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Judgment
T.S. Sivagnanam, J.—Contempt Petition No. 1013 of 2010 has been filed alleging willful disobedience of the order passed by this Court in
W.P. No. 29791 of 2003 dated 22.12.2006 and Contempt Petition No. 1068 of 2010 has been filed alleging willful disobedience of the order
and direction made in W.P.M.P. No. 811 of 2008 in W.P. No. 29791 of 2003. Since the issue involved is common the petitions were heard
together and a common order is passed in these petitions.
Before examining as to whether there has been any disobedience or willful disobedience of the order, it is necessary to understand the
background of the present matter as the case has a checkered history.
Essentially the grievance expressed in the writ petition is against the Bleaching and Dyeing Units of Tirupur area on account of their
indiscriminate discharge of trade effluent into the river Noyyal, resulting in pollution of the river causing a great impact on the environment.
We have heard the learned Counsel appearing for the parties elaborately and considered the materials available on record.
River Noyyal is a tributary of river Cauvery and the river flows through Coimbatore, Palladam, Dharapuram, Perundurai, Kangeyan and Karur
and joins river Cauvery near Noyyal village of Karur District. It is stated that the river fills up several large tanks along its course and three
important irrigation structures namely Muthur Barrage, Athupalayam Reservoir and Orathapalayam Reservoir are the sources of irrigation of more
than 40,000 acres of agricultural lands.
The ""war"" against the polluters commenced in 1996 when an Association of Agriculturist namely, Karur Taluk Noyyal Canal Agriculturists
Association filed a Writ Petition before this Court in W.P. No. 1649 of 1996, praying for a direction upon the Tamil Nadu Pollution Control
Board (TNPCB) to take action against the polluting dyeing and bleaching units of Tirupur area. The TNPCB filed a report dated 29.11.1996
regarding all the Units in Tirupur area and stated that a Common Effluent Treatment Plants (CET Ps) would be established to treat the trade
effluents arising from the Units. Ultimately the Writ Petition was disposed of by an order dated 26.2.1998, on the basis of a joint memo filed by the
parties whereby, the Industries were allowed to operate as an interim measure for three months and if they failed to obtain consent from TNPCB
within the said period, the TNPCB was directed to implement the environmental laws. Subsequently a prayer was made to extend the time granted
in the order dated 26.2.1998, which was rejected by this Court and confirmed by the Hon''ble Supreme Court. Despite the final orders passed
based on the joint memo, no appreciable steps were taken to stop Pollution and the Units continued to discharge the effluents into the river. In the
above said background, the applicant Association and few other individuals filed Writ Petitions before this Court seeking implementation of the
joint memo dated 11.2.1998 and also for a further direction to clean the river water stored at Orathapalayam Dam and to prevent future pollution.
Several directions were issued in the Writ Petition, reports were called for and ultimately, the Division Bench of this Court passed an order
dated 22.12.2006, issuing comprehensive directions as an interim measure keeping the Writ Petition pending. For better appreciation, paragraph
No. 30 of the order of the Division Bench is reproduced hereunder:
We, accordingly, order and direct as under:
(a) The CET Ps are given time upto the 31st of July, 2007 to achieve the Zero Liquid Discharge (ZLD) of trade effluents subject to the following
conditions
(i) The concerned CET Ps are directed to pay a fine on pro rata basis at the rate of six paise per litre from 1st January, 2007 to 31st March,
2007; at the rate of eight paise per litre from 1st April, 2007 to 31st May, 2007; and at the rate of ten paise per litre from 1st June, 2007 to 31st
July, 2007. The fine amount payable by the respective CET Ps shall be arrived at by multiplying the fine amount i.e., six, eight or ten paise, as the
case may be, by the total quantity of discharge of each Member Units of CETP as per the consent certificate or as the quantity found in the
application for consent and also by the total number of working days in a month. The fine amount thus calculated shall be paid by the respective
CET Ps on the last date of every month. In case the CET Ps or any of them commit any default in payment of fine, the Pollution Control Board
shall direct closure of such defaulting C.E.T.P. and the Member Units and also disconnect the power supply to such defaulting CETP and the
Member Units.
(ii) The CET Ps or any of them on achieving Zero Liquid Discharge shall satisfy the Pollution Control Board about their ZLD status and the
Pollution Control Board upon verification shall issue appropriate certificate from which date, such CETP shall not be liable to pay the fine. In any
event, if the CET Ps or any of them fail to achieve the ZLD on or before 31 st July, 2007, the Pollution Control Board shall forthwith direct closure
of such CET Ps and the Member Units and also disconnect the power supply to such defaulting CETP and the Member Units (b) The
Respondents 4 to 7 herein are directed to deposit the balance sum of Rs. 8.50 Crores out of Rs. 12.50 Crores estimated by the P.W.D. towards
the cleaning and desilting operations of the Orathapalayam dam to be carried out by the Public Works Department in two equal instalments, the
first of such instalments being payable on or before the 28th of February, 2007 and the second instalment to be paid on or before the 30th of
April, 2007.
(c) The Respondents 4 to 7 are directed to deposit a sum of Rs. 22,99,98,548/ -, being the remaining of the total compensation of Rs.
24,79,98,548/ -awarded by the Loss of Ecology Authority in its Award dated 17.12.2004. This amount shall also be payable in two equal
instalments, the first of such instalments being payable on or before the 28th of February, 2007 and the second instalment to be paid on or before
the 30th of April, 2007.
(d) The Respondents 4 to 7 are further directed to deposit a sum of Rs. 12 Crores as an ad-hoc compensation towards the estimated loss for the
years 2005, 2006 and 2007. This amount shall be payable in two equal instalments, the first of such instalments being payable on or before 15 th
June, 2007,and the second instalment to be paid on or before 31 st July, 2007.
(e) M/s. Mannarai CETP and M/s. Veerapandi CETP are directed to deposit the amounts of fine imposed on each of them by this Court, being
Rs. 15 lakhs and Rs. 60 lakhs respectively, within a period of four weeks from today, failing which the Tamil Nadu Pollution Control Board shall
direct closure of these CET Ps with immediate effect.
(f) The compensation amount, as well as the fine amounts to be deposited in terms of Clauses (a) to (e) and the amounts which are already
deposited pursuant to the orders of this Court shall be kept invested in reserve in a Nationalised Bank as a Corpus Fund and utilised for the
purposes of cleaning of the Orathapalayam dam and Noyyal river and for the ultimate payment to be made to the agriculturists towards loss of
ecology. The Petitioners are at liberty to seek appropriate directions for disbursement of the amount of compensation.
(g)The Pollution Control Board is directed to process the applications for consent submitted by all the C.E.T. Ps. and pass appropriate orders on
all such applications within a period of eight weeks from the date of receipt of such applications.
(h) All individual units which fall in Category ''A'' of the Annexure to the Report of the Monitoring Committee dated 16.11.2006 shall cease all
discharge to land/river/other water bodies/CET Ps forthwith and operate their Reverse Osmosis Plants and Reject Management Arrangements.
These units would demonstrate their Zero Liquid Discharge (ZLD) by installation of Electromagnetic Flow Meters at the points suggested by the
Committee and the Pollution Control Board shall maintain proper records of their operations, have separate electricity sub-meters for the Reverse
Osmosis Plants and provide for computerisation, wherever the discharge is one lakh litres and above a day.
(i) All the individual units in Categories ''B'' and ''C'' of the Annexure to the Report of the Monitoring Committee dated 16.11.2006 shall be
subject to closure by the Pollution Control Board unless these units file before this Court, affidavits and demonstrate that they have made Reverse
Osmosis Plants operational and sufficient Reject Management Arrangements have been made within a period of four weeks from today.
(j) All the units should ensure that a Hazardous Waste Board is set up by providing sufficient information on the hazardous waste generated every
day and lying in stock, as mandated by the order of the Supreme Court dated 14.10.2003.
(k) The Tiruppur Office of the Pollution Control Board shall be strengthened with sufficient staff, formation of flying squads, providing of sufficient
number of vehicles and telephone lines to enable them to effectively monitor over 700 units scattered in and around Tiruppur.
(l) The Tiruppur, Erode and Karur Offices of the Tamil Nadu Pollution Control Board shall implement a programme for periodical inspection
(atleast fornightly) of the Noyyal river in order to ensure that there is no industrial trade effluent discharge into the river and the water in the river
meets the relevant standards desirable for drinking and irrigation purposes.
(m) The Pollution Control Board shall ensure that all IET Ps and CET Ps are properly storing and disposing off the waste generated by them and
ensure, in consultation with the Expert Committee constituted by this Court, a programme to reduce, if not eventually eliminate, the generation of
such wastes.
(n) The District Collector of Coimbatore is directed to initiate remediation programme in consultation with the Pollution Control Board, and the
Expert Committee to remediate the areas affected by the polluted water flows such as the Sarkar Periypalayam Eri, which is a water body with
abundant bird life, now polluted with effluent flow, with the cost being recoverable from the units.
(o) The District Collectors of Coimbatore, Erode and Karur are directed to demarcate the boundary lines for the Noyyal river from the
Orathapalayam dam upto its confluence point with the river Cauvery within a period of eight weeks from today. The survey stones for erecting
stones for the purpose of demarcating the boundary lines shall be supplied by the Petitioner-Agriculturists Association and the value thereof can be
claimed by the Association from the District Collector to be paid from out of the corpus fund.
(p) The Public Works Department and the Revenue Authorities are directed to have the quarry waste dumped on the coast of the Noyyal river,
thus causing obstruction to the flow of the river water, removed within a period of eight weeks from today and the costs therefore shall be
recoverable from the quarry operators. The authorities shall ensure that there is no more dumping of the quarry waste in the river and in case of
violation by any of the quarry operators his licence shall be cancelled forthwith.
(q) The Public Works Department is directed to continue with the cleaning and desilting operations of the Orathapalayam Dam and the cleaning of
the Noyyal river shall be carried out through the Petitioner association as per the orders of this Court. The District Collector, Coimbatore is
directed to release a sum of Rs. 25 lakhs directly to the Petitioner-Agriculturists Association towards the charges for cleaning of the Noyyal river
and the works to be carried out upto the confluence point of the river with river Cauvery.
(r) The Respondents 1 to 3 are directed to finalise the site for dumping the solid waste from the Orathapalayam dam as well as from the Noyyal
river which has been kept in bags and in open spaces. The Pollution Control Board is directed to provide the infrastructure and technical expertise
for removal of the solid waste from the units as well as the dam to the notified site. The above exercise shall be done within a period of three
months.
(s) Both the Expert Committee as well as the Monitoring Committee shall submit periodical reports before this Court every two months.
(t) The Monitoring Committee shall be paid a sum of Rs. 15,000/ -per day/per visit as charges.
The above order of the Division Bench dated 22.12.2006 was challenged before the Supreme Court.
Further the Division Bench issued an interim direction in W.P.M.P. No. 811 of 2008 on 28.04.2008, which is to the following effect:
Heard Mr. K.M. Santhanagopalan, Learned Counsel for Petitioner and Mr. Ramanlal for the Pollution Control Board. The Pollution Control
Board is directed to take appropriate steps to remove the excess production machineries in all the dyeing and bleaching units in and around Tirupur
by making due inspection of the units with the assistance of the members of the monitoring committee. The inspection of the units shall be carried
jointly by the official of the Board and anyone member of the monitoring committee. The board shall submit the action taken report on or before
31.07.2008.
In the Civil Appeal filed against the order of the Division Bench dated 22.12.2006, the Supreme Court took note of the various suggestions and
observations of the Monitoring Committee and the Inspecting Committee and ultimately by order dated 6.10.2009, disposed of the appeals
Tirupur Dyeing Factory Owners Association Vs. Noyyal River Ayacutdars Protection Association and Others, . The operative portion of the
order reads as follows:
Many steps have been taken but the Association has to ensure the compliance with the orders passed by the High Court fully and in order to
do so, it is desirable that the Association be given three months'' time to ensure compliance with the directions to make the CET Ps functional and
pay the balance amount for cleaning the dam and river and meet the compensation to the adversely affected persons within a period of three
months from today. The Pollution Control Board is directed to ensure that no pollution is caused, giving strict adherence to the statutory provisions.
After the disposal of the Civil Appeal by the Supreme Court, a Miscellaneous Petition in W.P.M.P. No. 713 of 2009 was filed by the
Petitioner before this Court in the writ petition for a direction to the Pollution Control Board to submit a Status Report in compliance with the order
dated 28.4.2008 in W.P.M.P. No. 812 of 2008 in W.P. No. 29791 of 2003. This Court by order dated 8.4.2010, issued the following
directions:
(1) TheTamil Nadu Pollution Control Board is directed to inspect the units/CET Ps and to report about the compliance of the directions given by
this Court on 22 December, 2006 and more particularly paragraph 30 of the order. The report should deal with each of the directions specifically
in clear terms, the action taken by the units/CET Ps, extent of compliance and balance measures to be taken. It should also contain the
opinion/suggestions of the Board in the matter for passing further orders.
(2) The report of the Pollution Control Board should also contain details of the CETPS, and the process taken to achieve zero liquid discharge,
installation of ZLD system, total dissolved solids level in the Noyyal River and other relevant information necessary for the disposal of the matter.
(3) The District Collectors of Coimbatore, Erode and Karur are directed to report about the steps taken to comply with the directions (n) and (o)
of paragraph 30 of the order.
(4) The Public Works Department and the Concerned Revenue Authorities are directed to submit an action taken report pertaining to Sl. No. (p)
and (q) of the directions.
Pursuant to the directions given, affidavits have been filed and a status report has been submitted by the TNPCB. In the order dated 8.4.2010,
referred supra, this Court permitted the Writ Petitioners, Expert Committee Members and the Monitoring Committee Members to provide
necessary inputs to the Pollution Control Board for filing a comprehensive report. The complaint by the Monitoring Committee is that, though they
have given their inputs, the Pollution Control Board has not adverted to the same, much less taken into consideration the valid suggestions made by
them.
As seen the Supreme Court did not interfere with the directions issued by the Division Bench of this Court in its order dated 22.12.2006, but
granted three months time to the units to ensure compliance of the directions, to make the CET Ps functional and to pay the balance amount for
cleaning the dam and river and meet the compensation to the adversely affected persons. The TNPCB was directed to ensure that no pollution is
caused, giving strict adherence to the statutory provisions. It appears that the Association sought for further time to pay the fine amount by filing a
Miscellaneous Petition in I.A. No. 10 of 2009 in Civil Appeal No. 6776 of 2009, which was dismissed by the Supreme Court by a order dated
25.1.2010, giving liberty to the Tirupur Dyeing Factory Owners Association to approach this Court for appropriate relief. Similar order was
passed by the Supreme Court on 19.2.2010 in two other Interlocutory Application Nos. 12 & 13 of 2009 in Civil Appeal No. 6776 of 2009,
wherein a prayer was made for extension of time. It appears that though the Supreme Court granted liberty to the Dyers Association to approach
this Court, the Association has not availed such liberty.
The grievance expressed by the Petitioner is that the directions issued by the Division Bench of this Court (para 30 of the order) referred to
above, have not been complied with by the Respondents and that it amounts to willful disobedience of the order passed and the Respondents are
liable to be punished for contempt.
As seen from paragraph No. 30 of the earlier order dated 22.12.2006, several directions were issued by the Division Bench. The Petitioner in
the affidavit filed in support of this Contempt Petition has stated as to how the directions have either been partially complied with or not complied
with in its entirety and cases where no effective action has been taken by TNPCB.
When the matter came up for consideration before this Court on 4.10.2010, the learned Counsel appearing for the Petitioner produced a
plastic bottle containing dark coloured liquid and stated that it was the water sample collected from the river and the pollution is unabated and this
Court should step in and ensure strict compliance of the directions issued in the earlier order.
By our order dated 4.10.2010, we directed an official of the Registry of this Court to inspect and take samples from the river. As per the
directions, the Deputy Registrar of this Court collected samples from three places in the presence of the villagers and produced the same before
this Court. By further order dated 21.10.2010, we directed that the samples so collected to be sent to the National Environmental Engineering
Research Instituted (NEERI), Chennai, for complete analysis and to submit a report. The report was received in a sealed cover addressed to the
Registrar General of this Court and it is indeed shocking to see the standard/quality of the water which had been collected by the Officer of this
Court in three places namely near Kasipalayam village, Erode District, near Noyyal River Bridge and Orathupalayam Dam. For better
appreciation, the findings of the NEERI are reproduced hereunder:
Sample: HIGH COURT (Noyyal River) Sample collected: 20-10-2010 Sample Received: 22-10-2010 No of Samples: 3 Description of the
Samples:
Sample I:Noyyal River near Kasi Palayam CETP
Sample II:Noyyal River 5 km From Uthukuli (near Bridge Kankeyam Road)
Sample III:Noyyal River - Orathupalayam Dam
Parameters Sample-I Sample-II Sample-III Inland Surface Drinking
water standa rdwater
IS:2296-1982 Standards
Acceptable
limit.
CPHEEO
Temperature C 28.7 30.7 29.9 -
pH 8 8.87 8.53 5.5-9.0 7.0-8.5
D.O(mg /L) 8.5 8.8 9.2
Conductivity( �S/c m)5080 5910 6290
Total suspended solids 98 120 96 100
Total dissolved solids 4580 5320 5660 2100 500
Turbidity (NTU) 75.5 34.5 15.2 2.5
Colour (Pt /Co water -
Colour std.) units 200 100 200 5
Total Hardness (mg/L) 665 1195 1290 200
Calcium Hardness
(mg/L) 365 540 360 75
Chloride (mg/L) 1814 2331 2457 1000 200
Alkalinity (mg/L) 850 790 810
Free ammonia cal
nitrogen(mg /L) 46 58 61 50
Nitrite (mg/L) 0.05 0.02 0.12
Nitrate (mg/L) 0.06 0.02 0.1 45
Sulphate (mg/L) 420 390 470 1000 200
Sodium (mg/L) 1427 2271 2335
Potassiu m (mg/L) 59 75 79
Phosphate (mg/L) 1.72 1.65 1.51 5
C.O.D(mg /L) 175 95 78 250
We directed the Registry to supply copies of the report given by NEERI to all the Respondents to submit their response.
The Pollution Control Board has filed a counter affidavit. The sum and substance of their stand in the counter affidavit is that the Board has
taken effective and concrete steps to implement the directions issued by the Court and that the Petitioner is using the contempt jurisdiction as a tool
of oppression and the allegations made by the Petitioner does not make out a case for contempt.
We have carefully gone through the counter affidavit and what strikes the eye is the averments made in paragraph No. 48 of the counter
affidavit. It has been stated by the TNPCB that they have formed five Inspection Teams consisting of three members each and 10 Inspection
Teams consisting of two members each to carry out the directions issued by this Court in order dated 8.4.2010 and these teams have inspected
the Units and on such inspection, the Board found that there were violations and hence show cause notices have been issued to 300 Units for non
compliance of the various directions issued. It is further stated that inspite of such show cause notices, 286 Units out of 300 Units continued to
violate the directions and therefore closure orders have been issued to such Units.
Thus, it cannot be disputed that only after the directions issued by this Court on 8.4.2010, the Officials of the Board have woken up from their
deep slumber and attempted to enforce compliance of the directions issued by this Court in its order dated 22.12.2006.
If as stated by the Board there had been periodic monitoring and constant vigilance, the violations committed by these Units would have come
to light much earlier. Thus, primafacie, we are of the view that there has been dormancy/lethargy on the part of the officials in implementing the
directions of this Court even after the disposal of the Appeal by the Hon''ble Supreme Court on 6.10.2009.
The Dyeing and Bleaching Factory Owners Associations, the Respondents 5 & 6, have filed counter affidavits stating that ""all is well"" and that
they are ready to invest further amount of money under orders of this Court and as per earlier orders, state of art Reverse Osmosis Plants and
Reject Management System have been established.
The question which looms large is not as to whether investments have been made and Reverse Osmosis Plants have been set up or Reject
Management systems have been put in place, but whether it is ensured that these systems/machinery are functional, whether the Units abide by the
various conditions imposed by the Pollution Control Board which are based on the directives issued by this Court, and what steps have been taken
against the erring industries and what remedial measures are to be taken for the damage caused to the ecology more particularly after October
2009 till date and what further directions need to be issued.
As noticed earlier, the Division Bench of this Court issued an interim direction on 28.04.2008, directing the Pollution Control Board to remove
the excess production machinery in all the Dyeing and Bleaching units in and around Tirupur, by making due inspection of the units with the
assistance of the members of the monitoring committee, the Board was directed to submit the action taken report on or before 31.07.2008. It
appears that pursuant to the directions, an inspection was conducted in 729 units during May and June 2008 and in its report, the committee has
placed certain facts, which according to the committee is very disturbing. It has been stated that the CET Ps, which had commissioned, the R.O
plants were operating on trial basis and they were not operating the evaporators as a result of which large quantities of effluent with higher TDS is
being discharged into the river Noyyal. In its observations, the Monitoring Committee has stated that it is a regular feature that the units operate in
excess of the permitted capacity and there is increase in the number of production machinery by all the dyeing and bleaching units and in some
cases, up to the extent of 10 times more than the consented capacity. The committee has given the names of units in its report, who have exceeded
their consented capacity. It has been further stated that the units have not removed the excess machinery, inspite of the show cause notice issued
by the Pollution Control Board and the directions issued by the Division Bench of this Court dated 28.04.2008. Further, such of those units who
have removed the excess machinery after 2008 inspection have reinstalled the machinery. It has been further stated that the committee cannot
assert that these units have attained zero liquid discharge and many of the units appear to be facing problems with reject management and exercise
has to be carried out to audit the functioning of each unit to ensure achievement of zero discharge, before they are permitted to operate during
weekends. Further, it has been pointed out for over a year, the Field officers of Pollution Control Board appear to have not carried out periodical
and thorough inspection of the member units offering the justification that the matter was pending before the Supreme Court and even after the
disposal of the Civil Appeal, no attempt has been made by the Board to systematise inspection to ensure that the units achieved zero discharge and
are not violating the law.
The learned Additional Advocate General appearing for the Pollution Control Board submitted that action has been taken to remove the
excess machinery installed by the Dyeing and Bleaching Industries at Tirupur area and a report has been filed by the District Environmental
Engineer, Tiruppur, dated 20.08.2010 along with annexures. By placing reliance on the said report, it is being stated that the IETP units and CETP
member units were inspected by the Board officials and it was found that the units have installed excess machinery and show cause notices were
served for the said violation and the units have been made to remove the excess machinery and a list of such units where, excess machinery were
removed, have also been furnished along with the report and during the routine monitoring, if the excess machinery is found, action would be taken
against such units. The learned Additional Advocate General would further submit that paragraph 30(a)(ii) of the judgment of the Division Bench of
this Court, does not contemplate issuance of any separate certificate and the Board issues only a consent order and in terms of the said direction,
what is required to be done by the units is to only establish the zero liquid discharge machinery, but not to achieve the same.
In our view, the said submission is without any basis. The order and direction issued by the Division Bench dated 22.12.2006 in paragraph
30(a)(ii) uses the expression ""achieving"", which denotes that the IETPS/CET Ps shall achieve zero liquid discharge and satisfy the Board about
their status and on verification, the Board shall issue appropriate certificates and from the said date, they are not liable to pay fine. Therefore, the
direction is not only for installation of machinery to achieve ZLD, but to ensure that the machinery operates efficiently and the unit is able to achieve
ZLD to the satisfaction of the Board. Thus, it appears that the Board has granted consent to operate the IET Ps/CET Ps on installation of the
required machinery to achieve ZLD. This is the clear violation of the order and direction issued by the Division Bench in paragraph 30(a)(ii).
The learned Additional Advocate General had submitted that several units have been closed as they failed to achieve the zero liquid discharge
status and the Board is periodically monitoring the other units. The learned Additional Advocate General invited our attention to the counter
affidavit filed by the third Respondent, wherein, details as regards the number of units to which, show cause notices and closure order have been
issued. Further, it is contended that the Expert Committee excluded the domestic sewerage arising from the settlement along with the Noyyal river
in the recorded flow of 66MLD, which also finds its course to the river Noyyal and this is the one of the major contributing factors to the Pollution
in the river. Further, it is stated that the polluters have to pay fine till the date of complying with the direction of this Court, as contained in
paragraph 30(a)(ii). The learned Additional Advocate General took us through paragraphs 48 to 50 of the counter affidavit which according to the
third Respondent, are the steps taken by the Pollution Control Board, after the order passed by the Supreme Court. Further, it is submitted that
the Board has issued show cause notices to 303 units and issued directions for closure to 237 units, after the expiry of three months time granted
by the Supreme Court for any one or more of the following violations:
i) Not installed ZLD system, (2) Not paid the Fine amount, (3) Not paid the LoEA compensation amount, (4) Not paid the Adhoc Compensation
amount, (5) Not operating the ZLD system installed and bye passing the effluent, reaching the Noyyal River and (6) Installation of excess
Bleaching and Dyeing process machineries than the applied/consented quantity of effluent, (7) Providing by-pass arrangements to discharge the
effluent either directly or indirectly, (8) For not providing secured land fill for safe hazardous sludge disposal and not storing the hazardous sludge in
a scientific manner, (9) For not maintaining the records for the operation of Zero Liquid Discharge System plant, (10) Not maintaining the
computer systems provided for flow meter recordings and flow meters found not working, (11) The water recovery and salt/brine recovery from
the Zero Liquid Discharge System plant found to be poor and (12) Made provision for on/off switch at the EMFM for the manipulation of records.
Mr. K.M. Santhana Gopalan, learned Senior Counsel appearing for the Petitioners pointed out that the order passed by the Supreme Court
does not contemplate any show cause notice, but the direction is to close the units and disconnect the electricity supply, if they are found to be
violating the conditions. Equally so, there is no such direction in the order passed by the Division Bench of this Court, dated 22.12.2006. Thus the
net result is the Zero liquid discharge has not been achieved and the pollution has also not been stopped. We have perused the order passed by the
Division Bench and are in entire agreement with the submission of the learned Senior Counsel.
Mr. V. Prakash, learned Senior Counsel appearing for the fifth Respondent had contended that when the writ petition in W.P. No. 1649 of
1996, was disposed of, based on a joint memo, the concept of Reverse Osmosis or achieving ZLD was not visualized and the members of the fifth
Respondent association have complied with the order and direction contained in paragraph 30(a)(ii) of the Division Bench and on being satisfied
the order of consent to operate was issued by the Board. The learned Senior counsel would further submit that there is no willful disobedience of
the order passed by the Division Bench, but it has to be admitted that there may be some blitches, which cannot be taken to be as willful
disobedience of the order passed by this Court and confirmed by the Supreme Court. Further, the learned Senior counsel would submit that in the
earlier orders, there was no mention about Reverse Osmosis and that concept was incorporated in the order of the Division Bench for the first
time. It is further submitted that the order of consent is granted to the respective units after inspection being done in terms of Rule 27 of the Tamil
Nadu Water (P&CT) Rules, 1983, and the inspection report given is about the zero discharge status and there is no other statutory certificate as
contemplated in para 30 (a)(ii) of the order of the Division Bench. The learned Senior Counsel would further submit that the CET Ps, who did not
have consent to operate approached this Court and filed the writ petitions, which were disposed of by a Division Bench of this Court and
thereupon, the Pollution Control Board having been satisfied that the units have complied with the requirements under para 30(a)(ii) of the order,
consent orders to operate were issued. The learned Senior counsel submitted that all the units have availed huge bank loans and there are
thousands of employees, whose livelihood depends on the units and if orders of the closure are issued, it would not solve the problem, but would
aggregate it.
Mr. Vijaya Narayan, learned Senior counsel appearing for the sixth Respondent, would submit that during the pendency of the matter before
the Supreme Court, an inspection was done and the findings of the inspection committee was taken note of by the Supreme Court as is evident
from paragraph 32 of the judgment of the Supreme Court and it takes 3 to 6 months for the technology to stabilise and show results and more than
Rs. 1200/-crores have been spent on the technology. That, if the units are to be closed down, it would result in irreparable hardships to the units,
as they have availed huge bank loans and several people would lose employment. The learned Senior counsel submitted that when the
Associations/CET Ps approached this Court for issuance of direction to the Board for consideration of their application for consent to operate, the
Petitioner association were also heard and only thereafter, the Division Bench passed the order. Therefore, the Petitioner being a party to such an
order cannot now fall back on the order passed by the Division Bench earlier i.e., on 22.12.2006.
It is seen that the order passed by the earlier Division Bench in W.P. Nos. 9769 to 9777 of 2009 was at the instance of CET Ps and the
prayer in the Writ petitions was for issuance of a writ of mandamus to direct the Respondents to consider and dispose of their respective
Applications dated 27.12.2008 requesting consent to operate the CET Ps as per the capacities set out in the Applications. The Applications given
by the CET Ps were all dated 27.12.2008, much prior to the order passed by the Supreme Court on 6.10.2009. Therefore, that merely because
the earlier Division Bench issued directions to take a final decision on such Applications made by the CET Ps, it would not in any manner dilute or
efface the directions issued by the Division Bench in its order dated 27.12.2006.
Mr. V. Raghavachari, learned Counsel appearing for the Petitioner while adopting the submissions made by the learned Senior counsel for the
Petitioner would add that the payment of fine came to an end after the time limit prescribed by the Supreme Court expired and in 2009, the
Industries approached the Supreme Court for extension of time which was rejected. The net result is that the pollution is unabated and from 2007
onwards the Units have been discharging untreated trade effluent into the river and they have not paid any fine.
The learned Additional Advocate General would submit that in view of the time limit stipulated by this Court in its earlier order, after July 2007,
no fine has been collected and if appropriate directions are issued, the Board will collect the fine in terms of such directives.
As noticed above, the Contempt Petitions have been filed alleging willful disobedience of the order and the directions issued by the Division
Bench of this Court dated 22.12.2006 and the directions issued in W.P.M.P. No. 811 of 2008 dated 28.4.2008. We have seen that the order
and directions issued by the Division Bench of this Court dated 22.12.2006, are elaborate and specific. The Civil Appeals filed against the order of
the Division Bench was disposed of by the Supreme Court by its order dated 6.10.2009 and none of the directions issued by the Division Bench
were interfered with and the only indulgence granted was extension of time by three months to ensure compliance of the directions of the Division
Bench to make the CET Ps functional and pay the balance amount after cleaning the dam and river and meet the compensation. Thus, all parties to
the judgment are bound by the directions issued by the Division Bench dated 22.12.2006.
An argument was advanced on behalf of the Pollution Control Board stating that the direction issued in paragraph No. 30(a)(ii) of the order
only mandates the establishment of the facilities/machinery for the purpose of achievement of zero liquid discharge (ZLD) and not to the actual
ZLD. In our view, this submission has to be out rightly rejected for more than one reason.
It is evidently clear from paragraph 30(a) that CET Ps were given time upto 31.7.2007 to achieve zero liquid discharge of trade effluent
subject to condition Nos. (i) and (ii). Thus, the direction is very clear that the Units have to achieve zero liquid discharge and it does not stop with
establishing or erecting machinery for such purpose. Only after the Units achieve the zero liquid discharge, a mandate has been issued in Clause (ii)
of paragraph 30(a) to the Pollution Control Board to assess the status of the CET Ps and issue appropriate certificate from which date such CET
Ps shall not be liable to pay fine. In default the Division Bench directed the closure of the CET Ps/Units and disconnection of power supply.
Therefore, in our view, if the Pollution Control Board had issued consent to operate the CET Ps, merely on the establishment of the
machinery/equipment for achieving the zero liquid discharge, then it amounts to violation of the directions issued by the Division Bench. Therefore,
the stand taken by the Pollution Control Board is erroneous.
The Petitioners complained that nothing has been done after the Supreme Court upheld the decision of the Division Bench, and that the
Pollution is unabated and it has in fact increased.
On the other hand, the Units through their Association have filed counter affidavits and contend that they have fulfilled the order and directions
issued by the Division Bench more particularly in paragraph No. 30 (a) (i) & (ii) and the Pollution Control Board having been satisfied with their
compliance, have issued consent to operate and the process being a technical process involving chemical action, immediate and instantaneous
results cannot be achieved and the system has to settle down, for which reasonable time has to be granted and the CET Ps have to be
accommodated to that extent. The submission is devoid of any merit as substantial time was granted by the Division Bench while fixing the cut of
date as 31.07.2007. The dead line was stayed by the Supreme Court till 06.10.2009 and 3 months further time was granted till January 2010, yet
there has been no compliance. Therefore, there is absolutely no jurisdiction on the part of the Units/CET Ps in contending that reasonable time has
to be granted.
The Pollution Control Board had contended that they have taken appropriate action against all erring Units, they have issued show cause
notices and in respect of the Units which failed to comply with the directions despite issuance of show cause notices, have been ordered to be
closed down and as on date out of the total number of 713 Units, 413 Units have been closed down by the Pollution Control Board, that
continuous monitoring is being done and the official Respondents have not violated the order passed by this Court.
The Monitoring Committee in their report have spelt out that despite all the statements made by the Pollution Control Board and the Units/CET
Ps, the excess machinery in the Units have not been removed; on account of the excess machinery, the pollution level has increased because the
out flow is more and those Units whose power supply was disconnected have been found to operate with generators and certain Units are
operating during night times and discharge of the trade effluence into the river is being done through underground pipelines and matter requires
serious attention, immediate and deterrent action.
The contempt Petitioners would reiterate that the zero liquid discharge has not been achieved and that the Board has failed to file any copy of
the certificate issued to any individual Unit reporting compliance of the condition in para 30(a)(ii) of the Division Bench order and if there is non
compliance of the directions, the Units have to be closed down.
In the earlier portion of this order, a reference has been made to our interim direction dated 4.10.2010, by which an Officer of the Registry of
this Court was directed to visit the spot and collect samples. Accordingly, the Officer collected samples in the presence of witnesses and such
samples were sent to NEERI for examination and report and the results of such examination, which has been extracted in the preceding paragraph,
is alarming and shocking. To illustrate, total dissolved solids (TDS) has been tested and in sample No. 3, and found to be 5660 and the acceptable
standards for drinking water is 500. Thus the test result is a primafacie indication that the pollution in the Noyyal river has not stopped.
The Division Bench of this Court issued comprehensive directions by its order dated 22.12.200. The time limit fixed for compliance was
31.7.2007 and Units which failed to achieve zero liquid discharge on or before 31.7.2007 were ordered to be closed. Against the said order
appeals were filed before the Supreme Court and it appears that that portion of the order directing closure by 31.7.2007 was alone stayed by the
Supreme Court. The appeals before the Supreme Court were pending from 2007 till 2009 when it was finally disposed of by an order dated
6.10.2009. In the interregnum it appears that the Pollution Control Board failed to take any action in the matter and no fine was collected stating
that the fine could be collected only upto 31.7.2007. The Supreme Court while disposing of the Civil Appeal by its order dated 6.10.2009, took
note of the fact that the appeals were pending for more than 2 1/2 years and therefore only three months time was granted for the CET Ps to
become functional, which time expired by January 2010. It has to borne in mind that the Supreme Court had stayed only that portion of the order
relating to closure of the unit by 31.07.2007. Therefore, it was the duty of the Board to ensure compliance of the after directions issued by the
Division Bench.
Thus the picture which emerges from the above facts is that between 2007 and 2009, the Units had a ""free ride"", effluent was discharged into
the river, no stringent action was taken by the Board since the direction for closure remain stayed, and even after the expiry of the time limit of
three months granted by the Supreme Court, no appreciable action was taken till the interim direction was granted by a Division Bench of this
Court. It is only thereafter, the Pollution Control Board appears to have become sensitive to the issue and several show cause notices were issued
to various units who have failed to achieve zero liquid discharge and steps have been taken to close down such units who did not comply with the
direction of the Board inspite of issuance of the show cause notice.
It is submitted by the learned Additional Advocate General that as on 6.1.2010, 413 units have been closed down and five CET Ps have been
closed.
Mr. T. Mohan, learned Counsel appearing for the Monitoring Committee submitted that out of the five CET Ps which were closed, four CET
Ps have resumed their operation pursuant to the order passed by the Pollution Control Board without any judicial interference.
All these facts reveal a very gloomy picture as to the manner in which the Pollution Control Board has dealt with the issue. Thus, primafaciewe
are satisfied that the order passed by the Division Bench of this Court which was confirmed by the Hon''ble Supreme Court has not been duly fully
complied with. However it is not a case of total non-compliance and could be treated as partial compliance though not effective compliance.
Therefore, we desist from punishing the authorities for the present.
The Supreme Court while disposing of the Civil Appeals by its order dated 16.9.2009, while considering the concept of sustainable
development, explained that it covers the development that meets the needs of the person without compromising the ability of the future generation
to meet their own needs and it means the development, that can take place and which can be sustained by nature/ecology with or without
mitigation. Their Lordships further held that the test to be applied in respect of the environmental or health issues, is what is called as the
reasonable person''s"" test and while doing so, the development of industries etc. cannot be ignored and the balance has to be struck between
both. The Supreme Court placed reliance on its earlier decision in the case of T.N. Godavaraman Thirumulpad Vs. Union of India (UOI) and
Others, and M.C. Mehta Vs. Union of India (UOI) and Others, .
It has been stated that more than Rs. 1200 crores has been invested for creating the CET Ps in order to achieve zero liquid discharge. Further,
it is pointed out that the projects have been funded by Banks and financial Institutions and the borrowings have been at high rates of interest and if
orders of closure are passed enblock it would not only impair the project but have a great negative impact on the labourers and people who are
dependent on these industries.
As noticed above, in 1998, on the basis of joint memo filed by the parties in the Court, the industries were allowed to operate as an interim
measure for three months and if they fail to obtain consent from TNPCB, the Board was directed to implement the order. Subsequently, prayer
was made for extension of time, which was rejected by this Court and the order was confirmed by the Supreme Court. By order dated 22nd Dec.,
2006, several directions were issued, which have been quoted hereinabove, including the direction to the units to achieve Zero Liquid Discharge.
The Supreme Court further taken notice of non-compliance, directed the Respondents-association to ensure compliance forthwith.
It is a matter of great concern that inspite of specific direction of this Court and the Supreme Court, the units continued discharging effluent and
did not achieve Zero Liquid Discharge. At the same time, the TNPCB failed to take action for the closure of these units. It was only after the
matter was taken up by this Court, the Board has taken some steps for the closure of some of the units.
As discussed above, in October, 2010, the water sample from different parts of the river was collected and sent to the National Environmental
Research Institute for analysis. From the report it has been found that still the water is highly contaminated and polluted because of the continuous
discharge of effluent from these units. In the present scenario, we cannot rely upon the bare assurances given by the counsels appearing for the
Respondents that henceforth all steps will be taken to achieve Zero Liquid Discharge.
In a similar situation, in the case of Indian Council for Enviro-Legal Action and Others Vs. Union of India (UOI) and Others, , the Supreme
Court took a very stringent view and directed closure of the industries by issuing inter-alia the following directions:
...
On account of their continuous, persistent and insolent violations of law, their attempts to conceal the sludge, their discharge of toxic effluents
from the Sulphuric Acid Plant which was allowed to flow through the sludge, and their non-implementation of the orders of this Court - all of which
are fully borne out by the Expert Committee''s reports and the findings recorded hereinabove - Respondents 4 to 8 have earned the dubious
distinction of being characterised as ""rogue industries"". They have inflicted untold misery upon the poor, unsuspecting villagers, de-spoiling their
land, their water sources and their entire environment - all in pursuance of their private profit. They have forfeited all claims for any consideration
by this Court. Accordingly, we herewith order the closure of all the plants and factories of Respondents 4 to 8 located in Bichhri village. The
RPCB is directed to seal all the factories/units/plants of the said Respondents forthwith. So far as the Sulphuric Acid Plant is concerned, it will be
closed at the end of one week from today, within which period Respondent 4 shall wind down its operations so as to avoid risk of any untoward
consequences, as asserted by Respondent 4 in Writ Petition (C) No. 76 of 1994. It is the responsibility of Respondent 4 to take necessary steps
in this behalf. The RPCB shall seal this unit too at the end of one week from today. The reopening of these plants shall depend upon their
compliance with the directions made and obtaining of all requisite permissions and consents from the relevant authorities. Respondents 4 to 8 can
apply for directions in this behalf after such compliance.
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 CET Ps/IET Ps Bleaching & Dyeing units in Tirupur area shall be closed down forthwith by the Pollution Control Board and the
Electricity supply shall be disconnected.
(ii)Such CET Ps/IET Ps/Units shall not be permitted to operate unless and until they achieve zero liquid discharge as per the directions issued
paragraph No. 30(a)(ii) of the order of the Division Bench dated 22.12.2006;
(ii). All CET Ps/IET Ps/Units shall be individually inspected by a team of officers nominated by the Tamil Nadu Pollution Control Board along with
the members of the Monitoring Committee and a detailed report shall be prepared individually for each CET Ps/IET Ps/Units;
(iii). The report shall be the sole basis to assess as to whether the CET Ps/IET Ps/Units should be granted permission to commence operations;
(iv). If the CET Ps/IET Ps/Units are deficient or have not achieved the required parameters, they shall not operate and be directed to rectify the
deficiencies and report to the Pollution Control Board for fresh inspection by the team of officers of the Board and the Monitoring Committee;
(v) In respect of the CET Ps/IET Ps/Units, who have fulfilled all the conditions, it would be open to the Tamil Nadu Pollution Control Board to
issue orders of consent to operate and such units shall be continuously and closely monitored in order to ensure strict compliance of the orders;
(vi). For the purpose of trial run for testing the efficiency of the equipments, the Pollution Control Board is entitled to issue temporary authorisation
to the Electricity Board for temporary electricity supply. While such testing operations are being carried out it shall be done in the presence of an
official of the Tamil Nadu Pollution Control Board;
(vii) During the course of inspection of these CET Ps/Units, if any extra machinery has been found to be installed or any pipelines have been laid,
they shall be forthwith removed and such units shall be directed to remove those additional machinery from precincts of the factory premises.
(viii) Division Bench granted time to the units till 31.07.2007, failing which directed closure. This portion of the order was stayed by the Supreme
Court and the stay remained in force till 06.10.2009. The Supreme Court did not interfere with a direction passed by the Division Bench and
granted extension of time to comply with the condition by three months, this extended period came to an end in January, 2010. Such of those units,
who have failed to comply with the directions of the Division Bench, inspite of the extension of time granted by the Supreme Court shall be liable to
pay fine at the rates fixed in paragraph 30(a)(i) of the order passed by the Division Bench dated 22.12.2006.
(ix) As against the CET Ps/IET Ps/Units which have flouted the order and direction issued by this Court and conditions stipulated by the Tamil
Nadu Pollution Control Board and continued to cause pollution and failed to rectify the defects despite the show cause notice issued by the Board,
the Board shall initiate the criminal prosecution against such CET Ps/IET Ps/Units.
(x) The Board shall also furnish the list of names of the Officers of the Pollution Control Board who were in charge of the affairs of the Board
during the relevant time when those CET Ps/IET Ps/Units failed to comply with the orders of this Court and the directions issued by the Pollution
Control Board so that appropriate actions may also be taken against them.
Post these matters on 21.03.2011.