Delhi High Court - Orders
Subhash Bhatnagar vs Government Of Nct Of Delhi & Ors on 17 November, 2022
Author: Satish Chandra Sharma
Bench: Chief Justice, Subramonium Prasad
$~28
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 213/2019 & CM APPL. 1005/2019
SUBHASH BHATNAGAR ..... Petitioner
Through: Mr. Chirayu, Advocate
versus
GOVERNMENT OF NCT OF DELHI & ORS ..... Respondents
Through: Mr. Satyakam, ASC for Respondents
No.1 & 2
Ms. Urvi Mohan, Advocate for
DBUCWW Board
Mr. Rakesh Kumar, CGSC with Mr.
Sunil, Advocate for UoI
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
ORDER
% 17.11.2022
1. The instant PIL has been filed by the Petitioner under Article 226 of the Constitution of India with the following prayer(s):
"a) Pass an order/direction/writ directing the Respondent No. 1 and 2 to frame a scheme to utilise the Cess Funds of the Delhi Building and Other Construction Workers Welfare Board to provide sustenance in form of daily wages at minimum wage rates to all, the construction workers (regardless of their registration status), working in Delhi, for the days when construction activity is iimited/halted/affected by an action of Respondents or their instrumentalities/agencies;Signature Not Verified Digitally Signed By:HARIOM SINGH KIRMOLIYA W.P.(C) 213/2019 Page 1 of 6 Signing Date:22.11.2022 11:18:34
b) Pass an order/direction/writ directing the Respondent No. 1 and 2 to reimburse all the construction workers (regardless of their registration status), working in Delhi, for the period 1-12 November 2018, in form of daily wages at minimum wage rate levels for each day;
c) Pass an order/direction/writ restraining the Respondent No. 1 and 5 or their instrumentalities/agencies from limiting/halting construction activity in any manner until such a policy, to provide daily sustenance for the affected period at minimum wage rates to all the construction workers, is framed and is adopted, and the said policy is also tested and is ready to be implemented effectively.
d) Pass any such order as may deem fit in the facts and circumstances of the case and in the interest of justice.
In the alternative to prayer
(a),- Pass an order/direction/writ directing the Respondent State to take measures to ensure that all the construction workers, who are working in Delhi, alternate source of livelihood or financial security in form of daily wages at minimum wage rates for each day for the period whenever construction activities are limited/halted/banned by the Respondent State or any other government agency.
e) Pass any such order as may deem fit in the facts and circumstances of the case and in the interests of justice."
2. At the outset, learned Counsel for the Petitioner has drawn the attention of this Court towards Order dated 24.11.2021, passed by the Apex Signature Not Verified Digitally Signed By:HARIOM SINGH KIRMOLIYA W.P.(C) 213/2019 Page 2 of 6 Signing Date:22.11.2022 11:18:34 Court in Writ Petition (C) No.1135/2020, which reads as under:
"Heard Mr. Vikas Singh, senior counsel for the petitioners, Mr. Tushar Mehta, Solicitor General on behalf of the Union of India, Dr. A.M. Singhvi, senior counsel on behalf of the Government of National Capital Territory of Delhi, Mr. Rakesh Dahiya, Mr. Manish Kumar and Ms. Shyel Trehan, appearing on behalf of the applicant/intervenors.
The Solicitor General submitted that (i) the Air Quality Index of Delhi this morning was 290 as compared to 403 last week; (ii) In view of the improvement in Delhi's air quality the ban on construction activities has been lifted with effect from 22.11.2021; (iv) decisions have been taken by the Commission for Air Quality Management in National Capital Region and Adjoining Areas at a meeting on 21.11.2021; (v) the Note tendered indicates that the Commission by Direction No.44 dated 16.11.2021 directed the NCR States and Government of NCT of Delhi to take concerted action and preventive measures in various sectors to mitigate the adverse air quality; (vi) to minimise industrial pollution, industries which are already connected to PNG supply but are still using other fuels have been closed down; (vii) industries which were using unapproved fuels have also been closed down; and (viii) intensive and continuous drives to monitor compliance of air pollution control norms by industrial units and for suitable penal action and/or closure have been adopted.
The Solicitor General also referred to the Affidavit dated 16.11.2021 filed on behalf of the Ministry of Environment, Forests and Climate Change (respondent No.1 herein) in compliance with the order dated 15.11.2021 and read out various steps taken by the Government for effective control of air pollution in Signature Not Verified Digitally Signed By:HARIOM SINGH KIRMOLIYA W.P.(C) 213/2019 Page 3 of 6 Signing Date:22.11.2022 11:18:34 Delhi-NCR.
The Solicitor General submitted that a plan for graded response has been prepared in pursuance of which measures are identified to be taken progressively on the basis of worsening levels of ambient air pollution. The graded response plan which has been formulated envisages that action is to be taken after a deterioration in the air quality is actually recorded. In other words, action is proposed after air quality has deteriorated. We direct that instead of waiting for the air quality to deteriorate before initiating action under the graded response plan, necessary measures must be put into place in anticipation of a deterioration of air quality. For this purpose, it is necessary for the Commission to engage expert agencies with domain knowledge in meteorological data and statistical modelling. The Commission must commission a scientific study of air quality based on available data of previous years bearing upon recorded levels of air pollution. The study must factor in seasonal variations and other relevant parameters. Once a scientific model is available, which factors in wind velocity as well as natural and man-made phenomena, the graded response plan can be modulated to provide for measures being taken in advance, based on anticipated changes in air quality without waiting for the air quality to deteriorate. On this basis steps can be planned at least a week in advance and even earlier, based on anticipated levels of air pollution in the foreseeable future. The Commission shall carry out the above exercise within a month and report the steps taken for compliance with this direction.
In the meantime, as an interim measure and until further orders, we re-impose the ban on the construction activities in the NCR subject to the Signature Not Verified Digitally Signed By:HARIOM SINGH KIRMOLIYA W.P.(C) 213/2019 Page 4 of 6 Signing Date:22.11.2022 11:18:34 following two conditions:-
(i) Non-polluting activities relating to construction such as the plumbing work, interior decoration, electrical work and carpentry are allowed to be continued;
(ii) The States shall use the funds which have been collected as labour cess for the welfare of construction workers to provide them subsistence for the period during which construction activities are prohibited and pay wages notified under the Minimum Wages Act for the respective categories of workers.
For further consideration, list the matter on 29.11.2021. In the meantime, the Central Government, Delhi-NCR States and the Commission are directed to take appropriate steps to deal with the situation as directed by this Court from time to time."
3. The aforesaid Order makes it clear that the State shall use the funds which have been collected as labour cess for the welfare of construction workers to provide subsistence for the workers for the period during which construction activities are prohibited and pay wages notified under the Minimum Wages Act for the respective categories of workers.
4. In light of the Order passed by the Apex Court and keeping in view that the matter is still pending in the Apex Court, no further Orders are required to be passed in the instant Writ Petition.
5. The workers shall be entitled to receive the subsistence only from the date of passing of the Order by the Apex Court.
Signature Not Verified Digitally Signed By:HARIOM SINGH KIRMOLIYA W.P.(C) 213/2019 Page 5 of 6 Signing Date:22.11.2022 11:18:346. With the aforesaid direction, the instant Writ Petition is disposed of along with the pending application(s), if any.
SATISH CHANDRA SHARMA, CJ SUBRAMONIUM PRASAD, J NOVEMBER 17, 2022 Rahul Signature Not Verified Digitally Signed By:HARIOM SINGH KIRMOLIYA W.P.(C) 213/2019 Page 6 of 6 Signing Date:22.11.2022 11:18:34