Punjab-Haryana High Court
M/S Bhalla Ball Bearing Industries And ... vs State Of Punjab And Others on 13 August, 2010
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 2006This 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 force the Town Planning No.5 Part II Scheme in the year CWP No.20792 of 2006 -18- 1976 and even if, NOC to this effect has been issued by M.C. Phagwara, the same is liable to be cancelled/revoked and the mistake rectified in the general interest of the public at large residing in this approval residential locality. These industrial units are definitely a source of nuisance and noise pollution and thus can not be allowed to operate. The undersigned thus has been left with no other option but to direct these industrial units to stop their operation as well as to shift out of this residential locality which would be in consonance with the orders dated 14.10.2003 passed by the Hon'ble Punjab and Haryana High Court in Civil Revision No.1692 of 2002 titled as Smt. Vidya Bhullar Vs. State of Punjab and others.
In view of the above, the industries in question are directed to stop operation and shift to any other appropriate place, either of their own or on getting alternate accommodation from the Industries Department, Punjab as early as possible but not more than one year in any case. They are further directed that during this one year also they would take all possible steps, so that the residents staying in the residential area are not inconvenienced on account of their operations. The NOC, if issued to any of these industries, hence stands cancelled/withdrawn. A copy of this order is being sent to all notices for compliance and also being sent to the Punjab Pollution Control Board, Punjab State Electricity Board as well as Department of Industries for information and further necessary action."
In pursuance to the decision taken by the Municipal Council, Phagwara, notices/directions were issued by the Punjab Pollution CWP No.20792 of 2006 -19- Control Board to the industries under Section 31-A of the Air (Prevention and Control of Pollution) Act, 1981 as amended in 1987 The directions issued read as under: -
"Whereas the direction u/s 31-A of the Air (Prevention and Control of Pollution) Act, 1981 was confirmed to the industries vide Board's letter No.25180 dated 30.10.2003 as under: -
1. That the industry shall dismantle and remove all outlets and stop forthwith discharge its emission into the air.
2. That the industry will not restart any process unless all necessary air pollution control measure are taken and concentration of various pollutants in its air and noise emissions confirm to the standards laid down by the Board for such discharge.
3. That the industry will not restart discharging emissions until it obtains the consent of the Board u/s 21 of the Air (Prevention and Control of Pollution) Act, 1981 as amended in 1987.
4. That the Punjab State Electricity Board authorities will be directed to disconnect the supply of electricity available to the industry.
5. That the Executive Officer, Municipal Council Phagwara will be directed to ensure the compliance of the meeting taken by Chief Secretary, Govt. of Punjab on 7th July 2003.
And whereas Executive Officer, Municipal Committee, Phagwara has passed the orders vide CWP No.20792 of 2006 -20- its No.1652/G dated 15.6.2004 in which the E.O. have directed to stop the operation of the industries and to shift any other appropriate place, either of their own or getting alternate accommodation from the industries department, Punjab as early as possible but not more than one year in any case. Industry is further directed that during this one year also the industries would take all possible steps so that the residents staying in the residential area are not inconvenienced on account of industrial operation.
And whereas the Director of Industries, Department of Industries and Commerce Govt. of Punjab decided vide its order dated 7.6.2004 that the industries would form a society and get it registered within 30 days. This society will purchase the land available with the State Govt. at village Phagwara Sharki and would develop the same on their own, the industry would subsequently shift their industrial operation from the area of town planning scheme No.5 Part II to this land. Further it has been decided that the industries would shift within one year at village Phagwara Sharki. The Association would also furnish individual affidavits of the owners of the industries, undertaking to agree to the above decisions. The industry has made representations, inter alia highlighting the above facts.
Now therefore, I, Rana K.P. Singh MLA, Chairman, Punjab Pollution Control Board, in exercise of the powers conferred upon the Board u/s 31-A of the Air(Prevention and Control of Pollution) Act, 1981 as amended in 1987, having been fully satisfied that in the peculiar facts and circumstances and in view CWP No.20792 of 2006 -21- of the orders passed by E.O. Municipal Council Phagwara and Director Industries & Commerce, Punjab, this is a fit case warranting modifications of the earlier directions as under: -
1. Industry will shift to the designated area as per the advise of the Director, Department of Industries and Commerce, Govt. of Punjab order dated 7.6.2004 and No.1652/G dated 15.06.2004 passed by the Executive Officer, Municipal Council, Phagwara.
2. Direction already issued vide letter No.25180 dated 30.10.2003 be kept in abeyance till industry shift from residential area to designated industrial area as early as possibly but not more than one year in any case.
3. Industry will ensure that no inconvenience on account of its operation in residential area is caused to the residents during its operation at existing site failing which the Board reserves its rights to enforce the directions already issued vide letter No.25180 dated 30.10.2003. The industry would not create noise pollution beyond the limits prescribed by the law.
In case of failure to comply with the above directions, you shall be liable for action u/s 37(1) of the Air(Prevention and Control of Pollution) Act, 1981 as amended in 1987."
Some of the industrialists being aggrieved by the action taken by the Municipal Council, Phagwara, directing them to close their CWP No.20792 of 2006 -22- industries, approached this Court by filing civil writ petition No.9006 of 2005, praying therein to consider the proposal of the Municipal Council to abandon the T.P. Scheme, under Section 443 of the Punjab Municipal Act 1999 in a time bound frame and till then not to implement the order dated 15.6.2004. Prayer was also made to quash the order vide which the directions were issued to the industrialists to move out of the residential area.
The said writ petition was disposed of by the Hon'ble Division Bench by passing the following order: -
"Petitioners are aggrieved by the order dated 15.6.2004 (Annexure P-10) passed by the Executive Officer, Municipal Council, Phagwara directing them to close down the industries which they are running in the residential area. This order has been passed in the light of the orders passed by this court in Civil Revision No.1692 of 2002 and Civil Writ Petition No.12041 of 2003.
According to the petitioners they had undertaken to shift out their industrial unit in view of T.P. Scheme No.5 framed by the Municipal Council, Phagwara. Petitioners claim that the Municipal Council itself had abandoned the Scheme vide Resolutions dated 10.5.1996, 5.1.2001, 28.11.2003 and 29.11.2004. It has also been explained that the order dated 15.6.2004 (Annexure P-10) was not challenged earlier in view of resolution dated 29.11.2004. Petitioners point out that a time of one year granted to them vide the impugned order is to expire on 15.6.2005.
Before approaching this court, some of the petitioners had made representation dated 4.2.2005 CWP No.20792 of 2006 -23- (Annexure P-11) in this behalf to respondents No.1 and 2 copies of which were also forwarded to respondent No.3 and 4. Since no action was taken on the said representation, a reminder was sent vide letter dated 15.3.2005 (Annexure P-12). Petitioners complain that even the reminder has also failed to evoke any response.
For the view that we are taking, we do not deem it necessary to issue notice to the respondents and dispose of this writ petition with a direction to the respondents to consider the representations Annexure P-11 and P-12 of the petitioners and dispose of the same in accordance with law by passing a speaking order thereon.
Petitioners shall appear before respondent No.1 on June 6, 2005 and supply him copies of representations as also a copy of this order. The necessary order shall be passed by respondent No.1 on or before 30.06.2005.
Till then dispossession of the petitioners shall remain stayed."
Civil Writ Petition No.9519 of 2005 filed by some of the industrialists was also disposed of in the same terms as ordered by the Hon'ble Division Bench in CWP No.9006 of 2005.
The representation made by the industrialists for dropping the T.P. Scheme No.5 Part II was accepted and a notification was issued on 30.6.2005 for dropping the scheme.
The order passed by the Government of Punjab reads as under:
"No.4/36/2001-(31.G3)4LG(3)/9414. In exercise of the powers conferred under Section 192 of the Punjab Municipal Act 1911 read with Section 19 of the Punjab General Clauses Act, 1898, and all other CWP No.20792 of 2006 -24- powers enabling him in this behalf, the Governor of Punjab is pleased to drop the Town Plan Scheme No.5 Part 2 sanctioned vide order No. 1122-6C 111- 76/2523 dated 07.07.1976, as resolved by Municipal Council, Phagwara vide resolution resolved by Municipal Council, Phagwara vide resolution No.167 dated 19.11.2004 on the condition that the existing roads and open spaces in the scheme area which already stands dedicated to public use will be preserved and may be declared as public street under Section 171 of the Punjab Municipal Act, 1911."
In view of the order referred to above, the representation made by some of the industrialists in pursuance to the order passed by this Court in CWP Nos.9006, 9512 and 9519 of 2005 was disposed of having been rendered infructuous.
The order passed by the Government of Punjab on representation by the industrialists reads as under: -
"M/s Rolex Fuel Pipes (Regd) Hadiabad, Phagwara alongwith 10 others filed C.W.P. No.9006 of 2005 in the Hon'ble High Court praying therein that the orders passed by the Executing Officer, Municipal Council, Phagwara on 15th June 2004, Annexure P- 10 whereby a direction was given to the petitioners to shift their respective industrial units from the scheme area within a period of one year may be quashed and that the Respondent No.1 may be directed to consider the proposal submitted by Municipal Council Phagwara in respect of abandonment of the Town Planning Scheme and till then the order Annexure P-10 may not be enforced qua the petitioners. The Hon'ble High Court was CWP No.20792 of 2006 -25- pleased to dispose of the writ petition on May 31, 2005 with the following operative direction: -
For the view that we are taking, we do not deem it necessary to issue notice to the respondents and dispose of this writ petition with a direction to the respondents to consider the representations Annexure P-11 and P-12 of the petitioners and dispose of the same in accordance with law by passing a speaking order thereon.
Petitioner shall appear before respondent No.1 on June 6, 2005 and supply him copies of representation as also a copy of this order. The necessary order shall be passed by respondent No.1 on or before 30.06.2005.
Till then dispossession of the petitioners shall remain stayed.
In the representation Annexure P-11 and P-12, the petitioners have mainly contended that: -
1. A Town Planning Scheme was proposed in the year 1967 by Council but it was ultimately sanctioned in the year 1976 and during long period of 10 years large number of constructions were raised in the scheme area;
2. That by the time the scheme was finally approved in the year 1976, the scheme lay out already stood substantially disturbed and it was not possible for Council to amend the same, therefore, Council developed the civic infrastructure accordingly by spending CWP No.20792 of 2006 -26- large amount.
3. That ultimately Administrator of Council in the year 1996 ordered that the scheme cannot be implemented therefore may be dropped.
4. That Council itself has referred in its proceedings that 85% of the area has been developed contrary to scheme lay out and in these circumstances Council passed resolution on 05.01.01, 28.11.2003 and 29.11.2004 to drop the scheme. Therefore, the dropping of the scheme is in the interest of the general public as well as Municipal Council Phagwara as it will generate considerable revenue in the form of building application fee and other levis etc. When the Govt. was in the process of making compliance of the Hon'ble High Court order dated
31.05.05, Govt. received two more orders of the Hon'ble High Court passed in CWP No.9512 and 9519 of 2005 dated 10.06.2005 wherein the relief prayed in CWP No.9006 of 2005 was prayed. The Hon'ble High Court was pleased to dispose off the said petitions in terms of the order earlier passed on 31.05.05 in CWP No.9006 of 05.
The petitioners were accorded personal hearing on 15th June 2005.
Since the main prayer of the petitioners was to accept the resolutions dated 05.01.01, 28.11.2003 and 29.11.2004 for dropping of the Town Planning Scheme No.5 Part II, therefore, it was incumbent upon Government to take decision in this respect, CWP No.20792 of 2006 -27- first. After careful examination of all the facts, vide notification dated 30th June/1st July 2005, Govt. has decided to drop the said Town Planning Scheme subject to the condition that public utility services i.e. roads/streets/parks etc. already laid in the said scheme will remain intact as those areas have already been dedicated for public use. Thus, the prayer of the petitioners as made in Annexure P-11 & P-12 in respect of acceptance of the resolutions of the Municipal Council, Phagwara dated 05.01.01, 28.11.2003 and 29.11.2004 has already been adjudicated and decided, therefore, the representations Annexure P-11 and P-12 renders infructuous.
A copy of this order may be sent to petitioners and all other concerned for their information and further necessary action."
Smt. Vidya Bhullar being aggrieved by the notification, dropping the T.P. Scheme No.5 filed a contempt petition in this Court i.e. COCP No.566 of 2004.
This Court passed the following interim order on the contempt petition: -
"Civil Revision No.1692 of 2002 came up for consideration before this court on 8.5.2003. Hon'ble Mr. Justice Viney Mittal was pleased to pass the following order: -
"It is apparent from the perusal of the record of this case that the plaintiff filed a suit for permanent injunction restraining the defendant-respondents from running their factories in the residential area. The claim of the plaintiff-petitioner is that they CWP No.20792 of 2006 -28- have constructed the house after getting the necessary sanction from the Municipal Committee. On that basis, it is maintained by the learned counsel for the petitioner that neither the Pollution Control Board nor the Punjab State Electricity Board and the Municipal Committee was taking any step to check the noise and air pollution in the residential locality.
It is apparent that in the situation as exists in the aforesaid locality, either the residential houses shall have to be shifted and for that purpose the respondents shall have to bear the necessary expenses for relocation and compensation for the constructed portion of the residents or in the alternative the industries causing pollution and working in the locality, shall have to be closed or shifted.
The learned counsel appearing for respondents No.11,12 and 13 have sought time to seek necessary instructions in this regard.
Adjourned to May 15, 2003.
Some senior officers on behalf of respondents No.11, 12 and 13 be present on the adjourned date.
A copy of this order be given dasti under the signatures of Bench Secretary to the learned counsel for the parties."
On 15.5.2003, learned State counsel appeared before the court and stated that a policy decision was required to be taken to redress the grievance of the petitioners and had sought some more time to do the CWP No.20792 of 2006 -29- needful according to the facts and circumstances of the case. Accordingly, on 15.5.2003, his Lordship was pleased to pass following order: -
"Vide order dated May 8, 2003 the senior officers of respondents No.11, 12 and 13 were directed to be present in the court. Accordingly, Ms. Gurvwinder Randhawa, Executive Officer, Municipal Committee Phagwara Respondent No.11, Shri Surinder Pal Singh, Asstt. Executive Engineer, Punjab State Electricity Board, Sub Division Hadiabad, Phagwara and Shri Sandeep Behal, Executive Engineer, Pollution Control Board, Jalandhar are present in the court in person.
While passing the order on May 8, 2003, this court had noticed that in the situation as existed in the aforesaid locality, where the petitioners are living in residential house, adjacent to their houses, industries were causing noise pollution water pollution and air pollution. On that basis the petitioners had made a grievance by filing the present suit for permanent injunction to restrain the industries from operating and causing the nuisance. An application for grant of ad-interim injunction was also filed. The petitioners claimed that the industries were liable to be closed.
After hearing learned counsel for the parties at some length, I find that effective steps have to be taken by respondents No.11, 12 and 13 for redressal of the CWP No.20792 of 2006 -30- grievances of the petitioner. In fact, the State Government has to participate in the proceedings. On that basis, let the State of Punjab through Chief Secretary be also impleaded as respondent No.15 in the present case.
Mr. P.S. Thiara, Additional AG Punjab accepts notice on behalf of newly added respondent No.15. The learned counsel for the respondents had submitted that in fact a policy decision shall have to be taken to remove grievances of the residents of the locality. They pray for time. Keeping in view the facts and circumstances of this case, the matter is adjourned to July 28, 2003.
Copy of the order dated May 8, 2003 and the present order be given dasti on usual payment.
Before parting with this order, the court also expresses the hope that necessary effective steps required in the situation, shall be taken by the official respondents so that the grievances of the petitioners could be redressed."
Thereafter minutes of the meeting held on 7.7.2003 were placed before the court. It is appropriate to mention that the aforementioned meeting was chaired by the Chief Secretary to Government of Punjab. According to the minutes of the meeting some decisions were taken which read as under: -
After deliberating the issue in detail, the following decisions were taken:
"1. Municipal Council Phagwara will CWP No.20792 of 2006 -31- 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 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, Labour and Employment, Principal Secretary, Industries and Commerce, Principal Secretary Local Self Government, Principal Secretary, Housing and Urban Development and Secretary, Science, Technology and CWP No.20792 of 2006 -32- 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."
(Emphasis added) On the basis of the aforementioned decisions of the Committee, this court on 28.7.2003 held that no further orders were required to be issued at that stage and also observed that the respondent authorities were to implement the decision taken in the meeting on 7.7.2003 (supra), in accordance with law.
As highlighted in the reply of the Chief Secretary, Sh. J.S. Gill, has pointed out in para Nos. 7 and 8 that certain industries filed C.W.P. No.12041 of 2003 where certain directions were issued. It was also directed that the petitioners in C.W.P. No.12041 of 2003 were to appear before the Executive Officer, Municipal Council, Phagwara on 28.10.2003. The Municipal Council, Phagwara was left free to pass appropriate effective orders for implementing the direction given by Hon'ble Mr. Justice Viney Mittal CWP No.20792 of 2006 -33- in Civil Revision No.1692 of 2002. It was further observed that it would be in the interest of all that the scheme already devised for shifting the industrial units from residential area of Phagwara is implemented in its true letter and spirit. The observation of the Division Bench while disposing of C.W.P. No.12041 of 2003 shows that the scheme devised in pursuance to the directions issued in Civil Revision No.1692 of 2002 has been approved by the Division Bench. Accordingly, a committee was constituted on 18.9.2003 to relocate the industries operating in T.P. Scheme No.5 (Part II) Phagwara and a meeting was held on 25.11.2003 under the Chairmanship of Chief Secretary wherein following decisions were taken: -
i. No new industrial unit should be allowed to be established in future in the area notified under Town Planning (TP) Scheme 5 Part II.
ii. Possibilities be explored to shift the existing industrial units in consultation with the Department of Town Planning as per the recommendations of Committee constituted in the meeting held on 30.10.2003.
Alternative land available may either be developed by the industrial units themselves or by Punjab Small Industries & Export Corporation. PSIEC may be asked to prepare rought cost estimates.
Municipal Council, Phagwara should not give "No Objection Certificate" to establish new industrial units in the said CWP No.20792 of 2006 -34- area. Suitable action against those who have raised illegal construction without the approval of the Municipal Council, may be taken as per law.
Municipal Council Phagwara also passed an order dated 15.6.2004, whereby the industries operating in the locality of T.P. Scheme No.5 Part II Phagwara have been directed to stop operation and shift to any other appropriate place, either of their own or on getting alternative accommodation from the Industries Department, Punjab as early as possible but not more than one year in any case. A copy of the order dated 16.6.2004 has also been placed on record (R-3). The aforementioned decisions have been taken in pursuance to the directions issued by Division Bench of this Court in C.W.P. No.12041 of 2003. The matter had proceeded in accordance with directions of the court so far.
However, respondents and the authorities of the Local Government Department developed some strange thinking after receiving the order dated 31.5.2005, passed in C.W.P. No.9006 of 2005, 9512 of 2005 and 9519 of 2005. The prayer made in those writ petitions was to quash the orders passed by this court in Civil Revision No.1692 of 2002 and C.W.P. No.12041 of 2003. The Division Bench while disposing of C.W.P. No.9006 of 2005, noticed that the petitioners therein had already filed representations and it was considered appropriate to direct the respondents to dispose of their representations, which were pending consideration.
The petitioners in those cases were asked to appear before respondent No.1 i.e. the Director, Department of Local Government, Punjab.
CWP No.20792 of 2006 -35-However, the Principal Secretary to Government of Punjab, Department of Local Government, instead of deciding the above mentioned representations in accordance with law by referring to the binding directions issued by this Court in Civil Revision No.1692 of 2002 and C.W.P. No.12041 of 2003, decided to drop T.P. Scheme No.5 Part II Phagwara, which was approved in the year 1976. The purpose appears to be to circumvent the view taken by the earlier committee presided over by the Chief Secretary Shri Jai Singh Gill, which has expressed the view that the site plans of various industrialists have been approved in contravention of the Town Planning Scheme No.5 Part II Phagwara and certain officers who were responsible for sanctioning of the site plan were to be proceeded against.
Without taking into consideration any of the binding directions issued in Civil Revision No.1692 of 2002 and C.W.P. No.12041 of 2003, Shri B.R. Bajaj, I.A.S, Principal Secretary to Government of Punjab, Department of Local Government, had preferred an opinion, which was in fact not available to him. He was already under obligation on account of the binding directions issued by this Court, which were being monitored and substantiated by the committee headed by the Chief Secretary. Therefore, on the pretext of deciding the representations in pursuance to the directions issued by this court in C.W.P. No.9006, 9512 and 9519 all of 2005, the above named officer has flagrantly violated the directions of this court in letter and spirit. There is a prima facie case of contempt against the aforementioned contemner.
Before recording a final opinion with regard to the CWP No.20792 of 2006 -36- conduct of the contemner, it would be appropriate to grant him one opportunity to appear before the court and to explain his conduct as to how he has passed the order dated 6.7.2005 (R-2) by dropping the T.P. Scheme No.5 Part II Phagwara, which was the major objection against the sanction of the site plans of industries.
Sh. B.R. Bajaj is impleaded as respondent No.2 in the instant contempt petition on the oral request made by Mr. R.L. Sharma learned counsel for the petitioners. Let notice be issued to Shri B.R. Bajaj for 3.4.2006, on the following address: -
Shri. B.R. Bajaj IAS, Principal Secretary to Government of Punjab Department of Local Government, Punjab Civil Secretariat, Chandigarh."
On issuance of notice, the State of Punjab revived T.P. Scheme by withdrawing order passed for dropping the T.P. Scheme No.5 Part II referred to above.
The order passed by the State Government reads as under: -
"Whereas Municipal Council, Phagwara in the year 1966 resolved to frame a Town Planning Scheme for an area measuring app. 50.85 acres situated within the Municipal limits. Consequently, vide notification dated 18.09.66, the scheme area was declared as unbuilt. After following the required porocedure, the scheme to be known as Area No.5 Part II, was approved by an order of the Government dated 25.06.76.
Whereas in the year 1998, CWP No.13121 of 1998 was filed by residents of scheme area inter alia praying that Municipal Council Phagwara may be CWP No.20792 of 2006 -37- directed to remove the encroachments from roads, streets, parks carved out in the scheme area. At this stage, Municipal Council apprised the Hon'ble High Court that the impugned constructions are very old and have been raised during the period of year 1966 to year 1976, when the scheme of the area was in the process of finalization. During the pendency of this writ petition, Municipal Council, Phagwara on 05.01 resolved to request the Government that as this scheme has not been implemented in the form it was sanctioned on 25.06.76, therefore, the scheme may be dropped. This civil writ petition was finally admitted by the Hon'ble High Court on 29.07.01 with the observation that Government is free to take appropriate decision in respect of the prayer of the applicants.
Whereas, Smt. Vidya Bhullar, a resident of T.P. Scheme No.5 Part II filed a civil suit for perpetual injunction prohibiting the running of industrial units in the scheme area. The prayer for interim relief was denied by the Hon'ble Civil Court and also the first appeal against this order was dismissed. Ultimately, plaintiff filed a civil revision No.1692 of 2002 in the Hon'ble High Court. On 15.03.03, the Hon'ble Court was intimated by the Government that a policy for shifting of industries from scheme area is solicited. Consequently, a Committee of officers of different departments headed by Chief Secretary was constituted and this Committee in its meeting dated 07.07.03 decided to direct Municipal Council, Phagwara to withdraw sanctions of building plan, which were wrongfully given against the terms of scheme lay out and that the industries may be shifted in phased manner. These recommendations of CWP No.20792 of 2006 -38- committee were approved by the Hon'ble High Court in its interim order dated 28.07.03. Whereas in pursuance to the interim orders of the Hon'ble High Court dated 28.07.03, Municipal Council, Phagwara served show cause notices dated 17.10.03 on the industries and finally it passed an order dated 15.06.04, inter alia directing the notices/industry owners to shift their industries within a period of one year. It may however, be referred here that prior to this decision dated 15.06.04, Municipal Council had resolved on 28.11.03 to drop the scheme No.5 Part II because 85%-90% of the scheme area has not been developed as per the scheme layout and it is not possible to implement the scheme. Similarly, resolution was again passed on 29.11.04.
Whereas, CWPs No.9006, 9512 and 9519 of 2005 were filed by the industry owners of scheme No.5 Part II of Phagwara in the Hon'ble High Court inter alia praying that the order of Municipal Council dated 15.06.04 may be set aside/annulled and that Government may be directed to take decision in respect of the resolutions passed by Municipal Council for dropping of the scheme, in a time bound manner. The Hon'ble High Court in CWP No.9006 of 2005 vide orders dated 31.05.05 directed the Government to decide the representation of the petitioners after affording opportunity of hearing. The Hon'ble High Court also disposed of CWPs No.9512 of 2005 on similar lines as were given in CWP No.9006. In faithful compliance of the directions of Hon'ble High Court, the petitioners were heard and when on perusal of record it was confirmed that appr. 90% of the scheme layout as CWP No.20792 of 2006 -39- was sanctioned on 25.05.76 by the Government stands disturbed at site and it is not feasible to implement the scheme especially when Municipal Council has already laid necessary civic infrastructure in the area, a bonafide decision was taken on 30.06.05 to drop the scheme and the claim of petitioners were then decided by passing a speaking order accordingly.
Whereas, the petitioner of C.R. No.1692 of 2002 approached the Hon'ble High Court by filing COCP No.5667 of 2004 inter alia contending that the respondents named in the petition have not implemented the decisions dated 07.07.03, which were approved by the Hon'ble High Court on 28.07.03, therefore, they may be proceed against under the contempt of Courts Act. Hon'ble High Court in this petition on 08.03.05 passed an interim order inter alia observing that the decision of the Government dated 30.06.05 has been taken contrary to the directions of the Hon'ble High Court given in C.R. No.1692 of 2002, which directions were binding in nature, therefore, the Hon'ble Court on request of the petitioner also arrayed Principal Secretary Local Government Department by name as respondent. Whereas, reply by way of affidavit dated 03.04.06 was filed on behalf of Principal Secretary Local Government Department in C.O.C.P. No.566 of 2004 inter alia apprising the Hon'ble Court that the decision dated 30.06.05 is bonafide and has been taken in faithful compliance of the High Court directions given in CWP No.9006, 9512, 9519 of 2005 and the answering respondent has all regards for the orders passed by Hon'ble High Court. However, the Hon'ble High Court on 17.07.06 has CWP No.20792 of 2006 -40- again observed that so long the directions given by the Hon'ble High Court in C.R. No.1692 of 2002 were operative, the scheme of the area could not be dropped and that Court has given an opportunity to reconsider the order dated 30.06.05 and to ensure the faithful and bonafide compliance of the directions of the Hon'ble High Court, which have been noticed in the order dated 09.03.06.
Now, in view of the circumstances explained above, the resolutions of Municipal Council Phagwara dated 05.01.01, 28.11.03 and 29.11.04 referred to in the representations of petitioners in CWP No.9006, 9512 and 9519 of 2005 are admitted contrary to the directions given by the Hon'ble High Court on 28.7.03, therefore, these resolutions cannot be accepted. Resultantly, these resolutions are hereby rejected/annulled. Resultantly, the notification dated 30.06.05 thereby dropping the scheme No.5 Part II of Municipal Council Phagwara and the subsequent speaking order passed accordingly are hereby reviewed, recalled and withdrawn. Necessary notification may be issued accordingly."
After revival of the Town Planning Scheme in pursuance to the withdrawal of the orders by the State Government, Municipal Council, Phagwara, again issued notice to the petitioner-industrialists to shift their units. The notices issued by the Municipal Council, Phagwara, which have been impugned, have been annexed as Annexures P-21 to P-23.
Reply to the notices has been sent through counsel for the industrialists, wherein it was stated that before the petitioners could be directed to close their industries, they should first be allowed alternative CWP No.20792 of 2006 -41- sites with infrastructure for running the industries with proper period of time which was one year. The reason pleaded was, that the petitioners could not shift the industries earlier because the scheme itself was dropped.
Harjit Singh and others filed civil writ petition No.14592 of 2006 to challenge the order of revival of T.P. Scheme No.5. Thereafter the petitioners have also started making representations for allotment of alternative plots.
This Court on 21.10.2008 passed the following interim order on the contention raised by the parties to the writ petition that the directions issued by the Hon'ble Division Bench in CWP No.13121 of 1998 have not been complied with in letter and spirit: -
"Our attention has been drawn to the comprehensive directions issued by the Division Bench in C.W.P. No.13121 of 1998 on 20.8.2007. According to Mr. R.C. Dogra, learned senior counsel for the petitioners, the directions have not been carried out in letter and spirit. The subsequent order dated 5.10.2007 has also been brought to our notice which further issue directions for filing of status report by the Department of Industries, the Deputy Commissioner, Kapurthala and Municipal Council, Phagwara. It has been pointed out by Mr. Dogra that directions issued by this Court in both the aforementioned orders have not been complied with. He has pointed out that there are still residential houses in the park which has been contested by Mr. R.L. Gupta, learned counsel for the Municipal Council Phagwara on the instructions of Shri Adarsh Kumar Sharma, Executive Officer, Municipal CWP No.20792 of 2006 -42- Council, Phagwara.
However, we find that there is no comprehensive affidavit giving details about the implementation of the directions issued by this Court on 20.8.2007 and on 5.10.2007.
The Deputy Commissioner, Kapurthala, the Department of Industries as well as Municipal Council, Phagwara, are directed to file comprehensive status report in respect of compliance of all the directions. The status reports be filed on or before 17.11.2008. A copy of the status report be supplied to the learned counsel for the petitioners as well as learned counsel for private respondents. The matter be listed for hearing on 20.11.2008. A copy of the order be given dasti to the learned State counsel as well as counsel for Municipal Council, Phagwara, on payment of usual charges. A photocopy of this order be placed on the files of all connected cases."
Again on 20.11.2008, this Court passed the following order: -
"A status report by the Department of Industries has been placed today in the Court and a copy thereof has been furnished to the counsel for the petitioners. On 21.10.2008, a contentious issue was raised between the parties with regard to the existence of residential houses in the park area. Accordingly, we had directed the Deputy Commissioner, Kapurthala, Department of Industries as well as Municipal Council Phagwara to file comprehensive status report in respect of compliance of all the directions issued by this Court on 20.8.2007 and 5.10.2007. The affidavit of Sh. Adarsh Kumar Sharma dated 15.11.2008 has been brought on record which explains that access to park no. P-3 & P-4 has been CWP No.20792 of 2006 -43- made and there is no hindrance in the free movement of the general public on their way to these parks. He has further deposed that open spaces/parks have already been partially covered through boundary wall and partially through fencing with iron wire and concrete pillars. However, in the instant affidavit, nothing has been said about the residential houses. For the aforementioned purpose, we have been invited to the affidavit dated 11.8.2007 where the Executive Officer, Sh. Paramjit Singh has deposed that the Municipal Council, Phagwara has removed the encroachments caused by the projections and by the footsteps/ramps from the residential houses. Mr. R.C. Dogra, learned senior counsel has stated that there is still residential house encroaching upon the park land in park no.3.
The aforementioned statement made by learned counsel has not only been contested by Mr. R.L. Gupta, learned counsel for the Municipal Council, Phagwara after obtaining instructions from Adarsh Kumar Sharma, Executive Officer, Municipal Council, Phagwara, but it has also been vehemently argued that if the statement made by the petitioner through his counsel is found to be correct then the Municipal Council is prepared to face any punishment.
However, a perusal of various affidavits filed on record shows that no specific affidavit has been filed with regard to demolition of house belonging to one Sh. Tarsem Lal in park P-3 which was built on the parkland. In the affidavit dated 25.1.2008, the only statement made by the Executive Officer is that the Municipal council has retrieved the possible encroachment/deviated area in park no.3 and park CWP No.20792 of 2006 -44- No.4. In para no.3 of the affidavit, it has further been stated that the Municipal Council has removed the encroachment of footsteps/ramps of the residential area and has cleared the road and the streets by using JCB machine. The aforementioned statement made in the affidavit are far from being satisfactory because nothing has been said with regard to the house of Tarsem Lal son of Sh. Daulat Singh to which reference for demolition has been made in the order dated 20.8.2007.
In the aforementioned order, Tarsem Lal son of Daulat Ram has been found to be an encroacher on the land in park no.3. It has come on record that some notices were issued to him but no categorical statement has been made that he has vacated the encroached area as per the directions issued on 20.8.2007.
Mr. Gupta, learned counsel for the Municipal Council, Phagwara requests for a week's time to file specific affidavit of the Executive Officer to the effect that the encroacher has vacated the encroached area as per the directions issued in the order dated 20.8.2007.
List for further consideration on 2.12.2008. A photocopy of this order be placed on the files of all the connected cases."
On 5.2.2010 last opportunity was granted to the State Government for resolving the issues involved in this writ petition.
The order dated 5.2.2010 reads as under: -
"Mr. Puri prays for one last opportunity to seek instructions from Secretary, Department of Industries, Punjab and Secretary, Local Bodies, Punjab regarding the issue involved in this case.CWP No.20792 of 2006 -45-
In the interest of justice, one opportunity is granted. To come up on 5.4.2010.
It is, however, made clear that in case proper instructions are not supplied to the learned State counsel by the next date, this court may require personal appearance of both the aforesaid Secretaries.
Learned State counsel has placed on record the decision taken by the Government with regard to the allotment of alternative sites, which reads as under: -
"The Principal Secretary Local Government explained the position giving the background. The issue relates to the shifting of industrial units from the Town planning Scheme No.5 Part II of Phagwara town. There were 38 Industrial/Commercial/units in the area of the Scheme. Out of those, 13 units had closed or had shifted to some other sites. In pursuance of the notices given by the Municipal Council Phagwara regarding shifting of the industrial/commercial units in 2003, 5 Civil Writ Petitions were filed in which the Hon'ble High court passed the order for maintaining the Status Quo. Hence, no action could be taken. On the other hand a COCP No. 566 of 2004 has been filed in the name of Vidya Bhullar Versus Jai Singh Gill, former Chief Secretary Punjab. The issue in the COCP is that industrial/commercial units should be shifted. The status report given by the Pollution Control Board mentions that there are 23 units working in the area. Out of those 14 units cause no pollution whereas 9 units generate pollution. The Director Industries pointed that earlier those units had agreed to shift to some other site. However, this shifting did not CWP No.20792 of 2006 -46- materialize.
2. The Principal Secretary Local Government intimated about a D.O. letter written by Shri J.S. Puri, Additional Advocate General addressed to the Chief Secretary. The next date of hearing is fixed for 27-5-2010. Five Civil Writ Petitions No.20792, 14592, 14892, 15048 and 15494 - M/s Bhalla Ball Bearing and others Vs. State, respectively, have been filed and clubbed with this COCP No.566 of 2004.
3. It was decided in the meeting that Government of Punjab will observe the legal provisions under the Pollution Control enactments. Out of 38 industrial units, 13 units have closed down, 14 units are non- polluting units and the remaining are polluting units. Both the remaining 13 non-polluting and 9 polluting units have come up in residential scheme area of Municipal Committee Phagwara unauthorisedly. Both, from the point of land use as well as Pollution control angles, these units do not deserve to be there. Hence, Government of Punjab is of the view that all these industrial units should be closed down or be shifted elsewhere on their own cost. As the units have come up unauthorisedly, neither the Municipal Council nor the Government has any obligation to find any alternative land in industrial estate for these units. It was further decided in the meeting that Shri J.S. Puri, Additional Advocate General may be intimated accordingly so that no commitment regarding any help or concession is made in the Court.
The meeting ended with a vote of thanks."
Mr. G.S. Sandhawalia, learned counsel, appearing on behalf of the petitioners, challenged the impugned notice, directing the petitioners CWP No.20792 of 2006 -47- herein to shift the industries at appropriate place outside the area of Town Planning Scheme No.5 Part II, Phagwara, within 15 days, by contending, that without allotting alternative industrial plots to the petitioners, the Municipal Council had no jurisdiction to issue impugned notices in view of the orders passed by this Court from time to time.
The contention of the learned counsel for the petitioners was, that the Municipal Council, Phagwara, in fact, by way of impugned notice wants to implement the order passed by this Court in Civil Revision No.1692 of 2002.
The petitioners referred to the order passed by this Court in civil revision No.1692 of 2002, wherein the statement was made by the learned Additional Advocate General, Punjab, with regard to the minutes of the meeting held by the Chief Secretary, Government of Punjab, on 7.7.2003, wherein it was decided, that a committee was to be constituted consisting of Principal Secretary, Labour & Employment, Principal Secretary Industries & Commerce, Principal Secretary, Local Self-
Government, Principal Secretary, Housing & Urban Development, and Secretary, Science and Technology & Environment, regarding relocation of such type of industries, wherein it was further stipulated, that the report in this regard was to be submitted within one month to the Chief Secretary. He also referred to the order wherein while admitting the revision petition it was ordered, that the respondent-authorities should implement the decision taken in the meeting dated 7.7.2003 in accordance with law.
It was the contention of the learned counsel for the petitioners, that the Hon'ble Division Bench of this Court in civil writ petition CWP No.20792 of 2006 -48- No.12041 of 2003, while permitting the Municipal Council, Phagwara, to implement the directions issued by the Hon'ble Single Bench, ordered that it would be in the interest of all that the scheme already revived for shifting the industrial units from the residential area is implemented in its true letter and spirit.
The case of the petitioners further was, that even while passing order to implement the decision of the Hon'ble Single Bench it was mentioned that as per the minutes of meeting dated 4.6.2004, held under the Chairmanship of the Director of Industries, Punjab, a decision was taken, that the industries would form a society and get itself registered within 30 days. This society would purchase the land available with the State Government at village "Phagwara Shirkey" and would develop it at its own, and the industrialists would subsequently shift their industrial operation from the area of Town Planning Scheme No.5 Part II.
Learned counsel for the petitioners thereafter referred to the decision of the Chairman, Pollution Control Board, while issuing notice under Section 31-A of the Air (Prevention and Control of Pollution) Act, 1981.
The learned counsel for the petitioners also referred to the order passed by the Government of Punjab to drop the T.P. Scheme No.5 Part II, as it was admitted by the State Government that implementation of the Scheme at this stage was not possible.
The learned counsel for the petitioners also referred to the interim order passed by this Court in the contempt petition, wherein this Court had taken note of the fact that the State Government should explore the possibility to shift the industrial units in consultation with CWP No.20792 of 2006 -49- the Department of Town Planning as per the recommendations of the committee constituted in the meeting held on 30.10.2003.
The contention of the learned counsel for the petitioners was, that in the said meeting a proposal was made that an alternative land should be made available, which may either be developed by the industrial units themselves or the Punjab State industries and Export Corporation may be asked to prepare rough cost estimate, and that the Municipal Council should give 'No Objection Certificate' to the establishment of new industrial units in the said area.
The contention of the learned counsel for the petitioners, therefore, was that at this stage the State Government could not back out from the promise of relocation of the industrial units, by submitting that the Municipal Council or the Government had no obligation to find any alternative land for the units.
The contention of the learned counsel for the petitioners was, that the decision taken by the State Government in not allocating the alternative industrial plots to the petitioners by framing a special scheme was hit by principle of promissory estoppel.
Mr. Sanjiv Bansal, learned counsel, appearing on behalf of the petitioners in CWP No.14592 of 2006 adopted the arguments raised by the learned counsel for the petitioners in CWP No.20792 of 2006 except that the decision of the Government, was hit by principle of promissory estoppel. Mr. Bansal claimed the same relief of principle of equity and good conscious.
The challenge of Mr. Sanjiv Bansal to the order vide which the T.P. Scheme No.5 Part II was revived was, that the order dated 2.8.2006 CWP No.20792 of 2006 -50- was passed by the State Government, without affording any opportunity of hearing to the petitioners, therefore, the impugned order was hit by principles of natural justice.
The learned counsel for the petitioners also contended, that the order dated 30.6.2005 passed by the State Government in dropping the T.P. Scheme No.5 Part II was taken in pursuance to the directions issued by this Court in CWP No.9006, 9512 and 9519 of 2005, wherein the State Government was directed to decide the representation of the petitioners against the Scheme, by giving opportunity of hearing.
Therefore, the order of recalling, was in violation of the directions issued by this Court.
It was also the contention of the learned counsel for the petitioners, that order dated 30.6.2005 dropping the Scheme was passed in exercise of powers conferred under Section 192 of the Punjab Municipal Act, 1911 (hereinafter referred to as 'the Act'), therefore, respondent No.1 was not competent to review the order, as there was no such power vested with the State under the Act to review. The order, therefore, was passed in exercise of jurisdiction, which it did not possess.
It was also the contention of the learned counsel for the petitioners, that the order was passed without any application of mind, in view of the notice issued in COCP No.566 of 2004.
It was finally contended by the learned counsel for the petitioners, that once, the Scheme had become inoperative, there was no justification to revive it, after having taken a decision to drop the Scheme.
CWP No.20792 of 2006 -51-On the pleas referred to above and specially the fact that the Scheme was not implemented since 1967, the contention of the learned counsel for the petitioners was, that the impugned order vide which the T.P. Scheme No.5 Part II was revived, deserved to be quashed.
In order to appreciate the contentions raised by the petitioners and the point involved in this case, it would be appropriate to reproduce Section 192 of the Act, which reads as under: -
"192. Building scheme.- (1) The committee may, and if so required by the Deputy Commissioner shall within six months of the date of such requisition, draw up a building scheme for built areas, and a town planning scheme for unbuilt areas, which may among other things provide for the following matters, namely: -
(a) the restriction of the erection or re-erection of buildings or any class of buildings in the whole or any part of the municipality, and of the use to which they may be put;
(b) the prescription of a building line on either side or both sides of any street existing or proposed; and
(c) the amount of land in such unbuilt area which shall be transferred to the committee for public purposes including use as public streets by owners of land either on payment of compensation or otherwise, provided that the total amount so transferred shall not exceed thirty-five per cent, and the amount transferred without payment shall not exceed twenty-five per cent, of any one owner's land within such unbuilt area. (2) When a scheme has been drawn up under the CWP No.20792 of 2006 -52- provisions of sub-section (1) the committee shall give public notice of such scheme and shall at the same time intimate a date not less than thirty days from the date of such notice by which any person may submit the committee in writing any objection or suggestion with regard to such scheme which he may wish to make.
(3) The committee shall consider every objection or suggestion with regard to the scheme which may be received by the date intimated under the provisions of sub-sections (2) and may modify the scheme in consequence of any such objection or suggestion and shall then forward such scheme as originally drawn up or as modified to the Deputy Commissioner who may, if he thinks fit, return it to the committee for reconsideration and resubmission by a specified date; and the Deputy Commissioner shall submit the plans as forwarded, or as resubmitted, as the case may be, with his opinion to the State Government, who may sanction such scheme or may refuse to sanction it, or may return it to the committee for reconsideration and resubmission by a specified date. (4) If a committee fails to submit a scheme within six months of being required to do so under sub-section (1) or fails to resubmit a scheme by a specified date, when required to do so under sub-section (3) or resubmits a scheme which is not approved by the State Government, the Deputy Commissioner may draw up a scheme of which public notice shall be given by notification and by publication within the municipality together with an intimation of the date by which any person may submit in writing to the Deputy Commissioner any objection or suggestion which he may wish to make, and the Deputy CWP No.20792 of 2006 -53- Commissioner shall forward with his opinion any such objection or suggestion to the State Government and the State Government may sanction such scheme as originally notified or modified in consequence of any such objection or suggestion, as the State Government may think fit; and the cost of such scheme or such portion of the cost as the State Government may deem fit shall be defrayed from the municipal fund.
(5) When sanctioning a scheme the State Government may impose conditions for the submission of periodical reports on the progress of the scheme to the Deputy Commissioner or to the State Government, and for the inspection and supervision of the scheme by the State Government."
It is not disputed by either of the parties, that the T.P. Scheme No.5 Part II has been framed as per the provisions of Section 192 of the Act. The only question raised by the parties is, that due to the passage of time in implementing the Scheme it has become inoperative, as during the period from 1967 till framing of the Scheme, and thereafter number of buildings, residential as well as industrial, have come up in the area, which has made the Scheme inoperative.
The contention of the learned counsel for the petitioners further was, that the construction was raised with sanction of the Municipal Council, and the Industries Department had also issued registration certificate to these industries, besides the PSEB also gave electricity connection in pursuance of the 'No Objection Certificate' given by the Municipal Council and furthermore the Pollution Control Board also permitted the petitioners to run industrial units.
CWP No.20792 of 2006 -54-The plea of the petitioners that the Scheme has not been implemented, therefore, by passage of time, it has become inoperative, cannot be accepted in view of the decision of this Court in Dr. Bhagwant Pal Singh & Anr. Vs. Municipality/Municipal Committee & Anr., CWP No.8988-A of 1988 decided on 16.10.2008, wherein this Court held as under: -
"One of the contentions raised by the learned senior counsel was that if the scheme is not implemented within a period of 5 years it would automatically lapse. However, this plea of the petitioners cannot be accepted as there is no provision in the Act as in the Haryana Municipal Act which stipulates that scheme would lapse on the expiry of 5 years and thus, the judgments of this court in the case of Indian Oil Corporation Vs. The Municipality, Thanesar 1989 P.L.J. 424 and Municipal Council, Hisar Vs. Ashwani Kumar and ors 2007 (4) P.L.R. 758 are of no help to the petitioners."
The contention otherwise also cannot be accepted, as there is a specific statutory bar under Section 192-A of the Act from erecting or re-
erecting the building after sanction of a building scheme under Section 192 of the Act.
Section 192-A of the Act reads as under: -
"192-A. Punishment for erection or re-erection of a building on sanction of a building scheme under section 192:- If under the provisions of any scheme sanctioned under section 192 the erection or re- erection of buildings in specified area for a specified purpose is prohibited, any person who after such scheme is sanctioned uses any building for such CWP No.20792 of 2006 -55- purpose shall, unless it was used for this purpose before the scheme was sanctioned, on conviction be liable to fine which may extend to one thousand rupees and if after such conviction he continues to use such building for such purpose shall be liable to fine which may extend to fifty rupees for every day during which such use continues."
The contention that the industrial units were raised with sanction of the Municipal Council and necessary registration has been done by the Industries Department and that the Electricity Board and Pollution Control Board have given recognition to the constructions, can also be of no avail in view of the law laid down by the Hon'ble Supreme Court in K. Ramadas Shenoy Vs. The Chief Officers, Town Municipal Council, Udipi and others, AIR 1974 Supreme Court 2177, wherein the Hon'ble Supreme Court has been pleased to lay down as under: -
"Where the Municipality acts in excess of the powers conferred by the Act or abuses those powers then in those cases it is not exercising its jurisdiction irregularly or wrongly but it is usurping powers which it does not possess. The right to build on his own land is a right incidental to the ownership of that land. Within the Municipality the exercise of that right has been regulated in the interest of the community residing within the limits of the Municipal Committee. If sanction is given to building by contravening a bye-law the jurisdiction of the Courts will be invoked on the ground that the approval by an authority of building plans which contravene the bye laws made by that authority is illegal and inoperative.
An illegal construction of a cinema building CWP No.20792 of 2006 -56- materially affects the right to or enjoyment of the property by persons residing in the residential area. The Municipal authorities owe a duty and obligation under the statute to see that the residential area is not spoilt by unauthorised construction. The scheme is for the benefit of the residents of the locality. The rights of the residents in the area are invaded by an illegal construction of a cinema building. If the scheme is nullified by arbitrary acts in excess and in derogation of the powers of the Municipality the courts will quash such orders."
The contention of the learned counsel for the petitioners, that the action of the respondents in refusing to give alternative plots by developing industrial estate is hit by the principle of promissory estoppel again deserves to be noticed to be rejected. In order to succeed on the principle of promissory estoppel, it was necessary to plead and prove that on representation of the Government, or the persons, against whom the principle of promissory estoppel is invoked should have made a representation, in pursuance of which the party should have acted to his disadvantage.
In this case no representation by the State Government has been shown, nor anything pleaded to show as to how the petitioners acted to their detriment on the basis of the said representation. The plea of equity and good conscious also deserves to be rejected, as the law defeats equity. Under Section 192-A there was specific bar to raise any construction.
It may also be noticed that the State Government had set up a committee of senior officers for relocation of the industries. There was CWP No.20792 of 2006 -57- no promise made by the State Government, that the plots would be allotted to the petitioners, before they are asked to shift.
In the meeting held on 4.6.2004 a decision was taken to form a society for the purpose of allocation of land. It has been brought on record, that though society was registered, it had not accepted the proposal to develop the land itself, rather the petitioners wanted the Punjab State Industries and Export Corporation to develop the area for the allocation of the plots. This decision again cannot be said to be final decision so as to be termed as a promise.
The recommendations of the committee made on 30.10.2003 on which reliance was placed, was also not final, as the only decision taken, was that alternative land available may either be developed by the industrial units themselves or PSIEC may be asked to prepare the rough cost estimate. This was again not a final decision of the State Government, which could bind the State Government.
The learned counsel for the petitioners were not able to point out, under which provision of law the Government was under obligation to give alternative industrial plots, once it was proved that the industries set up by the petitioners were in violation of Section 192-A of the Act.
The contention of Mr. Sanjiv Bansal, learned counsel for the petitioners, that order dated 2.8.2006, is hit by principles of natural justice, as it was passed by the State Government without affording any opportunity of hearing to the petitioners and was in violation of earlier directions issued by this Court, though attractive on the face of it, but cannot be sustained in law, for the reason that the order of recalling of the Scheme suffers from patent illegality in taking note of the CWP No.20792 of 2006 -58- construction of buildings which were raised in violation of the Scheme.
The Scheme otherwise could not be nullified or set aside in view of the law laid down by the Hon'ble Supreme Court in K. Ramadas Shenoy Vs. The Chief Officers, Town Municipal Council, Udipi and others (supra). The State Government, therefore, did not have any jurisdiction to nullify the T.P. Scheme No.5 Part II, which was developed in the interest of general public. This Court while dealing with the contempt petition also formed a prima facie opinion, that the impugned action was outcome of violation of directions issued by this Court.
This Court in the Contempt petition observed as under: -
"However, respondents and the authorities of the Local Government Department developed some strange thinking after receiving the order dated 31.5.2005, passed in C.W.P. No.9006 of 2005, 9512 of 2005 and 9519 of 2005. The prayer made in those writ petitions was to quash the orders passed by this court in Civil Revision No.1692 of 2002 and C.W.P. No.12041 of 2003. The Division Bench while disposing of C.W.P. No.9006 of 2005, noticed that the petitioners therein had already filed representations and it was considered appropriate to direct the respondents to dispose of their representations, which were pending consideration. The petitioners in those cases were asked to appear before respondent No.1 i.e. the Director, Department of Local Government, Punjab.
However, the Principal Secretary to Government of Punjab, Department of Local Government, instead of deciding the above mentioned representations in accordance with law by referring to the binding CWP No.20792 of 2006 -59- directions issued by this Court in Civil Revision No.1692 of 2002 and C.W.P. No.12041 of 2003, decided to drop T.P. Scheme No.5 Part II Phagwara, which was approved in the year 1976. The purpose appears to be to circumvent the view taken by the earlier committee presided over by the Chief Secretary Shri Jai Singh Gill, which has expressed the view that the site plans of various industrialists have been approved in contravention of the Town Planning Scheme No.5 Part II Phagwara and certain officers who were responsible for sanctioning of the site plan were to be proceeded against. Without taking into consideration any of the binding directions issued in Civil Revision No.1692 of 2002 and C.W.P. No.12041 of 2003, Shri B.R. Bajaj, I.A.S, Principal Secretary to Government of Punjab, Department of Local Government, had preferred an opinion, which was in fact not available to him. He was already under obligation on account of the binding directions issued by this Court, which were being monitored and substantiated by the committee headed by the Chief Secretary. Therefore, on the pretext of deciding the representations in pursuance to the directions issued by this court in C.W.P. No.9006, 9512 and 9519 all of 2005, the above named officer has flagrantly violated the directions of this court in letter and spirit. There is a prima facie case of contempt against the aforementioned contemner."
Once the State Government was reconsidering the decision taken by it for want of authority and having been passed in violation of the directions issued by this Court, no notice was required to be issued to the petitioners.
CWP No.20792 of 2006 -60-The contention of the learned counsel for the petitioners that the order suffers from exercise of jurisdiction not vesting in the State Government for want of power of review, also deserves to be noticed to be rejected. In case this plea is to be accepted, the order revoking the Scheme also suffers from the same vice, as under Section 192 of the Act there is no authority with the State Government to revoke the Scheme framed in accordance with law, and for the benefit of general public.
Order of reviving the T.P. Scheme is in fact for the reason that this Court had prima facie come to the conclusion, that the action of rescinding the T.P. Scheme No.5 was not bona fide, and was an attempt to defeat the directions issued by this Court from time to time. If the State Government in absence of power of review could revoke the T.P. Scheme, it could revive the same, specially when the directions were issued by this Court in public interest and for convenience of the people.
The contention of Mr. Sanjiv Bansal, learned counsel for the petitioners, that the order is bad for want of jurisdiction, is also rejected, for the reason that the decision to rescind the Scheme was not a quasi-
judicial/or statutory decision, therefore, the decision could be revoked under Section 19 of the General Clauses Act.
For the reasons stated, the writ petition being without any merit is ordered to be dismissed, but with no order as to costs.
However, keeping in view the fact that due to the acts of the Municipal Council, and directions issued by this Court, the petitioners have continued to run their industries, therefore, in order to settle equities between the parties, the petitioners are given six months' time from today to shift their industries from the area of T.P. Scheme No.5 CWP No.20792 of 2006 -61- Part II, Phagwara. It is made clear, that no further extension for shifting the industries shall be granted, under any circumstances.
(Vinod K. Sharma) Judge August 13, 2010 R.S.