M.V. Muralidaran, J.
1. The petitioner has come forward with this writ petition as Public Interest Litigation seeking a prayer for the issuance of a Writ of Mandamus directing the respondents 1 to 6 to close and seal the illegal road construction materials processing unit run by the respondents 7 to 10 in accordance with law.
2. The case of the petitioner is that he is resident of Edassery, Ramavarmanchirai, Ramavarmanchirai Post, Kanyakumari District, which is very near to the subject matter godown, which is in control of respondents 7 to 10 and hence, the residents in the locality are the most affected victims of their whimsical acts. The petitioner further stated that almost all persons, who are residing in the locality, are highly disturbed and affected due to the heavy air pollution and nuisance caused by the respondents 7 to 10. Due to the fear many of them do not dare to make any complaints against them. Hence, the petitioner filed the above writ petition as Public Interested Litigation with the above-said prayer.
3. It is the further case of the petitioner that the 10th respondent/M.J.D Construction and Engineering Construction Private Limited is an unlisted Private Company Limited by shares, which is registered with the Registrar of Companies, Chennai. Even though it is registered with the Registrar of Companies, Chennai, its address is as shown above and having 8th and 9th respondents as its Directors. The 7th respondent is a Contractor, who is engaged in the road works. In fact, many complaints and the enquiries in respect of his many road works in the Kanyakumari District are pending before the Special Court at Nagercoil and also criminal cases are pending against him including abduction and rape of minor girls. The 7th respondent had taken road contract works in his name as well as in the name of the 10th respondent of which his wife is the Managing Director. In fact, at most parts of the Kanyakumari District, the huge tipper Lorries carrying the name of the 10th respondent Company are seen plying laden with broken rock, rock powder and other construction materials. The 8th respondent is the wife of the 7th respondent and also the Managing Director of the 10th respondent Company. He further stated that the respondents 7, 8 and 9 are in full control and directly in charge of all day to day affairs of the 10th respondent Company and hence, they are all responsible for all activities which take place in the name of the 10th respondent Company individually and collectively.
4. It is the further case of the petitioner that in the locality, where the petitioner is residing, there is a Panchayat, namely, Palukal Town Panchayath and the 6th respondent is the Executive Officer in the said locality. In the said locality, many of the families including the petitioner's family are residing and there are 6 acres of lands are in the occupation of the respondents 7 to 10. The abovesaid area lies on either side of the karakonam-Ramavarmanchirai road and is surrounded by compound wall of nearly five feet height and thus, the entry is restricted.
5. The petitioner further stated that on his verification, he came to know that there are godowns, heavy machines and equipment and many workers are noticed to enter the compound wall for work and Tipper Lorries laden with broken granite stones, rock powder, gravel and other construction materials are frequently seen entering the compound wall and seen returning after downloading the materials. For the abovesaid purpose, the Tipper Lorries with and without the name of the 10th respondent frequently used the above mentioned road by damaging even the Panchayat roads. The roads are not in standard and the same is very bad for use. Each and every day, plying of Tipper Lorries in a speed manner cause much nuisance and risk to the residents of the above mentioned locality in addition to, making the condition of the road very bad as the abovesaid road is meant for the normal vehicles. Over the compound wall there are boards carrying the name of the 10th respondent Company showing that the above mentioned area is in control of the 7th and 10th respondents.
6. It is the further case of the petitioner that the subject matter of this writ petition is the illegal processing and consequential air pollution and nuisance caused by the respondents 7 to 10 in a whimsical manner without considering the problems and grievances of the residents of the locality. Inside the compound wall, in which area, the broken rock in the form of metal pieces of various sizes, and rock powder are heaped on large scale resembling small hills. But the petitioner came to know that no mining or query license has been issued in the names of the respondents 7 to 10 and thus storing the above mentioned materials on large scale within the compound wall is illegal. To prove that, the petitioner has also taken photographs and it has been produced in the typed set of papers which shows that huge quantities of the abovesaid materials are stored in the shape of small hills. The intention of the respondents 7 to 10 are only commercial business at high rates inside and outside the State, as the border is very near to the place. This petitioner also states that the respondents 7 to 10 bring the abovesaid materials into the abovesaid area either by way of illegal quarrying or by way of illegal purchase from the unauthorised querying in violation of the Mines and Minerals Laws, which caused heavy air pollution and nuisance. In fact, as there are no dust control measures, the dust particles spread in the entire locality due to the continuous operations inside the compound wall and inhalation of which is very detrimental to the health of the residents.
7. It is further stated that due to abovesaid reasons, many of the locality have developed dust allergy and various diseases. Further on his verification, the Pollution Control Board has not issued any certificate for the abovesaid operations of the respondents 7 to 10. In the same manner, the 6th respondent has also not issued any certificate to that effect. Inside the compound wall, it is seen that mixing and processing of tar mix road and other construction materials take place on large scale with the help of heavy machines which given out black, think smoke and bad smell polluting the entire locality. From the smell and smoke noticed, it appears that very low quality tar as well as some other unknown spurious materials like black tar etc., are mixed and prepared and heated in huge furnace like structures. From the abovesaid illegal processing in such a clandestine manner, it appears that the respondents 7 to 10 sell the processed materials to the other road work contractors and make huge monetary benefits at the cost of the residents health. As the water of the wells is used for drinking and domestic purpose, this has caused much concern among the residents of the locality. The petitioner also stated that recently, at some nearby wells, above the water a layer which is a combination of dust and black smoke began to appear thereby affecting the quality of the drinking water, therefore, the public are not in a position to consume the water of the nearby wells. During the said process the black, thick smoke along with very bad intolerable smell comes out of the exhaust pipes of the machines at about 12 feet height and then it spreads in the surrounding area. Therefore, the air in the entire locality is highly polluted due to the abovesaid illegal processing by the respondents 7 and 10. Thus even the fundamental right of the residents to fresh and unpolluted air is denied by the acts of the respondents 7 and 10. Due to the abovesaid illegal activities done by the respondents 7 to 10, some of the residents who are living very near to the abovesaid go down, have developed many diseases including cancer and asthma. To prove the same, medical certificates are enclosed in the typed set of papers for the kind perusal of this Court.
8. The petitioner further stated that when his Advocate sought for information under RTI Act, the 6th respondent in his letter 82/2014/A1 dated 18.01.2016 informing his counsel that no permission or license has been issued within its area to any individual or Company for processing of the road construction materials and for such processing, the Tamil Nadu Pollution Control Board also has not given any consent or permission. The same is confirmed by the fourth respondent in his letter No.F-NGL-Tech 03 (20))/15 dated 18.12.2015. In fact, the locality, namely, Ramavarmanchirai is a residential one and immediately near the above mentioned go down is one Temple, namely, Sri Krishnaswamy Temple which is very famous one and visited by a lot of devotees on all days. But due to the above mentioned illegal proceeding, the devotees are also affected. Due to the above mentioned illegal proceeding of the respondents 7 to 10, the school going children and students are affected due to this pollution.
9. In the above situation, the petitioner and various other persons of the locality were sent many complaints to various authorities with a request to stop the abovesaid illegal processing and save them from the air pollution caused by the respondents 7 to 10 and finally a representation was sent on 16.01.2016 by the petitioner on behalf of the villagers. But there was no reply. In fact, the petitioner's counsel also sent a complaint to the 6th respondent on 20.01.2016 and also to the respondents 4 and 6 on 14.01.2016. Since no action has been taken by the official respondents, the petitioner has filed the above Writ Petition as Public Interest Litigation for the relief stated supra.
10. An affidavit has been filed by the second respondent/Assistant Director of Geology and Mining, Kanniyakumari District, in which, the second respondent denied the allegations made by the respondents 7 to 10. In the additional affidavit, the second respondent stated that no transport permit/transit pass was issued to the respondents 7 to 10 and the transport permit for transporting quarried rough stone were issued only to the lessees Thiru.M.Kumaresan and Thiru Esakkiappan of Tirunelveli District from their stone quarry leases and the said license was issued for 10 years. In fact, no stone quarry lease has been granted in Kanyakumari District in favour of the respondents 7 to 10 and as such no transport permit/transit pass was issued in favour of the respondents 7 to 10, namely, Manikandan, Janaka Jebangalin Devadas, Jebamani or M.J.D. Construction and Engineering Contractors Private Limited.
11. The second respondent, by name, Mr.G.Gurusamy, S/o N.Gurusamy, Assistant Director of Geology and Mining, Nagercoil has filed an affidavit stating that on receipt of the copy of the order, as directed by this Court, he went to the 10th respondent mixing plant on 18.02.2016 and verified the quantity of the mineral stocked in their premises with a report of his predecessor dated 08.02.2016. He has also stated that he issued a letter to the 10th respondent in Rc.No.72/GandM/2016, dated 19.02.2016 about the orders of this Court in WMP(MD)No.2009/2016 in W.P(MD)No.2285 of 2016 dated 12.02.2016 and directed the 10th respondent not to transport the minerals recorded by the AD Mines. During the inspection made by the second respondent, he noted that there are 6 mixing units were found and the same was referred in his affidavit and he ensured no further transportation of minerals from these units.
12. On behalf of the respondents 7 to 10, a counter affidavit has been filed by the 10th respondent/Managing Director, by name, Janaka Jebangelin W/o Manikandan, where in, it is stated that the 10th respondent company is a registered company in the name of M.J.D. Constructions and Engineering Contractors Private Limited and having registered office at Kannumamoodu, Palukal Post, Kannyakumari District and the 10th respondent company is executing many Highways Contract Works without giving any room for complaints. The 10th respondent stated that their company submitted a building plan application on 21.01.2010 with Palukal Town Panchayat for installation of Hot Bitumen Mix unit in survey No.127/16, Idaikodu Village and on receipt of their application, the Town Panchayat placed the same before the Council and the Palukal Town Panchayat Council passed a resolution in Resolution No.764 on 28.01.2010 and the same is extracted as follows:-
13. Thereafter, the 10th respondent obtained 'No Objection Certificate' from the District Fire and Rescue Department and submitted the above documents with the District Pollution Control Board for issuance of No Objection Certificate. The 10th respondent also stated that the Unit site lines in a dry, unclassified Zone. There are no houses with 100 meters periphery of the 10th respondent's unit. The 10th respondent also purchased the land surrounding the site where coconut trees and grown. The raw materials required for the Hot Mix Plant are bitumen, aggregates jalli (24, 12 and 6 mm size) and quarry dust powder. The material and transported to the site from the stone crusher unit through dipper lorries. During the unloading of raw materials, water sprinkles are used to ensure that there is no emission of dust. He also further stated that the bitumen is brought to the site in the closed barrels and the bitumen barrels are opened and poured directly into the mix plant. The 10th respondent has proposed to install a very efficient wet scrubber system to ensure, zero emission to the atmosphere. It is further stated that there is zero emission and there is no generation of water from the process except and scrubbing water which is treated in the effluent plant and it is also recycled in the scrubbing operation, ensuring zero discharge. However, the Assistant Environmental Engineer, Tamil Nadu Pollution Control Board, Nagercoil, has passed an order in his proceedings dated 22.10.2010, rejecting the application for consent.
14. The 10th respondent further stated that Hot Mix plant's site is not attracted by any siting criteria (like on the one prescribed in G.O.No.213, dated 30.03.1989 or G.O.No.127 dated 08.05.1998) and there are no rules/regulations, prohibiting the setting up of such unit in the said site. Hence, the rejection of consent is discriminatory and improper. Against the order of District Environmental Engineer, the 10th respondent herein filed an appeal before the Tamil Nadu Pollution Control Board in Appeal Nos.23 and 24 of 2010 and the same are pending. Pending appeals, the writ petitioner's relative one Tmt.Thulaibai Amma, filed an impleading petition in the above appeals and the same was allowed by the Tamil Nadu Pollution Control Board on 26.11.2010. Against which, the petitioner's relative one Tmt. Thulasibai Amma filed writ petitions in W.P(MD)Nos.10648 and 10649 of 2011 and the same were transferred to the National Green Tribunal South Zone, Chennai by this Court. The National Green Tribunal South Zone, Chennai had taken on file in application No.118 of 2013 and the appeal was dismissed by the National Green Tribunal South Zone on 26.07.2013. Against which, the said Tmt. Thulasi Amma have not filed any appeal.
15. The 10th respondent also stated that after great efforts the 10th respondent obtained permission from the authorities and run the unit without any remarks. Apart from this, the 10th respondent stated that the dispute between two warring groups purely in the realm of private law would not be allowed to be agitated as a public interest litigation. Similarly in the case of Sachidanand Pandey vs. State of West Bengal reported in (1987)2 S.C.C 295, the Hon'ble Supreme Court observed as follows:-
61. It is only when courts are apprised of gross violation of fundamental rights by a group or a class action or when basic human rights are invaded or when there are complaints of such acts as shock the judicial conscience that the courts, especially this Court, should leave aside procedural shackles and near such petitions and extend its jurisdiction under all available provisions for remedying the hardships and miseries of the needy, the underdog and the neglected. I will be second to none in extending help when such help is required. But this does not mean that the doors of this Court are always open for anyone to walk in. It is necessary to have some self-imposed restraint on public interest litigants.
16. Therefore, this writ petition filed as Public Interest Litigation is not maintainable before this Court and all these respondents are seeking to dismiss the writ petition.
17. Heard the parties and perused the records.
18. Admittedly, the relative of the writ petitioner one Tmt. Thulasibai ammal has filed the writ petitions in W.P(MD)No.10648 and 10649 of 2011 and the same were transferred by this Court to the National Green Tribunal South Zone, Chennai, which was taken on file as Application No.118 of 2013. Since the matter is absolutely involved health, the writ petitioner ought to have go before the National Green Tribunal. To support their case, the respondents have produced a Judgment passed by the Honourable Apex Court in Bhopal Gas Peedith Mahila Udyog Sangathan and others vs. Union of India and others reported in (2012)8 SCC 326. In the abovesaid Judgment, the Honourable Apex Court held as follows:-
40. Keeping in view the provisions and scheme of the National Green Tribunal Act, 2010 (for short the NGT Act ) particuarly Section 14, 29, 30 and 38(5), it can safely be concluded that the environmental issues and matters covered under the NGT Act, Schedule I should be instituted and litigated before the National Green Tribunal (for short NGT ). Such approach may be necessary to avoid likelihood of conflict of orders between the High Courts and NGT. Thus, in unambiguous terms, we direct that all the matters instituted after coming into force of the NGT Act and which are covered under the provisions of the NGT Act and/or in Schedule I to the NGT Act shall stand transferred and can be instituted only before NGT. This will help in rendering expeditious and specialised justice in the filed of environment to all concerned.
19. As per abovesaid Judgment of the Honourable Apex Court, we come to the conclusion that the environmental issues and matters covered under the NGT Act, Schedule I should be instituted and litigated before the National Green Tribunal only and not before this Court under Article 226 of the Constitution of India. Such approach may be necessary to avoid likelihood of conflict of orders between the High Court and National Green Tribunal. After Act of NGT 2010 came into force, the environmental issues and matters covered under the NGT Act, Schedule-I should be instituted and litigated before the National Green Tribunal and this Court have no competent jurisdiction to entertain this writ petition. Accordingly, this writ petition is dismissed with a direction to the petitioner to approach the National Green Tribunal. No costs. Consequently, connected miscellaneous petition is also dismissed.