COCP No. 251 of 2010 1 CWP No. 15295 of 2010 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH COCP No. 251 of 2010 Date of decision:- 19.04.2011 Gopal Dass son of Sh. Ram Lal, r/o H. No. 44, Kamla Nagar, Bhiwani, Haryana. ...... Petitioner Vs Sh. Inderjit Kularia, Secretary, The Municipal Council, Bhiwani and another. ......Respondents CWP No. 15295 of 2010 Date of decision:- 19.04.2011 Gopal Dass son of Sh. Ram Lal, r/o H. No. 44, Kamla Nagar, Bhiwani, Haryana and another. ...... Petitioners Vs State of Haryana and others. ......Respondents CORAM:-HON'BLE MR. JUSTICE RANJAN GOGOI, CHIEF JUSTICE HON'BLE MR. JUSTICE SURYA KANT Present: Mr. Baljinder Singh, Advocate, for the petitioners, in both the petitions. Mr. Raman B. Garg, Advocate, for respondent No. 1, in COCP No. 251 of 2010. * * * * RANJAN GOGOI, C.J. (ORAL) COCP No. 251 of 2010 has been filed alleging willful disobedience of an order dated 19.11.2008 passed by this Court in the COCP No. 251 of 2010 2 CWP No. 15295 of 2010 proceeding registered and numbered as CWP 11215 of 2007. The connected writ petition i.e. CWP No. 15295 of 2010 has been filed seeking a writ directing the official respondents to shift and remove the factory of the sixth respondent situated in plot No. 42-43 in Kamla Nagar, Bhiwani which is claimed to be a residential colony. Both the matters being connected were taken up for consideration together and are being disposed of by this common order. In so far as COCP No. 251 of 2010 is concerned, the order dated 19.11.2008 passed by the Court in respect of which disobedience has been alleged is in the following terms:- “The petition is accordingly dismissed as withdrawn with the observations that in case the petitioners file any representation before the competent authority under the Haryana Municipal Act, 1973, the competent authority shall examine the same expeditiously and pass an appropriate order in accordance with law, after affording respondent No. 6 an opportunity of being heard in the matter.” The respondent No. 1 has filed an affidavit in the aforesaid case stating that pursuant to the representation dated 06.02.2009 filed by the petitioner, in terms of the aforesaid order of the Court, directions had been issued to M/s Ganga Ram and Sons to stop the business of Petha manufacturing by use of coal furnaces at the location in question and to shift the operations to any other place after getting the requisite license from the concerned authority. A supplementary affidavit dated 28.03.2011 has also been filed in the aforesaid contempt case stating that notice dated 28.01.2010 COCP No. 251 of 2010 3 CWP No. 15295 of 2010 was issued to M/s Ganga Ram & Sons to immediately stop its operations. However, a Civil Suit for permanent injunction has been filed by the aforesaid M/s Ganga Ram & Sons in the Court of the learned Additional Civil Judge (Senior Division), Bhiwani. It has been submitted that there is, however, no interim injunction operating in the said Civil Suit. Accordingly, a complaint case under Sections 129/131 of the Haryana Municipal Act, 1973 has been lodged against the aforesaid M/s Ganga Ram & Sons in the Court of the learned Chief Judicial Magistrate, Bhiwani. In so far as CWP No. 15295 of 2010 is concerned, apparently, the same has been filed by the petitioners as inspite of the earlier writ petition i.e. CWP No. 11215 of 2007 and the pendency of the contempt proceedings i.e. COCP No. 251 of 2010, the sixth respondent continues to operate the business of manufacture of Petha in the location in question. As, according to the petitioners, the nuisance caused is persisting the petitioners had been left with no alternative but to approach this Court once again. The earlier order dated 19.11.2008 passed by the Court in CWP No. 11215 of 2007, which has been extracted above, required the petitioners to file a representation and the Municipal authorities to take action on the basis thereof. The facts already noticed would indicate that the Municipal authorities had taken action in the matter under the provisions of the Haryana Municipal Act, 1973. Learned Counsel for the Municipal Committee has submitted that beyond the action already COCP No. 251 of 2010 4 CWP No. 15295 of 2010 taken, there is no further power under the Haryana Municipal Act, 1973 to enable the Municipal Committee to resort to any other action. We have perused the provisions of the Haryana Municipal Act, 1973 and we find that the learned Counsel for the Municipal Committee is correct in his submissions. If that be so, the action taken by the Municipal Committee, details of which have been noticed earlier, will be in sufficient compliance with the order dated 19.11.2008 passed in CWP No. 11215 of 2007. The respondents in the Contempt Petition, therefore, cannot be held liable for any deliberate and willful violation of the Court's order dated 19.11.2008 passed in CWP No. 11215 of 2007. In so far as the relief sought in the writ petition i.e. CWP No. 15295 of 2010 is concerned, we have noticed that the Municipal Council once again has been arrayed as the principal respondent in the case. We have already observed that all that is permissible in law has been done by the Municipal Council. Any direction from the Court as prayed for by the writ petitioners would require a determination of the basic facts. Only thereafter, necessary directions can be considered. Such determination of basic facts would not be appropriate in a proceeding under Article 226 of the Constitution of India, particularly, when the petitioners have adequate alternative remedies under the law. Reference, in this regard, can be made to the provisions contained in Section 133 of the Code of Criminal Procedure which would authorize the petitioners to bring a complaint before the concerned Magistrate COCP No. 251 of 2010 5 CWP No. 15295 of 2010 alleging any nuisance committed by the respondent No. 6. If such a complaint is brought by the petitioners, naturally, the same will have to be dealt with in accordance with the procedure prescribed by Section 133 of the Code of Criminal Procedure. As the petitioners have an adequate alternative remedy, we are of the view that no writ, as prayed for, ought to be issued in the exercise of the highly discretionary jurisdiction under Article 226 of the Constitution of India. We, therefore, close both the cases by directing the Municipal Council, Bhiwani to continue with the steps taken under the provisions of the Haryana Municipal Act, 1973 and also by leaving it open for the petitioner to avail of the remedies that are available to him under the provisions of the Code of Criminal Procedure. Both the Contempt Petition as well as the Writ Petition shall stand disposed of in the above terms. (RANJAN GOGOI) CHIEF JUSTICE (SURYA KANT) JUDGE 19.04.2011 Amodh