IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CWP No. 14480 of 2007 Date of Decision: 06.02.2009 Ashwani Kumar Sood ..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 : Shri J.S. Bhandohal, Advocate, for the petitioner. Shri Amol Rattan Singh, Addl. A.G. Punjab Shri D.S.Patwalia, Advocate for respondent No.3 Shri P.S. Thiara, Advocate, for respondent No. 5. Ms. Deepika Verma, Advocate, for respondents No. 7 and 8. Hemant Gupta, J. 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 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 CWP No. 14480 of 2007 [2] 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 (for short `the Water Act') and Air (Prevention & Control of Pollution) Act, 1981 (for short `the Air Act'), 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 above recommended siting guidelines and emission standards to be followed in respect of such units. The order issued by the State Government is 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 monuments. The present writ petition purports to have been filed in public interest alleges that the proposed rice shellers being set up by respondents No. 7 and 8 at village Dhangera, Tehsil Nabha, District Patiala, are in complete violation of the aforementioned norms fixed by the Government, in as much as the proposed shellers were being set up within 500 meters of Gobindgarh-Nabha Road, which is a scheduled road. While CWP No. 14480 of 2007 [3] these proceedings were still pending for disposal before this Court, the Government passed an order dated 10.10.2007 Annexure R-3/3, by which the Unit of respondent No.7 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 respondents No. 7 and 8 had approached the Punjab Pollution Control Board on 16.4.2007 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, the District Town Planner, Patiala, reported that the proposed site of the industry conforms to the siting guidelines, laid down by the Government. Naib Tehsildar, Bhadson, vide letter dated 30.3.2007 also certified that there is no religious place; residential area; educational institution; zoo or wildlife sanctuary within 500 metres from the site of the industry. He further reported that the proposed site is located at a distance of 500 metres from the Lal Lakir of the village Dhangera Khurd. On the basis of the above reports, a communication was addressed to the Punjab Pollution Control Board, recommending grant of no objection certificate for setting up of the rice sheller. Pursuant to a complaint made by the petitioner, the Senior Town Planner, Patiala, CWP No. 14480 of 2007 [4] issued a communication to the Environment Engineer on 29.8.2007, to the effect that the proposed site in Khasra Nos. 235, 236 and 223, where the machinery room of the industry has to be installed, is at a distance of 500 metres from Nabha Bhadson scheduled road, but the building of Sheller is constructed in Khasra Nos. 233, 225, 226, 232, 231 and 228 and that the distance between the machinery room and the scheduled road is 392 metres i.e. less than 500 metres in respect of Karam Rice Mills. The Senior Town Planner, therefore, recommended action for cancellation of the licence or any other action after a spot inspection. The industry vide letter dated 31.8.2007, submitted the report of Tehsildar Nabha, pointing out that the sheller has been constructed in Khasra Nos. 236, 234, 224, 233 and 225 and is at a distance of 528 metres from the Lal Lakir of village Khurd and at a distance of 512 metres from the Lal Lakir of village Dhangera. It was further reported that the distance of the sheller from the Nabha-Bhadson scheduled road is 600 metres. The matter was in that view referred to the Senior Town Planner, who reported that the shortest distance (as the crow flies) between the scheduled road and sheller is 392 metres. It was in view of the said report that a show cause notice was issued to the industry for revocation of the consent to establish the industry. After considering the reply to the said notice, the Government accorded its approval vide letter dated 10.10.2007 relaxing the stipulation regarding distance of the site for the industry from the scheduled road, subject to certain conditions stipulated therein. When the matter came up before this Court on 1.12.2008, it was argued on behalf of the petitioner that the siting guidelines had been CWP No. 14480 of 2007 [5] violated as the rice mills could be set up only at a distance of 500 metres from a scheduled road and village Abadi, but the mill in question was within the said prohibited distance. It was also noticed that instead of setting up rice shellers on Khasra Nos. 223, 235 and 236, which were reported to be beyond 500 metres from the scheduled road by the District Town Planner and beyond 500 metres of the village Abadi by the Tehsildar, the rice shellers had been set up at a different location in Khasra Nos. 233, 225, 226, 231 and 228. It was further noticed that on a complaint made by the petitioner to the authorities, the measurement of distance between the sites and the scheduled road as also viz-a-viz village abadi were taken, which revealed that the rice mills are within the prohibited distance of 500 metres from both scheduled road as also the village abadi. Since, however, there was a dispute about the actual distance, therefore, a fresh measurement was ordered to be undertaken, by this Court, jointly by the Senior Town Planner and the Sub Divisional Magistrate, Nabha. Liberty was given to respondents No. 7 and 8 to file counter affidavits as well. In pursuance of the said directions, an additional affidavit has been filed along with a report on behalf of the Chief Town Planner, Punjab, pointing out that the distance between the Chimney of Air Pollution Control Device of existing sites and the scheduled road comes to 350 metres for M/s Karam Rice & General Mills and 372 metres in case of M/s Gurmeet Rice & General Mills. The distances between Phirni of village Dhangera and Chimney of Air Pollution Control Device of existing rice mills comes to 480 metres for M/s Karam Rice & General CWP No. 14480 of 2007 [6] Mills and 503 metres for M/s Gurmeet Rice & General Mills. Similarly, the distances between phirni of village Khurd and existing mills comes to 624 metres in case of M/s Karam Rice Mills and 564 metres in case of Gurmeet Rice Mills. It was also averred in the affidavit that respondents No. 7 and 8 had not got the building plans for the Sheller sanctioned either from the competent authority under the Factories Act or any other authority whatsoever. 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 a building were approved by the Chief Inspector. It was argued that in so far as buildings other than factories are concerned, the building plans had to be sanctioned by the department of Town & Country Planning, Punjab outside the municipal limits. It was contended that the construction of the building even without a duly sanctioned building plan, was wholly illegal. It is common ground that the Rice Sheller falls within the meaning of factory and therefore, any building that 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 respondents No. 7 and 8 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 respondents No. 7 and 8 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 of CWP No. 14480 of 2007 [7] the violation thereof. The State Government has granted relaxation in the siting guidelines on 10.10.2007, but the said communication does not show the reasons for granting relaxation in the siting guidelines. We are, therefore, of the opinion that the Government needs to re-examine the issue of relaxation of the siting guidelines. We are also of the view that the Government need to issue appropriate direction at the appropriate level regarding the need for getting the building plans sanctioned to prevent situations arising in future where factory buildings are constructed without proper building plans as contemplated in the Factories Act, being submitted and sanctioned. In the result, we allow this petition, quash the order issued by the State Government permitting setting up of respondents No. 7 and 8 units 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 respondents No. 7 and 8 have been functioning since September, 2008 and a large quantity of paddy is said to have already been stored in them, we permit the units to operate so as to dispose of the paddy stocks accumulated by them over the next four months. No costs. (T.S.THAKUR) (HEMANT GUPTA) CHIEF JUSTICE JUDGE 06-02-2009 ds