Regular Second Appeal No. 3031 of 2008 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 3031 of 2008 Date of decision : July 22, 2010 Rajender Singh and another ....Appellants versus State of Haryana and others ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. S.K. Sharma, Advocate, for the appellants Mr. Narender Singh, DAG, Haryana for respondents no. 1 & 2 Mr. Sumeet Goel, Advocate, for respondent no. 3 L.N. Mittal, J. (Oral) By this common order, I am disposing of two appeals i.e. RSA No. 3031 of 2008 and RSA No. 3030 of 2008, both preferred by the plaintiffs. Both these appeals have arisen out of a single suit. Reason for filing two appeals is that there were two first appeals i.e. one by defendant no. 1 and other by defendants no. 2 and 3, which were disposed of by the lower appellate court by a common judgment. Aggrieved thereby, plaintiffs have filed instant two second appeals. Facts in this case are not very much in dispute. Plaintiffs alleged that they have constructed their houses in the fields and there are Regular Second Appeal No. 3031 of 2008 -2- also other houses and the cluster of houses is known as Ramgopal Ki Dhani of village Bahu. According to defendant no. 1, plaintiffs are still residing in village abadi and not in Dhani. The plaintiffs' grievance is that defendant no. 1 is installing a brick kiln near the Dhani. The said brick kiln would cause nuisance to the plaintiffs as per their version. Accordingly, the plaintiffs sought permanent injunction restraining defendant no. 1 Kartar Singh from installing any brick kiln in land of killa No. 6/2 and 7 and restraining defendants no. 2 and 3 i.e. State of Haryana and District Food and Supply Collector from granting any licnece to defendant no. 1 for running the said brick kiln. Defendants pleaded that licence had already been issued in favour of defendant no. 1. According to version of defendant no. 1 licence for running the brick kiln was issued in his favour on 9.1.2006. However, according to defendants no. 2 and 3, exemption from certain clauses of the Haryana Control of Bricks Supplies Order, 1972 (in short, the Order) was granted to defendant no. 1 subject to certain conditions vide letter dated 9.1.2006 issued by Principal Secretary to the Government and thereupon licence dated 6.2.2006 was issued by District Magistrate, Jhajjar. Defendant no. 1 also alleged that he has already installed his brick kiln in the land in question. Learned Additional Civil Judge (Senior Division), Jhajjar vide judgment and decree dated 8.4.2008 decreed the plaintiffs suit. However, first appeals preferred by defendant no. 1 and by defendants no. 2 and 3 have been allowed by learned Additional District Judge, Jhajjar vide judgment and decrees dated 25.8.2008 and thereby suit filed by the Regular Second Appeal No. 3031 of 2008 -3- plaintiffs stands dismissed. Feeling aggrieved, the plaintiffs have filed instant two second appeals. I have heard learned counsel for the parties and perused the case file. According to spot verification report made by the concerned officer, distance of the brick kiln to be set up by defendant no. 1 was 125 meters from Dhani, 750 meters from the village abadi, 850 meters from school and 870 meters from water supply tank. Since the proposed brick kiln of defendant no.1 fell within prohibitive distance from village abadi, school and water supply tank, as provided by clause 4(iii) of the Order, Government vide letter dated 9.1.2006 in exercise of power under clause 21 of the Order granted exemption to defendant no. 1 subject to certain conditions and consequently licence for setting up the brick kiln was issued to defendant no. 1. Learned counsel for the appellants vehemently contended that the brick kiln of defendant no. 1 is situated very close to the Dhani of the plaintiffs-appellants and therefore, defendant no. 1 should be injuncted from running said brick kiln. The contention cannot be accepted. Provisions of the Order do not prescribe any distance of brick kiln from Dhani. On the other hand, provisions of the Order prescribe prohibitive distance from village abadi and other institutions etc. Consequently, brick kiln of defendant no. 1 cannot be said to be within prohibitive distance from the Dhani claimed by the plaintiffs, under the provisions of the Order. Faced with this situation, learned counsel for the appellants contended that brick kiln of defendant no. 1 is also within prohibitive Regular Second Appeal No. 3031 of 2008 -4- distance from village abadi, school and water supply tank as there has to be distance of one kilometer from the said places. However, learned counsel for the respondents contended that under clause 21 of the Order, State Government is empowered to grant exemption from the provisions of the Order subject to conditions as may be specified and exercising this power necessary exemption was granted to defendant no. 1. I have carefully considered the aforesaid contentions. Under clause 21 of the Order, State Government has the power to grant exemption from the operation of all or any of the provisions of the Order in favour of any person or class of persons subject to such conditions, if any, as may be specified. This power has been exercised by State Government and necessary exemption has been granted to defendant no. 1 and consequently licence has been issued to defendant no. 1 for running of brick kiln at the disputed site. Plaintiffs in the suit have not challenged granting of the said exemption or granting of licence in favour of defendant no. 1 although exemption as well as licence were granted in favour of defendant no. 1 before filing of the suit which was filed on 28.2.2006. Since issuance of licence to defendant no. 1 for running brick kiln has not been challenged in the suit, defendant no. 1 has a right to run the said brick kiln subject to the conditions specified in the licence and the order granting exemption. Plaintiffs have no right to injunct defendant no. 1 from running the brick kiln when defendant no. 1 is running the same in accordance with law after obtaining requisite licence under the provisions of the Order. Learned counsel for the appellants also contended that in CWP No. 60 of 2004, titled Jeet Ram etc. versus State of Haryana and others, Regular Second Appeal No. 3031 of 2008 -5- licence for running brick kiln was issued to respondent no. 6 of that case namely M/s Arti Bricks Company by granting exemption from the provisions of the Order but the said licence was set aside by Division Bench of this Court vide order dated 28.2.2005 with liberty to the competent authority to pass fresh order, in accordance with law, after hearing the parties and any other effected person. Pursuant thereto, the competent authority refused to grant licence to the said brick kiln by granting exemption. M/s Arti Bricks Company challenged the said action of the State by filing CWP No. 1363 of 2007 which was, however, dismissed by Division Bench of this Court vide order dated 19.5.2009. However, I fail to understand as to how the said judgments are of any help to the appellants in the instant case. In the aforesaid case, M/s Arti Bricks Company was setting up the brick kiln at distance of only 300 meters from village abadi as against prohibitive distance of 1 kilometer stipulated under the Order. Similarly distances from school, nursery, mandirs and gurdwara were also very less as compared to the distance provided in the Order. In these circumstances, order of State Government refusing to grant exemption to the said brick kiln was upheld. In the instant case, however, the distances of the brick kiln set up by defendant no. 1 are 750, 850 and 870 from village abadi, school and water supply tank respectively which are not so less as in the case of M/s Arti Bricks Company (supra). Moreover, in the instant case requisite exemption has been granted by the State Government and the said exemption has not been challenged by the appellants. Learned counsel for the appellants next contended that the Order has since been amended vide Haryana Control of Bricks Supplies Regular Second Appeal No. 3031 of 2008 -6- (Amendment) Order, 2008 and now exemption cannot be granted from prohibitive distances stipulated in clause 4(iii) of the Order as amended by the Amendment Order. This contention also does not come to the rescue of the appellants in any manner. Firstly, the Amendment Order of 2008 would not be applicable to the licence of defendant no. 1 which already stands granted in the year 2006. Amendment Order of 2008 is not retrospective in operation. Secondly, according to Amended Order, distance from village abadi has been stipulated to be 800 meters instead of 1 kilometer under the Unamended Order. However, clause 4(iii) of the Amended Order stipulates that relaxation upto 20% in the said distance can be granted and therefore, relaxation can be granted for setting up of brick kiln upto distance of 640 meters from village abadi. Similarly distance from school and other public institutions is stipulated to be 1 kilometer in the Amended Order and relaxation upto 20% can be granted i.e. exemption can be granted to set up brick kiln within distance of 800 meters from school or other institutions. In the instant case brick kiln of defendant no. 1 falls beyond the distances stipulated in the Amended Order after considering the exemption limit. In other words, even under the Amended Order, brick kiln on the disputed site can be allowed to be set up by granting relaxation stipulated in clause 4(iii) of the Amended Order itself without adverting to the power of exemption under clause 21 of the Amended Order. These exemptions upto limits specified in clause 4(iii) can be granted even now and brick kiln of defendant no. 1 would fall within the permissible limit of exemption. Consequently, Amended Order has also not been contravened by the defendants in any manner. Thus, examining from any Regular Second Appeal No. 3031 of 2008 -7- angle, I find no illegality in the impugned judgment of the lower appellate court. There is no merit in the instant second appeals. No question of law much less substantial question of law arises for determination therein. Both the appeals are accordingly dismissed. ( L.N. Mittal ) July 22, 2010 Judge 'dalbir'