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BEFORE THE NATIONAL GREEN TRIBUNAL

SOUTHERN ZONE, CHENNAI

APPEAL Nos. 16 and 17 of 2013 (SZ)

In the matter of:

Mrs. M. Saraswathi Proprietor M/s. Ohm Sakthi Blue Metals S.F. No. 1284/2,3,4 Sivamalai village Kangeyam Taluk Tiruppur District . .. Appellant in both appeals

-versus-

1. The District Environmental Engineer Tamil Nadu Pollution Control Board Perundurai. 2. The Tamil Nadu Pollution Control Board Rep. by its Member Secretary Guindy Chennai- 600 032. 3. The Appellate Auythority Tamil Nadu Pollution Control ‘Krishna Vilas” No.51, Gangadheeswara Koil Street Purasaiwalkam Chennai- 600 084. .. Respondents in both appeals.

Counsel appearing for: Appellant : M/s. S. Selvaraj and Lakshmikanthan, Advocates Respondents: Shrimathi Rita Chnadrasekar, Advocate for respondent Nos. 1 and 2

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JUDGMENT

Present: Hon’ble Justice Shri M. Chockalingam Judicial Member Hon’ble Prof. Dr. R. Nagendran Expert Member

Date: 19th December 2013

Hon’ble Justice M. Chockalingam Judicial Member

These appeals challenge a common order dated 29.01.2013 of the

Appellate Authority, Tamil Nadu Pollution Control made in Appeal Nos. 14 and 15

of 2012 whereby an order of the Tamil Nadu Pollution Control Board (for short

‘Board’) rejecting the application for consent made by the appellant under Water

(Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of

Pollution) Act, 1981 for operation of the stone crushing unit namely, M/s. Ohm

Sakthi Blue Metals situate at S.F. No. 1284/2,3,4 Sivamalai Village, Kangeyam

Taluk of Tiruppur District owned by the appellant herein was sustained. As the facts

and circumstances of both the appeals now made before the Tribunal are identical

both the appeals are taken up together for adjudication by a common order.

Necessary facts for the disposal of the appeals in short are as follows:

2) The appellant herein is the proprietor of M/s. Ohm Sakthi Blue Metals and

running the stone crushing unit as she was granted permission to start a stone

quarry in her pattta land bearing S. Nos. 1284/2 and 1284/4 of Sivamalai village in

an extent of 2.12.0 ha by the District Collector, Tiruppur for the period 12.12.2005

to 11.12.2010 and the lease period was subsequently extended for another five

years. The appellant herein had made an application on 17.05.2006 to the 1st and

2nd respondents/the Board for consent, which was returned to the appellant without

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being processed and without disclosing any reason. The appellant had also

obtained electricity service connection from the Tamil Nadu Electricity Board (for

short ‘TNEB’) in service connection No. 451. The crusher unit started functioning

from August 2006. While so, a writ petition was filed by one Mr. Karthikeyan before

the Hon’ble High Court, Madras in W.P.No.81 0f 2011 for disposing of his

representation dated 03.12.2010. The Hon’ble High Court by the order dated

04.01.2011 directed the District Collector, Erode and the Tamil Nadu Pollution

Control Board officials to consider the said representation and for passing

appropriate orders as per law within four weeks after providing an opportunity of

hearing to the parties.

3) Pursuant to the orders dated 04.01.2011 in W.P. No. 81 of 2011, a show

cause notice was issued to the appellant herein by the District Environmental

Engineer of the Board at Perundurai in Proceedings No. F.INV/DEE/PND/A/2011

dated 18.01.2011 and the appellant had submitted reply to the show cause notice

on 05.02.2011. The Board had passed an order in Proceedings No.

TNPCB/LAW/LA1/000458/A-1 dated 27.07.2011 for closure of the appellant’s unit

and directions for disconnection of power supply. The reasons inter alia for the issue

of the closure order and disconnection of power supply as stated in the proceedings

of the Board was that the unit was not having consent from the Board. Hence, the

appellant herein resubmitted the application for consent on 16.08.2011 and the

same was rejected by the Board on 19.08.2011. Thereafter, the appellant herein

filed two appeals before the Appellate Authority, Tamil Nadu Pollution Control, (for

short “Appellate Authority”) the third respondent herein in Appeal Nos. 14 and 15

of 2012 under Section 28 of the Water (Prevention and Control of Pollution) Act,

1974 (for short “Water Act”, 1974) and under Section 31 of the Air (Prevention and

Control of Pollution) Act, 1981 (for short “Air Act”, 1981) and the said appeals were

dismissed by the Appellate Authority on 29.01.2013. The appeals were filed by the

appellant herein before the Tribunal.

4) The appellant herein assails the dismissal ordered to the appeals filed

before the Appellate Authority on the grounds of non-applicability of the B.P. No. 4

dated 02.07.2004 of the Board and that one M/s. Jayasakthi Blue Metal which was

granted consent to operate is situate within 1 km from the appellant’s unit and it is

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not stated in the counter filed by the respondents as to when M/s. Jayasakthi Blue

Metal was granted the consent to operate and if M/s. Jayasakthi Blue Metal came

after the appellant’s application, only the appellant is to be considered and the

existence of M/s. Jayasakthi Blue Metal cannot be a criterion to reject the application

of the appellant made for consent. The observation of the Appellate Authority that

on the date of inspection on 13.01.2011 the unit of M/s. Jayasakthi Blue Metal

existed will not fix the date of existence of M/s. Jayasakthi Blue Metal as the

appellant’s unit is in existence from the year 2006. The appellant has further pleaded

that before passing the order rejecting the application made for consent in the

proceedings dated 19.08.2011 an opportunity of being heard was not provided to

the appellant against Section 21 of the Air Act, 1981 and Section 25 of the Water

Act, 1981 and the appellant has therefore contended that observations of the

Appellate Authority in this regard are based on surmises. Hence, the appellant

seeks to set aside the orders dated 19.08.2011 of the respondent Board and the

order dated 29.01.2013 of the Appellate Authority dismissing the appeals made in

Appeal Nos. 14 and 15 of 2012 of the said authority and to direct the

respondent/Board to grant consent to operate the appellant unit in S.F. Nos.

1284/.2, 3, 4 of Sivamalai village in Tiruppur District.

5) The 1st respondent herein, the District Environmental Engineer, Tamil

Nadu Pollution Control Board, Perundurai in Tiruppur District has filed a reply on

his behalf and on behalf of the Member Secretary of the Tamil Nadu Pollution

Control Board, Chennai. The 2nd respondent herein has filed a reply stating that the

1st respondent had received a complaint on 31.12.2010 from one P. Karthikeyan of

Sambhandhapalayam in Kangeyam Taluk of Tiruppur District alleging dust pollution

caused from the stone quarry operated by the appellant herein in S.F. No.1284/2,3,4

at Sivamalai village in Kangeyam Taluk in Tiruppur District and the appellant’s unit

was inspected on 13.01.2011. During the said inspection it was observed that a

stone quarry and stone crusher unit were under operation without obtaining consent

under the Water Act, 1974 and Air Act, 1981 and was being operated without

providing adequate Air Pollution Control (for short “APC”) measures. Hence, a show

cause notice was issued on 18.01.2011 to the appellant’s unit under Air Act, 1981.

In the meanwhile, one P. Karthikeyan filed a writ petition before the Hon’ble High

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Court of Madras in W.P. No. 81 of 2011 with a prayer for directions to the

respondent/Board (in the writ petition) to take action against the appellant herein.

The Hon’ble High Court in its order dated 04.01.2011 directed the Board to consider

the representation of the petition dated 03.02.2010 and to pass appropriate orders

on merits and in accordance with law within a period four weeks after giving

opportunity to the affected parties. The appellant’s unit was inspected on 13.01.2011

and during the inspection among other things following were observed:

The appellant’s unit was found operating a quarry near the unit.

Necessary consent from the Board was not obtained for the stone crusher unit

and the quarry, under the Water and Air Acts.

The stone crusher was operated without adequate APC measures.

6) As per the observations made during the inspection of the unit of the

appellant, a show cause notice was issued to the appellant’s unit which was not

replied. Further, as per B.P. No. 4 dated 02.07.2004, a minimum distance between

two stone crusher units shall be 1 km to avoid dust influence of one over the other,

and two stone crushing units namely M/s. Jayasakthi Blue Metals and M/s. Sakthi

Murugan Blue Metal both in Sivanmalai village of Kangeyam Taluk in Tiruppur

District were located within 1 km from the appellant’s unit. M/s. Jayasakthi Blue

Metal has obtained necessary consent from the Board while the other did not obtain

the consent. Based on the orders of the Hon’ble High Court, Madras, the appellant

and the writ petitioner were directed to attend the first respondent’s office on

07.03.2011 for personal hearing. But neither of them attended the hearing. Hence,

in order to comply with the orders of the High Court closure orders were issued and

also for disconnection of electricity to the appellant’s unit vide Board’s Proceedings

No. TNPCB/LAW/LA1/000458/EB-1/2011 dated 27.07.2011. As regards the claim

of the appellant that her unit is being operated since 2006, the appellant had filed

an application for consent under Water Act, 1974 and Air Act, 1981 on 16.08.2011

and the same was rejected on the ground that the location of the unit did not satisfy

the siting criteria as per Board’s Proceedings Nos. 4 and 5 dated 02.07.2004 and

06.10.2005 as the appellant’s unit is located within 1 km from a crushing unit namely,

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M/s. Jayasakthi Blue Metals for which consent of the Board has already been

issued. Hence, the respondent/Board seeks to pass suitable orders in the appeals.

7) The points that would arise for determination in these appeals are: (1)

whether the common order of the Appellate Authority, Tamil Nadu Pollution Control

is liable to be set aside for all or any of the grounds putforth by the appellant, (2)

whether the appellant is entitled to get direction to the respondent/Board to grant

the consent to operate the appellant’s unit, (3) to what relief the appellant is entitled

to.

8) Advancing the arguments on behalf of the appellant the learned counsel

would submit that the appellant was originally granted permission to start a stone

quarry in S. Nos. 1284/2 and 1284/4 at Sivamalai Village, Kangeyam Taluk of

Tiruppur District by the District Collector Tiruppur for a period of 5 years till

11.12.2010 and the same was also extended for another 5 years. The appellant has

also obtained electric service connection in the month of 12/2005 and the crusher

was continuously functioning from 8/2006. While it stood so, the appellant made an

application for consent from the Board on 17.05.2006 and no orders were passed

by the Board. In the meanwhile, the Hon’ble High Court of Madras by an order dated

04.01.2011 made in W.P.No.81 of 2011 directed the Board and the District Collector

to consider the representation of the writ petitioner Karthikeyan and pass

appropriate orders on merits and in accordance with law within a period of 4 weeks.

Pursuant to the order of the High Court, a show-cause notice dated 18.01.2011 was

served on the appellant which was suitably replied on 05.02.2011. Despite the

same, the Board has passed the impugned order on 27.07.2011 for closure of the

unit and also for disconnection of power supply on the ground that the unit was not

having the consent. Hence, the appellant resubmitted the application for consent on

16.08.2011, but the same was rejected by the Board on 19.08.2011. When the

appellant challenged the said order of rejection before the Appellate Authority, Tamil

Nadu Pollution Control in Appeal Nos. 14 and 15 of 2012, the appeals were

dismissed by the Appellate Authority on 29.01.2013 on the grounds which were not

applicable to the appellants.

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9) The Appellate Authority has neither considered the actual factual position

nor applied the required principles thereon. It is not disputed by the

respondent/Board that an application for consent was made on 17.05.2006, but no

orders were passed. The contention putforth by the respondents’ side that the said

application was withdrawn was thoroughly incorrect and false. The application made

for consent both under Water Act, 1974 and Air Act, 1981 was not disposed of within

a period of 4 months and hence, it is deemed that the consent was given to the

appellant. In the instant case, the deeming provisions of the above Acts have to be

applied. Even assuming that the application was returned, as per the orders of the

High Court in W.P. No. 1560 of 2006 dated 20.03.2007 no consent order is

necessary. In W.P. No. 1560 of 2006, the B.P.4 dated 02.07.2004 was challenged,

where the High Court has stayed the directions of the Board regarding the distance

criteria of 1 km between two stone crusher units prescribed in the B.P.4 dated

02.07.2004. It is true that the said writ petition was dismissed, but the appellant

applied for consent again and an inspection was made on 18.08.2011 without

adequate notice and an order came to be passed on 19.08.2011 by the Board. It is

pertinent to point out that the Board has rejected the application by introducing new

reasons not found in the show cause notice and the same would indicate that the

Board has acted arbitrarily. Even in the show cause notice, the name of the unit

which is situate within 1 km was not mentioned. Apart from that, the said unit started

functioning from the year 2011 and hence, it would be quite clear that the other unit

namely, M/s. Jayasakthi Blue Metal, which was started in 2011 should be taken as

a subsequent unit and functioning in violation of B.P.4, which prescribes the 1 km

distance between two units. In so far as the report filed by the Board on 10.12.2013

is concerned that M/s. Jayasakthi Blue Metal applied for consent to establish on

05.04.2005 before the respondent/Board, the same was valid only for two years or

till the industry obtained the consent to operate under the Water Act, 1974 and Air

Act, 1981 whichever was earlier and thus, the consent to establish in favour of that

unit would have lapsed after the period of 2 years and there was no whisper that

the consent to establish was ever renewed after the period of 2 years. Hence, the

report cannot be taken as against the appellant and on that ground the B.P.4 and

also the 1 km distance cannot be applied to the appellants case. Hence, the order

of the Appellate Authority, Tamil Nadu Pollution Control was not based on proper

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reasoning and also on law. The learned counsel for the appellant, therefore,

contends that the order passed dismissing the appeals by the Appellate Authority,

Tamil Nadu Pollution Control Board has to be set aside and the respondent/Board

should be directed to give consent to the appellant’s unit.

10) Assailing all the above contentions, the learned counsel for the Board

would submit that based on a complaint, the appellant’s unit was inspected on

13.01.2011 and during inspection it was observed that a stone quarry and a stone

crusher were established and the appellant was carrying on the operations without

obtaining consent from the Board under the Water Act, 1974 and Air Act, 1981. It

was also noticed that the appellant’s unit was operated without providing adequate

APC measures. Moreover, based on the inspection report, a show cause notice was

issued to the appellant under the provisions of the above enactments. Following the

same, recommendation was made to issue directions for closure and also for

disconnection of power supply for the reasons that the unit has not replied to the

show cause notice and also has not obtained the consent of the Board. Apart from

that, as per B.P.4 dated 02.07.2004, 2 stone crushing units cannot be located within

1 km from each other. In the instant case,

M/s. Jayasakthi Blue Metals was located within 1 km from the appellant’s unit and

the same has already obtained consent for establishment from the Board even prior

to the appellant’s unit. One Mr. Karthikeyan filed a writ petition in W.P. No.81 of

2011 before the Hon’ble High Court, Madras against the operation of blue metal unit

and stone quarry of the appellant complaining of causing pollution without having

any control measures and the Hon’ble High Court issued directions on 04.01.2011

to consider the representation of the writ petitioner and pass appropriate orders

thereon. Based on the above, the appellant was requested to attend the office of the

District Environmental Engineer at Perundurai for a personal hearing on 07.01.2011.

But, the appellant did not attend the personal hearing. In obedience to the order of

the High Court, Madras an order of closure and also the disconnection of power

supply was issued to the appellant’s unit. In the meanwhile, the complainant Mr.

Karthikeyan filed a writ petition seeking directions to the respondents namely the

authorities of the Board to take action against the appellant’s unit. The counsel

would further add that the appellant has claimed that she was operating the unit

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from 2006 which would clearly indicate that she was carrying on the operations

without obtaining consent for establishment as required by law. It is true that the

appellant’s unit was inspected on 13.01.2011 and a show cause notice was issued

on 18.01.2011 and a reply was made on 05.02.2011, but the same was not

satisfactory. The appellant was given an opportunity to be present in person for a

personal hearing on 07.03.2011, but the appellant did not appear for a personal

hearing. But, she made an application for consent on 16.08.2011. The application

for consent was rejected on 19.08.2011. Aggrieved over the rejection of the consent

application, the appellant preferred the appeals before the Appellate Authority and

the Appellate Authority has considered the contentions putforth by both sides and

has passed a common reasoned order sustaining the rejection of the application

made by the appellant before the Board and thus, the appeals have no merits and

both the appeals have got to be dismissed.

11) The Tribunal paid its anxious consideration on the submissions made on

either side and also looked into all the materials placed. Challenge is made to the

Common Order passed by the Appellate Authority/Tamil Nadu Pollution Control

confirming the rejection of application made by the appellant, the Proprietor of

M/s. Ohm Sakthi Blue Metals, Sivamalai Village, in Kangeyam Taluk of Tiruppur

District for consent to establish and operate the said unit. From the available

materials and submissions made by both sides, the following would emerge as

admitted facts.

12) The appellant obtained permission for starting a stone quarry in her patta

land in S.F. No. 1284/2,3,4 of Sivamalai Village, Kangeyam Taluk of Tiruppur District

from the District Collector, Tiruppur for a period of 5 years from 12.12.2005 and the

same was extended for another 5 years. The crusher unit of the appellant was

continuously functioning from August 2006. The appellant applied for consent to

establish a stone crushing unit on 17.05.2006 before the Board, but the same was

neither considered nor ordered. One Mr. Karthikeyan filed a writ petition in

W.P.No.81 of 2011 before the Hon’ble High Court, Madras complaining of pollution

caused by the appellant’s unit from both quarry and crushing unit,. The Hon’ble High

Court, Madras by an order dated 04.01.2011 directed the officers of the Board and

the District Collector, Tiruppur to consider the representation and pass appropriate

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orders on merits and in accordance with law within a period of 4 weeks therefrom.

An inspection of the appellant’s unit was made by the authorities of the Board on

13.01.2011 when it was noticed that the stone crushing unit and the quarry were

being operated without obtaining consent of the board under Water Act and Air Act.

A show cause notice was issued on 18.01.2011 by the Board and the same was

replied by the appellant on 05.02.2011. A personal hearing was fixed on 07.03.2011

at the District Environmental Engineer’s office at Perundurai which was not attended

by the appellant. An order for closure was passed by the Board on 27.07.2011 on

the reasons that the unit was not having consent to establish or operate. The

appellant made an application on 16.08.2011 for consent which was rejected on

19.08.2011.

13) Before considering the merits or otherwise of rival contentions, it would be

apt and appropriate to look into the mandatory provisions for obtaining consent

which are envisaged under Section 25 of the Water Act, 1974. This reads as follows:

“ 25. Restrictions on new outlets and new discharges:

(1) [(1) Subject to the provisions of this section, no

person shall, without the previous consent of the State

Board,--

a) establish or take any steps to establish any industry,

operation or process, or any treatment and disposal

system or an extension or addition thereto, which is likely

to discharge sewage or trade effluent into a stream or

well or sewer or on land (such discharge being hereafter

in this section referred to as discharge of sewage); or

(b) ***

(c) ***

14) The words ‘employed’ in the above provision “establish or take any steps

to establish any industry” were interpreted by Hon’ble Supreme court of India in

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Andhra Pradesh Pollution Control Board Vs. Naidu reported in 2001(2)SCC 67 as

follows:

“Point 4:

This point deals with the principle of promissory

estoppel applied by the appellate authority, on the

ground that once building permission and permission

for change of land use were granted, the appellant

Board could not refuse NOC. The learned Additional

Solicitor General, Sri R.N. Trivedi referred to the

amendment to Section 25(1) in this connection. Under

Section 25 (1) of the Water (Prevention and Control of

Pollution) Act, 1974 as it original stood, sub-section (1)

thereof read as follows: "Section 25(1): Subject to the

provisions of this section, no person shall, without the

previous consent of the State Board, bring into use any

new or altered outlet for the discharge of sewage or

trade effluent into a stream or well or begin to make any

new discharge of sewage or trade effluent into a stream

or well". By Central Act 53/1988, the sub-section was

amended and reads as follows:

"Section 25(1): Subject to the provisions of this section,

no person shall, without the previous consent of the

State Board - (a) establish or take any steps to establish

any industry, operation or process, or any treatment

and disposal system or any extension or addition

thereto, which is likely to discharge sewage or trade

effluent into a stream or well or sewer or on land (such

discharge being hereafter in this section referred to as

discharge of sewage) or (b) bring into use any new or

altered outlet for the discharge of sewage, or (c) bring

to make any new discharge or sewage....." After the

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amendment, the prohibition now extends even to

'establishment' of the industry of taking of steps for that

process and therefore before consent of the Pollution

Board is obtained, neither can the industry be

established nor any steps can be taken to establish it.

The learned Additional Solicitor General of India, Sri

Trivedi is right in contending that the 7th respondent

industry ought not to have taken steps to obtain

approval of plans by the Gram Panchayat, nor for

conversion of land use by the Collector, nor should it

have proceeded with civil work in a installation of

machinery. The action of the industry being contrary to

the provisions of the Act, no equities can be claimed.

The learned Appellate Authority erred in thinking that

because of the approval of plan by the Panchayat, or

conversion of land use by the Collector or grant of letter

of intent by the Central Government, a case for applying

principle of "promissory estoppel" applied to the facts of

this case. There could be no estoppel against the

statute. The industry could not therefore seek an NOC

after violating the policy decision of the Government.

Point 4 is decided against the 7th respondent

accordingly.

15) The very reading of the judgment of the Apex Court would make it clear

that the consent of the Pollution Control Board of the State is a condition precedent

for establishment of an industry or for taking any steps for establishment.

16) In the instant case, it is very clear as could be seen from the averments

made by the appellant and also from the inspection report by the authorities of the

Board that a stone quarry and stone crusher were being operated without getting

consent of the Board as required under the mandatory provisions of the enactments.

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The contentions put forth by the appellant’s side that she was granted permission

for starting a stone quarry by the District Collector for a period of 5 years and the

same was extended by another 5 years and she also obtained electric supply

connection, in no way conferred any right on the appellant either to establish or

operate the units, in the absence of requisite consent under the Water and Air Acts.

Hence, the Board was perfectly right in passing the closure orders in respect of the

units of the appellant, since the units were carrying on illegally. What noticed was

only making an application for consent in the year 2006 and after making so, the

appellant was carrying on the units without caring for getting any consent thereon.

Needless to say, mere making an application for consent under both the Acts by

itself would not confer any right to establish or operate under the enactments. It is

pertinent to point out at this juncture that what was challenged before the Appellate

Authority was not the order of closure of the units, but only the rejection of the

application made by the appellant on 16.08.2011 for consent to establish and

operate the units. A perusal of the rejection of the order of the appellant for consent

made by the Board would make it absolutely clear that the rejection was made on

two grounds; firstly the unit has not provided APC measures which were

enumerated therein and secondly, the location of the units also did not satisfy the

siting criteria stipulated in Board’s Proceedings Nos. 4 dated 02.07.2004 and 5

dated 06.10.2005 since the unit was located within 1 km from another stone crusher

unit in the name of M/s. Jayasakthi Blue Metals for which consent of the Board has

been issued. When these grounds were challenged, the Appellate Authority was not

convinced on the grounds adduced by the appellant and recorded them as meritless

and dismissed the appeals.

17) As could be seen above, the appellant seeks a direction to the Board on

the grounds that the B.P. Ms. No. 4 dated 02.07.2004 is not applicable to the

appellant’s unit as M/s. Jayasakthi Blue Metals came into existence only in the year

2011 and thus the unit of the appellant which came into existence at the point of

time and even in the show cause notice issued either the existence of

M/s. Jayasakthi Blue Metals, nor the application of B.P. Ms. No.4 dated 02.07.2004

was mentioned and on that ground, the respondent/Board having not passed any

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order on the application of the appellant in the year 2006, cannot now be argued to

say that the reasons adduced for rejection are invalid.

18) The Tribunal is of the considered opinion that none of the contentions as

recorded above would carry any sustenance or merit. The B.P. Ms. No.4 dated

02.07.2004 stipulates a minimum distance between two stone crushing units as I

km to avoid pollution influence of one over the other. The said Board’s proceedings

were challenged in W.P. No. 1560 of 2006 before the Hon’ble High Court, Madras

and though an interim stay of the operation of the B.P. Ms. No. 4 dated 02.07.2004

was granted initially, the same was dismissed upholding the validity of the B.P. Ms.

No.4 and hence, the validity of B.P. Ms. No.4 dated 02.07.2004 cannot now be

canvassed by the appellant. The case of the appellant that his stone crushing unit

came into existence earlier in point of time cannot be accepted for the simple reason

that the only material relied on by the appellant was the application made for consent

dated 17.05.2006 and nothing more. No consent was ever given either on that

application or subsequently thereto till date. Merely making an application can be

taken only as a step for getting consent and thus, it cannot be taken as either

consent to establish or operate. It is contended by the Board that M/s. Jayasakthi

Blue Metals applied for consent to establish on 05.04.2005 prior to the appellant’s

unit and consent to establish was issued on 12.04.2005.

19) When such submission was made at the time of enquiry of the appeal a

direction was issued to the concerned District Environmental Engineer for

production of the original file pertaining to the issue of consent to M/s. Jayasakthi

Blue Metals and the same was also produced. A perusal of the file made it clear that

M/s. Jayasakthi Blue Metals made the application for consent on 05.04.2005 and

the consent thereon was given on 12.04.2005. Thus, it is quite evident that even

before the application for consent to establish was made by the appellant on

17.05.2006, M/s. Jayasakthi Blue Metals applied for and obtained consent to

establish. Hence, it would be futile on the part of the appellant to state that her unit

came into existence earlier in the point of time. It is also not disputed by the appellant

that the distance between the unit of the appellant and M/s. Jayasakthi Blue Metals

is within in 1 km and hence, applying B.P. Ms. No. 4 dated 02.07.2004, the consent

as asked for by the appellant cannot be granted. Even assuming that all the APC

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measures which were noticed as not provided are provided now, the appellant is not

entitled for the consent in view of the application of B.P. Ms. No.4, dated 02.07.2004.

20) Hence, the Tribunal is unable to notice any reason to interfere with the

reasoned order of the Appellate Authority and the appeals are liable to be dismissed

and are accordingly dismissed.

No cost.

(Justice M. Chockalingam)

Judicial Member

(Prof. Dr. R. Nagendran) Expert Member