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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
C.W.P. No. 11839 of 2007
DATE OF DECISION: December 11, 2008
M/s Jagdamba Processors and others
...Petitioners
Versus
State of Haryana and others
...Respondents
CORAM: HON'BLE MR. JUSTICE M.M. KUMAR
HON'BLE MR. JUSTICE JORA SINGH
Present: Mr. Amit Jhanji, Advocate,
Mr. Shyam Kumar Sharma, Advocate,
Mr. Vikas Kumar, Advocate,
Ms. Promila Nain, Advocate,
for the petitioner(s).
Mr. Ashish Kapoor, Addl. Advocate General, Haryana,
Mr. Arun Walia, Advocate,
Mr. Raghujeet Singh Madan, Advocate,
for the respondent(s).
1. Whether Reporters of local papers may be Yes
allowed to see the judgment?
2. To be referred to the Reporters or not? Yes
3. Whether the judgment should be reported in Yes
the Digest?
M.M. KUMAR, J.
This order shall dispose of C.W.P. No. 11839 of 2007 and 16 petitions2 as common question of law and facts are involved. However, the facts are referred from C.W.P. No. 11839 of 2007 unless the same are specifically mentioned from other petitions. The petitioners have filed the C.W.P. No. 11839 of 2007 2 instant petition under Article 226 of the Constitution for quashing order dated 11.7.2007 (P-10) whereby 63 application forms and 67 demand drafts for allotment of plots in the 'Dyeing Zone' Sector 29 Part-II, Panipat, have been sent back by the Chief Administrator, Haryana Urban Development Authority (for brevity, 'HUDA') to the Regional Officer, Haryana State Pollution Control Board, Panipat (for brevity, 'the Board') for returning the same to the applicants. The petitioners have also sought quashing of advertisement/public notice (P-9) to the extent that they have been asked to apply afresh for allotment of plots alongwith the difference of earnest money at a higher rate i.e. Rs. 1,155/- per square meter as compared to the earlier rate of Rs. 500/- per square meter. Still further a prayer has been made for directing the respondents to consider the earlier applications submitted by the petitioners for allotment of plots in the 'Dyeing Zone' Sector 29 Part-II, Panipat and to allot plots as per the old rates prevalent at the time of submission of application forms.
2. Brief facts of the case are that the matter regarding contamination of ground water being caused by in-discriminate discharge of polluted effluent by small and tiny units engaged in dyeing and printing activities in Panipat Town was considered in various meetings of the Environment Protection Council, Haryana. It was noticed that out of 500 units of Panipat, about 300 tiny units, which were employing 5-6 persons, were operating from residential and non-conforming areas of the Town. Thus, in principle it was decided to formulate a time bound action plan for relocation of small scale industrial units working in the congested areas of the Town in a separate industrial estate so that their effluent could be treated in a common effluent treatment plant.
C.W.P. No. 11839 of 2007 3
3. In the meeting of the Environment Protection Council, held on 19.9.2001 it was decided that Sector 29 Part-II and Sector 30, Panipat, being developed by the HUDA, would be suitable site for relocating the aforementioned units. The issue with regard to cost of sites for relocating the units was also considered and it was decided that cost of the plot may be realised as per the following formula:-
"i) 5% of the price along with the application form.
ii) 10% within 30 days of issue of allotment letter.
iii) Balance 85% in half yearly instalments payable over a period of 10 years."
It was further decided that the HUDA will carry out an exercise to work out a scheme in which the larger units would be charged more, so that the price payable by the tiny units could be reduced further i.e. less than Rs. 1,428/- per square yards.
4. In the meeting held on 26.2.2002 as per Item No. A-84(2) Suppl. A-84 the matter regarding shifting of dyeing units in Panipat Town was considered. It was decided that the units involved in the dyeing and printing activities in the Town which were functioning from residential and non-conforming zone, should be shifted to the new industrial area and land be given to them on 'no profit no loss basis' by the HUDA in Sector 29 Part-II, Panipat (P-2). Thereafter, a survey was conducted by the Survey Team of the Regional Office of the Board at Panipat to identify the units which were involved in the dyeing and printing activities and operating from the residential and non-conforming zones in the Town for their relocation to the new sites in Sector 29 Part-II, Panipat. A survey list of 494 units was prepared, which were found existing in the non-conforming zone C.W.P. No. 11839 of 2007 4 in Panipat Town. In the list complete information was incorporated viz. name of the unit, address, name of the owner, type of industries, total area of plant in square meters, total area of dyeing section in square maters, total investment, quantity of effluent discharged, point of discharge, status of Common Effluent Treatment Plan (CETP) whether installed or not, proof of ownership, status of air pollution and land recommended by team in square meters.
5. On 14.8.2003, a meeting was held to review the progress of rehabilitation of Dyeing Units at Panipat, wherein it came to notice that out of 409 units, 213 were of smaller category and 196 were of bigger size. Only 182 units had applied for allotment of plots under smaller category and 120 units submitted applications for allotment of plots under bigger category. In the aforementioned meeting it also surfaced that 310 applications were received upto 13.8.2003. 71 units had applied for variation in plot size and it was decided that they would be adjusted as per the number of plots available. It was further decided that applications from such units, which were closed down after identification and did not apply earlier, may be received but allotment in such cases would be made later on keeping in view the number of plots available. The progress regarding installation of Effluent Treatment Plant, construction of building and roads etc was also discussed (P-5).
6. The petitioners in these petitions are carrying on the dyeing and printing activities in the residential/non-conforming zone of the Town and names of their units, except some of them which will be disclosed in the succeeding para, figures in the survey list (R-2/1). The petitioners submitted their application forms for allotment of plots in the 'Dyeing Zone' C.W.P. No. 11839 of 2007 5 alongwith 5% earnest money. Even those persons whose units were not included in the survey list approached the Board for allotment of plots enabling them to shift their units in the 'Dyeing Zone'. The petitioners have claimed that the Regional Officer of the Board after considering their cases recommended to the Estate Officer, HUDA, Panipat, for allotment of plots in such like cases. Some of the recommendations of the Regional Officer of the Board, made on 22.6.2006, 21.7.2006 and 25.7.2006 have been placed on record as Annexure P-4 (Collectively).
7. The grievance of the petitioners is that the respondents are adopting the policy of pick and choose in allotting plots in the 'Dyeing Zone'. It has been alleged that in some of the cases plots have been allotted way back in the year 1993 and also in 2007 (P-6 & P-7) whereas the applications submitted by the petitioners were kept pending.
8. On 11.7.2007, the HUDA issued an advertisement/Public Notice in the newspapers for allotment of industrial plots in Dyeing Zone, Sector 29, Part-II, Panipat. It was mentioned in the advertisement that in the 84th meeting of the Authority, held on 26.2.2002, the policy for shifting of Dyeing units, functioning from Panipat Town/non-conforming zone, as identified by the survey conducted by the Board in the year 2001, was approved but despite lapse of 5 years, some of the entrepreneurs who had been identified for the allotment of plots in the zone have not come forward till that date seeking allotment of plot. Since the plots could not be left as such for an indefinite period, therefore, a last chance was again given to such entrepreneurs and applications were invited upto 10.8.2007. It was further mentioned that the applicants who had already made an application C.W.P. No. 11839 of 2007 6 should apply afresh alongwith the difference of earnest money and other required documents (P-9).
9. The further case of the petitioners is that the Chief Administrator, HUDA has returned their applications alongwith demand drafts to the Regional Officer of the Board on the erroneous premise that since the advertisement/public notice dated 11.7.2007 has been issued, therefore, the identified beneficiaries needs to apply afresh as per the current rates applicable in the financial year 2007-08. The Regional Officer of the Board has been asked to return the applications to the applicants (P-
10). It has been further pointed out by the petitioners that in the advertisement/public notice the rates of the plots have been considerably enhanced to Rs. 1,155/- per square mater for plots upto 525 square meters and Rs. 1,925/- per square meter for plots above 525 square meters.
10. In the written statement filed on behalf of respondent Nos. 2 and 4 the stand taken is that at the time of survey 494 units were identified and out of them 29 units did not opt for the rehabilitation scheme and 'no demand' was raised by them and accordingly against their names the survey team recorded as 'No Demand' in the column of the survey list under the heading of 'Land recommended by team in Sq. Mtrs.'. According to the respondents only 465 units have been identified beneficiaries and eligible for allotment of plots by the Survey Team. It has been submitted that only 332 applicants applied for allotment of plots which have already been allotted plots in the year 2003-2004 itself. The fresh advertisement/public notice has been issued with a view to rehabilitate the left out identified beneficiaries out of 465 units. In the reply on merits, it has been submitted that the names of petitioner Nos. 2 and 5 to 12 do not figure in the survey C.W.P. No. 11839 of 2007 7 list and, thus, they are not entitled for allotment of plots in the 'Dyeing Zone'. With regard to petitioner Nos. 4 and 8 it has been mentioned that though their names figure in the survey list but they did not show any interest in the plots, therefore, the Survey Team has given the comment as 'no demand' in the survey list against their names. In respect of petitioner No. 3 it has been mentioned that after considering the application, Plot No. 598, measuring 1000 square meters, has already been allotted as a result of draw held on 30.11.2007. The application of petitioner No. 1 was kept in abeyance due to some objections raised. However, during the course of arguments, learned counsel for the respondents have informed the Court that a plot in favour of petitioner No. 1 has been allotted.
11. Respondent Nos. 2 and 4 have specifically denied the allegation of the petitioners that at the time of survey certain units were ignored. It has been asserted that the survey team has ignored only such units which were either closed down or functioning from rented premises. With regard to enhancement of price of the plots it has been asserted that rates have been revised keeping in view various factors and long time span. As a matter of facts rates have been uniformally increased in all the Urban Estates in Haryana. The respondents have placed on record letter dated 1.6.2007, fixing the rates of industrial plots in various Urban Estates for the year 2007-08 (R-2/2).
12. A separate written statement has also been filed on behalf of the Board-respondent No. 3, however, no additional pleadings have been raised therein.
13. In the pleadings as well as during the course of arguments it has come to the notice of the Court that in some cases plots have already C.W.P. No. 11839 of 2007 8 been allotted in favour of some of the petitioners. In some cases the names of the petitioners even does not figure in the survey list prepared by the Board, whereas in some of the cases plots have not been allotted on the premise that 'no demand' has been raised by the petitioners. Accordingly, we propose to draw the factual position in respect of each of the petitioner in these petitions in the following chart:-
Sr. CWP No. Detail of the Sr. No. Remarks
No. petitioner(s) in the
Surve
y List
1 11819 of 2007 Single Petitioner Not included in
the survey list.
2 11839 of 2007 Petitioner Nos. 1 & 3 Plots allotted
Petitioner No. 4 4 No demand
Petitioner Nos. 2, 5 to Not included in
12 the survey list.
3 13822 of 2007 Single Petitioner 425 No demand
4 13823 of 2007 Petitioner No. 1 - Not included in
the survey list.
Not included in
Petitioner No. 2 - the survey list.
5 13828 of 2007 Petitioner No. 1 Plot allotted
Petitioner Nos. 2 & 3
Not included in
the survey list.
6 13830 of 2007 Single Petitioner -- Not included in
the survey list.
7 14359 of 2007 Petitioner No. 1 196 No demand
Petitioner No. 2 273 No demand
Petitioner No. 3 182 No demand
Petitioner No. 4 246 No demand
Petitioner No. 5 74 No demand
8 14586 of 2007 Petitioner No. 1 418 No demand
Petitioner No. 2 Not included in
the survey list.
C.W.P. No. 11839 of 2007 9
9 15119 of 2007 Petitioner No. 1 432 No demand
Petitioner No. 2 431 No demand
Petitioner No. 3 291 No demand
10 15625 of 2007 Petitioner No. 1 276 No demand
Petitioner No. 2 28 No demand
Petitioner No. 3 443 No demand
Petitioner No. 4 - Not included in
the survey list.
11 2809 of 2008 Single Petitioner 346 No demand
12 2954 of 2008 Single Petitioner 265 No demand
13 3029 of 2008 Single Petitioner 476 No demand
14 3248 of 2008 Single Petitioner 82 No demand
15 6232 of 2008 Single Petitioner 36 No demand
16 7455 of 2008 Single Petitioner 485 No demand
17 8375 of 2008 Single Petitioner 413 No demand
8. Learned counsel for the petitioners have argued that the question of not requesting for allotment of a plot would not arise once the petitioners have been found to be working in a residential/non-conforming area polluting the ground water. According to the learned counsel, the petitioners have only expressed their willingness to rehabilitate them in a plot of requisite size, which the officers of the Survey Team had not agreed probably for the reason that the plots of that size were not available. They have also suggested that once the object of rehabilitation scheme is to order closure of the dyeing and printing units in the residential/non-conforming C.W.P. No. 11839 of 2007 10 areas then the petitioners have to be rehabilitated. In C.W.P. No. 8375 of 2008, Mr. Shyam Kumar Sharma, learned counsel for the petitioner has submitted that the land purchased by the petitioner to shift his unit has been acquired to establish 'Dyeing Zone'. Another argument raised by them is that a total of 494 units were identified and accordingly plots have been carved out in the 'Dyeing Zone', therefore, it is incumbent upon the respondents to at least allot plots to such identified units. With regard to the persons whose names were not included in the survey list, it has been submitted that the names of some of the units could not be incorporated in the survey list because of their closure at the relevant point of time but they have been able to revive and functioning. Moreover, ample plots are available with the respondents in the 'Dyeing Zone' which can be allotted to such units. Learned counsel have further submitted that the petitioners were even willing and ready to apply in response to the advertisement/public notice dated 11.7.2007 but the respondent authorities refused to accept their applications and returned the same. They have also pointed out that in some of the cases even the Board has started the process of issuing closure notices under Section 33-A of the Water (Prevention and Control of Pollution) Act, 1974, to the petitioners because they failed to shift their units to the 'Dyeing Zone' Sector 29, Part-II, Panipat. They have emphasized that without providing alternative site to the petitioners the Board cannot direct them to stop their activities and pass an order directing closure of the unit.
9. Mr. Arun Walia and Mr. Raghujeet Singh Madan, learned counsel for the respondents have, however, submitted that the original record shows that the petitioners against whom the remark of 'no demand' has been recorded in the survey list, did not express any desire to allotment C.W.P. No. 11839 of 2007 11 of plots in the 'Dyeing Zone' at the time of survey. They have emphasised that the proforma prepared by the Survey Team who inspected the dyeing and printing units in the residential/non-conforming areas has been duly signed by each one of the petitioners and at this stage they cannot turn around and refuse the factum of raising 'no demand' for allotment of plot. Thus, such units cannot stake their claim for allotment of plots now as a matter of right.
10. We have heard learned counsel for the parties at a considerable length and perused the paper books as well as original record with their able assistance. It is an undisputed fact that the Authority in its 84th meeting held on 26.2.2002 has taken a conscious decision for shifting of dyeing and printing units to the Dyeing Zone Sector 29, Part-II, Panipat because the effluent is being discharged by such units, which are operating from the residential and non-conforming zones of Panipat Town and result in contamination of the ground water. Thus, it was decided to formulate a time bound action plan for relocation of small scale industrial units working in the congested areas of Panipat Town in a separate industrial estate so that their effluent could be treated in a common effluent treatment plant. Accordingly, a survey was conducted by the Board and 494 units were identified. Some of identified units have already been allotted plots. The advertisement/public notice dated 11.7.2007 also notices that inspite of lapse of more than five years some of the entrepreneurs who were identified for allotment of plots in the Dyeing Zone did not come forward for allotment of plot and one last chance was given to such units.
11. In view of the factual position which has emerged from the above chart, it would be convenient if the cases of the petitioners are C.W.P. No. 11839 of 2007 12 bifurcated into three categories viz. (i) cases in which the plots have not been allotted in the 'Dyeing Zone' on the ground that 'no demand' was raised at the time of survey; (ii) cases wherein the names of the petitioners do not figure in the survey list; and (iii) cases wherein plots have already been allotted.
12. The ultimate object of establishing the 'Dyeing Zone' is to shift the polluting dyeing and printing units from the residential and non- conforming zone of Panipat Town to the newly carved out Dyeing Zone in Sector 29, Part-II, Panipat so as to bring clean environment and to obviate the possibility of contamination of ground water. If that be so, then to accept that the petitioners would not require to be rehabilitated on the earmarked land purposely developed for them would not be acceptable. We are of the view that the petitioners whose names figure in the survey list would be fully entitled to apply for plot of requisite size in pursuance to the advertisement/public notice dated 11.7.2007, which has invited applications for allotment of such plots in the 'Dyeing Zone'. The benefit of survey list made by the Survey Team, who have identified 494 dyeing and printing units and has made recommendation in respect of others regarding size of plots, has to be given to such persons. Therefore, we deem it just and appropriate to issue directions to the Chief Administrator, HUDA to reconsider the matter by accepting the eligibility of the petitioners, whose names are there in the survey list, for allotment of a plot and take a policy decision in that regard. The Chief Administrator shall also decide in principle the size of the plots which should be allotted to such persons and as to whether they would be considered in pursuance to the advertisement/public notice dated 11.7.2007 or their applications could be C.W.P. No. 11839 of 2007 13 considered independent of that. The needful shall be done within a period of three months from the date of receipt of a certified copy of this order.
13. It is not possible to accept the claims of the petitioners who never surfaced in the survey list of 494 units, which was prepared in 2001, because they were not in existence on or before the survey. There is no clinching evidence on record in any of these cases proving their existence beyond doubt on or before the date of survey. In any case, we do not wish to enter upon any such inquiry as it may lead to including the names of those whose authenticity is doubtful. Therefore, we reject their claim and dismiss their petitions.
14. The petitions in respect of the petitioners who have already been allotted plots in the 'Dyeing Zone' are, however, dismissed as having been rendered infructuous.
15. These petitions are accordingly disposed of in the above terms.
(M.M. KUMAR)
JUDGE
(JORA SINGH)
December 11, 2008 JUDGE
Pkapoor
2
1.CWP No. 11819 of 2007M/s Annpurna Exports v. State of Haryana and others2.CWP No. 13822 of 2007M/s Sham Krishan Handloom Industries v. State of Haryana and others3.CWP No. 13823 of 2007M/s Neha Enterprises and another v. State of Haryana and others4.CWP No. 13828 of 2007M/s Golden Texo Fabs and others v. State of Haryana and others5.CWP No. 13830 of 2007M/s Ashoka Loomtex v. State of Haryana and others6.CWP No. 14359 of 2007M/s Kapoor Wooltex (P) Ltd. and others v. State of Haryana and others7.CWP No. 14586 of 2007Sri Bhawani Handloom and another v. State of Haryana and others8.CWP No. 15119 of 2007M/s Nice Spinners Pvt. Ltd. and others v. State of Haryana and others9.CWP No. 15625 of 2007M/s Om Shiv Dye House and others v. State of Haryana and others10.CWP No. 2809 of 2008M/s S.M. Handloom v. State of Haryana and others11.CWP No. 2954 of 2008M/s Neel Kanth Textiles v. State of Haryana and others12.CWP No. 3029 of 2008M/s Bena Handloom v. State of Haryana and others13.CWP No. 3248 of 2008M/s Chhabra Fabrics (P) Ltd. v. State of Haryana and others14.CWP No. 6232 of 2008M/s Asha Bed Covers v. State of Haryana and others15.CWP No. 7455 of 2008M/s Vinay Textiles v. State of Haryana and others16.CWP No. 8375 of 2008M/s Shivalaya Handloom v. State of Haryana and others