*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 7th August, 2012
+ WP(C) No.3621/2012 & CM.No.7602/2012 (for stay)
M/S M.S. METAL COMPANY ..... Petitioner
Through:
Mr. Sanjay Poddar, Sr. Adv. with Mr.
B.K Das, Ms. Navlin Swain & Mr.
Govind Kumar, Advs.
versus
DELHI DEVELOPMENT AUTHORITY & ORS. ..... Respondents
Through: Ms. Shobhana Takiar, Adv. for DDA.
Ms. Sweety Manchanda, Adv. for
R-2.
Ms. Anjana Gosain & Ms. Prerna
Shah Deo & Mr. Karan Burman,
Advs. for R-3.
Mr. Biraja Mahapatra, Adv. for R-4 with
Mr. D Jindal, Law Officer, DPCC.
CORAM :-
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
RAJIV SAHAI ENDLAW, J.
1. The petition impugns Entry No.38 i.e. Foundries(except Pit Furnace) in Annexure III (containing the prohibited/negative list of industries) to clause 7.2 of the Master Plan of Delhi, 2021 (MPD). The petition axiomatically seeks quashing of the notice dated 11 th April, 2012 and the sealing order dated 9th May, 2012 of the Delhi Pollution Control Committee of the Government of NCT of Delhi qua the industry of the petitioner on Plot No. 458/466, Gali No. 8, Friends Colony, Industrial Area, Delhi - 95. WP(C) No. 3621/2012 Page 1 of 7 Notice of the petition and the application for interim relief was issued. Subsequently vide order dated 6th July, 2012 the premises of the petitioner were directed to be temporarily de-sealed to enable the petitioner to remove its belongings / stocks of raw material, therefrom. Vide subsequent order dated 30th July, 2012, on the contention of the petitioner that pursuant to the sealing order even the office portion of the petitioner's premises had been sealed, it was clarified that the office portion shall be de-sealed immediately. Pleadings have been completed and the counsels have been heard.
2. The petitioner claims to be carrying on business of Copper Melting. The petition alleges non compliance of the statutory provisions and principles of natural justice in finalizing MPD 2012. It is pleaded that though while publishing the proposed changes/modifications to the existing Master Plan and inviting objections thereto (in compliance of Sections 10 and 11A of the Delhi Development Act, 1957) only 'Heavy Foundries' were mentioned at serial no.38 in the list of prohibited industries but in the Master Plan ultimately finalized, the concerned entry i.e. Entry No. 38 has been changed to Foundries (except Pit Furnace). It is thus contended that as per the finalized Master Plan, foundries which are not heavy but do not have a WP(C) No. 3621/2012 Page 2 of 7 Pit Furnace are also included in the list of prohibited industries without giving the petitioner an opportunity to object thereto and without following the prescribed procedure before inclusion thereof was not followed.
3. The petitioner claims its foundry to be not in the 'heavy' category, though not having a Pit Furnace. It is contended that in pursuance to the change/modification to the Master Plan and in enforcement thereof, the works of the petitioner have been sealed.
4. The respondent No.2 Union of India in its counter affidavit has pleaded that the DPCC had vide its letter dated 11 th July, 2006 requested DDA for banning, casting by using Cupola Furnaces irrespective of the melting capacity, and stainless steel pickling activity, in view of the pollution potential therefrom; that in response to the publication of the proposed changes/modifications as many as 7000 objections / suggestions were received and the Board of Inquiry constituted to hear the same, had recommended modification inter alia in Entry No. 38 in consultation with the DPCC; that it was in pursuance to the said recommendation that Entry No.38 was modified from 'Heavy Foundries' to 'Foundries (except Pit Furnace).
WP(C) No. 3621/2012 Page 3 of 7
5. The respondent DPCC in its counter affidavit has pleaded that, the petitioner had applied for and was granted consent on 15 th September, 2008 for the activity of copper melting in LDO fired furnace; that in the inspection carried out on 22nd March, 2012 the Unit of the petitioner was found to be engaged in the activity of the copper melting through a tilting furnace; that though a wet scrubber as air pollution control device was installed but was not found operational; ID fan was also out of order; leakages in the hood/duct used to channelize the air emissions were also found and HWM measures were found not to have been taken; that it was in these circumstances that the unit of the petitioner was sealed. It is further pleaded that the Copper Melting Unit through tilting furnace of the petitioner is highly air polluting in nature and falls within the category of Foundries (except Pit Furnace) in the list of prohibited industries. With respect to the plea of the petitioner that its foundry is not 'heavy' owing to the yield of less than one ton, it is pleaded that Item No. 38 of the prohibited/negative list of industries in the MPD 2021 uses the term 'Foundries (except Pit Furnace) irrespective of whether it is heavy or not. It is further pleaded that it is for the petitioner to satisfy that its foundry is not heavy. WP(C) No. 3621/2012 Page 4 of 7
6. The petitioner has filed a rejoinder to the counter affidavit of the DPCC. None of the other respondents have filed counter affidavits despite opportunity.
7. We have in our judgment dated 18th May, 2012 in WP(C) No. 13621/2009 titled Shiva Alloys (P) Ltd Vs. Union of India and other connected matters, held that where the objections invited in compliance of Sections 10 and 11A of the Delhi Development Act are with respect to the 'Foundries (Heavy)' but in pursuance thereto, 'Foundries (except Pit Furnace)' are banned, thereby including those Foundries also which are not heavy, the action becomes null and void. WP(C) No. 8035/2011 titled Karan Motors (P) Ltd Vs. Union of India on similar facts was thus allowed by the said judgment. It was however clarified that the same would not prevent DDA from further amending the Master Plan to include even 'Foundries (except Pit Furnace)' in the prohibited/negative list.
8. The counsels for the respondents have been unable to satisfy us as to how the aforesaid judgment would not be applicable to the present case also. All that the DPCC has contended is that other violations were also found in the unit of the petitioner and that there is nothing to show that the foundry of WP(C) No. 3621/2012 Page 5 of 7 the petitioner is not heavy. The counsel for the DPCC during the hearing has also referred to the order dated 19th July, 2012 of a learned Single Judge of this Court in WP(C) No. 3782/2012 titled Adarsh Enterprises Vs. Delhi Pollution Control Committee and other connected matters directing the authorities to define `heavy'. It is stated that the said process is underway.
9. The counsel for the petitioner has stated that the petitioner has already removed the other deficiencies found in the inspection of its unit aforesaid and that the petitioner is willing to give further inspection of its unit to the DPCC to satisfy it that its unit is otherwise complying with the pollution norms.
10. We accordingly allow this writ petition with the following directions:
A. DPCC to, within two weeks inspect the works aforesaid of the petitioner to verify whether the same are compliant with the pollution control norms.
B. If the same are found so compliant, the works of the petitioner be de-sealed forthwith and be not kept sealed merely for the reason of having a 'Foundry (except Pit Furnace)'.WP(C) No. 3621/2012 Page 6 of 7
C. As and when the respondents complete the exercise of defining 'heavy', they shall be entitled to take action in accordance with law against the petitioner if the foundry of the petitioner is found to fall in the 'heavy' category.
D. This order shall not come in the way of the Master Plan being amended/modified further to include in the list of prohibited industries 'Foundries(except Pit Furnace)' after complying with the law.
No order as to costs.
RAJIV SAHAI ENDLAW, J ACTING CHIEF JUSTICE AUGUST 07, 2012 'M' WP(C) No. 3621/2012 Page 7 of 7