CWP No.20792 of 2006 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.20792 of 2006 (O&M) Date of decision: 13.08.2010 M/s Bhalla Ball Bearing Industries and others .....Petitioners Versus State of Punjab and others ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K.SHARMA 1.Whether Reporters of local papers may be allowed to see the judgment? 2.Whether to be referred to the Reporters or not? Yes 3.Whether the judgment should be reported in the Digest? Yes Present:- Mr. G.S. Sandhawalia, Advocate, for the petitioners. Mr. N.S. Virk, Addl. A.G., Punjab. Mr. A.R. Takkar, Advocate, for respondent No.5. Mr. R.L. Sharma, Advocate, for private respondents. Mr. Jagjit Singh, Advocate, for Mr. C.M. Sharma, Advocate, for M.C. Phagwara. ***** VINOD K.SHARMA, J. CM No.9459 of 2010 Additional affidavit filed on behalf of respondent No.1 is taken on record. CWP No.20792 of 2006 This judgment shall dispose off CWP No.20792 of 2006 titled M/s Bhalla Ball Bearing Industries and others Vs. State of Punjab and others, CWP No.14592 of 2006 titled Harjit Singh and others Vs. State of Punjab and others, CWP No.14812 of 2006 titled M/s Rolex Fuel CWP No.20792 of 2006 -2- Pipes (Regd) Vs. State of Punjab and others, CWP No.15048 of 2006 titled Gurnam Singh and others Vs. State of Punjab and others, and CWP No.15494 of 2006 titled Sham Sunder Vs. State of Punjab and others, as common questions of law and facts are involved. For brevity sake, facts are being taken from CWP No.20792 of 2006. The petitioners have invoked the writ jurisdiction of this Court under Articles 226/227 of the Constitution of India, for issuance of a writ in the nature of mandamus, directing respondent No.2 i.e. the Secretary, Department of Industries, Punjab to develop 6.5 acres of land as industrial estate falling in village “Phagwara Shirkey” under the supervision of respondent No.4 i.e. Punjab State Industries and Export Corporation, Chandigarh, to implement the decision Annexure P-6 taken in pursuance to the directions issued by this Court in civil revision No.1692 of 2002, and the order passed in civil writ petition No.12041 of 2003, to enable the industries to shift out of the residential area under the Town Planning Scheme No.5 Part II, Phagwara. Writ in the nature of prohibition was also sought, restraining respondents No.5 and 6 from implementing the decision dated 15.6.2004 (Annexure P-12) and orders dated 4.9.2006 (Annexures P-21 to P-21/C) passed by respondent No.6 in pursuance to the orders till new sites are allotted to respondent No.7 i.e. Co-operative Industrial Society Ltd. of Town Planning Scheme No.5 Part II, Phagwara, in view of the decision taken by respondent No.2 to revive the Town Planning Scheme No.5 Part II, Phagwara, vide Annexure P-20 In civil writ petition No.14592 of 2006 Harjit Singh and others CWP No.20792 of 2006 -3- Vs. State of Punjab and others, the petitioners have also challenged the decision dated 2.8.2006 of the State Government, recalling the previous order passed for dropping the Town Planning Scheme No.5. In the year 1967, the area where the petitioners have set up their industrial units, was declared as unbuilt area. Thereafter, a town planning scheme was formulated by the respondents in the year 1976. The case of the petitioners is, that during the period between 1967 and 1976, constructions were raised in the area in contravention of the Town Planning Scheme. The constructions were also raised thereafter with the sanction of the Municipal Council, Phagwara. It was practically not possible to implement the Scheme, as no proceeding to acquire the land was initiated. The Municipal Council resolved and decided to write to the State Government for dropping of the Town Planning Scheme. However, the matter remained under consideration of the State Government and no final decision was taken. The case of the petitioners further was, that resolution No.89 dated 10.5.1996, resolution No.35 dated 5.1.2001, resolution No.161 dated 28.11.2003 and resolution No.167 dated 29.11.2004 were passed by the Municipal Council but the State Government failed to take any decision on the unanimous resolutions passed by the Municipal Council from time to time. The State Government instead of implementing the resolutions, was directing the petitioners, to shift from the area of Town Planning Scheme, in spite of the fact that the units being run by the petitioners were neither polluting units nor causing nuisance to the residents of the area. The petitioners in their petition also pleaded that the State of Punjab declared an area of 50.85 acres as unbuilt area vide CWP No.20792 of 2006 -4- order dated 26.12.1966, for the purpose of developing it under the Town Planning Scheme. The aforesaid area was confirmed as unbuilt area vide order dated 18.9.1967, but no lay out plan for the area was approved. The case of the petitioners, as already referred above, was that from 1966-76 for want of lay out plan, the residents of the area started raising construction and various small scale units came to be set up in the area. The case of the petitioners was, that even under the approved T.P. Scheme certain area was earmarked for workshop/industrial purpose. The Municipal Council, Phagwara, even gave no objection certificate to the small scale units for being set up in the area falling under Scheme No.5 Part II. The Punjab Pollution Control Board was also issuing the consent to setting up of small units. The Electricity Board also provided electricity connection to these small scale units after issuance of no objection certificate by the Municipal Council. The case of the petitioners is, that they had set up the units in pursuance to the sanction by the Municipal Council, no objection from the Pollution Control Board and sanction of electricity by the Electricity Department. The case of the petitioners, is that on 10.5.1996, the Municipal Council vide resolution No.89 resolved to drop the Town Planning Scheme, as the Scheme had become inoperatable. On 15.3.1999 civil suit No.71 of 1999 was filed by Smt. Vidya Bhullar against one of the petitioner seeking a decree of permanent injunction, restraining the petitioner from operating their industries. The civil court rejected the application moved by Smt. Vidya Bhullar for CWP No.20792 of 2006 -5- temporary injunction, and the appeal filed against the order passed by learned trial Court was also dismissed. Smt. Vidya Bhullar challenged the order passed by the learned Courts below by filing civil revision No.1692 of 2002, in which this Court passed the following interim order at the time of admission: - “Sh. P.S. Thiara, learned Additional Advocate General Punjab has placed on record the minutes of meeting held by the Chief Secretary, Government of Punjab on July 7, 2003 at 11.30 A.M. The same is taken on record. Certain decisions are stated to have been taken in the aforesaid meeting which are as under: - 1. Municipal Council Phagwara will initiate immediate action to withdraw the approval granted to the building plans being void ab initio. The TP Scheme 5 Part II 1976 is still operative and the sanction of said building plans are in violation of the same. The Municipal Council, Phagwara will also write to the Punjab State Electricity Board to disconnect the electric connection which has been obtained on the basis of the NOC wrongly granted by it. The Municipal Council, Phagwara will also take up the matter with Director Industries to cancel the SSI Registration Certificate. It was agreed that it is primarily the duty of the department of local Government and Municipal Council Phagwara to ensure that the industry is not allowed to operate in the CWP No.20792 of 2006 -6- residential area. 2. Action may be initiated against the Executive Officer of the Municipal Council, Phagwara who issued NOC to the Industries after approval and implementation of the Town Planning Scheme. 3. A committee may be constituted consisting of the Principal Secretary, Labour and Employment, Principal Secretary, Industries and Commerce, Principal Secretary Local Self Government, Principal Secretary, Housing and Urban Development and Secretary, Science, Technology and Environment regarding relocation of such type of industries and will submit report within one month to the Chief Secretary Punjab. He expressed that the industries which were existing before the declaration of the Residential Area/Town Planning Scheme need not to be relocated and they may take adequate pollution control measures as required under the environmental law and if the unit is established after the declaration of the Town Planning Scheme, such units need to be relocated. He expressed that shifting of the industries is to be carried out in a phased manner. In this view of the matter, no further order in this case are required at this stage. Admitted. CWP No.20792 of 2006 -7- Let the respondent authorities implement the decision taken in the meeting dated July 7, 2003 in accordance with law.” Being aggrieved by the directions issued by the Hon'ble Single Judge of this Court, referred to above, some of the industrialists filed civil writ petition No.12041 of 2003. The Hon'ble Division Bench of this Court disposed off the writ petition by passing the following order: - “In this petition the petitioners have prayed as under: - “(i) That writ of mandamus kindly be issued for directing the respondent No.1 and 2 to restore the Electricity connections and for a declaration that the decision as contained in Annexure P-7 and further Annexure P1 and P2 are illegal and unenforceable and further direction not to act on the communication decision of the committee taken on 7th July 2003 and further directions restraining the respondents from any way interfering and stopping the functioning of the industries installed at the premises of the petitioner.” Although, written statements have not been filed on behalf of the respondents, Shri A.R. Takkar, learned counsel for Municipal Council, Phagwara, on instructions from Shri J.S. Thind, Executive Officer, made a statement that the impugned order may be treated as inoperative and ineffective but liberty may be given to the Municipal Council to CWP No.20792 of 2006 -8- proceed in accordance with law and the petitioners may be directed to cooperate/participate in the inquiry which may be held hereinafter for implementing the directions given by the learned Single Judge of this Court in Civil Revision No.1692 of 2002, decided on 15.5.2003. Shri M.S. Khaira, learned senior counsel appearing for respondent Nos.1 and 2 states that action to disconnect the supply of electricity to the establishments of the petitioner was taken in view of the withdrawal of No objection certificate by Municipal Council, Phagwara. In view of the statements made by the learned counsel for Punjab State Electricity Board and Municipal Council, Phagwara, we dispose of the writ petition with the following directions: - (i) Electricity supply to the establishments of the petitioners shall be restored within 48 hours from today. (ii) Order Annexure P-7 shall be treated as ineffective and inoperative. However, Municipal Council, Phagwara shall be free to pass appropriate order in accordance with law after giving opportunity of hearing to the petitioners. For this purpose the petitioners are directed to appear before the Executive Officer, Municipal Council, Phagwara on October 28, 2003. While disposing of the writ petition in the manner indicated above and leaving Municipal Council, Phagwara free to pass appropriate effective orders for implementing the directions given by the learned Single Judge in Civil Revision No.1692 of CWP No.20792 of 2006 -9- 2992, we deem it proper to observe that it will be in the interest of all that the scheme already devised for shifting the industrial units from residential areas of Phagwara is implemented in its true letter and spirit.” In pursuance to the order passed in CWP No.12041 of 2003, show cause notices were issued to the industries running in the premises and a decision, reproduced below was taken by the Municipal Council, Phagwara, after hearing the industrialists: - “In view of the subject matter as well as issues involved being common, the show cause notices issued to the industries mentioned above operating in T.P. Scheme No.5 Part II are being taken up and decided by this common order. The facts leading to the passing of this order are that Smt. Vidya Bhullar a resident of the locality in question filed a civil revision bearing No.1692 of 2002 in the Hon'ble Pb. & Haryana High Court, inter alia seeking closure of the industrial units namely M/s Bhalla Ball Bearing as well as Lord Venkateshwara Metals, which were creating noise pollution and were a source of nuisance apart from the industries operating illegally in on approved residential colony. Taking a serious note, the Hon'ble High Court, impleaded the Chief Secretary as a part in the Civil Revision and sought Govt. reply. During the pendency of the Civil Revision, a high powered meeting of the concerned departments chaired by the then Chief Secretary on 07.07.2003 decided as under: - 1. Municipal Council Phagwara will initiate immediate action to withdraw the approval granted to the building CWP No.20792 of 2006 -10- plans being void ab initio. The TP Scheme 5 Part II 1976 is still operative and the sanction of said building plans are in violation of the same. Municipal Council, Phagwara will also write to the Punjab State Electricity Board to disconnect the electric connection which has been obtained on the basis of the NOC wrongly granted by it. The Municipal Council, Phagwara will also take up the matter with Director Industries to cancel the SSI Registration Certificate. It was agreed that it is primarily the duty of the department of local Government and Municipal Council Phagwara to ensure that the industry is not allowed to operate in the residential area. 2. Action may be initiated against the Executive Officer of the Municipal Council, Phagwara who issued NOC to the Industries after approval and implementation of the Town Planning Scheme. 3. A committee may be constituted consisting of the Principal Secretary, Labor and Employment, Principal Secretary, Industries and Commerce, Principal Secretary Local Self Government, Principal Secretary, Housing and Urban Development and Secretary, Science, Technology and Environment regarding relocation of CWP No.20792 of 2006 -11- such type of industries and will submit report within one month to the Chief Secretary Punjab. He expressed that the industries which were existing before the declaration of the Residential Area/Town Planning Scheme need not to be relocated and they may take adequate pollution control measures as required under the environmental law and if the unit is established after the declaration of the Town Planning Scheme, such units need to be relocated. He expressed that shifting of the industries is to be carried out in a phased manner. As a sequence of the above decision Municipal Council Phagwara wrote a letter to Pb. State Electricity Board for disconnection of the electric connection of the 4 industries namely M/s Super Tiles Works, M/s Bhalla Ball Bearing, M/s Lord Venkateshwara Metals, M/s Maharaja Exports. P.S.E.B. disconnected the electric connections of these four industries, as result of which the affective industries filed CWP No.12041 of 2003, in which the Hon'ble High Court inter alia passed the following directions (relevant extract) : - (i) Electricity supply to the establishments of the petitioners shall be restored within 48 hours from today. (ii) Order Annexure P-7 shall be treated as ineffective and inoperative. However, Municipal Council, Phagwara shall be free to pass appropriate order in accordance with law after giving CWP No.20792 of 2006 -12- opportunity of hearing to the petitioners. For this purpose the petitioners are directed to appear before the Executive Officer, Municipal Council, Phagwara on October 28, 2003. While disposing of the writ petition in the manner indicated above and leaving Municipal Council, Phagwara free to pass appropriate effective orders for implementing the directions given by the learned Single Judge in Civil Revision No.1692 of 2992, we deem it proper to observe that it will be in the interest of all that the scheme already devised for shifting the industrial units from residential areas of Phagwara is implemented in its true letter and spirit.” After the order dated 14.10.2003 supra a broad survey was conducted by the Municipal Council, Phagwara and it was found that 21 industrial units are functioning in this residential T.P. Scheme No.5 Part II and as a policy decision notices on dt. 17.10.03 were issued u/s 123 of the Punjab Municipal Act, 1911 and in the said notices, it was made clear that their indsutrial units are a source of pollution and disturbance for the residence of the locality. It was further stated that these units do not meet the sitting criteria, as such could not be issued NOC (illegible) as to why their industrial units be not closed and directions be issued to shift the same outside the designated residential colony. They were asked to file reply by 24.10.2003 and also to appear for personal hearing on 28.10.2003 as per directions of the Hon'ble High Court. The CWP No.20792 of 2006 -13- 21 industrial units who were issued show cause notice are: - i. M/s Bhalla Ball Bearings ii. M/s Lord Venketshwara Metals iii. M/s Rajindra Tile Works (Super Tiles) iv. M/s Kamla Industry v. M/s Swaran Singh & Sons vi. M/s Swaran Muddar Timber Works vii. M/s Madhu Engineering Works viii. M/s Rolex Fuel Pipes. ix. M/s Jyoti Foundry Works x. M/s Amit Industry xi. M/s Naveen Ata Chakki xii. M/s Elite Enterprises xiii. M/s Yogesh Uppal Electric Works xiv. M/s B.R. Dye Maker xv. M/s Metro Engg Works xvi. M/s R.J. Auto Industry xvii. M/s Verma Motor Garage xviii. M/s Samrat Auto Industry xix. M/s Panesar Repair & Welding Works xx. M/s Sharma Welding Works xxi. M/s A.S. Steel Industry Out of the above, only 7 owners of the industrial units filed reply to the notices whose names are given below: i) M/s Bhalla Ball Bearing ii) M/s Lord Venketshwara Metals iii) M/s Rajindra Tile Works (Super Tiles) iv) M/s Muddar Timber Works v) M/s Rolex Fuel Pipes. CWP No.20792 of 2006 -14- vi) M/s Metro Engg Works vii) M/s A.S. Steel Industry The other notices did not file any objection but they submitted a joint representation on 28.10.2003 and also appeared for personal hearing on the same day. In their reply, the notices have inter-alia stated that their industrial units are working for the last 15-20 years and N.O.C. was also issued by the Municipal Council, Phagwara, which was handed over to the Electricity Department (PSEB) while obtaining electric connections. They are paying annual taxes such as electric motor license fee, house tax etc. The electric connections were installed in their units as per rules and regulations and they also submitted that their units are not polluting water and air and also not creating any smell, obnoxious gases etc. which may be harmful to the health of others. Meanwhile similar notices were issued on 08.01.2004 to the remaining industrial units those were identified later on, also operating in this area, whose names are as under: - i) M/s Bajwa Brothers ii) M/s Shukla Industries iii) M/s Kamla Auto Inds. iv) M/s Virat Enterprises v) M/s Passi Rubber Inds. vi) M/s N.K. Electricals vii) M/s Jay Maa Electricals viii) M/s Ekta Motor Garage ix) M/s Bansal & Bansal x) M/s Matharoo Refrigeration xi) M/s Satnam Service Station xii) M/s Rajindra Shoe Makers xiii) M/s Damini Furniture House CWP No.20792 of 2006 -15- xiv) M/s Kaushal Furniture House xv) M/s Samra Aluminum xvi) M/s Sarabjit Furniture House xvii) M/s S.K. Box Factory Out of the above only M/s Kamal Auto Industries submitted reply to the show cause notice, however, none of them appeared for personal hearing fixed for 16.01.2004 though the undersigned waited for them through out the day (working hours). The ground situation as it exists today is that the Town Planning Scheme No.5 Part II is an approved residential colony and no industrial units could be set up in this locality. As per the record available with the Municipal Council, NOC was only issued to one party, though erroneously, i.e. to Sh. Lalit Kumar s/o Sh. Tilak Raj on 30.07.93, who set up M/s Bhalla Ball Bearings, a partnership unit in the locality. This NOC was also conditional as is clear from the affidavit dated 14.07.1003 given by Sh. Lalit Kumar, inter alia, stating that nobody has any objection in his getting a 15 HP electric connection and further that he would get the electric connection disconnected in case somebody has an objection. This being an approved residential colony neither any industry by the Municipal Council, Phagwara. Most of the industries mentioned herein above are in fact small commercial establishments/industries but never the less they are operating from the residential locality which is illegal and hence not permissible. Neither with the reply filed (by some of the industries) nor availing opportunity of personal hearing, the industries have brought on record or have shown any NOC issued by MC Phagwara. They have CWP No.20792 of 2006 -16- also not put forth any objection or argument much less a legally sustainable one so as to entitle them to continue with their illegal establishments in this residential locality. It is evident that all the parties have put up their industrial units, except one, without NOC at their own risk and cost and strictly speaking, Municipal Council, Phagwara is under no obligation to provide alternative sites to them. This is however, without prejudice to the decision taken at the level of Chief Secretary to Government of Punjab and action being taken by the Department of Industries regarding their relocation. Some of notices have further brought to my notice that they are willing to shift to any other site provided by the Industries Department in case the same is a developed focal point/industrial area. In a letter dated 28.10.2003 submitted by 17 of the above said industries through their association, Laghu Udyog Bhartui, they have further stated that an undertaking to this effect has been submitted by them to the Industries Department. Earlier the Municipal Council had explored the possibility of providing alternate sites to these industries but as the same was not possible, vide Resolution No.51 dated 31.05.2003 passed by M.C. Phagwara, helplessness was shown to provide any alternate accommodation to these industries. The matter has also been under consideration with the State Govt. and as result of some of them high level meeting held, under the Chairmanship of the Chief Secretary, Pb., the Department of Industries explored the possibility of providing alternate sites to these industrial units. Vide letters dated 03.11.2003, 12.11.2003, CWP No.20792 of 2006 -17- 20.11.2003 and 16.02.2004 even undersigned has written to the Director of Industries, Punjab as well as General Manager District Industries Centre, Kapurthala with regard to providing suitable accommodation to these units, so that the orders passed by the Hon'ble High Court are complied with. The matter was under consideration of the Government as well as Department of Industries, which was exploring the possibility as well as looking for a suitable site for accommodation these industries. It is only on account of the efforts being made by the Department of Industries, that the passing of this order has been delayed. The Municipal Council, Phagwara is now in receipt of minutes of meeting dated 04.06.2004 which department of Industries has held with the representatives of these industrial units. In this meeting held under the Chairmanship of Director of Industries Punjab, inter-alia it was decided that the industries would form a Society and get it registered within 30 days. This society would purchase the land available with the State Government at village Phagwara Sharki and would develop the same on their own the industrialists would subsequently shift their industrial operation from the area of Town Planning Scheme No.5 Part II to this land. The shifting of industries even with help of the department of Industries would in any case take a long time but the same can raise a reason for legalizing the illegality committed by these industries, in spelling up their commercial/industrial units in this approved residential colony. After the coming into