated 10.06.2009. The petitioner CETP has also furnished a time schedule for the completion of ZLDs. The High Court in para 22 of its order dated 05.05.2010 has directed as follows: “Pollution application
Control
Board
submitted
by
to
consider the
the
respective
petitioners in M.P.Nos. 1/2010 in W.P.Nos. 35977/2007 and 9006/2008 in the matter of extension of time to erect the RO plant. The PCB is directed to take a decision in the matter with an opportunity of hearing to the respective petitioners and the third respondent viz., River Ayacutdars as expeditiously as possible and in any case within a period of four weeks from the date of receipt of copy of this order and 20
communicate the same to Court on or before 15 June, 2010”.
14. The third respondent, namely, the Noyyal River Ayacutdars Protection Association filed an affidavit before the High Court not to extend further time to the petitioner to function the petitioner CETPs. The Board in its proceedings dated 28.07.2010 informed the petitioner CETPs that in view of the orders dated 05.05.2010 of the High Court, the extension of time for implementing ZLD cannot be considered. Further, the samples collected from the petitioner’s CETPs in the inlet equalization tank (untreated) and outlet of treated effluent sump (treated) on 01.10.2010 were not within the standards prescribed. The assessment from CETPs of the applicants in implementing ZLD was only 40% and 20%, respectively so far it pertains to the completion of primary treatment system and have not yet started any of the works pertaining to R.O, Reject Management and Solar Evaporation systems. Therefore, considering the fact that the progress so far made by the CETP in implementing ZLD in terms of the weighted average of overall completion in respect of the petitioner CETPs is only 40% and 11% and 60% and 89, respectively and the works remain unfinished, the Board considered that there is no scope to operate the CETPs.
21
15. The CETPs have admitted that their member units have not remitted dues towards compensation awarded by the Loss of Ecology (Prevention and Payment of Compensation) Authority (LoEA) and ad hoc compensation awarded by the High Court in the order dated 22.12.2006 made in W.P.No. 29791 of 2003. The Hon’ble Supreme Court by its order dated 06.10.2009 in S.L.P.(C).No. 6963 of 2007 has passed the following directions:
“Para 26: In view of the above facts that this matter is pending before this Court for more than two and half years and the members of the
appellant
association
had
been
permitted to continue their business, it is desirable that the members of the appellant association should ensure the compliance of all the directions including the payment of dues etc. issued by the Court within a period of three months from today. They shall ensure that no pollution is caused to the river or dam and if cleaning operation has not
yet
been
completed,
it
shall
be
completed within the said stipulated period”. “Para 28:
undoubtedly, there has been
unabated pollution by the members of the appellant Association. They cannot escape 22
the responsibility to meet out the expenses of removing sludge of the river and also for cleaning
the
dam.
The
principles
of
‘polluters-pay’ and ‘precautionary principle’ have to be read with the doctrine of ‘sustainable development’. It becomes the responsibility
of
the
members
of
the
appellant association that they have to carry out their industrial activities without polluting the water. …………………………………….................... ............. The Pollution Control Board is directed to ensure that no pollution is caused giving strict adherence to the statutory provisions”. 16. The 3rd respondent herein, namely, the Noyyal River Ayacutdars Protection Association filed its reply affidavit which states as follows: Though substantial reference has been made regarding the 3rd respondent as the petitioner in W.P.No. 29791 of 2003 and though the 3rd respondent got impleaded in the W.P.No. 35977 of 2007 filed by the applicant herein, the 3rd respondent was not arrayed as a party in this application. Coming to know of the petition, this respondent filed an application for impleading and another petition to vacate the orders of status quo dated 17.08.2010.
In the impleading petition, the 3rd
respondent has set out in detail the entire background relating to the 23
applicants herein and how the order of closure of the CETPs and its member units was made by the Division Bench of the Hon’ble High Court during the proceedings in W.P.No. 29791 of 2003 filed by the 3rd respondent herein for preventing pollution caused to Noyyal River and the closure was effected on 22.05.2006. No appeal was filed by the petitioners thereto against the closure orders. The interim final order passed on 22.12.2006 in W.P.No.29791 of 2003, is still kept pending on the file of the High Court and as such becomes final. The applicants and their member units were represented by respondent Nos. 4 and 5 in the said writ petition and the said writ petition was filed against the pollution caused to Noyyal river by all the dyeing and bleaching units and other ancillary units functioning in and around Tiruppur in blatant violation of environmental laws and orders passed by the Courts in the earlier proceedings. Paragraph 8 of the said order refers to the report of the Board dated 05.11.2003 and clearly sets out that highly polluting trade effluent of about 87 million litres per day are being discharged by the bleaching and dyeing units located in and around Triuppur into the Noyyal river and in order to prevent pollution of groundwater and the Noyyal river, the Board has instructed to provide ZLD system either individually or commonly so as to ensure complete recovery and reuse of the wastewater discharged from bleaching and dying units. The said report of the Board referring to the orders of the Hon’ble Supreme Court 24
dated 28.08.2006 in W.P.(C).No. 914 of 1991, stated that the Board has fixed standards of trade effluent in its proceedings dated 21.02.1984. During the pendency of the W.P.No. 29791 of 2003, the applicants have filed affidavits of undertaking to achieve the ZLD within a specified time which was not accepted by the High Court.
17. Instead of taking further proceedings against the order of the closure passed in W.P.No.29791 of 2003, both the applicants filed separate writ petitions in W.P.Nos. 3208 and 3218 of 2007 for reopening of their member units and both the writ petitions were dismissed by a common order dated 27.08.2007 by the High Court observing specifically that it was not possible to revoke the closure orders without CETPs achieving ZLD. A scrutiny of the said orders would show that the applicants are agitating the same subject in these applications which is res judicata. In the order dated 22.12.2006 it has been specifically directed by the High Court in para 30 (1) that the Board shall ensure the water in the Noyyal river meets the relevant standards desirable for drinking and irrigation purposes. Para 30 of the said order stipulated time to the CETPs located in and around Tiruppur, to achieve ZLD within 31.07.2007 and also imposed pro rata fine for the period from 01.01.2007 to 31.07.2007 and on default in payment of fine, the Board shall direct closure of such defaulting CETPs and its member units and 25
also disconnect power supply. The applicants have not complied with the above directions of the High Court and the order has become final. None of the members of the applicant CETPs has secured the certificate from Board as directed and the applicant CETPs are not eligible for reopening and are also liable to pay fine till they secure the certificates as specified in para 30 (a) (ii) of the order dated 22.12.2006 made in W.P.No. 29791 of 2003. 18. Subsequent to the order dated 22.12.2006, the 4th respondent therein filed a review application in R.A. No. 14 of 2007 before the High Court and the same was also dismissed on 27.02.007. The 4th respondent therein later filed C.A. Nos. 6776 and 6777 of 2009 before the Hon’ble Supreme Court questioning the correctness of the order dated 22.12.2006 made in W.P.No. 29791 of 2003. During the pendency of the appeal, the Hon’ble Supreme Court directed the Board by an order dated 12.05.2007 to inspect Noyyal River and find out whether pollution is caused to the river by the dyeing and bleaching units and to file a report. The Expert Committee constituted by the Board made an inspection on 08.07.2009 and 09.07.2009 and submitted its report which inter alia states that the impact of industrial pollution in the river is revealed by presence of high alkalinity (pH), very high Total Dissolved Solid (TDS), excess Choride (Cl) and high percentage of Sodium (Na). 26
Also, the Biochemical Oxygen Demand (BOD) and Chemical Oxygen Demand (COD) are not in acceptable levels and the water in the Noyyal River looking is dark red in colour. 19. Again, as per the directions of the Hon’ble Supreme Court dated 27.07.2009, the said Committee inspected 17 CETPs on 03.08.2009 and 04.08.2009 and submitted its report regarding technical aspects and also on the stages of the units in making progress towards achieving ZLD. Taking into consideration of all these factors in the judgment delivered on 06.10.2009, the Hon’ble Supreme Court held that the members of the appellant association should ensure the compliance of all the directions contained in the orders made by the High Court including payment of dues within a period of three months and the units were also directed to ensure that no pollution is caused to the river or dam and the cleaning operation if not completed, shall be completed within a stipulated time. In paragraph 34 of the said order, the Hon’ble Supreme Court observed that there has been unabated pollution to the River Noyyal and the polluting units cannot escape from the responsibility of meeting the expenses of reversing the ecology and they are bound to meet the expenses of removing sludge from the river and also
cleaning
the
dam.
The
principles
of
‘polluters-pay’
and
‘precautionary principle’ have to be read with the doctrine of ‘sustainable 27
development’. It becomes the responsibility of the members of the appellant association that they have to carry out their industrial activities without polluting the water. In paragraph 35 of the judgment, the Hon’ble Supreme Court has stated that the farmers are eligible to get compensation for the damage caused to their lands and also observing that none of the directions issued by the High Court in its final order dated 22.12.2006 has been interfered with and that the Apex Court had only stayed the orders relating to closure of all the units till 31.07.2007. Finally the Apex Court, in paragraph 36 held that the association has to ensure compliance of the orders passed by the High Court within a period of three months to all the CETPs to operate and to pay the balance amount for cleaning the river and compensation payable to the affected farmers. The Board was also directed to ensure that no pollution is caused giving strict adherence to the statutory provisions. 20. After the said orders were passed by the Hon’ble Supreme Court, the High Court passed an order dated 09.10.2009 in W.P.No. 35977 of 2007 filed by the applicant herein and petitioner thereto which was disposed of with directions to the petitioner thereto to ensure compliance of all the directions contained in the order dated 22.12.2006 made in W.P.No. 29791 of 2003 including payments due and that the petitioners thereto shall also ensure that no pollution is caused to the 28
river or dam and that it is the responsibility of the petitioners thereto to carry out the industrial activities without polluting water.
21. Later on, the petitioners thereto filed applications before the High Court praying for extension of time to enable them to install RO plant and to achieve ZLD as per the Expert Committee’s report dated 16.02.2009. The High Court in its order dated 05.05.2010, directed the Board to consider the applications submitted by the applicants herein and to take a decision with an opportunity to the 3rd respondent herein to make representation. The Board filed its report on 12.07.2010 to the effect that no extension of time can be granted to both the applicants herein for the reasons set out in the report. Accordingly, the Board issued proceedings on 05.08.2010 negativing the request for grant of extension of time to both the applicants.
22. The facts as set out in the applications before the Tribunal are not maintainable as the impugned orders of the Board have to be agitated by way of appeals before the Hon’ble Supreme Court and not by way of applications before the Tribunal. That apart, the 3rd respondent herein has filed contempt petitions in C.P.Nos. 1013 and 1016 of 2010 against the respondents for disobedience of the order dated 22.12.2006 in W.P.No. 29791 of 2003 and C.P.No. 1068 of 2010 for disobedience of the order dated 28.04.2008 in W.P.M.P.No. 811 of 2008 in W.P.No. 29791 29
of 2003. The Tirupur Dyeing Factory Owners Association and Tirupur Bleaching Units Association were impleaded as respondents in the C.P.No. 1013 of 2010. After an elaborate consideration of the facts, the Hon’ble Division Bench of the High Court by its order dated 28.01.2011 made in C.P.Nos. 1013 and 1068 of 2010, while keeping the contempt petitions pending, issued detailed directions inter alia directing that the CETPs and IETPs of the bleaching and dyeing units in Tiruppur area shall be closed down forthwith by the Board with disconnection of electric supply with further direction that they should not be permitted to operate until ZLD is achieved as per the orders dated 22.12.2006.
23. As only interim orders have been passed on 22.12.2006 in W.P.No.29791 of 2003 and inview of the orders dated 28.01.2011, the events against the dyeing and bleaching units in and around Tirupur the relief as prayed for to quash the order dated 05.08.2010 has become infructuous.
24. The only question that arises for consideration before the Tribunal is whether the impugned order is liable to be set-aside on all or any of the grounds put forth by the applicants. 25. Assailing the impugned order, the counsel for the applicants would submit that the 1st respondent, Board has passed the order contrary to the orders of the Hon’ble High Court made in W.P Nos 35977 30
of 2007 and
9006 of 2008 dated
directions were
5.5.2010
whereby mandatory
given to the 1st respondent, Board to consider the
applicants’ request
to grant extension of time in the light of the
observation made by the High Court. But the Board has not considered the same. The Board should have taken into consideration the subsequent events viz., the Financial Agency and Bank have agreed to provide finance, that necessary documents and hypothecation deeds were executed by the Units in favour of the Financial Institutions and the remaining thing to be done was only to withdraw the money and execute the project of ZLD system. The Board without considering those events has denied the request. The 1st respondent, Board should have dealt with the matter in an open manner with a view to achieve the twin objectives of permitting the conduct of the industries as well as prevention of water pollution.
But the Board did not do so. The Board
did not follow the concept of Sustainable Development, so that both the industries and agriculturists could survive.
The 1st respondent while
considering the issue did not take into account the affidavit of undertaking given by the applicants to complete the ZLD system within 12 months.
As per the Expert Committee Report dated 10.6.2009,
when a report was filed by the Board, the Hon’ble High Court was not ready to accept the same and even the representation given by the applicants on 2.8.2010 was not taken into consideration. 31
While the
Expert Committee recommended to grant 12 months time to the applicants’ CETPs to achieve ZLD, the 1st respondent, Board should not have ignored the report and go beyond the recommendations of the Expert Committee. Even the Agriculturists Association themselves have agreed for the granting of time to the applicant CETPs in the personal hearings held on 11.6.2010. The Board should have granted extension of time to achieve the ZLD system. The 1st respondent has also not taken into account as on today that the discharge capacity of the CETP of the applicants is very less and the Hon’ble High Court has imposed the restrictions that the Units were entitled to run on Saturdays and Sundays. The applicants CETPs have already undertaken to pay their dues towards compensation amount awarded by the LoEA and adhoc compensation amount within the stipulated time as per the order of the Hon’ble High Court on instalment basis. The Financial Agency has sanctioned the required amount but it was not taken into consideration by the Board. Hence, it is not correct on the part of the Board to say that the applicants CETPs cannot have any scope to achieve the ZLD system with the present members. It is also not correct on the part of the Board to say that the members of the present CETPs were not able to handle the system effectively. By an order dated 6.10.2009, the Hon’ble Apex Court again gave 3 months time to achieve the ZLD in the other CETPs which would mean that the dyeing industries were to run without 32
any closure and simultaneously arrest the water pollution. In order to ensure Sustainable Development, the applicant CETPs are ready to abide by the stringent conditions that might be imposed. The Board has not taken note of the fact that the 50% of the RO project cost was deposited even in April 2006. But the applicants’ CETPs were closed in April 2006 for non-payment of the balance 50% of the amount of deposit. Thus, had the applicant CETPs deposited the remaining 50% the applicant CETPs would not have been closed. The 1st respondent should have considered the fact that the applicant CETPs have got 100% of loan sanctioned by the Financial Institutions and Banks and hence they are entitled to run continuously for the purpose of completing the RO projects which would totally eliminate the water pollution. Unless the impugned order passed by the 1st respondent is set aside with the consequential direction to the respondents to permit the applicant CETPs to run until ZLD system is achieved,
irreparable loss would be
caused to the members of the applicant CETPs. 26. It is further submitted by the learned
counsel for the
applicants that to achieve the ZLD, 12 months’ time is required and in view of the subsidy of Rs. 20 crores granted by the Central and State Governments for the purpose of achieving ZLD, there would not be any financial crisis for achieving the same. The counsel for the applicants would also appeal that until the ZLD system is achieved, the member 33
Units of the applicants’ CETPs might be given permission to run “ washing units” as the same do not cause water and air pollution as that of Dyeing Units. An affidavit to the effect that until the ZLD system is achieved the Dyeing and Bleaching Units would not be operated and electricity service connection would be utilized only for the purpose of running the washing Units is also given. The counsel for the applicants would conclude that the requests of the applicants can be considered to that extent at present. 27. Heard the counsel for the 1st respondent, Board and also the elaborate submissions made by the counsel for the impleaded 3rd respondent, Noyyal River Ayacutdars Protection Association. 28. As seen above, the applicants have sought for quashing the order passed by the 1st respondent, Board in its proceedings dated 5.8.2010 and also for a direction to the respondents 1 and 2 to permit the Units of the applicant CETPs to run till the ZLD is achieved by the CETPs as per the Expert Committee Report dated 10.6.2009.
29. The Tribunal paid its anxious consideration on the submissions made by the counsel on either side and made a scrutiny of all the materials available. 30. Admittedly, an Advocate practicing in Karur filed a W.P No.1649 of 1996, a public interest litigation representing Karur Taluk 34
Noyyal Canal Agriculturists Association, seeking directions to the Board to take action against the dyeing and bleaching units causing pollution in and around Tirupur.
A joint compromise memo was recorded by the
High Court of Madras on 11.2.1998 and the stated Writ Petition was disposed of on 26.2.1998 with a direction to the industries to obtain consent within the stipulated time and to the Board to implement the pollution laws forthwith. As per the directions,
the CETPs and IETPs
were established. Though the industries made their attempts, they did not satisfy the environmental standards as required by law. Another Writ Petition in W.P No.29791 of 2003 was filed by Noyyal River Ayacutdars Protection Association for a Writ of Mandamus to implement the orders of the High Court dated 26.2.1998, referred to above. The High Court appointed an Expert Committee by an order dated 5.5.2005. The said Committee addressed the issue of TDS and also recommended the installation of Reverse Osmosis (RO) plant, so that water can be reused and the Units would not discharge effluent at all. The Committee sought for a direction from the High Court that each individual Dyeing unit and CETP should be required to put up RO plant and also to achieve ZLD . Acting on the report, the High Court issued directions. 31. At this juncture, it is pertinent to point out that the applicant before the Tribunal in Application No 138 of 2013 filed an affidavit requesting 9 to 12 months time to achieve ZLD system. The applicant in 35
Application No.139 of 2013 filed an affidavit stating that the implementation of ZLD system is underway. It is pertinent to point out that the applicant in Application No.138 of 2013 signed by 10 members filed another affidavit on 28.7.2005 stating that ZLD system was under implementation. In the meanwhile, a monitoring committee was appointed to monitor the implementation of ZLD by the units in and around Tirupur. The applicants filed an affidavit stating that the ZLD was in progress. Since deliberate delay was noticed in installing the ZLD, Units were directed to deposit 50% of the project cost to show their bona fides. Both the applicants sought for time for making the deposits. Not satisfied with the assurance and seriousness of the cause of pollution, the High Court issued a direction in W.P.No.29791 of 2003 dated 27.4.2006 for closure of the CETPs of the applicants’ Units. Both the applicants filed their respective affidavits seeking revocation of the closure order but no order of revocation of closure was made. At this juncture, it remains to be stated that the said W.P.No.29791 of 2003 is pending before the High Court of Madras. 32. While the matter stood thus, in January 2007, the applicants herein filed W.P.No.3208 of 2007 and 3218 of 2007, respectively for a Writ of Mandamus for revocation of the closure order dated 27.4.2006. A Review application No.14 of 2007 seeking the review of orders of the High Court dated 22.12.2006 in W.P.No. 29791 of 2003 filed by the 36
Tirupur Dyeing Factories Owners Association was dismissed on 21.2.2007. The two Writ petitions namely W.P No. 3208 of 2007 and 3218 of 2007 filed by the applicants herein seeking revocation of closure order were dismissed declining to grant the relief. It is pertinent to point out that no appeal was filed by both the applicants. 33. The applicant in Application No.138 of 2013 filed a W.P.No. 9006 of 2008 for reopening of its Units on the strength of a sanction letter dated 11.1.2008 issued by its Financial Institution. Equally, the applicant in Application No.139 of 2013 filed a W.P No,35977 of 2007 seeking revocation of closure order and to permit its 19 Units to open on the strength of sanction letter dated 28.9.2007 given by its bankers. Both the Writ Petitions namely W.P. No. 9006 of 2008 and W.P.No. 35977 of 2007 were dismissed on 11.4.2008 and 13.2.2008, respectively. Aggrieved over the said order, both the applicants filed S.L.P (C) Nos. 19883 and 21591 of 2008 which were disposed of by a common order of the Hon’ble Apex Court permitting the applicants to approach the High Court for appropriate directions. In W.P. No. 29791 of 2003, the High Court issued a direction on 8.4.2009 to the Expert Committee to inspect and submit a report to decide whether the Units could be allowed to operate. As seen from the available materials, the Expert Committee made a report stating that the Board might issue consent letters if the Units have completed ZLD system. The Board made a report before the 37
High Court in January 2009 that both the applicant CETPs did not satisfy the standards and the discharge of effluent would pollute the river. It is quite evident that the consent granted to the members in Application No.139 of 2013 namely Kuppandampalayam CETP,
expired on
31.3.2003, for Manickapurampudur CETP in Application No.138 of 2013, no consent was given to operate. While issuing a direction, the Board was also directed to consider the applications for consent to operate as and when filed and pass appropriate orders. 34. The order of the High Court made in W.P No. 35977 of 2007 and W.P. No.9006 of 2008 dated 9.10.2009 reads as follows: “(i)The
petitioners
shall
ensure
the
compliance of all the directions issued by this Court by order dated 22.12.2006 and which would include the payment of dues, in case
the
units
operate
to
the
extent
applicable to the petitioners CETPs. (ii) The units shall ensure that no pollution is caused to the river or dam, if cleaning operation has not yet been completed, it will be completed within the said stipulated period. It is the petitioners’ responsibility to
38
carry out their industrial activities without polluting the water. (iii) Three months’ time is therefore given to ensure the compliance of the directions to make the CETPs functional. This is subject to the condition that the petitioners pay the amounts for cleaning of the dam and their share of the award to the persons affected. These amounts shall also be paid within a period of three months from today. (iv) The Pollution Control Board is directed to ensure that no pollution is caused, giving strict adherence to the statutory provisions. The petitioners herein have applied for consent, but no consent has been issued. The Pollution Control Board shall process the applications for consent in the light of the order of the Supreme Court.
These orders
shall also apply to the individual ETPs. The Pollution Control Board, after inspection, consider the applications for consent filed by the petitioners in W.P.No.28618 of 2008. As 39
regards the petitioner in W.P.No.7932 of 2009, 6772 of 2009 and 14714 to 14717 of 2009, they are permitted to put up IETP and upon their informing the Pollution Control Board that it has been installed, the Pollution Control Board shall inspect the same and process their applications for consent. No costs. Consequently,
connected
Miscellaneous
Petitions are closed. “ 35. Both the applicants sought for extension of time for achieving ZLD and the High Court by an order dated 1.2.2010 granted time till 31.3.2010. Since they could not comply with the order, again they filed applications in M.P. No. 1 of 2010 and M.P. No. 2 of 2010, seeking further extension of time. After considering the merits of the submissions, the High Court made the following order: “The affidavit of undertaking filed by the petitioners contains details of various stages in the process of erection of reverse osmosis plant.
The
undertaking
petitioners that
the
have
given
installation
an and
commission of reverse osmosis plant would be completed by April, 2011. 40
The Pollution Control Board is the appropriate authority to consider the request of the petitioners as they are having the necessary expertise.
The banks have now agreed to
provide finance and as such, there will be no difficulty for the petitioners to commence the work of erection of reverse osmosis plants. The documents produced in the typed set of papers
show
hypothecation
that
necessary
deeds
have
documents/
already
been
executed by the individual units in favour of the financial institutions. Therefore, we are of the view that the request of the petitioners should be considered by the Pollution Control Board in the light of our observations as well as the order passed by the Division Bench earlier “. 36. Following the aforesaid order of the High Court, the applicants in Application Nos.138 and 139 of 2013 made the respective applications seeking an extension of time for implementing the ZLD system.
Both the applications were dismissed by the BOARD.
Aggrieved over the said order, the applicants preferred the two Writ Petitions in W.P.Nos. 18835 and 18836 of 2010 which were transferred 41
to this Tribunal pursuant to the order of the Hon’ble Court and were taken on file. 37. Pursuant to the order made by the Hon’ble High Court of Madras in M.P. Nos. 1 and 2 of 2010 in W.P. Nos. 35977 of 2007 and 9006 of 2008 sought for extension of time to complete the ZLD system which according to the 1st respondent, Board
could not be granted
since the CETPs of the applicants was not a viable proposition at all. When the extension was sought for before the Hon’ble High Court to erect RO plant in those Miscellaneous Petitions, the Hon’ble High Court issued a direction to the Board to take a decision in the matter. The Board gave an opportunity to the applicants and also to all the respondents to putforth their contentions as recorded in the impugned order. The bone of contention of the applicants seeking for extension of time was that the Financial Institutions have come forward to assist them by giving necessary finance and therefore for completion of the same, time has to be extended by 12 months for implementing ZLD system by their member Units.
It is not the case of the applicants’ CETPs in
Application No.138 of 2013 that the direction of the Apex Court dated 6.10.2009 made in C.A.No.6776 of 2009 upholding the directions of the Hon’ble High Court dated 22.12.2006 are complied with. It is pointed out by the counsel for the Board that in so far as the Application No.138 of 2013 there are 10 member Units in the CETP and they have not 42
obtained the consent of the Board at all and 4 out of the 10 members have been carrying on only bleaching activity from the time of the commencement of the Units. The remaining 6 Units would fall under dyeing category which are all located within 1 km radius of the river Noyyal.
They attract G.O.Ms.No.213, Forest and Environment
Department, dated 30.3.1989 by which the dyeing Units are not permitted to be located within 1 km from the River Noyyal. It is not in controversy that the CETP of Manickampurampudur was originally designed for a capacity of 1600 KLD of effluent with 10 members at an estimated cost of Rs. 40 crores. The inspection would indicate that the progress so far made by the CETP in implementing the ZLD in terms of the weighted average of overall completion was only 40% and 60% of works still
remain unfinished.
Thus, it is quite evident that only 6
member Units alone would require their effluent to be treated in a ZLD system, which according to any standard, both economic and technical feasibility was not a viable option at all for the CETP. Hence, there was no scope to viably operate the CETP with only 6 member Units. In so far as the CETP of the applicant in Application No.139 of 2013 is concerned, it is not in controversy that the directions of the Hon’ble Apex Court dated 6.10.2009 in C.A.No.6776 of 2009 and the subsequent order made on 25th January 2009 in I.A.No.10 of 2009 are not yet complied with. The Hon’ble High Court of Madras by its order made in the writ 43
proceedings permitted 8 out of 14 members to have IETPs and thus only 6 units with the CETP as its members. Even out of these 6 member units 2 have obtained consent for bleaching activity and are permitted to carry on the bleaching process only subject to the conditions attached to the consent order in respect of reuse and recycling. It is pertinent to point out that CETP has included 5 proposed Units as its members which have not obtained consent of the Board. It is submitted by the counsel for the Board that the newly included Units are situate between zero and 0.5 km from the Noyyal river and thus attract G.O.Ms.No.213, Environment and Forest Department dated 30.3.1989 and also G.O.Ms.No127, Environment and Forest Department dated 8.5.1998 which ban dyeing Units from being located within the said distance.
It is significant to note that those Units are not in
existence now and even if new applications are made by those proposed units, they cannot be considered by the Board in view of the above Government orders. Thus, it is quite clear that as such 4 dyeing Units who
are
with
the
consent
of
the
Board
remain
with
the
Kuppandampalayam CETP. According to the counsel for the Board, the progress so far made by the CETP in terms of the weighted average of overall completion is only 11% and 89% of works still remain unfinished. Thus, it would not be viable to permit the CETP with only 4 member Units to treat the effluent in a ZLD system. The contentions put forth by 44
the learned counsel for the Board have to be accepted in whole. The Board is correct in refusing to grant the extension of time to the CETPs of the applicants since they are not viable both from economic and technical points of view.
That apart, as noticed above, both the
applicants filed their affidavits in W.P.Nos.18835 of 2010 and 18836 of 2010 referring to the report of the Expert Committee dated 6.9.2009 undertaking to commission the ZLD system by September, 2011 and the period has lapsed. 38. The 1st respondent, Board has filed a common counter affidavit in these two applications stating that the CETP in Application No.138 of 2013 had a valid consent upto 31.3.2001 and thereafter it was not renewed.
It is also averred therein that the applicant CETP is
located at a distance of 250 meters from the river Noyyal. The above said fact is not controverted by the applicants. If it be so, the location of the applicant in Application No.138 of 2013 is within the prohibited distance as per G.O.Ms.No.213, Forest and Environment Department, dated 30.3.1989 and hence it is not entitled to operate. Pending the proceedings,
the
applicants
were
permitted
to
submit
their
representations before the respondents 1 and 2 and the Board was directed to consider the representations after giving opportunity to the Noyyal River Ayacutdars Protection Association. The materials available would indicate that from the time of closure in the year 2006, a number 45
of applications supported by affidavits for revocation of the closure order were filed, but they were not allowed. 39. While dismissing W.P. Nos. 3208 of 2007 and 3218 of 2007 seeking revocation of closure order of the applicant CETPs, the Hon’ble High Court not only refused to revoke the closure order but also made it clear that it was not possible to revoke without the installation of RO plants in the respective Units and achieving ZLD status. It is pertinent to note that those orders remained unchallenged and attained finality. Equally, the Writ Petitions filed by the applicants in W.P. Nos 35977 of 2007 and 9006 of 2008 for reopening the closed Units. After getting the report from the Expert Committee, the Hon’ble High Court disposed of those Writ Petitions on 9.10.2009 with a specific direction that the applicants should ensure the compliance of all directions issued by the High Court in its earlier order dated 22.12.2006 and only on that condition, three month time was granted to ensure compliance of the directions. But the directions were not complied with. While confirming the directions of the High Court, the Apex Court granted three months time to ensure compliance. Since the conditions were not complied with within the stipulated time, contempt proceedings were initiated in Contempt Petition Nos. 1013 and 1068 of 2010 by the newly impleaded 3rd respondent herein and detailed orders were passed by the High
46
Court on 28th January, 2011, a copy of which is placed before the Tribunal. Paragraph 53 of the said order reads as follows: “In the instant case, therefore, we are fully convinced that unless stringent and deterrent action is taken on the CETP/ Units by immediate closure of the units, the water of the Noyyal river cannot be made free from the poisonous substances discharged from these units and the water shall not be fit for human consumption.
Hence,
while
keeping
the
contempt petition pending with a view to monitor
the
entire matter,
we issue
the
following directions:(i)
All the CETPs/ IETPs Bleaching and
Dyeing units in Tirupur area shall be closed down forthwith by the Pollution Control Board and
the
Electricity
supply
shall
be
disconnected. (ii)
Such CETPs/ IETPs/ Units shall not be
permitted to operate unless and until they achieve zero liquid discharge as per the directions issued in paragraph No.30 (a) (ii) of 47
the
order
of
the
Division
Bench
dated
22.12.2006”. 40. While disposing of W.P.M.P.Nos. 143 to 146 and 163 to 166 of 2011 in W.P.No.29791 of 2003, the First Bench of the Hon’ble High Court of Madras has held as follows: “We do not appreciate the manner and modality adopted
by
the
petitioner
association
presumably with a view to dilute the effect of our order dated 28.1.2011.
If any one of the
prayer sought for in these miscellaneous petitions even if partially accepted would amount of reviewing our order dated 28.1.2011. We may add that mere change of counsel for the petitioner association cannot change the facts of the case. All the points raised by the petitioner in those miscellaneous petitions were substantially
canvassed
by
the
same
Association in the contempt petitions and have been elaborately dealt with in our order dated 28.1.2011.
48
As noticed above, condition No. 5 of para 53 of our order stipulates that in respect of CETPs/ IEPTs/ Units who have fulfilled all conditions can approach the Tamil Nadu Pollution Control Board seeking for order of consent to operate and such unit shall be continuously and closely monitored in order to ensure strict compliance of the orders. Therefore, if any of the members of the petitioner association have fulfilled the conditions, it was always open to them to approach the Board for necessary orders. In the light of the clear directions issued by this Court, we are of the firm view that the present miscellaneous petitions have been filed by the petitioner with a view to somehow get over the order in the contempt petition order dated 28.1.2011. The petitioner being an association of factory owners, a registered body cannot be allowed to misuse the jurisdiction of this Court and indirectly attempt to secure relief which if sought for directly is not maintainable”.
49
41. In the aforesaid circumstances and in view of the decisions of the Hon’ble High Court of Madras and the Apex Court, it would be neither fair nor proper on the part of the applicants to seek for any extension of time since they have not complied with the directions issued by the higher Courts, even after filing affidavit of undertaking to comply with the same. 42. In so far as the request made by the applicants to grant permission to run the unit as “washing Unit” on the ground that it would not cause any pollution and does not find place either in the red or orange category and the same would not cause any prejudice to any one in any manner does not require any consideration for more reasons than one. It is not supported by pleadings. The contentions put forth by the counsel for the applicants that if the applicants are permitted to carry on washing it would be granting lesser relief, cannot be countenanced. At the time of enquiry, the District Environmental Engineer, Tirupur was summoned and a query was put to him.
According to the District
Environmental Engineer, Tirupur in order to carry on the process of washing, the Unit has to file necessary application therefor under Water and Air Acts and such applications have to be necessarily processed in accordance with law.
While the washing is considered as an
independent and separate process without any connection to dyeing and bleaching, a separate application under Water and Air Acts becomes 50
necessary. The Consent to carry on washing process cannot be granted in the absence of necessary application by the applicants under Water and Air Acts and necessary orders are to be passed by the Board after following necessary procedure in accordance with law.
Hence, the said
request cannot be considered by the Tribunal. 43. In the result, both the applications are dismissed. However, it is made clear that this Judgment will not stand in the way of the applicants making necessary applications for the process of washing alone and the Tamil Nadu Pollution Control Board is directed to consider and pass orders in accordance with law if and when made therefor. 44. The Miscellaneous Applications, if any pending are closed. No cost.
Justice M.Chockalingam Judicial Member
Prof. Dr.R.Nagendran Expert Member Chennai Dated, 5th September, 2014
51
