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