Delhi High Court
M/S M.S. Metal Company vs Delhi Development Authority & Ors on 7 August, 2012
Author: Rajiv Sahai Endlaw
*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.
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
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).
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.
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
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)'.
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'
