C.W.P NO. 15242 OF 2001                         -1-



   IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                 CHANDIGARH


                              C.W.P NO. 15242 OF 2001
                              DECIDED ON : 21.03.2009


M/S Mahalaxmi Stone Crushing Co.
and others
                                      ...Petitioners
         versus

State of Haryana and others
                                      ...Respondents

C.W.P NO.14666 OF 2002 M/S Shankar Stone Crushing Co.

...Petitioner versus State of Haryana and others ...Respondents C.W.P NO. 2090 OF 2002 M/S Mahram Stone Crusher ...Petitioner versus State of Haryana and another ...Respondents C.W.P NO. 2520 OF 2002 M/S Jagdamba Stone Crushing Co.

...Petitioner versus State of Haryana and others ...Respondents C.W.P NO. 15242 OF 2001 -2- C.W.P NO. 2730 OF 2002 M/S Shri Krishna Grit Udyog ...Petitioner versus State of Haryana and others ...Respondents C.W.P NO.2580 OF 2002 M/S V.R.S Stone Crusher ...Petitioner versus State of Haryana and another ...Respondents CORAM : HON'BLE MR. JUSTICE SURYA KANT

1. Whether Reporters of local papers may be allowed to see the judgment ?

2. To be referred to the Reporters or not ?

3. Whether the judgment should be reported in the Digest ? Present : Mr. P. K. Palli,Senior Advocate with Ms. Sangeet Dhanda, Advocate, For the petitioners.

Mr. Manoj Sood, Advocate, for respondent No.2.

Mr. Raminder Garg, Advocate, for respondent No.3-HUDA.

Mr. Dinesh Nagar, Advocate and Mr. Arun Walia, Advocate, for respondent No.4-Pollution Control Board. SURYA KANT,J.(ORAL) This order shall dispose of C.W.P Nos. 15242 of 2001, C.W.P NO. 15242 OF 2001 -3- 14666, 2090, 2520, 2730 and 2580 of 2002, as common question of law and facts are involved in these cases. For brevity, the facts are being taken from C.W.P No.15242 of 2001. [2] The petitioners are partnership or proprietorship firms, most of whom had been running stone crushers in the area of Pallinangla and Anangpur in District Faridabad. They had statedly established their stone crushers during the years 1970-1980. [3] As the stone crushers run by the petitioners were found to be causing air pollution or environment degradation, the Hon'ble Supreme Court vide order dated 15.05.1992 passed in a PIL filed by Mr. M. C. Mehta, Advocate, issued the following directions (relevant extracts only:

"1) The mechanical stone crushers established/ operating in Lal Kuan, Anand Parbat, Rajokri, Tughlakabad and in any other area of Union Territory of Delhi shall stop operating/functioning with effect from August 15, 1992. No stone crusher shall operate in the Union Territory of Delhi from August 15, 1992 onward.

2) The mechanical stone crushers established/ operating in Suraj Kund, Lakhanpur, Lakkarpur, Kattan, Gurukul, Badkhal, Pallinangla, Saraikhaja, Anangpur and Ballabgarh areas of C.W.P NO. 15242 OF 2001 -4- Haryana shall stop operating/functioning with effect from August 15, 1992. No stone crusher shall operate in the above said area from August 15, 1992 onward.

        3)    ....

        4)    ...

        5)    The stone crushers, in respect of which

closure orders/directions have been issued by the Central Pollution Control Board under Section 31A of Air (Prevention and Control of Pollution) Act 1981 or by the Central Government under Section 5 of the Environment (Protection) Act 1956, shall stop functioning/operating with immediate effect.

        6)    ...

        7)    The      officers     of    the    Town    and     Country

Planning Department, Government of Haryana, who were present in Court, informed us that a new "Crushing Zone" has been approved at village Pali and the layout plan has been prepared and is in the process of demarcation by the Haryana Urban Development Authority. ....... We further direct these authorities to provide additional land in or around the "Crushing Zone" if there is not sufficient land in the said zone to C.W.P NO. 15242 OF 2001 -5- accommodate all the store crushers effected by our orders. This exercise should be completed and plots offered to the stone crushers within a period of six months from today. The Director, Town and Country Planning Department, Haryana, Chandigarh, is further directed to send a progress report to the Registry of this Court before July 31, 1992 in this respect".

[4] In view of the categoric direction that no stone crusher shall operate in the subject area from August 15, 1952 onwards, the Chief Administrator, Faridabad Complex Administration vide his memo dated 19.05.1992 (Annexure P-3) directed the petitioners "to stop functioning and operating the stone crushers with immediate effect and any failure will also be treated as a contempt of the order of the Hon'ble Supreme Court of India".

[5] It may further be noticed from direction No.7 reproduced above, that the Hon'ble Supreme Court was apprised of a new crushing zone carried out by the Town and Country Planning Department, Haryana to rehabilitate the existing stone crushers, who were ordered to be closed down. The Apex Court further directed that in case the authorities were required to acquire additional land in/or the area of crushing zone, that shall also be done so that all these stone crushers could be set up in C.W.P NO. 15242 OF 2001 -6- the crushing zone. The petitioners' case is that a list of more than 100 stone crushers, who were to be uprooted in compliance to the orders passed by the Hon'ble Supreme Court, was prepared and their names also figured in the said list. [6] Meanwhile, the Faridabad Complex Administration appears to have issued an advertisement in the daily newspapers inviting applications from the stone-crushers to enlist them for the purpose of allotment of plots in the new crushing zone. The applicants were required to deposit 20% of the tentative cost amounting to Rs.11.40 lacs along with their applications. The petitioners were allegedly not in a position to arrange the said amount. They requested the authorities that instead of depositing 20% of the tentative cost at the time of registration only, they were ready to deposit 70% of the tentative cost at the time of allotment of the land. However, some of the stone-crushers, who were in a position to pay 20% of the tentative cost at the time of registration, were finally allotted the plots in the year 1994. [7] It may be clarified that there are two sets of petitioners before this Court. The first group belongs to those who were forced to close down their stone crushing units in compliance to the order dated 15.05.1992 passed by the Hon'ble Supreme Court. The others are those who are now required to shift their units in terms of the notification dated December 18, 1997, whereby the siting parameters have been changed. [8] The Government of Haryana in exercise of its power C.W.P NO. 15242 OF 2001 -7- under Section 5 of the Environment (Protection) Act, 1986 read with the powers conferred upon vide Government of India, Ministry of Environment and Forest, Department of Environment's notification dated 10.02.1988, notified new siting-parameters on December 18, 1997 and also identified the new zones to make available sites to the stone crushers who were to be uprooted for their failure to fulfill the prescribed siting-parameters. Schedule- IV of the notification laid down the procedure for establishment and operation of the stone crushing units in the identified zones. Paragraphs 1 to 2.2 thereof being relevant are reproduced below:

"1. Existing Stone Crushing Units working anywhere in the State of Haryana which do not fall in the areas as specified in Schedule-I or in identified zones as per Schedule-III will have to either shift after obtaining consent to establish (NOC) from Haryana State Pollution Control Board to a site meeting the sitting criteria as per Schedule-I or at available sites in the identified crushing zones as per Schedule-III or close down the unit without involving any claim against any Authority.

2. The following policy will be adopted for the consideration of the applicant for consent to establish (NOC) for setting up of crushing units C.W.P NO. 15242 OF 2001 -8- in the identified zones as per Schedule-III in order of following priority :

2.1 The first priority will be given for such crushing units which were ordered to be closed down or ordered to be shifted under the final orders of any Judicial Authority from their previous location anywhere in Haryana. But no stone crushing unit will be considered for resiting anywhere outside the district where they were previously operating according to the district boundaries as applicable on the date when the Judicial Orders restraining them came in force. Inter se priority of such crushing units for resiting will be made according to the datwe hen the Judicial Order came in force. However, such stone crushing unit shall have to file a complete application for the Consent to Establish (NOC) to the Haryana State Pollution Control Board for the issue of Consent to Establish (NOC) within a period of six months from the date of the judicial order. However, the said period of six months may be extended for another six months by the Haryana State Pollution Control Board. Any relaxation beyond this period for a further period of six months C.W.P NO. 15242 OF 2001 -9- may be granted in public interest by the State to Establish (NOC) which could not be accepted for want of availability of site will, however, be treated as not time barred and limitation period will commence from the date of availability of site within the identified zone.

2.2 The second priority would be given for stone crushing unit for resiting which were closed by the Haryana State Pollution Control Board or the Government of Haryana, Environment Department on account of non- compliance of siting criteria norms. The time limit for such applications will be according tot he criteria as specified in para 2.1 above".

[9] The petitioners who were the existing stone crushing units and most of them had been ordered to be closed down in compliance to the directions issued by the Hon'ble Supreme Court, were to be given first priority in the matter of allotment of sites in the newly carved out zones as provided in Clause 2.1 of the Schedule IV of the Notification. The others are those who have been affected by the newly prescribed siting-parameters and were required to shift to the notified/prescribed crushing- zone and are entitled to have second priority in terms of Clause 2.2 of Schedule-IV of the Notification, as reproduced above. C.W.P NO. 15242 OF 2001 -10- [10] In order to implement the notification dated December 18, 1997, the Haryana State Pollution Control Board issued an advertisement, commencing on 24.08.2001 whereby applications were invited for allotment of stone crushing sites (each measuring one acre) at the notified stone crushing-zones in District Faridabad. Clause 5 of the advertisement stipulated that "allotment of the plots shall be governed by the provisions contained in the Haryana Government, Environment Department Gaz. Notification dated December18, 1997 and Rules/Regulations framed thereunder and amended from time to time". Nevertheless, the Pollution Control Board also inserted Clause 9 which reads as follows :

"9. The applicants will submit complete applications and shall be interviewed by the Committee constituted for the purpose. The decision of the committee for allotment of the plot shall be final".

[11] Apprehending that notwithstanding their entitlement for allotment on priority basis, as provided in paras 2.1 and 2.2 of the notification dated December 18, 1997, they might be deprived of the allotments on the pretext of poor performance in 'interview by the Committee', that the petitioners have approached this Court by way of these writ petitions. C.W.P NO. 15242 OF 2001 -11- [12] Notice of motion was issued and as an interim measure, the respondents were directed to keep one plot reserved for each petitioner. The respondents have filed their respective counter-affidavits.

[13] The solitary question that arises for consideration is as to whether or not the respondents are entitled to 'interview' the petitioners for the purpose of determining their eligibility for allotment of the stone crushing sites ?

[14] So far as the first set of petitioners is concerned, there is indeed no dispute that they were asked to close down their stone crushing units under the orders dated 15.05.1992 passed by the Hon'ble Supreme Court and were required to be rehabilitated in the new crushing zone setup for such closed units. There is a clear mandate in direction no.7 of the Supreme Court order that even if there was insufficient land in the new crushing-zone developed by the Town and Country Planning Department, Haryana, the respondents were obligated to acquire more land to accommodate all such stone crushers. It would necessarily mean that the respondents had no discretion but to allot a site to the first set of the petitioners who were admittedly close down under the orders of Hon'ble Supreme Court. The holding of an interview by the Committee for the purposes of determining their eligibility or suitability is, therefore, an empty formality and an exercise in futility. It is a contumacious attempt by the Executive to frustrate the relief to which they were entitled C.W.P NO. 15242 OF 2001 -12- to be given under the orders of the Apex Court. This shall, however, would not preclude the respondents from imposing lawful terms and conditions of the allotment like that the allotted land shall be utilized for the purpose of running a stone crusher unit only or that an allottee shall ensure that its unit causes no pollution or abide by the payment schedule, if any, etc. [15] It is true that the petitioners in the first set of cases did not avail the opportunity of allotment offered to them in the year 1992, but to their own dis-advantages only. There is a substantial difference in the 1992 allotment price as compared to the revised price of the year 2001. The sites of two crushing zones are also different. Their stone-crushers have also remained defunct for a longer period. Besides this, the notification dated 18.12.1997 is statutory in character and it does not contemplate any discretion in the matter of allotment provided that an applicant fulfills the eligibility criteria. The said notification confers first priority in allotments to the stone-crushers like the petitioners of the first set of cases. Clause 9 of the impugned advertisement, thus, not only violates the mandate of the Apex Court, it also runs contrary to the spirit of the notification dated 18.12.1997 and is accordingly quashed qua those stone-crushers who have been closed down under the orders dated 15.05.1992 passed by the Hon'ble Supreme Court.

[16] Adverting to the second set of petitioners,namely, those running units who have been or to be closed down due to C.W.P NO. 15242 OF 2001 -13- the changes in siting parameters made vide notification dated 18.12.1997, I am of the considered view that the Clause 9 of the advertisement dated 24.10.2001, as such, cannot be invoked in their cases also provided that they are found eligible. The interview can be for the limited purpose of verifying as to whether or not their existing stone crushing units are liable to be closed down due to changes in the siting-parameters and they fall within the ambit of paragraph 2.2 of the Schedule IV of the notification dated December 18, 1997. Once the respondents are satisfied that the petitioners in the second set of cases are those stone crushing units who have been closed down or are liable to be shifted due to changed siting norms,, they also cannot be deprived of the allotment on the pretext of any so called unsuitability which the Interviewers might observe. In other words, the Interviewing Committee would be entitled to satisfy itself with regard to the eligibility only may be through the documents attached with the application forms or by way of an interview.

[17] Consequently, it is directed that in the cases of second set of the petitioners, the interview, if any, shall be held for the limited purpose of ascertaining their eligibility and not the suitability.

[18] For the reasons and the terms stated above, these writ petitions are allowed and the respondents are accordingly directed to allot the plots to the petitioners within a period of C.W.P NO. 15242 OF 2001 -14- three months from the date of receipt of certified copy of this order.

[19]      No costs.




MARCH 21,2009                       (SURYA KANT)
shalini                                 JUDGE