National Green Tribunal
Oscar Tex Rep By Its Partner Subramani vs Tamil Nadu Pollution Control Board on 28 February, 2022
Bench: K. Ramakrishnan, Satyagopal Korlapati
Item No. 02 & 03: BEFORE THE NATIONAL GREEN TRIBUNAL SOUTHERN ZONE, CHENNAI Appeal No. 12 of 2022 (SZ) With Appeal No. 13 of 2022 (Through Video Conference) IN THE MATTER OF: M/S. OSCAR TEX. Represented by its Partner A.K. Subramanian, SF. No. 442/4, Kamarajar Street, Athani Village, Anthiyur Taluk, Erode District. .... Appellant(s) Versus 1. Tamil Nadu Pollution Control Board, Represented by its Chairman, No. 76, Mount Road, Guindy, Chennai. 2. District Environmental Engineer, Tamil Nadu Pollution Control Board, Perundurai, Erode District. 3. Mr. S. Varijackson, S/o, Late Sankaran Nair, Bharthidasan Street, Athani Village, Anthiyur Taluk, Erode District. .... Respondent(s) Date of Judgment: 28.02.2022 CORAM: HON'BLE MR. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER HON'BLE DR. SATYAGOPAL KORLAPATI, EXPERT MEMBER For Appellant(s): Mr. K. Rajendra Prasad For Respondent(s): Mr. S. Sai Sathya Jith for R1 & R2 JUDGMENT
1. These appeals have been filed by the appellant against the common order passed by the Appellate Authority, Tamil Nadu Pollution Control Board in Application No. 14 of 2021 & 15 of 2021 to condone the delay in filing the appeal and the Appellate Authority, Tamil Nadu Pollution Control Board has dismissed those applications as the reasons stated are not sufficient to condone the delay.
2. The common case of the appellant in these appeals is that they started the unit in the year 2006 as a partnership firm as a Small Scale Cottage Industry for twisting the cotton yarn in SAB Main road, Kupandapalayam, Athani Village and they obtained necessary approval from the small scale industries department. Since in the year.2012, one Mr. Balaji was also a partner. and they were jointly running the industry and some disputes arose between the partners and thereafter, the appellant had started the unit separately in the year 2015 in S.F. No. 442/4, Kamarajar. Salai,.Athani Village.. They have not constructed any permanent building, but only constructed a tin sheet enclosures and when they approached the 2™ respondent, they were informed that being a 'Green' category unit that there was no necessity to obtain any approval from the Tamil Nadu Pollution Control Board.
3. The industries fall under the Micro, Small and Medium Enterprises and they applied for approval before the 2™ respondent for installation of machinery and got No Objection Certificate (NOC) from the Health Department, Fire Service Department and also other Departments. At the instigation of the earlier partner Mr. Balaji, the 3 respondent herein field a Writ Petition No. 23997 of 2015 (wrongly shown as 2017) seeking for closure of the appellant unit and the Homble High Court of Madras after considering the contentions of all the parties, by judgment dated 06.11.2015 disposed of the matter. Thereafter, the appellants made application before the authorities under Section 250 of The Tamil Nadu District Municipalities Act, 1920 and the same was rejected by them which was challenged by the appellant by filing Writ Petition No. 4657 of 2016 and the Hon'ble High Court of Madras by judgment dated 08.02.2016 disposed of the Writ Petition as follows:- In these circumstances, impugned orders dated 12.01.2016 is set aside and the matter is remanded back to the respondents for fresh consideration, taking into consideration of Section 250 of The Tamil Nadu District Municipalities Act, 1920 and pass fresh orders on merit and in accordance with law after giving an opportunity.of hearing to the appellant within a period of four.(4).weeks from the date of receipt of the copy of this order'. Thereafter, the same was scrutinised by the municipal authorities and finally approved their building plan and assess building tax on 08.09.2016.
. The 3 respondent again filed. a Writ Petition No. 32597 of 2016 on 09.09.2016 not to start the unit: The Writ Petition was disposed of by the Hon'ble High Court of Madras. with an observation that whenever any proceedings have been initiated with regard to the unit, respondents 4 and 5 are directed to make the Writ Petitioner as a party to the proceedings and they must be given an opportunity of being heard.
. Thereafter, the appellant have filed an application before the Tamil Nadu Pollution Control Board for 'Consent to Operate' both under the Water (Prevention and Control of Pollution), Act 1974 and Air (Prevention and Control of Pollution), Act, 1981 and the Tamil Nadu Pollution Control Board by the proceedings no. 1047PND/GS/DEE/TNPCB/10/W&A/2018 dated 16.08.2018 rejected the application on following grounds:-
i) The unit has not provided adequate air pollution control measures to the yarn twisting machine for the control dust emission which may lead to air pollution.
ii) The unit has not provided adequate acoustic measures to 3 control the noise emission due to the operation of machinery which may lead to noise pollution.
iii) As per the DTCP, Salem letter dated 11.07.2018, the unit is located in unclassified areas (Non planned area) and during inspection, it was observed that the unit is surrounded by residential houses on all sides. The residents have compliance about the air and noise pollution to be generated due to the operation of the unit which may affect the environment and health of the nearby residents.
iv) Public complaints have been received against the unit's operation it may cause Air Pollution and Noise Pollution leading to health related problems.
6. It was also mentioned therein that the remedy of the aggrieved person was to approach the Appellate Authority, Tamil Nadu Pollution Control Board, Chennai under Section 28 of.the Water (Prevention and Control of Pollution) Act, 1974 and Section 31 of the Air (prevention and Control-of Pollution), Act, 1981. It is against these orders that the appellants filed the appeals before the Appellate Authority, Tamil. Nadu Pollution Control Board with delay .condonation application to condone the delay of 36 months and receive the appeal.
7. The Appellate Authority, Tamil Nadu Pollution Control Board after considering the reasons stated therein dismissed the applications, as no sufficient reason had been granted to condone the delay of such a long period. Aggrieved by the same, the present appeals have been field by the appellant.
8. Heard, the counsel appearing for the appellant and the counsel appearing for the Tamil Nadu Pollution Control Board (TNPCB). Since the Tribunal felt that the appeals can be disposed of at the admission stage itself as it did not want to interfere with the impugned order of the Appellate Authority, notice to the 3 respondent was dispensed with.
9. The counsel appearing for the appellant submitted that they have given reasons for the delay as there were lot of Writ Petitions filed before the Hon'ble High Court of Madras and they are prevented from filing the appeal till the disposal 4 of those Writ Petitions.
10.On the other hand, the learned counsel appearing for the Tamil Nadu Pollution
11. Control Board (TNPCB) submitted that the Appellate Authority had considered all these aspects and rightly came to the conclusion that the delay has not been properly explained. The impugned order passed by the Tamil Nadu Pollution Control Board (TNPCB) dated 16.08.2018. Normally appeals will have to be filed within a period of 30 days from the date of communication of that order. However, under Section 28 of the Water (Prevention and Control of Pollution) Act, 1974 and Section 31 of the Air (prevention and Control of Pollution), Act, 1981, power has been given to the Appellate Authority, Tamil Nadu Pollution Control Board. to condone the delay, if sufficient reasons are given.
Further, it cannot be said that appellant was not aware of the forum where the appeal will have to be filed especially when, even in the impugned order passed by the Tamil Nadu Pollution..Control Board (TNCPB), it was specifically mentioned that the. appeal will lie to the Appellate Authority, Tamil Nadu Pollution Control Board under the. Water (Prevention and Control of Pollution) Act, 1974 and the Air (prevention and Control of Pollution), Act, 1981. After the impugned order was passed, in fact there was no proceeding pending before any forum between the appellant and any other objecting parties.
12.Under such circumstances, the decision relied on by the appellant in Suo -- Motu case by the Hon'ble Apex Court in Suo - Motu Writ Petition (c) No. 03 of 2020 dated 10.01.2022 is not applicable to the facts of this case, as that was the case where the limitation period was not over, then the time extended for filing the applications/appeals/suits, as the applications of Limitation Act was suspended considering the pandemic created by corona virus infection and consequential declaration of lock downs and not functioning of Courts and Tribunal for some time.
13.Further it was also made clear in that decision that when an extended a period 5 of limitation is provided under the statutes, then, that also was directed to be kept in abeyance. But in these cases even at that time the order was passed by the Hon'ble Apex Court period of limitation has already been over and only remedy available is filing of an application for condonation of the delay and that has been filed considered by the Appellate Authority.
14. The appeals in these cases have filed with delay condonation application only in the year 2021, nearly after three years of passing the impugned order by the Tamil Nadu Pollution Control Board rejecting the application for consideration. So the Appellate Authority was perfectly justified for coming to the conclusion that there was no sufficient reason given by the appellant for condoning the delay and so we are not inclined.to interfere with the dismissal order passed by the Appellate Authority.
15.However we make it clear that certain reasons have been given by the Tamil Nadu Pollution Control Board for rejecting the application. If those conditions are satisfied and a fresh application is filed by the appellant, then the Tamil Nadu Pollution Control Board is at liberty to consider the application after giving an opportunity to the 3 respondent herein, before passing any orders and then pass appropriate orders in accordance with law and if the appellant is aggrieved by the same, their remedy to approach the Appellate Authority or other forum is left open.
16. With the above observations and directions, the appeals are disposed of.
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sicceeeeessssaeeeeeesssaeeeseees E.M. (Dr. Satyagopal Korlapati) Appeal No. 12 & 13/2022 28.02.2022,Sr.