Madras High Court
S.R.Rajendran vs The Commissioner on 7 November, 2017
Author: S.Vaidyanathan
Bench: S.Vaidyanathan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 07.11.2017 CORAM: THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN W.P.No.3287 of 2017 & WMP No.3259 of 2017 S.R.Rajendran .. Petitioner Vs. 1. The Commissioner, Erode Corporation, Brough Road, Erode 638 001. 2. The Executive Engineer (Planning), Erode Local Planning Authority, Office of the Erode Local Planning Authority, Tamil Nadu Housing Board Shopping Complex, Surampatti Nagar, Erode 638 009. 3. Preethi Tex Rep. by its Proprietor D.Suresh .. Respondents Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Mandamus, directing the 1st and 2nd respondents herein to take necessary action against the 3rd respondent herein who has been running power loom factory in the mixed residential zone thus by causing air, dust and noise pollution without following mandatory rules and regulations by considering his representations dated 14.10.2016. For Petitioner : M/s.V.Kadhirvelu For R1 : Mr.M.Rajamathivanan For R2 : Mr.R.Venkatesh, G.A. For R3 : Mr.A.K.Kumarasamy, Senior Counsel for Mr.S.Kaithamalai Kumaran ORDER
The petitioner has come forward with this writ petition to direct the 1st and 2nd respondents herein to take necessary action against the 3rd respondent herein, who has been running power loom factory in the mixed residential zone, thus by causing air, dust and noise pollution, without following mandatory rules and regulations by considering his representation dated 14.10.2016.
2. The case of the petitioner is that he has constructed a house in the mixed residential zone and living with his family members. The School going children are unable to study, sleep and carry out the day to day activities, due to the noise caused by the power loom factory run by the 3rd respondent. It is stated that the family members are affected by polluted air, dust and noise. Due to the operation of the said power loom factory 24 X 7, there are many cracks in the wall, resulting in huge damage. The 3rd respondent has violated the Tamil Nadu District Municipalities Act, 1920 and Public Health Act, 1939 by running the said power looms in the mixed residential zone without proper approval from the 2nd respondent. The District Environment Engineer, Erode had issued a notice dated 02.12.2010 to the first respondent to take necessary action against the 3rd respondent, under the said Acts. As no action was taken, the petitioner has made representation to the 1st respondent on 14.10.2016.
3. The petitioner further stated that the said mill is running for the past 3 years without any safeguard by opening glass panels, creating noise, dust and air pollution. The respondents 1 & 2 being stautory bodies and organs of the State, have to ensure that the 3rd respondent-Factory is closed, as they have violated the mandatory statutory provisions and that apart, they are running the factory in the mixed residential zone.
4. The first respondent has filed a counter affidavit stating that the power loom factory is being there for more than a decade and that the 3rd respondent is living there for the last 3 years only. In fact, the place that is referred to by the petitioner is used for residential and industrial purposes. Already, the Town Planning Authority has declared the said area as controlled industrial area and there are old residential houses. The said area is consisting of mixed residential houses as well as industries. It is further stated that the 3rd respondent is running the power loom factory in a rented premises and it is also fully air conditioned. Apart from that, the 3rd respondent has fixed 20 power looms and obtained 10 HP electricity connection for running the same. The permission was obtained as early as in 2004 and the factory is running ever since 2004. When a complaint was received, the Pollution control Board has issued notice to the 3rd respondent and they sent a proper reply and it was confirmed that the factory is running under the Rules and Regulations of the Pollution Control Board.
5. The learned counsel for the 3rd respondent has filed a counter affidavit stating that the industry was started in the year 2004 and electricity connection was obtained in the same year. The 3rd respondent is running the the power loom factory by adhering to the Rules and Regulations by paying necessary trade license fees to the Corporation. It is very unfortunate that the petitioner has put up construction in the year 2013 and contending that there are violations, but the fact is that the industry is being there for last 13 years. As per Veerappanchatram D.D. Scheme No.7, R.S.No.25 in Erode Village is declared as Controlled Residential Area and several power looms are operated in the area, however after obtaining necessary permission. It is sated that there are several industries like Sri Muthu Tex, Meenakshi Textiles, Palani Andavar Textiles and power looms are operated in and around the residence of the petitioner by the respective persons on obtaining proper permission from the authorities. The 3rd respondent firm is in a rented premises, which is fully air conditioned as per the norms fixed by the Tamil Nadu Pollution Control Board. He further submitted the writ petition is devoid of merits and hence the same may be dismissed.
6. Heard all the parties and perused the materials available on record.
7. It is not in dispute that the 3rd respondent-industry has commenced its operation in the year 2004 after taking necessary permission. It is also not in dispute that the petitioner has constructed the house 3 years prior to the writ petition, even though he is said to have purchased the property in the year 1999. It is also not in dispute that the Pollution Control Board has issued notice under the Tamil Nadu District Municipalities Act, 1920 and Public Health Act, 1939 and the defects said to have been pointed by them were rectified. The only issue is as to whether the industry is being run in a mixed residential zone, where cottage industry is permissible to function in the residential area.
8. The petitioner has produced G.O.Ms.No.1730, Rural Development and Local Administration Department, dated 24.07.1974, wherein details regarding Use Zone Regulations are given and the Residential Use Zone is categorised as Primary Residential Use Zone and Mixed Residential Use Zone. For the sake of convenience, the relevant portion of the said G.O. is extracted:
1. Residential Use Zone:
a. Primary Residential Use Zone b. Mixed Residential Use Zone Use Zone 1(a) Primary Residential Use Zone
1.All residential building including single and multi family dwellings, apartment dwellings and tenements together with appurtenances pertaining there to;
2.Professional consulting offices of the residents and other incidental uses therefore;
3.Petty shops dealing with daily essentials including retail provisions soft drinks, cigarettes, newspapers, milk Kiosks, cycle repair shops and single person tailoring shops;
4.Hair dressing saloons and Beauty Parlours;
5.Nursery and Primary Schools;
6.Taxi and Auto rickshaw stands and
7.Parks and Playfields.
Use Zone 1(b) Mixed Residential Zone Uses Permitted
1.All uses permitted under Use Zone(a) i.e. Primary Residential Use Zone
2.Hostels and single person apartments
3.Community Halls, Kalyanamandapam, Religious buildings, welfare centres and Gymnasia.
4.Recreation clubs, Libraries and Reading rooms
5.Clinics, Dispensaries and Nursing homes
6.Government, Municipal and other institutional Sub-Offices.
7.Police Stations, Post & Telegraph Offices, Fire Stations and Electric Sub-station
8.Banks and Safe Deposit Vaults
9.Educational institutions excluding colleges
10.Restaurants, Residential Hotels and other Boarding and Lodging Houses
11.Petrol filling and Service Stations
12.Departmental stores or stores or shops for the conduct of retail business
13.Bakeries and Confectioneries
14.Laundry, Tailoring and Goldsmith Shops and
15.Cottage industries permissible in residential areas under G.O.Ms.No.566, dated 13.03.1962.
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III. Industrial Use Zone Use Zone 3.
A. Controlled Industrial use Zone B. General Industrial use Zone C. Special Industrial and Hazardous use zone Use Zone III(a) Controlled Industrial Use Zone Uses Permitted.
1.All commercial uses listed under use zone 1(a), 1(b) and 2 i.e., residential and commercial use zones;
2.Industries using electric power not exceeding 130 H.P. (L.T. Maximum load) but excluding industries of obnoxious and hazardous nature by reason of odour, liquid effluent, dust, smoke, gas, vibration etc. Or otherwise likely to cause danger or nuisance to public health or amenity;
Provided that these industries may use steam, oil, or gas power during periods of power shortage of failure.
3.Hotels, Restaurants and Clubs, places for social inter course, recreation and worship and dispensaries and clinics, and
4.Residential buildings for caretakers, watchman and other essential staff required to be maintained in the premises.
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9. As per the said G.O., the Industrial Use Zone is categorised as 3 zones and the first being the Controlled Industrial Use Zone, which this Court is concerned about, which is extracted supra.
10. The contention of the petitioner that in terms of the conditions prescribed, the use of power loom cannot be permitted in that area is not correct. The entire issue has got to be considered in terms of Use Zone 3(a)(2), which specifies that the industry using electric power not exceeding 130 H.P. can be permitted, however, excluding industries of obnoxious and hazardous nature. This clause has also clearly stated that there cannot be any dust, smoke, etc., which are hazardous to the public.
11. Even though the petitioner has submitted there is health hazard on account of noise and air, he has not produced any material to that effect. The petitioner submitted that his School going children are unable to study and sleep at night and hence the industry may be directed to stop its operation during night hours. From the contention, it appears that on account of disturbances of same, the petitioner seeks interference of this Court on the functioning of the industries. As could be seen form the counter affidavit of the respondents 1 and 3, it is clear that the industry has complied with the mandatory requirements of the Tamil Nadu Pollution Control Board and the Tamil Nadu District Municipalities Act, and unless it is really hazardous, the industry cannot be asked to be shifted or closed. It is stated that the industry is completely air conditioned and that there is no noise or air pollution as contended by the petitioner.
12. I find much force in the contention of the 3rd respondent and that the 3rd respondent had complied with the provisions of the Statute and not causing pollution by way of air and noise and hence there is no need to close the industry. That apart, the industry is in operation for more than 13 years and the petitioner has came to this place only 3 years ago. It is no doubt true that everyone is entitled to have good sleep, more particularly, children who are studying. The learned counsel for the 3rd respondent submitted that if any noise pollution is pointed out by the petitioner, they are willing to remedy the situation, and even they are ready to air condition the house of the petitioner. He further stated that they have complied with the mandatory provisions of the Statute and no point of time, they will pollute the atmosphere and cause health hazard, anyone much less the petitioner.
13. In view of the submission made by the 3rd respondent, I find there is no reason to grant the relief sought for by the petitioner and hence the writ petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed. If any grievances with regard the pollution are pointed out by the petitioner, the 3rd respondent will look into it and remedy them. As the 3rd respondent is willing to provide air conditioner, if the petitioner opts for it, the same could be provided by the 3rd respondent and the noise control glass panel shall also be provided in the residence of the petitioner to avoid noise pollution, so that it will not create any disturbance for the children who are pursuing studies.
07.11.2017 Index : Yes / No Internet Yes/ No pvs To
1. The Commissioner, Erode Corporation, Brough Road, Erode 638 001.
2. The Executive Engineer (Planning), Erode Local Planning Authority, Office of the Erode Local Planning Authority, Tamil Nadu Housing Board Shopping Complex, Surampatti Nagar, Erode 638 009.
S.VAIDYANATHAN, J pvs W.P.No.3287 of 2017 & WMP No.3259 of 2017 07.11.2017