IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 12.5.2009 CORAM THE HON'BLE MR.JUSTICE P.JYOTHIMANI AND THE HON'BLE MRS.JUSTICE ARUNA JAGADEESAN W.P.No.33882 of 2007 Madurai Coats Private Limited Coats India, rep. by its General Manager Papavinasam Mills Post-627 042 Ambasamudram. .. Petitioner Vs. 1. The Appellate Authority Tamil Nadu Pollution Control Board NCB-1, Greenways Road Chennai-600 028. 2. The Tamil Nadu Pollution Control Board 78, Anna Salai, Guindy Chennai-600 032. .. Respondents PRAYER: Petition under Article 226 of the Constitution of India for issue of writ of Certiorari as stated herein. For Petitioner : Mr.Sriram Panchu Senior Counsel for M/s.N.L.Rajah For Respondents: Mr.R.Ramanlal (TNPCB) ORDER P.JYOTHIMANI,J. This writ petition is filed challenging the order dated 29.8.2007 of the first respondent/Appellate Authority under the Tamil Nadu Pollution Control Board, rejecting the appeal filed by the petitioner in Appeal No.55 of 2005 and confirming the order of the second respondent dated 28.6.2005. https://hcservices.ecourts.gov.in/hcservices/ 2. Under the order of the second respondent dated 28.6.2005, the second respondent, who has earlier given consent order to the petitioner/Unit under Section 26 of the Water (Prevention and Control of Pollution) Act, 1974 (for brevity, "the Act"), having found, on inspection of the unit of the petitioner on 31.3.2005, that the unit has not taken action for segregation of high Total Dissolved Solids (TDS) dyebath effluent, has directed the unit to segregate the high TDS effluent and to provide Mechanical Evaporator within six months, stating that the consent is valid for the period ending 31.12.2005. 3. It was against the said order, the petitioner/Unit has filed an appeal before the first respondent under Section 28 of the Act, on the ground that the petitioner has been fully and consistently meeting all the parameters concerned in respect of effluent discharge as per the norms prescribed by the Tamil Nadu Pollution Control Board, apart from stating that at present the petitioner/Unit is running only Sewing Thread Plant and the Effluent Treatment Plant remains the same, which was granted originally for discharge of effluents up to 7623 KLD during the period till 2002, when both fabrics and thread processing were in operation, and that there is no water pollution caused by the petitioner. The said appeal filed in Appeal No.55 of 2005 was dismissed by the first respondent/ Appellate Authority, against which the present writ petition is filed. 4. The short facts leading to the filing of the writ petition are that the petitioner is a factory in Ambasamudram, Tirunelveli District. Initially, the petitioner was manufacturing cotton cloth, cloth synthetic and sewing thread. In the year 2002, the other units have been closed, except the integrated sewing thread factory. By an order dated 3.9.1997, the Pollution Control Board has given consent order subject to certain conditions, which includes that the Unit shall not carry out wet operations in the process in which trade effluent is generated; that no treated/untreated trade effluent or sewage shall gain access to Tamirabarani river either directly or indirectly; that as the treated trade effluent collected on certain dates did not satisfy the inland water standards, the petitioner was directed to furnish proposal for the improvement of the existing effluent treatment plant; and that the petitioner was directed to formulate proposals for alternate disposal of treated trade effluent instead of discharging the same into the Tamirabarani River. 5. It was against the said consent order dated 3.9.1997, the petitioner earlier approached the Appellate Authority, in which the Appellate Authority has passed an order on 18.4.1998, stating that if the water flow in River Tamirabarani is ten times or more https://hcservices.ecourts.gov.in/hcservices/ the quantity of treated effluent water discharged from the Unit, the Unit was permitted to discharge the effluent into the river, however, if the river flow is less than ten times, the quantity of treated effluent discharged by the unit should be let out in the channel, after obtaining permission from the Public Works Department authorities. 6. It appears that some individuals have filed writ petition in W.P.No.7410 of 1999 against the direction given to the petitioner to discharge effluent into River Tamirabarani through Kodaimelalgaion Channel. The writ petition was disposed of on 11.9.2004, on the basis of the submission made by the learned counsel for the Tamil Nadu Pollution Control Board that the Board has been monitoring constantly to ensure that the treated trade effluent from the unit is not discharged into the River Tamirabarani either directly or indirectly, when there is no flow or when the flow is less than ten times the flow of effluent from the industry. 7. The writ petitioner has also approached the National Environmental and Engineering Research Institute (for brevity, "the NEERI") to evaluate the performance of the Effluent Treatment Plant. The NEERI, Nagpur, after detailed study, has given three suggestions to the petitioner/unit, namely: (i) segregation of high TDS effluent and evaporation of the same and the low TDS stream to be treated through Effluent Treatment Plant suitable modifications in the Existing Effluent Treatment Plant; (ii) treatment without segregation of high TDS effluent followed by Reverse Osmosis (R.O.); and (iii) same as alternative 2nd except that bio towers are not to be used and high power motors to be used in all three aeration tanks. 8. The petitioner/Unit has decided to accept the first option, as suggested by the NEERI, Nagpur, and furnished a proposal to the Board accordingly. However, the Board, finding that the discharge of treated trade effluent into water source should be avoided, requested the petitioner to furnish proposal for R.O. System. 9. In the said proposal, the petitioner/Unit has stated that they have closed the various activities of dyeing fabrics and finishing, etc., and was presently engaged only in the production of sewing thread, bleaching and mercerizing dyeing, and bleaching of interlining cloth, and therefore, the quantity of effluent has reduced from the consented 1382 KLD to 300 KLD in respect of https://hcservices.ecourts.gov.in/hcservices/ domestic sewage and from the consented 7693 KLD to 3500-4500 KLD in respect of trade effluent. 10. However, the Pollution Control Board, by its communication dated 24.9.2004, has informed the writ petitioner to implement R.O. System in order to reuse the effluent and thereby conserve the water source. That was again reiterated by the Pollution Control Board in the letter dated 28.12.2004, by requesting the petitioner to furnish the proposal for R.O. System, so as to ensure zero discharge of effluent. 11. It was thereafter the second respondent passed the impugned order on 28.6.2005, directing the petitioner/Unit to segregate the high TDS effluent and to provide mechanical evaporator within six months time, against which, the petitioner filed an appeal before the first respondent/ Appellate Authority. In the meantime, as per the direction of the Appellate Authority, the Anna University has studied the matter thoroughly and submitted a report in June, 2006. 12. The Appellate Authority, having referred to the report of the Anna University and found that the TDS in the treated effluent is within the standards fixed by the Board, as the Board has fixed 2100 mg/l, while the TDS in the treated effluent discharge from the petitioner's factory was found to be 1560 mg/l as per the report of the Anna University, and taking note of the fact that earlier the Board has directed the petitioner not to carry on wet operation in the process which generates trade effluent and that no treated/untreated sewage or trade effluent shall gain access to River Tamirabarani either directly or indirectly, by considering the question as to whether the Pollution Control Board is still entitled to impose a further condition under the impugned order for segregation of high TDS effluent and for providing a mechanical evaporator, again based on the report of the Anna University that even though the combined treated effluent is within the norms of 2100 mg/l, the maximum production of the petitioner Unit will release about 4585 kg of inorganic salts into the river every day and that for the average effluent discharge 3486 KLD, the TDS of effluent discharged varies in the range of 546 mg/l to 1412 mg/l, with the average being 1021 mg/l, resulting in discharge of 3559 kg of inorganic salts per day, and that avoidance or segregation of high TDS effluent streams and their treatment by evaporation can avoid the discharge of about 80% of these salts into River Tamirabarani, concluded that the Pollution Control Board is entitled to prescribe such additional conditions for the purpose of ensuring zero discharge system for achieving better standards. The Appellate Authority also found that under Section 17(1)(l)(ii) of the Act, the Board is empowered to vary any order to construct new systems for the disposal of trade https://hcservices.ecourts.gov.in/hcservices/ effluent and to adopt such remedial measures as are necessary to prevent, control or abate water pollution. The Appellate Authority has also relied upon Section 27(2) of the Act to hold that the Board can make any reasonable variation. 13. Mr.Sriram Panchu, learned Senior Counsel for the petitioner would submit that when on an earlier occasion the same Appellate Authority has passed order on 18.4.1998 permitting the petitioner/Unit to discharge effluent into River Tamirabarani if the water flow is ten times or more the quantity of treated effluent water discharged from the Unit, and in cases, where the river flow is less than ten times, the quantity of treated effluent discharged by the unit should be let out in the channel, after obtaining permission from the Public Works Department authorities, and the same has been confirmed by the Board in W.P.No.7410 of 1999 stating that the Board is watching that the said order of the Appellate Authority is fulfilled, there is no reason for the Board now to introduce a new suggestion to segregate the High TDS effluent and to provide a mechanical evaporator, under the impugned order. 14. According to the learned Senior Counsel for the petitioner, the Appellate Authority, having found that the TDS in the treated effluent is within the standards fixed by the Board, ought to have directed the Board not to impose any further condition. The learned Senior Counsel would submit that imposition of such further condition is only to prevent the petitioner/Unit from functioning at all. 15. The learned Senior Counsel would rely upon the judgments reported in Animal Feeds Diaries and Chemicals Limited v. Orissa State (Prevention and Control of Pollution) Board and Others, AIR 1995 Orissa 84, J.K.Cotton Spinning & Weaving Mills Co. Ltd. v. State of U.P., AIR 1961 SC 1170, Indian Council for Enviro-Legal Action v. Union of India, [1996] 5 SCC 281, Style (Dress Land) v. Union Territory, Chandigarh, [1999] 7 SCC 89, apart from the judgment of the Supreme Court in Vellore Citizens Welfare Forum v. Union of India & Others, JT 1996 (7) SC 375=AIR 1996 SC 2715 and Hatsun Agro Product Ltd. v. State of Tamil Nadu, [2009] 1 MLJ 1131 to substantiate his contention that, on the factual matrix, the present situation in respect of the petitioner/Unit cannot be compared with the case of Noyyal River Ayacutdars Protection Association and Another v. The Government of Tamil Nadu & Others, 2007 (1) LW 275. 16. On the other hand, it is the contention of Mr.Ramanlal, learned counsel for the respondents, by referring to the various statements of the Anna University in its Expert's report, invited by the petitioner/Unit itself, that the Expert has found that https://hcservices.ecourts.gov.in/hcservices/ nearly four tons of chemicals have been let out in the River Tamirabarani. It is also his submission, as it is found in the report itself, that there is no permanent devise for the purpose of finding out the following of the directions of the Board, since temporary measures are always susceptible to manipulation. He would add that when large quantity of inorganic salt is let out into the river, the Pollution Control Board cannot be expected to remain silent. 17. He would refer to the sketch of the Anna University to show that the discharge is being done instead of referring to the upstream at Harvey Pool to the main river and he would submit that the danger involved in such conduct of the petitioner is not less and therefore, the finding of the Court in Noyyal River Ayacutdars Protection Association and Another v. The Government of Tamil Nadu & Others, 2007 (1) LW 275 is squarely applicable. 18. He would also submit that in the absence of any proper mechanism for the purpose of finding out the flow of water, whatever is stated by the petitioner is only by assumption and the Board, being the authority to maintain pollution free atmosphere, has every right to impose conditions. He would also rely upon the judgments in Vellore Citizens Welfare Forum v. Union of India & Others, JT 1996 (7) SC 375=AIR 1996 SC 2715 and Indian Council for Enviro-Legal Action v. Union of India, [1996] 5 SCC 281. 19. We have given our anxious thoughts to the submissions made by the learned counsel on both sides and also referred to the impugned order of the Appellate Authority, apart from the report of the NEERI and the expert report of the Anna University. 20. On fact, it may be true that the petitioner/Unit, which was carrying on the activities of Dyeing of Fabrics and Finishing, including the weaving, sizing activities, and was engaged in the production of Sewing Thread, has stopped the Benninger Bleaching Range, Chain Merceriser, Desizing Machine, Thermosal Dyeing Range, Pad Steamer dyeing, sizing and weaving activities and Dyeing of Fabrics and Finishing some time in June, 2002 and thereafter, the Unit has been carrying on production only in Sewing Thread, bleaching and mercerizing dyeing of 500 Tons per month and bleaching of interlining cloth of 7 Lakhs Metres per month. 21. As it is found by the Appellate Authority, it is also true that the TDS in the treated effluent discharged from the petitioner's Unit was found by the Anna University in its report in the year 2006 at 1560 mg/l, while the standard fixed by the Board itself is 2100 mg/l. https://hcservices.ecourts.gov.in/hcservices/ 22. It is also true that the Appellate Authority, on 18.4.1998, has passed the following order: "If the water flow in River Tamirabarani is ten times or more the quantity of treated effluent water discharged from M/s.Coats Viyella India Limited, the unit is permitted to let the discharged effluent into the river. If the water flow is less than ten times, the quantity of treated effluent discharged by the unit, the treated effluent should be let out in the channel after obtaining permission from the Public Works Department authorities." 23. Subsequently, in a writ petition filed by a third party against the above said direction of the Appellate Authority, the following directions were issued by this Court by order dated 11.9.2004: "Mrs.Rita Chandrasekar, learned standing counsel for the Tamilnadu Pollution Control Board relying upon the report submitted that the Tamilnadu Pollution Control Board have been monitoring constantly to ensure that the treated trade effluent from the fourth respondents unit is not discharged into the river Tamirabarani either directly or indirectly when there is no flow or when the flow is less than 10 times the flow of effluent from the industry. In view of the said submission no further orders are required in this writ petition. The writ petition is dismissed. No costs. Consequently, WPMP No.10643/99 is also dismissed." 24. The very fact that that was only an interim arrangement is revealed by the conduct of the petitioner itself in approaching the NEERI in the year 1999 for evaluation of the existing effluent treated plant performance. It was at the instance of the petitioner, as enumerated above, the NEERI, Nagpur, in the year 1999, has suggested three options, out of which the petitioner has accepted to take up the first option of segregation of high TDS effluent and evaporation of the same and the low TDS stream to be treated through Effluent Treatment Plant suitable modifications in the Existing Effluent Treatment Plant. The complaint of the Board is that in spite of accepting the first option suggested by the NEERI, Nagpur, and deciding to upgrade the effluent treatment plant, the petitioner has taken no steps for the purpose of segregation of high TDS effluent and evaporation of the same. This fact is admitted by the petitioner, but its reasoning is that due to the reduction in the quantity of effluent from the https://hcservices.ecourts.gov.in/hcservices/ consented 7693 KLD to 3500-4500 KLD due to closure of the apparel factory in 2002, it is not necessary for them to go for segregation of high TDS effluent and evaporation of the same. 25. At this stage, it is relevant to refer to the report of the Anna University of June, 2006. The Anna University, in its report, has clearly found as follows: "Even though the TDS of the combined treated effluent is within the norms of 2100 mg/l, the mass balance indicate that for the maximum expected production MCPL will release about 4585 kg of inorganic salts into the river every day. Further, for the average effluent discharge of 3486 KLD, the TDS of effluent discharged as monitored by TNPCB varies in the rang of 546 mg/l to 1412 mg/l with the average being 1021 mg/l resulting in discharge of 3559 kg of inorganic salts per day. The avoidance or segregation of the high TDS effluent streams and their treatment by evaporation can avoid the discharge of about 80% of these salts into the river Tamiraparani." 26. This finding of the Anna University makes it very clear that the Anna University also wanted segregation of high TDS effluent streams and evaporation. This report of the Anna University, which is of the year June, 2006, is much after the closure of the various units of the petitioner, as stated above. When that is the finding of the Expert Body, it is of no use to contend that the Appellate Authority has earlier permitted to discharge effluents into River Tamirabarani if the flow the water is ten times or more the quantity of treated effluent water discharged from the Unit. 27. In that regard, the Anna University, in its report of June, 2006, has stated as follows: "The treated trade effluent from MCPL is discharged into river Tamiraparani, when the flow in the river is ten times (or more) than the quantity of trade effluent generated. In general, the water flow in the river Tamiraparani is reported to vary in the range of 50 to 400 times the quantity of treated effluents. This is based on the water discharge details from the upstream dam and as such there is no provision for measurement of flow in the river at the point of discharge of the effluents into the River Tamiraparani." https://hcservices.ecourts.gov.in/hcservices/ 28. It is also stated in the report of the Anna University as follows: "When the river flow is 10 times the effluent flow and the river water TDS is 100mg/l, the discharge of effluent with TDS of 2000 mg/l will increase the TDS in the river by 3 times i.e. to 300 mg/l. This will reduce to 139 mg/l at 50 times the river flow and 105 mg/l at 400 times river flow. It is reported that if the flow in the river is less than 10 times the flow of trade effluent generated from the industry, the treated trade effluent is discharged into South Kodaimelalagian Channel (S.K.Channel) as ordered by the Appellate Authority dated 18.4.1998. It is understood that the SK Channel under such situation will only be carrying the effluents from MCPL and prolonged discharge of such effluents for irrigation will have adverse impacts in the long term." Therefore, it is not merely the TDS discharge within the norms of 2100 mg/l, but also the other factors, which have been elicited by the Expert Body of the Anna University, which appear to have prompted the respondents to compel the petitioner/Unit to segregate the high TDS effluent and to provide mechanical evaporator. 29. On the face of it, there is absolutely no contradiction in the stand of the respondents, especially when the report of the Anna University is clear that there is no provision for measurement of flow in the river at the point of discharge of the effluents into the River Tamirabarani and that the continuous discharge, as ordered by the Appellate Authority in the order dated 18.4.1998, would only have adverse effect on the irrigation. 30. It is relevant to point out that as per the schematic diagram of water source and effluent disposal at MCPL, as depicted by the Anna University in its report, it is seen that the source of water to the petitioner Unit is Papanasam at the lower dam on the River Tamirabarani. The water drawn is stored in the natural reservoir, namely Harvey Pool and supplied to the unit through pipelines. The water is treated in the treatment plant before using for the purpose. In addition to that, the Unit is also having permission from Public Works Department to draw water to the tune of 1.6 cusecs from the South Kolaimelalagan Channel (S.K.Channel) of the Tamiraparani River. The effluent from the process units is treated in an Effluent Treatment Plant and the treated water is disposed back to river Tamiraparani or https://hcservices.ecourts.gov.in/hcservices/ S.K.Channel depending on the dilution available in the River. If the treated water is not contaminated, there is no reason for the petitioner Unit to have the water again circulated to Harvey Pool for further use. 31. In the Expert report, it is also stated that the Material Liquor Ratio (MLR) is adopted in manufacturing as follows: "The MLR of 1:8 is used for all package dyeing whereas MLR of 1:20 is used for all hank dyeing operations. The specific water consumption (311 L/kg) of the hank dyeing operation is very high as compared to the industry norms due to the high MLR of the machines. MCPL may take steps to minimize the water consumption for hank dyeing operations by using low MLR dyeing machines." 32. In respect of the Monitoring Device, the Anna University has reported as follows: "The unit has no continuous TDS monitoring device to assess the TDS level in the treated effluent at the point of discharge. However, it is having portable TDS meters to assess the TDS level in the treated effluent and the TDS level so measured on daily basis are recorded in the Register maintained for that purpose. It is advisable to have an online continuous TDS monitoring device to continuously monitor and record the TDS levels of the treated effluent to ensure that at no point in time, effluents exceeding the TDS limits are disposed into the river Tamiraparani." 33. The further observation of the Anna University in respect of installation of R.O. System with reject management, in fact, reiterates the first option of NEERI, Nagpur, which has not been implemented by the petitioner Unit. The observation of the Anna University is as follows: "Thus it may not be environmentally beneficial for MCPL to install RO plant for the treatment of all effluent of 3500 to 4000 kLd. Instead MCPL may go for segregation of high TDS streams and manage the same by solar / mechanical evaporation as discussed in Section 21.0. This will further reduce the salt load discharge into the river by 80% even though the current discharge of effluent is within the discharge norm of 2100 mg/L." https://hcservices.ecourts.gov.in/hcservices/ 34. In the light of the above technical finding of the Anna University, it is not possible to accept the contention of the learned Senior Counsel for the petitioner that the impugned order passed by the first respondent is without any basis. 35. The word "pollution" under the Act has a particular reference to "injurious to public health or safety", which is as follows: "2 (e) "pollution" means such contamination of water or such alteration of the physical, chemical or biological properties of water or such discharge of any sewage or trade effluent or of any other liquid, gaseous or