CWP No. 12737 of 2007 [1] IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CWP No. 12737 of 2007 Date of Decision: 06.02.2009 Sharanjit Singh ..Petitioner versus State of Punjab and others ..Respondents CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE HEMANT GUPTA 1.Whether Reporters of local papers may be allowed to see the judgment ? 2. Whether to be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? Present : Mr. S.S.Rangi and Mr. H.S.Tuli, Advocates for the petitioner Mr. Amol Rattan Singh, Addl. A.G. Punjab Mr. D.S.Patwalia, Advocate for respondent No.3 Mr. Vikas Chatrath, Advocate for respondent No.5 Ms. Deepika, Advocate Mr. P.S.Thaira, Advocate Mr. Arun Jain, Sr. Advocate with Mr. J.S.Ahluwalia, Advocate for respondent No.7. ***** T.S.Thakur, C.J. (Oral) The Government of Punjab, Department of Science, Technology, Environment and Non-Conventional Energy, have by an order dated 11.09.2006, stipulated the norms for setting up of new Rice Shellers and Saila plants in the State of Punjab in exercise of the powers vested in it under Section 5 of the Environment (Protection) Act, 1986 CWP No. 12737 of 2007 [2] read with Government of India, Ministry of Environment and Forest, Department of Environment, Forest and Wild Life Notification No. S.O. 289(E) dated 14th April, 1988 and Rule 4 of the Environment (Protection) Rules, 1988. The need for issuing the said order and fixing of norms and standards arose because in the opinion of the Government, the Rice Shellers and Saila Plants in the State of Punjab were causing air pollution affecting human health apart from being a traffic hazard. The Appellate Authority constituted by the State Government under the provisions of the Water (Prevention & Control of Pollution) Act, 1974 and Air (Prevention & Control of Pollution) Act, 1981, also appears to have issued directions to the Punjab Pollution Control Board to review the siting criteria to abate air pollution created by such units. The Board has, pursuant to the directions recommended siting guidelines and emission standards to be followed in respect of such units. The order issued by the State Government was largely in compliance with the said legal requirements and directions/recommendations intended primarily to reduce air pollution and traffic hazards arising out of setting up of such units at places not suited for the same. Apart from other requirements stipulated by the Government in the said order, one of the requirements which the Government stipulated, was that the Rice Shellers and Saila Plants shall be 500 meters away from the bye-pass, National Highway, State Highway or a scheduled road and that the same shall also not be within 500 meters from the village Lal Dora/Phirni, Wild Life Sanctuary, residential area, educational institution, historical and religious places and protected CWP No. 12737 of 2007 [3] monuments. The present writ petition purports to have been filed in public interest alleges that the proposed rice sheller being set up by respondent No. 7 at village Rurki, Tehsil & District Fatehgarh Sahib, is in complete violation of the aforementioned norms fixed by the Government, in as much as the proposed sheller was being set up within 500 meters of Sirhind-Patiala Road, which is admittedly a scheduled road. While these proceedings were still pending for disposal before this Court, the Government passed an order dated 23.10.2007 Annexure R-3/1, by which the said unit was allowed to be set up in relaxation of the norms fixed by the Government, but subject to the ultimate decision of this Court in the writ petition. It is common ground that respondent No. 7 had approached the Punjab Pollution Control Board on 16.05.2007 seeking a 'No Objection Certificate' from the Board under Section 21 of the Air Act for setting up of the proposed sheller at the location mentioned above. The Punjab Pollution Control Board had forwarded the said request to the Department of Town & Country Planning, Punjab, for verification whether the site for setting up of the proposed sheller was meeting the siting guidelines stipulated in terms of the Government order mentioned earlier. In response to the said letter, District Town Planner, Fatehgarh Sahib, addressed a letter dated 30.05.2007 to the Senior Town Planner, SAS Nagar, Mohali, inter-alia, stating that according to the site report, the proposed site abuts 22 feet wide link road leading to village Nalini and 300 feet away from Sirhind-Patiala Scheduled Road No. 31. Having said CWP No. 12737 of 2007 [4] so, the District Town Planner certified that the proposed site meets the siting guidelines stipulated by the Government. On receipt of the said recommendation from the District Town Planner, the Senior Town Planner forwarded the same to the District Town Planner, Fatehgarh Sahib, who in turn by a letter of even date, forwarded the recommendation to the Environment Engineer, Punjab Pollution Control Board. In the meantime, Punjab Pollution Control Board had received a complaint on 06.08.2007 to the effect that the proposed rice sheller does not comply with the siting guidelines issued by the Government. This complaint was, it appears, forwarded by the Punjab Pollution Control Board to the District Town Planner who by a letter dated 8.8.2007 acknowledged the fact that the site in question did not actually meet the siting guidelines and accordingly withdrew the earlier recommendations. On receipt of the said communication from the District Town Planner, Fatehgarh Sahib, Punjab Pollution Control Board, appears to have issued a notice dated 24.09.2007 asking respondent No. 7 to show cause why the application made by respondent No. 7 for consent, be not rejected as the proposed site did not meet the siting guidelines. In response to the said notice, respondent No. 7 sent a reply dated 26.09.2007, inter-alia, stating that the unit had already purchased land worth Rs. 21.50 lacs and made investment of over Rs. 71.20 lacs on building and installation of machinery apart from Rs. 20 lacs on miscellaneous working. Punjab Pollution Control Board did not verify the said assertions and instead forwarded the same to the Secretary to the Government by its letter dated 27.09.2007. On receipt of the said communication, the Government CWP No. 12737 of 2007 [5] noticed the wrong reporting by the District Town Planner, leading to substantial investment by the investors, and recommended action by the Housing Department against the defaulting officer. All the same the present Rice Sheller was allowed to be set up in relaxation of the siting guidelines, subject to the ultimate decision of the present writ petition That is precisely how the Rice Sheller came to be set up by respondent No. 7 and the legality of the permission granted for the same questioned before us in these proceedings. When the matter earlier came up before us on 01.12.2008, it was argued on behalf of the petitioner that the siting guidelines had been clearly violated and setting up of the sheller in relaxation granted by the State Government wholly unjustified. It was urged that the State Government could not have relaxed the siting guidelines in the instant case when the entire controversy regarding validity of the process, leading to the setting up of the unit, was sub-judice in the present proceedings. That apart, there was no need or justification for the State Government to preempt the decision by this Court, by relaxing the guidelines, issued by it for a laudable purpose. It was also argued that the relaxation granted by the State Government was unjustified and improper not only because the said relaxation amounted to placing a premium on the illegality committed by respondent No. 7 but also because the State Government had no material whatsoever before it to suggest that any expenditure on the setting up of the sheller had been incurred by respondent No. 7 before issuing of show cause notice by the Punjab Pollution Control Board. It was contended that respondent No. 7 CWP No. 12737 of 2007 [6] had not got the building plans for the Sheller sanctioned either from the competent authority under the Factories Act or any other authority whatsoever. This implied that the construction of the building even without duly sanctioned building plan, was wholly illegal, which illegality could not be rewarded by the Government by sanctioning setting up of the units in relaxation of the norms. We had with a view to clarifying these aspects directed the Addl. Advocate General, appearing for the respondent-State of Punjab to take instructions and file a supplementary affidavit indicating whether the entrepreneurs are required to secure the sanction of any authority before raising the structures under the Factories Act or otherwise. We had also given Mr. Jain, learned counsel appearing for respondent No. 7 an opportunity to file a supplementary affidavit whether or not any such plan was submitted by the Unit to any authority under the Factories Act. If so copies of the plans and the sanction were directed to be placed on record alongwith an affidavit. We had further directed that the nature and extent of the expenditure on different items allegedly incurred by respondent No. 7 as on the date of issue of show cause notice and the date on which the machinery, if any, was purchased and the mode of the payment or the price thereof, be stated on affidavit with supporting documents. The Secretary to the Government, Urban Development Department, was in the meantime, directed to pass an appropriate order on the show cause notice issued by him to the District Town Planner for dereliction of his duties and place the order on record. It is pursuant to the above directions, that Mr. Singh, Addl. CWP No. 12737 of 2007 [7] Advocate General, Punjab has filed two affidavits, one of which is sworn by Shri Gurdip Singh, PCS, Additional Secretary to Government of Punjab, Department of Science, Technology, Environment and Non- Conventional Energy and other by Shri Rajinder Sharma, Chief Town Planner, Punjab, Department of Town & Country Planning, Chandigarh. In the affidavit filed by the Chief Town Planner, Punjab, it is stated that in terms of Rule 3-A of the Factories Rules, 1952 framed under the Factories Act, 1948, no building could be constructed or used as a factory unless plans in respect of such building are approved by the Chief Inspector. It is further stated that in so far as the building other than factories are concerned, the building plans have to be sanctioned from the department of Town & Country Planning, Punjab outside the municipal limits. It is common ground that the Rice Sheller falls within the meaning of factory and therefore, the building which was intended to be used as a factory could be raised only after obtaining the requisite sanction in terms of Rule 3-A. It is also common ground that no plans were either submitted by respondent no. 7 or sanctioned by the competent authority at any time before the construction of the sheller building was started. We have, therefore, no hesitation in holding that the construction allegedly made by respondent No. 7 was contrary to the provisions of Rule 3-A of Factories Act, 1952. What is significant, however, is that the Government was totally oblivious of this aspect for it has neither noticed the said provision nor discussed the implications thereof. The original file which was produced before us by Mr. Singh simply makes a recommendation that the Sheller be allowed to be set up in relaxation of CWP No. 12737 of 2007 [8] the norms which proposal is then approved with a further observation that the matter be forwarded to the Housing Department for action against the person who had given a wrong report leading to the making of investment by the entrepreneurs. Not only that the Government does not appear to have either applied its mind or discussed even on a prima-facie basis, leave alone in depth material, if any, regarding the claim made by respondent No. 7 that he had made huge investment on the project before the issue of the show cause notice by the Punjab Pollution Control Board. As a matter of fact, there was no material on record before the Government to suggest that any such investment had, infact, been made other than a Xerox copy of a certain certificate issued by the Chartered Accountant. In compliance with the order made by us on 01.12.2008, Mr. Jain has placed on record an affidavit sworn by the owner of respondent No.7 together with certain documents purporting to be the invoices, receipts and bills etc. suggesting the payment of amounts to different parties in connection with setting up of the unit. The original documents, however, continue to be with respondent No.7, in the absence whereof, it is difficult to record any finding whether any such expenditure had indeed been incurred by the said respondent. Even otherwise, the genuineness of these documents and the veracity of the version given by respondent No. 7 involves a process of evaluation of material and the evidence, which we are not inclined to undertake in these proceedings. Whether or not the payments allegedly made by respondent No. 7 were made in connection with setting up of the unit or any other mode, is also an area that would require to be examined while arriving at a conclusion CWP No. 12737 of 2007 [9] whether any such investments were indeed made before issue of show cause notice. What is noteworthy is that material now sought to be produced, was never available before the State Government, with the result, that any conclusion that the unit deserved a relaxation because it had made investment was legally unsustainable. There is no gain saying that the material now produced, will have to be examined by the Government and a fresh conclusion drawn on the basis thereof. The Government shall also examine whether any investment made by entrepreneurs contrary to the provisions of Factories Act and the Rules requiring sanction of building plans was justified for grant of relaxation. We do not for the present propose to make any comments or express any opinion on that aspect of the matter, except that if the investment is in violation of the statutory Rules, the Government shall have to consider whether the same can be made a basis for grant of an equitable relief of relaxation of the norms. Apart from the validity of the order granting relaxation to the unit, we are also of the view that the Government need to issue appropriate direction at the appropriate level to prevent similar situations arising in future. The noting on the file produced before us by Mr. Singh, Addl. Advocate General, Punjab suggests that it is not for the first time that Town Planner has given a wrong report, based on which the entrepreneurs have made investment to claim equity against the government at a subsequent stage. In order to prevent such a situation from recurring, it would be proper for the Government to issue a direction to all concerned that the construction of the building shall not be CWP No. 12737 of 2007 [10] undertaken by the entrepreneurs unless proper sanction under Rule 3-A of the Factories Act and under the provisions of Town and Country Planning Act is obtained wherever the same are applicable. We are then left with the question as to what action has been taken against the officers, who made a factually wrong report as to compliance with the siting guidelines. Mr. Singh submits on the basis of instructions that the officer concerned has been charge-sheeted and a regular department enquiry instituted against him. All that we need say therefore, is, that the said enquiry shall be taken to its logical conclusion expeditiously. In the result, we allow this petition, quash the order issued by the State Government permitting setting up of respondent No. 7 unit in relaxation of the siting guidelines and remand the matter back to the State Government to pass a fresh order on the subject in accordance with law, keeping in view the observation made by us. The needful shall be done by the Government expeditiously, but not later than four months from the date a copy of the order is received by it. Keeping in view the fact that the unit of respondent No. 7 has been functioning since September, 2008 and a large quantity of paddy is said to have already been stored in it, we permit the unit to operate so as to dispose of the paddy stocks accumulated by it over the next four months. No costs. (T.S.THAKUR) CHIEF JUSTICE (HEMANT GUPTA) JUDGE 06.02.2009 'ravinder'