Ashwani Kumar Sood vs State Of Punjab And Others on 6 February, 2009

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Punjab-Haryana High Court
Ashwani Kumar Sood vs State Of Punjab And Others on 6 February, 2009
            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
 

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