N.Gajapathy v. State of Tamil Nadu & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDated: 11.01.2010 Coram:The Hon'ble Mr.Justice ELIPE DHARMA RAOANDThe Hon'ble Mr.Justice N.PAUL VASANTHAKUMARWRIT PETITION No.23350 of 2009N.Gajapathy...Petitioner Versus1.State of Tamil Nadu, rep. by itsSecretary, Department of Environment,Fort St. George, Chennai. 2.The Member Secretary,Loss of Ecology (Prevention and Payments of Compensation) Authority, St.Peters Road, Thousand Lights, Chennai-600 086.3.The Collector,Vellore District, Vellore. ...RespondentsWrit Petition under Article 226 of the Constitution of India,praying for the issuance of a writ of Certiorarified Mandamus, tocall for the records pertaining to the proceedings of the secondrespondent in Petition Nos.149 of 2009 dated 17.03.2009, quash thesame and further direct the second respondent to grant the interestto the compensation awarded in award dated 8.12.2008 from the date ofdisbursement of such compensation as in the case of otherbeneficiaries till the date of realisation.For Petitioner..Mr.V.Prakash, S.C. for Mr.S.Dhiraviyaraj.For Respondents ..Mr.G.Desingu, Spl.G.P. for R1 and R3Mr.N.Sankaravadivel for R2.O R D E R(Order of the court was made by Elipe Dharma Rao, J)The petitioner is the owner of the land bearing T.S.No.5/1 to anextent of 0.37 hectare, T.S.No.6/9 to an extent of 0.65.5 hectare, https://hcservices.ecourts.gov.in/hcservices/ T.S.No.6/4A to an extent of 0.06.0 and 0.30.0 hectare, T.S.No.6/7A toan extent of 0.06.0 hectare, T.S.No.6/8 to an extent of 0.11.0 and0.01.0 hectare T.S.No.6/1A to an extent of 0.11.3 hectare and in alltotal extent of 1.39.3 hectare, with a well situated in the saidsurvey number, to irrigate the above stated lands, in Block-2, Ward-B, Tharvazhi Village, Ambur Town, Vaniyambadi Taluk, VelloreDistrict. 2. It is the case of the petitioner that the Vellore CitizenWelfare Forum had filed a writ petition in W.P.No.914 of 1991 beforethe Hon'ble Supreme Court of India for the protection of thousands ofinnocent lives, suffering from serious air and water pollution beingcaused by enormous discharge of untreated effluents by the tanneriesinto agricultural fields road sides, waterways and open lands inNorth Arcot District (Vellore), Tamil Nadu and pursuant to thedirections of the Hon'ble Supreme Court vide its Order dated28.08.1996, the Central Government constituted a body namely, Loss ofEcology Authority, the second Respondent to implement theprecautionary principle and the Polluter pays Principle and to assessthe loss to the ecology/Environment in the affected areas and toidentify the individuals/families who have suffered by the pollutionto assess the damages caused to the individuals/families and tocollect the compensation from the tanneries and to distribute thesame to the individuals/families. The award of compensation coversfor the period from 12th August, 1991 to 31st December, 1998 and therate of compensation are determined as under:-TDS in well water used forCompensation payable Irrigation mg/1.in Rs. Per Hectare/Year.1000+to 2100Rs. 1,000/-2100+to 3500Rs. 2,000/-3500+to 4900Rs. 6,500/-4900 & above.Rs. 14,000/-3. It is further stated that since the total dissolved solid inthe petitioner's well water used for irrigation was above 4900 mg/1and the authority to fix Rs.14,000/- per hectare per year ascompensation, the second Respondent is liable to pay the petitioner asum of Rs.1,44,004/- as on 31.12.1998 (R.14,000/- x 1.39 x 7.4 years= Rs.1,44,004/- from 12th August, 1991 to 31st December, 1998)together with interest till date. 4. It is further stated that the petitioner filed a writpetition in W.P.No.2006 of 2004 for a direction to the secondRespondent to examine the claim of compensation of Rs.1,44,004/- withinterest and this Court vide order dated 10.09.2004 directed thesecond Respondent to consider the representation within a period oftwo months. Thereafter, the second Respondent vide letter dated01.10.2004, considered the claim of the petitioner and found that the https://hcservices.ecourts.gov.in/hcservices/ petitioner is eligible for compensation and that the actual amount ofcompensation would be known to the petitioner while disposing of allother individual claim petitions before the second Respondent.Thereafter, the petitioner on 22.02.2005 represented in person to thesecond Respondent authority to enquire about the actual amount ofcompensation to be paid to him and it was informed by the Secretaryto the second Respondent authority that his claim petition have beentaken as additional beneficiaries and that the compensation amountcould be disbursed to him on the basis of latest water sample of thewell water which was taken very recently and as per the order of theHon'ble Supreme Court, award of compensation covers for the period ofAugust, 1991 to 31st December 1998 and that during interregnum periodthe well water and cultivable lands were very much affected due tothe effluent water discharge from tanning industries and there was noprosperous agriculture from the year 1991 onwards and the petitionerincurred heavy loss and that if the second Respondent could decidethe compensation as per the latest TDS results, it will bedisproportionate and would result in injustice as the neighbours ofthe petitioner's lands were being paid compensation as per the TDSabove 4900 mg/l obtained then and that the new TDS results will showsome improvement in the TDS level due to the closure of the tanningIndustries and existing industries have been treating the effluentwater under the modern technology. 5. Thereafter, the petitioner filed W.P.No.8601 of 2005 for adirection to the second Respondent authority to calculate thecompensation payable to the petitioner on the basis of TDS adopted in1991 and as then obtained in the adjacent lands of the petitionerequally affected as in the case of the petitioner, namely of 4900 TDSabove as of the year 1991 and to direct the payment of suchcompensation together with interest and this Court taken note of thereports of the Tamil Nadu Agricultural University and theAgricultural Research Station, Virijipuram and by its order dated4.08.2008 denoted that the original assessment to be reconsidered inthe light of the reports of the Tamil Nadu Agricultural University.Further stated that based on the reports submitted, the secondRespondent Authority on 8.12.2008 passed the second award byenhancing the compensation payable to the petitioner but not awardedany interest payable to the above petitioner. Thereafter, thepetitioner filed Petition No.149 of 2009 before the second Respondentauthority for the payment of interest to the compensation awarded forthe loss suffered and the said authority by its proceedings dated17.03.2009 rejected the claim of the petitioner without assigning anyreason thereto. Aggrieved by the said order, the petitioner filedthis writ petition. 6. In the counter affidavit filed by the second Respondent itis contended that in fact the prayer in W.P.No.8603 of 2005 is thatthey should be given the same quantum of compensation by the secondRespondent as given to the adjacent land owners and this Court by its https://hcservices.ecourts.gov.in/hcservices/ order dated 4.8.2008 directed the second Respondent to consider thereport of Agricultural Research Station, Vrinjipuram giving thepresence of total dissolved solids (TDS) taken at an earlier point oftime and to revise the quantum of compensation fixed earlier. Thoughthe petitioners prayed for compensation with interest, this Court haddirected the second Respondent to revise the quantum alone on thebasis of report furnished by the petitioners. Further stated thatnone of the land owners who had been granted compensation for theperiod between 12.8.1991 and 31.12.1998 under the Award dated7.3.2001 had been given interest on the quantum of compensationgranted. Even in the Award passed by the second Respondent dated24.8.2009 as directed by order of this Court made in W.P.No.23291 of2006 relating to left out cases, interest had not been given on thequantum of compensation. The Hon'ble Supreme Court in its orderdated 26.8.1996 made in W.P.No.914 of 1991 issued a direction to theeffect that: "The authority so constituted by the Central Governmentshall implement the "precautionary principle" and the"Polluter Pays" principle. The authority shall, with thehelp of expert opinion and after giving opportunity to theconcerned polluters assess the loss to theecology/environment in the affected areas and shall alsoidentify the individual/families who have suffered becauseof the pollution and shall assess the compensation to bepaid to the said individuals/families". 7. Further contended that under the original award passed bythe Respondent dated 07.03.2001, the apportionment of the amount tobe recovered by the respective polluting industry is also mentionedin the Annexure-II appended to the said Award. If any enhancement ofcompensation has to be paid as per the direction of this Court, thesame has to be paid from the Environment Protection Fund. Somepolluting industries against whom Award had been passed closed theirbusiness and their whereabouts are not traceable by the thirdRespondent (Collector of this District) who is the recovery officerand the amount to be collected from such polluters who closed theirbusiness have become irrecoverable arrears of compensation. In suchcontingencies it is obligatory on the part of Respondents 2 and 3 topay the quantified compensation to all the affected individuals onlyfrom the accrued interest. In subsequent Award dated 24.08.2009alone, the total compensation granted as per orders of this Court inW.P.No.23291 of 2006 is Rs.2,91,01,278/- and the total number offresh beneficiaries is 1377. Many other affected individuals hadfiled about 10 writ petitions such as W.P.No. 12370 of 2004,W.P.No.30852 of 2004 etc. before this Court which directed the secondRespondent to consider fresh claims and compensation to them had alsobeen awarded. If everyone demands interest on the quantum ofcompensation, there is no source for the same. Further contendedthat if interest is to be paid on quantum of compensation fixed, the https://hcservices.ecourts.gov.in/hcservices/ same has to be collected from the polluting industries and thecontribution from them has to be directed to be increased by thisCourt. Therefore, second Respondent prays for consideration by thisCourt whether the polluting industries have to be impleaded asnecessary Respondents. 8. We have heard the submissions of the learned counselappearing on either side and also perused the materials available onrecord. 9. From the reading of the counter affidavit filed by thesecond Respondent, the reasons stated by the second Respondent isthat that none of the land owners who had been granted compensationfor the period between 12.8.1991 and 31.12.1998 under the Award dated7.3.2001 had been given interest on the quantum of compensationgranted. Even in the Award passed by the second Respondent dated24.8.2009 as directed by order of this Court made in W.P.No.23291 of2006 relating to left out cases, interest had not been given on thequantum of compensation. Further stated that if any enhancement ofcompensation has to be paid as per the direction of this Court, thesame has to be paid from the Environment Protection Fund. Somepolluting industries against whom Award had been passed closed theirbusiness and their whereabouts are not traceable by the thirdRespondent (Collector of this District) who is the recovery officerand the amount to be collected from such polluters who closed theirbusiness have become irrecoverable arrears of compensation. In suchcontingencies it is obligatory on the part of Respondents 2 and 3 topay the quantified compensation to all the affected individuals onlyfrom the accrued interest. However, according to the petitionerunder the Right to Information Act that amount of Rs.95,91,096/-lying with the third Respondent under the head Vellore CollectorEnvironment Protection Fund, which includes the interest. Therefore,the petitioner is entitled for the interest and that as per theinformation obtained by the petitioner dated 18.05.2009, that accruedinterest amount alone is Rs.11,55,670/-, lying in the Sub-CollectorOffice at Thirupattur, which comes under the third Respondent, apartfrom the balance amount of Rs.8,64,307/-. Therefore, the petitioneris entitled to receive the interest. 10. We are unable to appreciate the reason given by the secondRespondent that they are unable to recover compensation amountpayable by the polluting industries which are closed and whereaboutsare not traceable by the Respondent. If the amount is not depositedby any polluting industry, the second Respondent can take actionunder Revenue Recovery Act to recover the amount of compensationpayable by the polluting industry. In a decision reported in VelloreCitizens' Welfare Forum v. Union of India, AIR1996 (5) SC 2715, ithas been held as follows:- https://hcservices.ecourts.gov.in/hcservices/ " We impose pollution fine of Rs10,000 each on all thetanneries in the districts of North Arcot Ambedkar, ErodePeriyar, Dindigul Anna, Trichi and Chengai M.G.R. The fineshall be paid before October 31, 1996 in the office of theCollector/District Magistrate concerned. We direct theCollectors/District Magistrates of these districts torecover the fines from the tanneries. The money shall bedeposited, along with the compensation amount recovered fromthe polluters, under a separate head called “EnvironmentProtection Fund” and shall be utilised for compensating theaffected persons as identified by the authorities and alsofor restoring the damaged environment. The pollution fine isliable to be recovered as arrears of land revenue. Thetanneries which fail to deposit the amount by October 31,1996 shall be closed forthwith and shall also be liableunder the Contempt of Courts Act, 1971. " 11. We are unable to appreciate the yet another reason that noneof the land owners who had been granted compensation for the periodbetween 12.8.1991 and 31.12.1998 under the Award dated 7.3.2001 hadbeen given interest on the quantum of compensation granted. When thepetitioners came to know about the compensation payable by thepolluting industry and the persons who are aware of the same haveapproached the court and got compensation that is not the ground fordenying the interest on the compensation payable to the petitioner. 12. The learned counsel for the petitioner relied upon Section3 of the Interest Act 1978 under which the Court has discretionarypower to allow existing current rate of interest.gr.13. Admittedly, the petitioner is an agriculturist and byvirtue of the polluted industries, his agricultural lands wereaffected, we consider it appropriate to award interest at the rate of8% per annum on the compensation amount payable to the petitioner forthe period between 12.8.1991 and 13.12.1998. As quoted by theFather of our Nation Mahamatma Gandhi "Agriculture is the backbone ofIndian Economy" and because of the development of Information andTechnology Industries, agriculturists are losing their income. Thereshall be a direction to the second Respondent to determine theinterest payable to the petitioner and make arrangements to pay theinterest on the compensation amount payable to the petitioner withina period of 8 weeks from the date of receipt of copy of this order.The writ petition is allowed. No costs.gr. Sd/- Asst.Registrar/True Copy/ Sub.Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To1. The Secretary, State of Tamil Nadu, Department of Environment, Fort St. George, Chennai. 2. The Member Secretary,Loss of Ecology (Prevention and Payments of Compensation) Authority, St.Peters Road, Thousand Lights, Chennai-600 086.3. The Collector,Vellore District, Vellore. + 1 cc to Mr.S. Dhiraviyaraj, Advocate SR.2011+ 1 cc to Government Pleader SR.2319W.P.No.23350 of 2009BK(CO)EU 4.02.2010.