WP(C) 7967/2005 BEFORE HON’BLE JUSTICE MR I. A. ANSARI IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR, TRIPURA, MIZORAM & ARUNA CHAL PRADESH) 1. WP(C) No.7967/2005 1. Rungpur Enterprises A partnership firm registered under the provisions of the Indian Partnership Act , 1932 and having its principal place of business at Bishnu Market, Guwahati, re presented by one of its partner Shri Rajesh Kumar Agarwalla, Resident of B ishnu Market, AT Road, Guwahati-781001, Kamrup, Assam. 2. Ganesh Metcoke Industries A partnership firm registered under the provisions of the Indian Partnership Act , 1932 and having its principal place of business at 5F, Electronic Centre, 1/1A , Princep Street, Kolkata-700 072 and one of its offices at Village Hathkuwapara , Azara, Guwahati in the district of Kamrup, Assam, represented by Shri Moolcha nd Patni, Resident of Princep Street, Kolkata, West Bengal & Petitioners. - Versus - 1. The State of Assam, represented by the Commissioner & Secretary to the G ovt. of Assam, Department of Town and Country Planning, Dispur, Guwahati. 2. Guwahati Metropolitan Development Authority An authority constituted under the provisions of the Guwahati Metropolitan Devel opment Authority Act, 1985 and having its office at Bhangagarh, Guwahati-781005. 3. The Chief Executive Officer, Guwahati Metropolitan Development Authority Bhangagarh, Guwahati-781005 4. The Town Planner, Guwahati Metropolitan Development Authority Bhangagarh, Guwahati-781005 & Respondents. For the petitioners : Mr. N. Dutta, Senior Advocate, Dr. A. K. Saraf, Senior Advocate, Mr. D. Baruah, Advocate, Ms. N. Hawelia, Ms. M. L. Gope. For the respondents : Ms. B. L. Sinha, Government Advocate, Ms. M. Hazarika, Senior Advocate, Mr. S. Baruah, Advocate. 2. WP(C) No. 8704/2005 1. Rungpur Enterprises A partnership firm registered under the provisions of the Indian Partnership Act , 1932 and having its principal place of business at Bishnu Market, Guwahati, re presented by one of its partner Shri Rajesh Kumar Agarwalla, Resident of Bishnu Market, AT Road, Guwahati-781001, Kamrup, Assam. 2. Ganesh Metcoke Industries A partnership firm registered under the provisions of the Indian Partnership Act , 1932 and having its principal place of business at 5F, Electronic Centre, 1/1A , Princep Street, Kolkata-700 072 and one of its offices at Village Hathkuwapara , Azara, Guwahati in the district of Kamrup, Assam, represented by Shri Moolcha nd Patni, Resident of Princep Street, Kolkata, West Bengal. & Petitioners. - Versus - 1. The State of Assam, represented by the Commissioner & Secretary to the G ovt. of Assam, Department of Town and Country Planning, Dispur, Guwahati. 2. Guwahati Metropolitan Development Authority An authority constituted under the provisions of the Guwahati Metropolitan Devel opment Authority Act, 1985 and having its office at Bhangagarh, Guwahati-781005. 3. The Chief Executive Officer, Guwahati Metropolitan Development Authority Bhangagarh, Guwahati-781005 4. The Town Planner, Guwahati Metropolitan Development Authority Bhangagarh, Guwahati-781005 & Respondents. For the petitioners : Mr. N. Dutta, Senior Advocate, Dr. A. K. Saraf, Senior Advocate, Mr. D. Baruah, Advocate, Ms. N. Hawelia, Ms. M. L. Gope. For the respondents : Ms. B. L. Sinha, Government Advocate, Ms. M. Hazarika, Senior Advocate, Mr. S. Baruah, Advocate. 3. WP(C) 8216/2005 1. Ganesh Metcoke Industries A partnership firm registered under the provisions of the Indian Partnership Act , 1932 and having its principal place of business at 5F, Electronic Centre, 1/1A , Princep Street, Kolkata-700 072 and one of its offices at Village Hathkuwapara , Azara, Guwahati in the district of Kamrup, Assam, represented by Shri Moolcha nd Patni, Resident of Princep Street, Kolkata, West Bengal. & Petit ioners. - versus - 1. The State of Assam, represented by Commissioner & Secretary to the Govt. of Assam, Department of Industries & Commerce, Dispur, Guwahati-781006. 2. The Joint Secretary, to the Govt of Assam, Industries & Commerce Departm ent, Dispur, Guwahati - 781006. 3. The Director, Industries & Commerce Department, Dispur, Guwahati - 78102 1. 4. The General Manager, District Industries & Commerce Centre, Kamrup, Guwahati-781021 & Respondents. For the petitioners : Mr. N. Dutta, Senior Advocate, Dr. A. K. Saraf, Senior Advocate, Mr. D. Baruah, Advocate, Ms. N. Hawelia, Ms. M. L. Gope. For the respondents : Ms. B. L. Sinha, Government Advocate, Ms. M. Hazarika, Senior Advocate, Mr. S. Baruah, Advocate. 4. WP(C) 8228/2005 Shri Balaji Coke Industries A partnership firm registered under the provisions of the Indian Partnership Act , 1932 and having its principal place of business at 5C, Electronic Centre, 1/1A , Princep Street, Kolkata-700 072 and one of its offices at Village Hathkuwapara , Azara, Guwahati in the district of Kamrup, Assam, represented by Shri Arobind o Kumar Saha, the power of attorney holder of the petitioner firm and a resident of Hatigaon, Guwahati. & Petitioner. - Versus - 1 The State of Assam, represented by Commissioner & Secretary to the Govt. of Assam, Department of Ind ustries & Commerce, Dispur, Guwahati-781006. 2. The Joint Secretary, to the Govt. of Assam, Industries & Commerce Depart ment, Dispur, Guwahati - 781006. 3. The Director, Industries & Commerce Department, Dispur, Guwahati - 78102 1. 4. The General Manager, District Industries & Commerce Centre, Kamrup, Guwahati-781021 &Respondents. For the petitioners : Mr. N. Dutta, Senior Advocate, Dr. A. K. Saraf, Senior Advocate, Mr. D. Baruah, Advocate, Ms. N. Hawelia, Ms. M. L. Gope. For the respondents : Ms. B. L. Sinha, Government Advocate, Ms. M. Hazarika, Senior Advocate, Mr. S. Baruah, Advocate. 5. WP(C) 142/2006 Ganesh Metcoke Industries A partnership firm registered under the provisions of the Indian Partnership Act , 1932 and having its principal place of business at 5F, Electronic Centre, 1/1A , Princep Street, Kolkata-700 072 and one of its offices at Village Hathkuwapara , Azara, Guwahati in the district of Kamrup, Assam, represented by Shri Moolcha nd Patni, Resident of Princep Street, Kolkata, West Bengal. & Petitioner. - Versus - 1. The State of Assam, represented by the Commissioner & Secretary to the Govt. of Assam, Department of Environment and Forest, Dispur, Guwahati-781 006. 2. The Pollution Control Board, Assam, A Board constituted under the provisions of Section 4(1) of the Water (Preventio n and Control of Pollution) Act, 1974, having its head office at Bamunimaidam, G uwahati-781 021. 3. The Chairman, Pollution Control Board, Assam, Bamunimaidam, Guwahati-781 021. & Respondents. For the petitioners : Mr. N. Dutta, Senior Advocate, Dr. A. K. Saraf, Senior Advocate, Mr. D. Baruah, Advocate, Ms. N. Hawelia, Ms. M. L. Gope. For the respondents : Ms. B. L. Sinha, Government Advocate, Ms. M. Hazarika, Senior Advocate, Mr. B. C. Das, Senior Advocate, Mr. S. Baruah, Advocate. 6. WP(C) 145/2006 Shri Balaji Coke Industries A partnership firm registered under the provisions of the Indian Partnership Act , 1932 and having its principal place of business at 5C, Electronic Centre, 1/1A , Princep Street, Kolkata-700 072 and one of its offices at Village Hathkuwapara , Azara, Guwahati in the district of Kamrup, Assam, represented by Shri Arobind o Kumar Saha, the power of attorney holder of the petitioner firm and a resident of Hatigaon, Guwahati. & Petitioner. - Versus - 1. The State of Assam, represented by the Commissioner & Secretary to the G ovt. of Assam, Department of Environment and Forest, Dispur, Guwahati-781 006. 2. The Pollution Control Board, Assam, A Board constituted under the provisions of Section 4(1) of the Water (Preventio n and Control of Pollution) Act, 1974, having its head office at Bamunimaidam, G uwahati-781 021. 3. The Chairman, Pollution Control Board, Assam, Bamunimaidam, Guwahati-781 021. & Respondents. For the petitioners : Mr. N. Dutta, Senior Advocate, Dr. A. K. Saraf, Senior Advocate, Mr. D. Baruah, Advocate, Ms. N. Hawelia, Ms. M. L. Gope. For the respondents : Ms. B. L. Sinha, Government Advocate, Ms. M. Hazarika, Senior Advocate, Mr. B. C. Das, Senior Advocate, Mr. S. Baruah, Advocate. 7. WP(C) 7465/2005 1. Coke Udyog Pratirodh Samitee, Ramsarani Mouza, Azara, Guwahati-781017. 2. Hafiz Ahmed S/o. late Mofizuddin Ahmed, Village- Hathkhowapara, Azara Ramsarani Mouza, PO&PS.Azara, Dist.Kamrup, Assam, Pin-781017 3. Md. Saheb Ali S/o. Md.Marfad Ali Village- Hathkhowapara, Azara Ramsarani Mouza, PO&PS.Azara, Dist.Kamrup, Assam, Pin-781017 & Petitioners. - Versus - 1. Union of India, Represented by the Secretary to the Govt. of India, Ministry of Environment and Forests, Paryavaran Bhawan, CGC Complex, Lodhi Road, New Delhi - 110003. 2. Central Pollution Control Board Represented by its Member-Secretary, Parivash Bhawan, CBD-cum-Office Complex, East Arjun Nagar, Delhi - 110032. 3. State of Assam, Represented by the Commissioner & Secretary to the Government of Assam, Forest, Ecology and Environment Department, Assam Secretariat, Dispur, Guwahati - 6. 4. Assam Pollution Control Board, Represented by its Member Secretary, Bamunimaidan, Guwahati - 21. 5. Deputy Commissioner, Kamrup (M), Guwahati. 6. Guwahati Metropolitan Development Authority, Represented by the Chief Executive Officer, Bhangagarh, Guwahati - 5. 7. Sri Arvind Kr Saha, Proprietor, Sri Balaji Coke Industries, Azara, Kamrup, Assam. 8. Sri Moolchand Patni, Proprietor, Ganesh Met Coke Industries, Azara, Kamrup, Assam. & Respondents. For the petitioners : Mr. B. Choudhury, Advocate. For the respondents : Ms. B. L. Sinha, Government Advocate, Mr. N. Dutta, Senior Advocate, Dr. A. K. Saraf, Senior Advocate, Mr. D. Baruah, Advocate, Ms. M. Hazarika, Senior Advocate, Mr. B. C. Das, Senior Advocate, Mr. S. Baruah, Advocate. Ms. A. Ajitsaria, Advocate, Ms. A. Senapati, Advocate. BEFORE THE HON’BLE MR. JUSTICE I A ANSARI Dates of hearing : 13.04.2007, 07.05.07, 08.05.2007, 09.05.2007, 10.05.2007 & 19.07.2007. Date of judgment : 24.07.2007. JUDGMENT AND ORDER By this common judgment and order, I propose to dispose of this set of w rit petitions, for, all these writ petitions, on the request made by the learned counsel for the parties, have been heard together inasmuch as all these writ pe titions are inextricably linked with each other and the disposal of any of these writ petitions would have a bearing on the outcome of the remaining writ petiti ons. 2. I have heard Mr. N. Dutta, learned Senior counsel, appearing on behalf o f the petitioners, in WP(C) No. 7969/2005, WP(C) No. 8216/2005, WP(C) No. 8704/2 005, WP(C) No. 8228/2005, WP(C) No. 142/2005, and WP(C) No. 145/2005, and Mr. B. Choudhury, learned counsel, appearing on behalf of the petitioner in WP(C) No. 7465/2005 (Coke Udyog Pratirodh Samitee and Ors. Vs. Union of India and Ors.). I have also heard Ms. M. Hazarika, learned Senior counsel, appearing on behalf o f the Guwahati Metropolitan Development Authority and its authorities, Ms. B. L. Sinha, learned Government Advocate, appearing on behalf of the State respondent s, and Mr. S. Baruah, learned counsel, appearing on behalf of the Assam Pollutio n Control Board and its authorities. 3. Before I come to the merit of each of the writ petitions, let me set out hereinbelow, in brief, the material facts, which have given rise to the writ pe titions: (i) The Government of India had announced, on 24.12.97, an industria l policy for upliftment and growth of industries in the north-eastern region of India. By several notifications, issued by the Department of Revenue, Governmen t of India, various packages for central excise exemption were accordingly promi sed, a Notification, dated 09.07.99, being one of such notifications. By virtue of a Notification, dated 12.02.02, issued by the Department of Revenue, Governm ent of India, some places, including those places, which fell within the territ orial limits of the Guwahati Metropolitan Development Authority (in short, ’GMD A’), were notified as industrial area. (ii) M/s Rungpur Enterprise, a partnership firm, owned some plots of land wit hin the industrial area, which fell under the GMDA. M/s Rongpur Enterprise ente red into an agreement, on 27.09.04, for sale of a plot of its land, located with in the industrial area, in favour of M/s Ganesh Metcoke Industries, a partnershi p firm. M/s Rungpur Enterprise entered into yet another agreement, executed on t he same day, i.e. 27.09.04, for sale of the rest of its said plots of land in fa vour of M/s Shri Balaji Coke Industries, a partnership firm. The Circle Officer, Palashbari Revenue Circle, Mirza, issued a certificate, dated 09.12.94, to the effect that the plots of land, which were covered by the said two agreements for sale, fell within the industrial area covered by the Notification, dated 12.02. 02, aforementioned. M/s Ganesh Metcoke Industries as well as M/s Shri Balaji Co ke Industries were granted provisional registration, on 16.11.04, as small scale industries, by the Directorate of Industries, Government of Assam. This apart, M/s Shri Balaji Coke Industries was granted, on 02.12.04, a provisional ’No Obj ection Certificate’ by the Assam Pollution Control Board and M/s Ganesh Metcoke Industries was granted a provisional ’No Objection Certificate’ by the by the sa id Board on 03.12.04. (iii) However, a communication was issued, on 16.05.05, by the Joint Secretary to the Government of Assam, Department of Industries and Commerce, addressed to the General Managers, District Industries and Commerce Centers, all over Assam, requesting them not to issue temporary/permanent registration for setting up of Coke Industries for the time being until further instructions from the Governme nt. By this communication, dated 16.05.05, the authorities concerned were also requested not to allow those persons, who had obtained licence for setting up of Coke Industries, but had not started operation, to commence their production. (iv) The proposed factory of M/s Shri Balaji Coke Industries was, on 04.08.05 , registered under the Factories Act, 1948, and a license was accordingly issued . The proposed factory of M/s Ganesh Metcoke Industries was, however, registere d, on 08.08.05, under the Factories Act, 1948, and license was issued accordingl y. Requisite permission for sale of land, as had been sought for by M/s Rungpur Enterprise, was granted to them by the Deputy Commissioner, Guwahati, on 25.08 .05. (v) Thereafter, a notice, under Section 87 of Town Planner, GMDA, was issued to M/s Shri Jagdish Kumar Agarwal, describing him as proprietor of M/s Rungpur Enterprise, to stop construction and show cause, within ten days, as to why thei r unapproved construction should not be demolished. Responding to this notice, dated 07.09.05, Sri Jagdish Kumar Agarwal replied by stating, inter alia, that t hey had prior permission to set up a stone crusher, boundary wall, shed, etc. an d a red brick manufacturing unit, which is in existence, and that what was being done by M/s Rungpur Enterprise was renovation of the old existing boundary wall s, because they propose to set up a Coke Industry within the area of M/s Rungpur Brick Industries. By their reply, M/s Rungpur Enterprise also informed the Tow n planner, GMDA, that on receipt of the said show cause notice, the construction work had been stopped and that the violation had occurred due to lack of proper guidance and that necessary application for setting up the plant would be submi tted with relevant papers for approval. (vi) The reply, so given by M/s Rungpur Enterprise, was followed by a notice, dated 22.09.05, issued by the Town Planner, GMDA, directing M/s Rungpur Enterpr ise to submit documents in support of existing permission and approved drawings for setting up of stone crusher, boundary walls, etc. By its letter, dated 29.0 7.05, M/s Rungpur Enterprise submitted their reply with some documents to the To wn Planner, GMDA. As required under the provisions of Section 28 read with Sect ions 30 and 32 of the Guwahati Metropolitan Development Act, 1985, M/s Rungpur E nterprise made, on 15.10.05, addressed to the GMDA, two applications, in prescri bed format, seeking permission to sell its land, in terms of the said agreements for sale, in favour of M/s Ganesh Met Coke Industries and M/s Shri Balaji Coke Industries. It was at this stage that WP(C) No. 7465/2005 came to be instituted . WP(C) No.7465/2005 (a) This writ petition (WP(C) No. 7465/2005) has been instituted in the name of Coke Udyog Protirodh Samiti, which is claimed to be a common platfor m of people of about twenty villages of Ramsarani Circle to voice their concern and grievances with regard to the establishment of coke plants. The basic griev ance and allegation of the petitioners, in this writ petition, is that the estab lishment of coke industries would adversely affect the life of the people, who r eside in the vicinity of the coke industries, because of the pollution, which su ch industries would cause, and that the Pollution Control Board had not been tak ing interest in the matter despite representations made, in this regard, by the people of the locality concerned. (b) By this writ petition, the petitioners have sought for, inter alia, dire ction to the State respondents to close the two coke industries on the ground th at the coke industry is hazardous to the environment and for the lives of the pe ople, who live in the vicinity of the said area. (c) The Court, while issuing notice of motion in the writ petition, directed the Assam Pollution Control Board (in short, ’the APCB)’ to take necessary acti on in accordance with law and submit report by 09.11.05. The APCB submitted its report, in this writ petition, on 16.11.05. According to the report, so submit ted, the APCB had granted No Objection Certificate ’provisionally’ for establish ment of the coke industries; but so far as the operation of the industries is co ncerned, it would be decided in due course in accordance with law. (d) So far as the private respondents, in this writ petition, name ly, M/s Ganesh Met Coke Industries and M/s Shri Balaji Coke Industries are conce rned, their claim is that the writ petition is a motivated move by the owners of those coke industries, which are already in operation, and they do not want new coke industries to come up and create competition in the market. (vii) Till the time WP(C) No. 7465/2005 aforementioned was instituted, no orde r was passed by the GMDA on the applications made by M/s Rungpur Enterprise for sale of its land to M/s Shri Balaji Coke Industries and M/s Ganesh Metcoke Indus tries and also on the applications made by M/s Shri Balaji Coke Industries and M /s Ganesh Metcoke Industries seeking permission for construction. When WP(C) N o.7465/2005 was still pending and before the APCB submitted its report, as direc ted, the Chief Executive Officer, GMDA, informed M/s Rungpur Enter prise, by a communication, dated 05.11.2005, that permission for sale of land co uld not be considered on the ground that by a communication, dated 16.05.05, afo rementioned, Joint Secretary to the Government of Assam, Industries and Commerce Department had (as already mentioned above), directed all the General Managers of District Industries & Commerce Centre, not to issue temporary/permanent regis tration for setting up of coke industries until further instruction from the Gov ernment is received. No copy of the said communication, dated 05.11.05, whereby the permission had been declined by the GMDA, was, however, made over to M/s Ga nesh Metcoke Industries and M/s Shri Balaji Coke Industries. By yet another com munication, dated 07.11.05, Town Planner, GMDA, declined to give permission for construction, as had been sought for, on two grounds, namely, (i) that M/s Shri Balaji Coke Industries and M/s Ganesh Metcoke Industries did not have title to t he land and (ii) that no ’No Objection Certificate’ can be granted in view of th e communication, dated 16.05.05, aforementioned issued by the Directorate of Ind ustries, Government of Assam, till the Government directs otherwise. (viii) When the communications, dated 05.11.05 and 07.11.05, aforementioned, de clining thereby permission for sale of land and permission for construction (as had been sought for) were received, M/s Rungpur Enterprise, M/s Ganesh Metcoke I ndustries and M/s Shri Balaji Coke Industries instituted two writ petitions, nam ely, WP(C) No. 7967/2005 and WP(C) No. 8704/2005. While WP(C) No. 7967/2005 has been instituted by M/s Rungpur Enterprise and M/s Ganesh Met Coke Industries as petitioner Nos. 1 and 2 respectively, WP(C) No. 8704/2005 has been instituted b y M/s Rungpur Enterprise and M/s Shri Balaji Coke Industries as petitioner Nos. 1 and 2 respectively. The cases of the parties to these writ petitions are, in brief, as under: WP(C) No. 7967/2005 and WP(C) No. 8704/2005 (a) In these two writ petitions, the basic grievances of the writ petitioner s are that the refusal to grant permission for sale of land on the basis of the communication, dated 16.05.05, aforementioned, issued by the Joint Secretary, Go vernment of Assam, Industries and Commerce Department, is absolutely illegal ina smuch as the said communication is an internal communication meant for the Indus tries Department and such a communication could not have legally formed the basi s for declining permission to sell a land inasmuch as the said communication is not binding on the GMDA, which has to function within the parameters of the stat ute, whereunder it is born and other statutes relevant thereto. This apart, the re is, according to these writ petitioners, no government policy or decision ban ning setting up of coke industry and until such a decision is taken by the Gover nment, no such communication can be made a basis for rejection of permission to either sell a plot of land or raise and establish a coke industry. The GMDA is, according to the petitioners in these two writ petitions, a statutory body esta blished under the GMDA Act and it has to function, in terms of the provisions of the GMDA Act, for the purpose of execution and enforcement of its master plan a nd it has no authority or jurisdiction to make the said communication, dated 16. 05.2005, a basis for rejection, or non-consideration, of the permission sought f or by the petitioners. (b) While resisting the two writ petitions, the GMDA and its authorities hav e filed their affidavit, wherein they have contended, inter alia, that apart fr om the said communication, dated 16.05.05, aforementioned, which had become the basis for rejection, coke factories cannot be allowed to be set up for three add itional reasons, namely, (i) the area, where the coke factories are sought t o be set up by the petitioners, fall within the Light Industrial Zone as per the Master Plan and Zoning Regulations for Guwahati and that in the Light Industria l Zone, coke industry cannot, in terms of the Zoning Regulations and Master Plan , be permitted to be set up, for, coke industry does not fall under Light Indus tries and (ii) in terms of Clause 37A(f) of the Zoning Regulations, the maximum height of a building shall be subject to such heights, as may be prescribed by t he Civil Aviation authorities, from time to time and as the area, where the coke factories are sought to be set up by the petitioners, fall within the vicinity of Borjhar Airport, ’No Objection Certificate’ from appropriate authority shall be submitted by the petitioners for the purpose of obtaining permission for sale and/or construction of building in order to set up a coke factory. (ix) Besides the said two writ petitions, namely, WP(C) Nos. 7967/2005 and 87 04/2005, M/s Ganesh Metcoke Industries and M/s Shri Balaji Coke Industries have instituted two more writ petitions, namely, WP(C) Nos. 8216/2005 and 8228/2005. While WP(C) No. 8216/05 has been instituted by M/s Ganesh Met Coke Industries, WP(C) No. 8228/05 has been instituted by M/s Shri Balaji Coke Industries. The ca ses of the parties to these writ petitions are, briefly stated, as under: WP(C) Nos. 8216/2005 and 8228/2005 (a) In these two writ petitions, the basic challenge is posed to the communi cation, dated 16.05.05, whereby the Joint Secretary, Government of Assam, Indust ries and Commerce Department, has directed all the General Managers of the Distr ict Industries and Commerce Centre, not to issue temporary/permanent registratio n certificate for establishment of coke industries and further directing the lat er not to allow coke industries, which have obtained license but have not starte d operating, to commence their operation. It may be noted that it was based on the said communication, dated 16.05.2005, that permission for sale and construct ion had been