IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.1780 of 2007 Date of decision: 01.03.2011 Gurlal Singh …..Petitioner versus State of Haryana and others ……Respondents CORAM: Hon’ble Mr.Justice Jasbir Singh Hon’ble Mr.Justice Rakesh Kumar Garg Present: Mr.Ashwani Talwar, Advocate for the petitioner(s) Mr.Kamal Sehgal, Addl. A.G. Haryana Mr.Gaurav Hooda and Mr.Rajiv Kumar Saini, Advocates for respondent No.5 Mr.Arun Walia and Mr.Vinod S. Bhardwaj, Advocates for HSPCB Jasbir Singh, J. This order will dispose of CWP Nos.1780, 1781, 1783, 6278, 6279, 10332 and 17481 of 2007, involving similar question of law and facts. For facility of reference, facts are being taken from CWP No.1780 of 2007. Petitioner, by filing this writ petition, has impugned a notification, issued under Section 4 of the Land Acquisition Act, 1894 (in short, the Act) on 27.1.2006, proposing to acquire 446 kanal 16 marla of land for a public purpose, namely, ‘for shifting village abadi of village Khukhrana in village Sadopur’. Further challenge has been laid to a declaration, issued under Section 6 of the Act on 1.9.2006, finally to acquire the land, above mentioned. Petitioner’s land measuring 91 kanal 4 marla is the subject matter of above said acquisition. It is an admitted fact that after issuance of a notification under Section 6 of the Act, 129 kanal 11 marla of land was Civil Writ Petition No.1780 of 2007 released by issuing a notification under Section 48(1) of the Act on 26.2.2008, to adjust a running Spinning Mill, the area falling under high tension electric line, land through which underground gas pipe line is passing and also the land upon which construction cannot be raised as per the provisions of Section 3 of the Punjab Scheduled Roads and Controlled Areas Restriction of Unregulated Development Act, 1963. Most of the released land is owned by the petitioners in these writ petitions. As per the admitted facts on record, abadi of village Khukhrana is situated next to the boundary wall of the Thermal Plant set up by the Haryana Power General Corporation Limited at Panipat. It is also not in dispute that ash dykes of the coal ash, used in the Thermal Plant are located next to the village abadi. It has also come on record that due to sprinkling of water to contain air pollution, being caused on account of coal/ fly ash, the water level in the village has increased resulting into water logging in the area. On a resolution moved by the Gram Panchayat to shift the village abadi to a safer place, the State of Haryana decided in principle to acquire the land and shift village abadi to the land under acquisition. It is contention of counsel for the petitioners that on account of passing of high tension electric line, underground gas pipe line and the state highway, it will be very dangerous to shift a village abadi to the land under acquisition because some disaster may occur at any time. He further argued that 129 kanal of land has been released in such a manner that it will bifurcate land of the petitioners and it will be difficult for them to cultivate the released land. Furthermore, by making reference to the site plan Annexure P14 available in the record of CWP No.1781 of 2007, counsel states that to a portion of the land released vide order dated 26.2.2008, even access is not available. It is further argued that to consume fly ash, a cement 2 Civil Writ Petition No.1780 of 2007 factory has been established next to the Thermal Plant and furthermore on account of digging up of a deep bore-wells, the water level is bound to go down, as such, there is no necessity to shift the village abadi to the land owned by the petitioners. He prayed that acquisition, having been ordered without any purpose whatsoever, be quashed. In reply, Mr.Kamal Sehgal, Addl. A.G. Haryana has vehemently stated that on account of water logging in the area, most of the buildings in the village have been damaged. The villagers are living in a very dirty condition lest any disease may spread, it is desirable to shift the population from village Khukhrana to the land under acquisition. He further argued that despite all efforts made by the authorities of Haryana Power General Corporation Limited, the situation has not improved. Problem of air and water pollution still exists in the area, taking note of which, government decided in principle to shift population of village Khukhrana from its present place. He further argued that the acquisition of land was initiated after a proposal was sent by the Gram Panchayat through a resolution. Four sites were short-listed by a high powered committee and taking note of suitability of the land in dispute, ultimately, site was selected to shift population of the village Khukhrana. He further argued that the petitioners have failed to show any discrimination done to them and also it is not a case of any mala fide on part of the government or any other individual. He prayed that the writ petition be dismissed. Panipat Thermal Power Plant was constructed in the eighty’s. It is necessary to note that at the time of arguments it was brought to our notice by counsel for the parties that a registered society and some residents of the village had filed CWP No.4729 of 1993, which is pending admitted in this Court, seeking directions to the respondents to control/ stop 3 Civil Writ Petition No.1780 of 2007 environmental (air and water) pollution by constructing drains and also to construct drains to remove the stagnant water and take other remedial steps to prevent environment pollution in the village. With the consent of parties, we summoned record of that case from the Registry. Paragraph nos.3 and 4 of that writ petition read as under:- “3. That the petitioners are aggrieved on account of pollution created by the Panipat Thermal Plant, Panipat in village Khukhrana which is located near the village of the petitioners. The pollution created by the Panipat Thermal Plant has made the living of the inhabitants miserable and hazardous. The Thermal Plant is omitting dust/ fly ash in the environment beyond the prescribed limits. Further due to accumulation of polluted waste water discharged by the Plant in the disposal area set up in the village, has resulted in raising the water level which have created health problems, destroyed crops and houses, affected animals and created so many other problems for the inhabitants which have endangered their living. The Thermal Plant has failed to discharge its statutory duty to control pollution inspite of directions of the Government of India, Ministry of Environment and Forests, New Delhi, Central Pollution Control Board, Govt. of India, New Delhi, Haryana Pollution Control Board, Environment Department of State Government as well as directions given by the Deputy Commissioner, Panipat from time to time. 4. That the inhabitants of the village submitted a representation by way of complaint to the Deputy 4 Civil Writ Petition No.1780 of 2007 Commissioner, Panipat in which it was submitted that when coal is crushed in the coal crusher house of the plant, the coal dust is spread by the wind action which falls on the crops of the village and there is a continuous coal durst storm over the village almost every day. The people living in the village are having breathing trouble. The coal dust falls on crops which has affected the crops adversely. The cattle don’t take the green fodder due to its having affected by coal dust. The people of village cannot take meals by sitting outside. The clothes cannot be dried outside the houses as the clothes are covered with coal dust and become unfit for bearing. It was submitted that coal dust is polluting the environment and thereby seriously affecting not only crops, cattle, but also the health and well-being of the people inhabiting the village which is in close vicinity of the Thermal Plant. It was submitted that due to non-provision of Electro Static Precipitator (hereinafter called the ESP) in unit No.1 and II, fly ash in huge quantity is thrown out of the Chimineys in the environment. In unit No.3 and 4, due to defective functioning of ESP, the fly ash i.e. coal ash is thrown out in huge quantities out of the chimneys in the environment which falls like a rain daily in village Khukhrana and also affects surrounding areas upto Panipat. The village Khukhrana due to its close proximity to Thermal Plant is more adversely affect than the other surrounding villages. It was further submitted that the rain water of the village used to be drained out in the south side where the Thermal Plant has now acquired land and set 5 Civil Writ Petition No.1780 of 2007 up disposal area where the burnt ash mixed with water is brought through big pipes and thrown in the disposal area. The level of the ash from the earth has arisen upto 15-20 feet higher due to incessant deposit of coal ash which has resulted in the closure of drain. In the south of village, on the side of Assandh road, Thermal Plant had got a kacha drain constructed through the Drainage Department for raining out the water which due to being kacha construction and falling of earth has been filled up with earth with the result that drain is not functioning. The water mixed with ash brought through big pipes by the Thermal Plant authorities, has accumulated there due to closure of drain with earth through which the water could be discharged. Due to accumulation/ stagnation of waste polluted water in the disposal area, the unsanitary conditions have been created which have adversely affected the health of its inhabitants and as a result, the inhabitants are suffering from various diseases. The animals too have been affected and are suffering from various diseases. It has become a breeding ground of mosquitoes. This disposal area is only 50 meters away from the village. The water is brought in huge quantities through these big pipes. The burnt ash is deposited on the earth surface and the water seeps into the earth. Due to seepage of this huge water, the water level of the villager has come down to 1 ½ feet due to which many walls of the houses in the village have developed cracks and dampness has reached roof level and mishap may happen at any time. Due to increase in water level, the trees and plants have 6 Civil Writ Petition No.1780 of 2007 withered away or withering away. The crops have been adversely affected. When the upper layer of burnt ash in the waste water disposal area dries, the ash is scattered by wind over the village with the result that the inhabitants of the village can neither sit outside their houses nor can they take food in open.” Perusal of that file further reveals that numerous orders were passed by this Court to remedy the situation and ultimately that writ petition was admitted vide order dated 19.5.1997. It appears that despite the orders passed by this Court in CWP No.4729 of 1993, the situation had deteriorated instead of showing any improvement. It has come on record that the Gram Panchayat of village Khukhrana passed a resolution on 25.9.2004 recommending shifting of village abadi to some other suitable place. Resolution was signed by almost all heads of the families in the village. Thereafter, taking note of gravity of the situation, the site selection committee was constituted which earmarked four sites and ultimately the site in dispute was selected to shift the village abadi. Contention of counsel for the petitioners, that it will not be safe to shift the village abadi to the proposed site, is liable to be rejected. It is true that the site has been selected next to the State highway, underground gas pipe line and a high tension electric line also passes through the proposed site, however, by taking note of those facts by issuing a notification under Section 48(1) of the Act, huge amount of land next to the State highway and covering under the high tension electric line and also the area through which gas pipe line passes was kept out of acquisition. Length 7 Civil Writ Petition No.1780 of 2007 and breadth of the area is such, which will not cause any danger to the life of village people to be shifted to the place in dispute. During course of arguments an attempt was made by this Court to see that the situation is imporved and land of the petitioners can be saved from acquisition. On 12.7.2010, the Deputy Commissioner, Panipat was directed to file an affidavit, stating the following facts:- “(i) As to what is the level of ground water in that area of village Khukhrana? (ii) How much damage has been caused to the buildings in village Khukhrana? To support, photographs be put on record. (iii) Whether any residential colony is in existence in Thermal Power Plant, Panipat, and the adjoining cement factory? (iv) As to how much fly-ash is being consumed by the Cement factory? (v) Whether Gram Panchayat land is available in Bhalsi and if yes, at how much distance from village Khukhrana? (vi) As to for what purpose, the land left by the villagers of Khukhrana will be used? If situation at the spot is under control, the authorities shall also look into feasibility of retaining the population of village Khukhrana at the same place.” Directions were also issued to the officers of the Haryana Pollution Control Board, Panipat to state as to whether on installation of electrostatic precipitation, the pollution will be decreased or not and also as to whether for the amount involved in acquiring the land, it will be sufficient to improve the situation in the village Khukhrana or not. 8 Civil Writ Petition No.1780 of 2007 In response thereto, an affidavit dated 28.7.2010 was filed by the Deputy Commissioner, Panipat and to the queries raised by this Court vide order dated 12.7.2010, it was stated as under:- “(i) That in reply to this sub para it is submitted that the level of ground water in the area of village Khukhrana has been measured as 4’ (feet) by the Executive Engineer Public Health Engineering Division. True copy of report of Executive Engineer Public Health Engineering Division No.1 Panipat is attached here with as Annexure R-1. (ii) That in reply to this sub para it is submitted that the inspection was conducted by Sub Divisional Engineer P- 1 and concerned Junior Engineer with regard to the damage caused to the building / houses of village Khukhrana. Sub Divisional Engineer P-1 in his report found cracks/ settlement of floors in some houses which can become cause of considerable damages. The true copy of report dated 24.7.2010 sent by Executive Engineer Provisional Divisional PWD B&R Panipat along with the photographs/ CD is attached here with as Annexure R-2. (iii) That there exists a residential colony for the employees of Panipat Thermal Plant in the Panipat Thermal Plant. The total No. of residential houses in Thermal Colony of Panipat Thermal Plant area 1654 and the persons/ employees residing in this colony area 6500 approximate. Similarly, there are 28 family quarters 9 Civil Writ Petition No.1780 of 2007 and field hostel in factory premises M/s J.P. Cement Grinding Unit Plant, Panipat and the total No. of persons residing in premises are 278. True copy of report of Regional Officer Panipat, Haryana State Pollution Control Board is attached here with as Annexure R-3. (iv) That with regard to the fly ash consumed by Cement factory it is submitted that the total quantity of fly ash consumed by M/s J.P. Cement Grinding Unit Plant as per report mentioned in Annexure R-3 submitted by the Regional Officer Haryana State Pollution Control Board is as under:- Sr.No. Year Fly ash Consumption 1. 2005-06 250000 (approximate) 2. 2007-08 7269 3. 2008-09 119259 4. 2009-10 243283 5. 2010-11 70582 (upto 20.7.2010) (v) That as per report of Chief Engineer PTPS – 1 HP GCL, Panipat the quantity of fly ash supplied to various users (cement brick manufactures) by PTPS Panipat for year 2010-11 (upto June 2010) is 195526-27 MT). The most of above quantity of fly ash is used by cement manufacturers. The quantity of fly ash supplied to M/s J.P. cement during 2009-10 and 2010-11 (upto June 2010) is 135388 MT and 40341 MT respectively. It is 10 Civil Writ Petition No.1780 of 2007 further submitted in the report of Chief Engineer PTPS- 1 that due to acute shortage of power there are certainly some constraints. However, Haryana Power Generation Corporation Ltd. Has obtained I.S.O. 9001 (Quality Management System) I.S.O. 14001 (Environment Management System) and I.S.O. 18001 occupation, health and safety management system certification Panipat Thermal Plant. The true copy of report dated 22.7.2010 of Chief Engineer/ PTPS-1 HPGCL Panipat is attached here with as Annexure R-4. (vi) That in reply to this sub para it is submitted that as per report dated 23.7.2010 sent by Naib Tehsildar Madlouda about 200 acres land belonging to Gram Panchayat Bhalsi is available at one site. This land is adjacent to the Panipat-Safidon Road and the same is about 6 K.M. far from village Khukhrana. The true translated copy of report of Naib Tehsildar Madlouda is attached as Annexure R-5. (vii) That in reply to the sub para (vi) it is submitted that decision about use of the land left by the villagers of village Khukhrana is to be taken by the Govt. of Haryana.” An affidavit was also filed by the Regional officer of Pollution Control Board, suggesting measures to reduce air and water pollution in the area. Vide order dated 6.8.2010, the Deputy Commissioner and officers of the Pollution Control Board were directed to suggest ways and means as to how shifting of the village abadi can be avoided. The authorities were also 11 Civil Writ Petition No.1780 of 2007 directed to suggest as to whether by adopting modern technology, it is possible to restrain further damage going to be caused to the residential houses in the village. In response thereto, an affidavit was filed by Mr.Naresh Gulati, IAS, Financial Commissioner and Principal Secretary to Government Haryana, Revenue and Disaster Management Department, which reads thus:- “That in compliance with the directions given by this High Court vide orders dated 6.8.2010 in CWP Nos.1780, 1781 of 2007 titled as Gurlal Singh, s/o Lehna Singh and Mohinder Singh s/o Iqbal Singh v/s State of Haryana and others reports from various departments through Deputy Commissioner, Panipat have been sought and the position is clarified as under:- (i) As per report received from the Chief Engineer, Panipat Thermal Power Station, Panipat the shifting of village population can be restrained by reducing the pollution. In view of this the Thermal Power Station has installed equipments for controlling the pollution level i.e. Electrostatic Precipitator (ESPs) having Bapcon Controllers. (ii) Installation of Water Sprinkler System in coal handling area is under progress and is likely to be in operation within six months. It will suppress the coal dust and will improve the ambient air quality. 12 Civil Writ Petition No.1780 of 2007 (iii) Water Sprinkler System has been installed at ash pond adjoining the village Khurana in the length/ breadth of 1000 meters x 100 meters respectively which will also help in improving the ambient air quality. Regular tuning of Electrostatic Precipitator (ESPs) is also being carried out to maintain the designed efficiency and all out efforts are being made to decrease the quantum of pollution. However, total elimination of pollution cannot be achieved due to various system constraints. (iv) As per report received from Haryana Pollution Control Board, Panipat the upgradation of existing air pollution control measures are required along with the installation of air pollution control measures on coal handling plant and ash pond to reduce the quantum of air pollution and to achieve the prescribed standards by adopting modern technology. Thus by adopting modern technology, the quantum of pollution can be decreased. (v) The PWD (B&R) department has intimated that the water table in village Khukhrana is high & the area is water logged so it is not possible to rehabilitate the villagers at the same place where they are presently residing as there are cracks in 13 Civil Writ Petition No.1780 of 2007 walls. The floors of some houses have also been settled/ scattered. (vi) As per report received from the BDPO, Madlauda there exist environment pollution due to coal ash of Thermal Plant and flying dust of Cement Plant. The water is standing in the streets of village Khukhrana due to rise in ground water level due to which there is a danger of spread of various diseases. So far as shifting of this village population on the Panchayat land of village Bhalsi is concerned, it is about 6-7 km. away from village Khukhrana on the opposite side of Madlauda whereas the land of villagers of Khukhrana is adjacent to village Nohra and Sodhapur which is also about 8-9 km distance of Panchayat land of village Bhalsi. In such a situation the villagers of Khukhrana village area willing to shift to the land being acquired by the government. (vii) That as per the report of Deputy Commissioner, Panipat the total elimination of pollution cannot be achieved due to various system constraints inspite of all efforts made to decrease the quantum of pollution by Panipat Thermal Power Station, Panipat. The water is standing in the streets of village due to rise in ground water level. There is no proper drainage system. Hence in view of the 14 Civil Writ Petition No.1780 of 2007 above report Deputy Commissioner Panipat has suggested to shift the village Khukhrana on the land under acquisition in the public interest.” Taking note of a fact that the authorities in the Thermal Power Plant were not serious about the prevention of air and water pollution, Chairman of the Haryana Pollution Control Board was directed to suggest ways and means to prevent above said pollution, who came present in Court on 29.9.2010 and action plan was submitted, showing the measures to be adopted to prevent air and water pollution. Vide order dated 6.12.2010, the State was again directed to state as to what measures have been taken to improve the situation in the village. In response thereto, an affidavit was filed by Mr.Naresh Gulati, named above. Paragraph no.2 of the affidavit reads thus:- “That in addition to the problem of ash, there is severe water logging leading to marshy conditions. The villagers are ready to give the land i.e. the residential land of village Khukhrana to the land owners of village Sodhapur in exchange of the land in question but the land owners of village Sodhapur flatly refused to accept this proposal.” Sequence of the facts mentioned above clearly indicates that air pollution and water logging is in existence in the village for the last more than 20 years. It has come on record and as stated by Mr.Naresh Gulati in his latest affidavit that the severe water logging has led to marshy condition in the village. The polluted water in the village is also a serious problem. Some of the photographs put on record by the petitioners also indicate that a severe water logging problem do exist in the village. A large quantity of water is standing stagnant in the village ponds, which may led to spread of any disease at any time. It has also come on record that a large quantity of water is brought to the Thermal Plant to control the fly ash and coal dust, on 15 Civil Writ Petition No.1780 of 2007 account of heavy dust, many a times drain is chopped, which led to over flow in the drain, causing serious damage to the houses situated next to the boundary wall of the Thermal Plant. In such a situation, this Court is satisfied that it