Judgment :- The prayer in W.P. No. 14924/99 is for the issue of a Writ of Certiorari to call for the records of the Tamil Nadu Pollution Control Board, the second respondent herein, relating to its proceedings dated 31.8.1999 No. R2/TNPCB/F. 2719/TLR/RS/A/99-1 and to quash the same as illegal and without jurisdiction. 2. W.P. No. 14925/99 is also for the issue of Writ of Certiorari to call for the records of the Appellate Authority, namely, the Secretary to Government of Tamil Nadu Environment and Forest Department, the first respondent herein, bearing date 29.7.1999 and made in proceedings C. No. 14146/ECJ/99 confirming in so far as it relates to condition No. 17 found in Annexure No. I of the consent Order No. 12338, dated 26.4.1999 issued by the second respondent Pollution Control Board - vide proceedings R-2/TNPCB/F.2719/TLR/RS/A/99, dated 26.4.1999. 3. The petitioner is the same in both the Writ Petitions. It is a Forging Unit Industry engaged in forging automobiles spares, thermal station accessories, bolts and nuts, track pins etc. weighing 100 gms. to 6 kgs. with customers ranging from Neyveli Lignite Corporation Ltd., Bharath Heavy Electricals Ltd., Hyderabad, Heavy Vehicle Factory, Avadi, Brakes India Ltd., S & S and Power and Switch Gear Ltd., T.I.I.C. of India Ltd., etc. The Industry was commenced in the year 1992. Nearly Rs. 301akhs had been invested by the petitioner-Industry in the unit after obtaining loans from T.I. Cycles etc. The officials of the second respondent Board sought information regarding the details of the petitioner-Industry in June, 1993 and the details were furnished by the petitioner on 25.6.1993. There was a lot of correspondence between the petitioner-Unit and the Board and several measures were taken to reduce the vibration and noise level. However, the second respondent-Board, at the instance of some vested interest, initiated proceedings for the closure of the Unit necessitating the filing of a Writ Petition W.P. No. 888/96 challenging the order of closure passed by the second respondent. On 19.6.1996, this Court allowed the Writ Petition and directed the second respondent to dispose of the consent application. The consent application was rejected by the second respondent and the Unit was directed to be closed. On 19.6.1996, this Court allowed the Writ Petition and directed the second respondent to dispose of the consent application. The consent application was rejected by the second respondent and the Unit was directed to be closed. The appeal filed before the Appellate Authority under Section 31 was allowed on 20.8.1997 directing the second respondent-Board to grant consent to the petitioner-Unit on the ground that the Unit was located in a mixed industrial and residential area and the accepted noise level is 65 dB(A) to 75 dB(A). This was done after a scientific survey was conducted by the Indian Institute of Technology and Anna University and taking note of the Industrial and residential area. Again on 13.12.1998, the second respondent ordered closure of the Unit and directed the electricity service connection to be disconnected. There was no notice given prior to the order of the closure. The petitioner filed W.P. No. 20890/98. On 24.12.1998, this Court ordered notice of motion and granted stay of operation of the order for three weeks. On 30.1.1999, the Writ Petition was disposed of directing the petitioner to approach the Appellate Authority. On 10.3.1999, the first respondent Appellate Authority allowed the appeal and set aside the order of closure passed by the second respondent. However, the second respondent while granting consent for the period upto 30.6.1999 added a condition as condition No. 17 stipulating that noise level abutting the residential area should not exceed 55 dB(A). As the particular condition imposed by the second respondent was arbitrary and without any basis, the petitioner filed an appeal before the Appellate Authority for removal of the said clause in the consent order. However, on 29.7.1999, the appeal was dismissed. As against the dismissal of the said appeal, W.P. No. 14925/99 has been filed. 4. While the appeal was pending before the first respondent, the second respondent issued a show cause notice on 9.6.1999 under proceedings No. JCEE/CHN/M-636/99 stating that the report of the noise level survey conducted on 26.5.1999 showed that the noise level exceeded the permissible limit of 55 dB(A) for the residential area etc. and directed the petitioner to show-cause why penal action for offence under Section 37 of the Act should not be initiated and as to why directions under Section 31-A of the Act for closure of the Unit be not issued. and directed the petitioner to show-cause why penal action for offence under Section 37 of the Act should not be initiated and as to why directions under Section 31-A of the Act for closure of the Unit be not issued. Suitable reply was sent by the petitioner on 18.6.1999 pointing out that the fixation of the noise level at 55 dB(A) as enumerated in clause 17 (1) of the consent order was in total violation of the earlier order passed by the Appellate Authority and that an appeal had been filed before the Appellate Authority to delete clause 17 and the said appeal was pending and the proceedings had therefore been withdrawn. The petitioner also denied the conduct of any survey on 26.5.1999 as alleged in the closure order. The petitioner also complained that it had not been furnished with any noise level survey report alleged to have been conducted on the said date. 5. While matters stood thus on 31.8.1999, the second respondent vide proceedings No. R2/TNPCB/F.2719/TLR/RS/A/99-1 passed an order stating that the petitioner-unit should be closed with immediate effect and with a direction to disconnect the electricity connection forthwith. This consequential order is impugned in W.P. No. 14924/99. 6. On 16.9.1999, the Writ Petition came up for admission and an interim order was passed directing the third respondent Superintending Engineer to see that the domestic supply was continued to the petitioner until further orders. 7. The second respondent-Board has filed a report through the Additional Chief Environmental Engineer signed on 22.9.1999 and the report is to the following effect. “The Unit had applied to the Board for consent under the Air Act on 8.4.1994. As complaints were received against the unit regarding noise emission and vibrations caused due to the forging operations and the unit had not switched over to press type forging system as agreed to, to reduce the noise level, the application tiled by the unit was rejected by the Board in its letter dated 6.12.1996. There was an appeal preferred before the Appellate Authority by the petitioner. The Appellate Authority at its meeting held on 28.2.1997 decided to refer to I.I.T./Anna University for making an independent study on the impact of the functioning of the unit and vibration caused due to forging operations and noise emissions. There was an appeal preferred before the Appellate Authority by the petitioner. The Appellate Authority at its meeting held on 28.2.1997 decided to refer to I.I.T./Anna University for making an independent study on the impact of the functioning of the unit and vibration caused due to forging operations and noise emissions. Based on the report of noise level, survey conducted on 3.7.1997 by I.I.T., Chennai, the Appellate Authority, in its meeting held on 8.8.1997, decided to grant consent to the unit since the measured noise level was within the permissible limit, subject to a condition that the unit should operate only from 9. a.m. to 6. p.m. and the Board should conduct at least five surprise checks during each month by engaging I.I.T. and if at any time the noise level or vibration level was more than the limit, then immediately the unit should be directed to stop. Consent under Air Act was issued to the unit on 11.9.1997 with validity upto 31.12.1997 subject to certain conditions as per the decision of the Appellate Authority. I.T.I., Chennai conducted six surprise noise level surveys during April, 1998 October, 1998 and furnished the report. Surprise noise level study had been conducted in front of Door No. 6/320 five times on various dates and the noise level was found ranging from 59 dB(A) to 75.6 dB(A) as against the permissible limit of 55 dB(A) prescribed for the residential area. Noise area study was also conducted on 11.6.1998 in front of Door No. 5/467 located at about 150 metres from the said Unit and the noise level was found to be 60.8 dB(A) as against the permissible limit of 55 dB(A). Frequent complaints were received stating that the noise level generated by the Unit exceeded the permissible limit prescribed for residential areas. Closure direction and stoppage of power supply were issued on 13.12.1998. The appeal was disposed of on 10.3.1999 directing the Board to consider the issue of fresh consent stipulating the pollution levels in the adjacent residential area on account of the petitioner Unit and to initiate necessary action against them as per law if they violate the conditions of consent. Orders of revocation and power supply were issued to the Unit in proceedings dated 19.3.1999. Fresh consent orders under Water Act and Air Act were issued to the Unit with validity upto 30.6.1999 subject to conditions stipulating pollution levels. Orders of revocation and power supply were issued to the Unit in proceedings dated 19.3.1999. Fresh consent orders under Water Act and Air Act were issued to the Unit with validity upto 30.6.1999 subject to conditions stipulating pollution levels. In order to assess the compliance of condition, noise level survey was conducted on 20.5.1999 at five stations with and without forging operations. The report of noise level survey showed that Leq near the compound wall of TNHB No. 42 during forging operation was 71.2 dB(A) against the permissible Limit 55 dB(A) for residential area. Further, Leq near the cooling tower of the unit during forging operation was found to be 84.6. dB(A) as against the permissible limit of 75 dB(A) for the Industrial area. This necessitated the issuance of the show-cause notice for violation of the consent order condition issued under Section 21 of the Air (Prevention and Control of Pollution) Act, 1981 in proceedings dated 9.6.1999. An appeal was filed for deletion of clause 17. The appeal having been dismissed on 29.7.1999, directions under Section 31-A of the Air Act for the closure and stoppage of power supply were issued to the Unit on 31.8.1999. Power Supply was disconnected on 9.9.1999.” 8. Maraimalai Nagar Adigalar Makkal Mandram represented by its Secretary has filed a petitiion in W.M.P. No. 24102/99 for impleadment in the Writ Petition. The impleadment petition not being opposed was ordered on 7.10.1999. The learned Senior Counsel Mr. A.L. Somayaji representing the impleaded Mandram made his submissions on the basis of the allegations in the affidavit in support of the petition for impleadment. 9. Mr. K.M. Vijayan, learned Senior Counsel appearing for the petitioner Unit, took us through the various orders passed by the second respondent and the first respondent on various dates and submitted that the authorities satisfied themselves that the area was an industrial area and fixed the decibel level at 75 dB(A) and on account of intervention of some vested interest, the second respondent Board varied its earlier consent order and introduced clause 17 and fixed the decible level at 54 dB(A) obtaining for residential localities. In the submission of the learned Senior Counsel, the attitude of respondents 1 and 2 amounts to mala fides and the present problem for the Writ Petitioner had been engineered to satisfy those vested interests. 10. Mr. In the submission of the learned Senior Counsel, the attitude of respondents 1 and 2 amounts to mala fides and the present problem for the Writ Petitioner had been engineered to satisfy those vested interests. 10. Mr. B. Shanthakumar, learned senior standing counsel for the second respondent Board, reiterated the contents of the report filed by the second respondent Board and submitted that the Board had been acting strictly in accordance with the provisions of the Act and the Rules and the allegation on behalf of the Writ Petitioner that there was some vested interest behind the whole thing was without any basis. 11. Mr. A.L. Somayaji, learned Senior Counsel representing the impleaded parties, submitted that merely because allegations of mala fides had been made, the real grievance and hardship the residents of the locality were put to on account of the operation of the Unit by the petitioner cannot be ignored. According to the learned Senior Counsel, the petitioner unit violated the norms and conditions imposed by the second respondent Board and operated the Unit from 6.45 a.m. till midnight, the noise generated was very high and the day-to-day normal activities of the respondents were totally crippled. In the submission of the learned Senior Counsel, the continuance of the petitioner Unit is detrimental to the health of the people in the locality. There are old people, sick people, mentally retarded people, school-going children and high school boys and girls and because of the continuous pollution, dust, sound and vibration caused by the petitioner Unit, the health, life and property of those people are greatly endangered. In these circumstances, the learned Senior Counsel submitted that the Writ Petitions hadto be dismissed. 12. Even at this stage, it has to be noticed that the second respondent Board has not stated anything in its report about the Writ Petitioner running the Unit from 6.45 a.m. till midnight. In fact, in the original order, decibel level for operations during night hours had also been fixed. The allegation is made only in the affidavit in support of the petition for impleadment. 13. The Unit was located with P.P. Mogappair, Phase II, Industrial Estate with a TIIC sanctioned loan of Rs. 15,40,000/-. The Unit was commissioned and operation commenced in 1992. The allegation is made only in the affidavit in support of the petition for impleadment. 13. The Unit was located with P.P. Mogappair, Phase II, Industrial Estate with a TIIC sanctioned loan of Rs. 15,40,000/-. The Unit was commissioned and operation commenced in 1992. On 13.6.1995, the second respondent Tamil Nadu Pollution Control Board (hereinafter referred to as the Board) issued a notice for the closure of the Unit stating that the noise level exceeded the standard, prescribed by the Board. The said notice is not available in the records. It was submitted that no details were there in the notice nor was the report of the noise level survey given to the petitioner. On 20.6.1995, the petitioner submitted its reply. On 12.1.1996, the Board directed closure of the Unit with instructions of the Electricity Board to disconnect electricity supply. The petitioner Unit filed Writ Petition W.P. No. 888/96 challenging the order of closure of the Unit. The Writ Petition was allowed on 19.9.1996 and the closure order passed by the Court was set aside and further direction was given to the Board to dispose of the consent application. On 6.12.1996, the Board rejected the consent and ordered closure of the Unit. The appeal filed by the petitioner under Section 31 was allowed on 20.8.1997 by the first respondent Appellate Authority and the Board was directed to grant consent to the Unit on the ground that the Unit is located in mixed industrial and residential area. The accepted noise level being 65 dB(A) to 75 dB(A) and earlier noise level being 75 dB(A), there was also a further direction given to conduct noise level survey periodically. On 11.9.1997, the Board issued consent order. In page No. 4 of the consent order, the following limits in dB(A) were fixed. Day time 6 a.m. to 9 p.m. 75 Night time 9 p.m. to 6. a.m. 70 There were surprise checks conducted on six days between 28.4.1998 and 15.10.1998 by I.I.T. Chennai along with the officials of the Board. The survey reports showed that the noise level on all the dates was less than 75 dB(A). However, on 13.12.1998, the Board passed orders under Section 31(a) to close the Unit and directed the Electricity Board to disconnect the service connection on the ground that the noise level exceeded 55 dB(A), the prescribed limit for the residential area. The survey reports showed that the noise level on all the dates was less than 75 dB(A). However, on 13.12.1998, the Board passed orders under Section 31(a) to close the Unit and directed the Electricity Board to disconnect the service connection on the ground that the noise level exceeded 55 dB(A), the prescribed limit for the residential area. There was no show-cause notice issued nor was the petitioner Unit afforded an opportunity. This order was received by the petitioner Unit on 21.12.1998. Challenging the closure order, the Writ Petition W.P. No. 20390/98 was filed by the petitioner. Though an interim stay order was granted for a period of three weeks on 24.12.1998, the Writ Petition itself was disposed of on 30.1.1999 with a direction to the petitioner to file an appeal before the Appellate Authority under Section 31 of the Air Pollution Control Act. The appeal filed by the Writ Petitioner was allowed on 10.3.1999 and the order of the closure of the Unit was set aside by the Appellate Authority. 14. Even at this stage, it would be worthwhile to refer to the order of the Appellate Authority dated 10.3.1999. “From the records available before this authority, it has not been established that the conditions laid in the consent letter dated 11.9.1997 were violated by the appellant. If the consent letter had included the pollution levels in the adjacent residential area (on account of the polluting unit) and if the norms had been violated, there would have been a case for action under the law by the competent unit. Similarly, if the norms were to be revised to the detriment of the party, reasonable opportunity should be given. The impugned order is violative of the principles of natural justice and is hence set aside. The Pollution Control Board may consider issuing fresh consent order stipulating pollution levels in the adjacent residential area on account of the pollution unit and if there is violation of those conditions of consent, may initiate action against them as per law.” 15. On 26.4.1999 consent order was issued by the Board and in this order there is a clause added a clause No. 17 stating that the noise level in the residential area abutting the premises shall not exceed 55 dB(A). This introduction of clauses 17 has given rise to the present problem. On 26.4.1999 consent order was issued by the Board and in this order there is a clause added a clause No. 17 stating that the noise level in the residential area abutting the premises shall not exceed 55 dB(A). This introduction of clauses 17 has given rise to the present problem. Against this consent order, objecting to clause 17, the Writ Petitioner filed an appeal before the Appellate Authority on 3.6.1999 and the appeal was dismissed on 29.7.1999, against which dismissal W.P. No. 14925/99 has been filed. Thereafter, on 9.6.1999, show-cause notice was issued by the Board to the petitioner since the noise level exceeded 55 dB(A) when the test survey was conducted on 8.6.1999. The explanation submitted by the petitioner on 18.6.1999 was rejected by the Board on 31.8.1999 and the Unit was directed to be closed. The Electricity Board was directed to disconnect the electricity supply. The Writ Petition W.P. No. 14924 of 99 has been filed against the said order. 16. It is not in dispute that the noise level exceeds 55 dB(A). The question is whether the petitioner Unit is justified in exceeding this noise level. 17. On 8.8.1997, the Appellate Authority allowed the appeal filed by the Writ Petitioner against the order of the Board dated 6.12.1996 rejecting consent and ordering closure of the Unit. The gist of the decision by the Appellate Authority was communicated to the Board on 20.8.1997. “The Counsel for the unit has stated at the request of the Tamil Nadu Pollution Control Board, the noise and vibration study at M/s. Southern Associates has been conducted by the Indian Institute of Technology, Chennai, on 3.7.1997. The Unit was located at mixed residential and industrial area, the accepted levels can be around 65 dB(A) - 75 dB(A). The measured noise level is 72 dB(A). The Appellate Authority decided to grant consent to the Unit, since the measured noise level is within the permissible limit. The unit should not operate during night time and should operate only from 9. a.m. to 6. p.m. and the Tamil Nadu Pollution Control Board should conduct at least five surprise checks during each month by engaging I.LT. and if at any time the noise level or vibration level is more than the limit, immediately the unit should be directed to stop. The cost of engaging I.LT. a.m. to 6. p.m. and the Tamil Nadu Pollution Control Board should conduct at least five surprise checks during each month by engaging I.LT. and if at any time the noise level or vibration level is more than the limit, immediately the unit should be directed to stop. The cost of engaging I.LT. to conduct these surprise tests should be paid in advance each month by the appellant and subject to the usual other conditions stipulated by the Tamil Nadu Pollution Control Board.” 18. The Appellate Authority had found that the accepted level could be around 65 dB(A) - 75 dB(A) and at the time the appeal was heard, the measured noise level was 72 dB(A). It is really surprising as to how the area which was a mixed residential and industrial area ceased to be such area and became a residential area and how the decibel level was reduced to 55 dB(A). After this order by the Appellate Authority, the Board passed orders on 11.9.1997 giving consent fixing the noise level at 75 dB(A) between 6. a.m. and 9. p.m. and 70 dB(A) between 9. p.m. and 6. a.m. The surprise visits made on various dates between 28.4.1998 and 15.10.1998 show the noise level varying between 75 dB(A) and 59 clB(A). The locations fixed during the survey were Door No. 6/320 for five visits and Door No. 5/67 for one visit. No doubt, the noise level during the fifth visit was low at 59 dB(A) as the Unit was made maintenance. The report given by the Department of Civil Engineering, IIT, discloses certain observations and it may be worthwhile to extract the said observations. “1. Upto the fifth surprise visit, the measured noise level in front of the residence 6/320 was varying around 72 dB(A). If one considers this as an industrial area which is mixed with residential area, the maximum acceptance value could be 75 dB(A). 2. Upto the fifth surprise visit made, the noise was dominated by a pure tone type of sound during the forging operating which could have been more annoying to the residents around. 3. It was observed in the sixth visit that the owner of Southern Associates has taken certain remedial measures such as overhauling and other maintenance aspects of the machine. A partial, noise barrier has been erected at the top portion of the machine. 3. It was observed in the sixth visit that the owner of Southern Associates has taken certain remedial measures such as overhauling and other maintenance aspects of the machine. A partial, noise barrier has been erected at the top portion of the machine. Subsequently, the pure tone frequency which was occurring earlier is not present now. 4. However, the noise levels observed in the last (sixth visit) is around 74 dB(A). This can also be missed by erecting a barrier around the industry which can bring down the noise level by another 8 to 10 dB(A) resulting in 64 dB(A) in front of the residential area.” 19. In measuring the noise level, the experts have used Integrating sound level metre, Octave Filter and Vibration metre. The Ambient noise level in front of the residence at Door No. 6/320 without any traffic and without the Unit working has been arrived at 63 dB(A) and when the Unit is working, the noise level in front of the residence at Door No. 5/67 is 75 dB(A). The figures were during the visit on 28.4.1998. During the second visit on 14.5.1998 the respective figures were 59 and 72.2 to 72.4. During the third visit, it was 59 and 72.2 to 72.4. During the fourth survey, it was 74 to 60.8. During the fifth survey, it was 57 and 59. The forging operation was not there. 20. We have already noticed that the Appellate Authority had found that it was a mixed residential and industrial area and the accepted level is 75 dB(A). There does not appear to be any convincing reason to revise the figures. It will be relevant to refer to a communication from Tamil Nadu Industrial Investment Corporation Ltd. addressed to the Member Secretary, Madras Metropolitan Development Authority, on 2.8.1993. The entire letter is extracted as under: “The Tamil Nadu Industrial Investment Corporation Ltd. BO.FU:GM:93-94, August 2, 1993. To Thiru P.R. Bindhuamdhavan, I.A.S., The Member-Secretary, Madras Metropolitan Development Authority, Thalamuthu - Natarajan Building, Gandhi-Irwin Road, Chennai-8. Dear Sir, Sub: M.M.D.A. - Sites and Services Division Industrial Pollution - Danger to health in M.M.D.A. scheme area - Mogappair East - Remarks called for. ------- Please refer your letter No. SS2/1 148/93 dated 8.7.1993 on the above subject. In this connection, we have to inform that M/s. Southern Associates, an assisted unit of TIIC has set up the factory in a planned industrial area. ------- Please refer your letter No. SS2/1 148/93 dated 8.7.1993 on the above subject. In this connection, we have to inform that M/s. Southern Associates, an assisted unit of TIIC has set up the factory in a planned industrial area. As such, there can be no question of planned residential area having any problem from a ‘planned’ industrial unit in a ‘planned’ industrial zone, in a fully ‘planned’ lay out, It is to be inferred that either the complaining residences are in an unauthorised location, or the planning of residential area near an industrial area is faulty. In the first case, it is the fault of residents and in the latter of M.M.D.A. In either case it is not the fault of the industrial Unit, and as such it cannot be asked legally to shut down or shift unless fully compensated for all costs including costs of relocation and loss of earnings due to such relocation. Yours faithfully, sd./- General Manager. C.C. to: M/s. Southern Associates, Plot No. W-79, Anna Nagar Western Extension, Madras- 600 101”. 21. From this Mr. Vijayan, learned Senior Counsel wants the Court to infer that even the nomenclature mixed residential and industrial zone is wrong. It is not necessary to go into that aspect as even according to the Appellate Authority, the accepted noise level is 75 dB(A) between 6 a.m. to 9. p.m. and 70 db(A) between 9. p.m. and 6. a.m. The circumstances under which they were revised have not been satisfactorily explained by the Board. 22. For the reasons stated above, the Writ Petitioner is entitled to succeed in both the Writ Petitions. However, with a view to maintain peace with the inhabitants in the residential area alleged to be situated close to the industrial unit, the suggestions given during the survey by the expert from the Indian Institute of Technology may be directed to be strictly followed. The Writ Petitions are allowed. There will, however be no order as to costs. 23. In view of the orders passed in the Writ Petitions, no separate orders are necessary in W.M.P. Nos. 21571 to 21573/99.