Whether any synthesis between environmental aspects and building regulation vis-‘-vis the scheme floated by the Board of Industrial and Financial Reconstruction (for short ’BIFR’) in terms of the provisions of the Sick Industrial ...
No Acts & Articles mentioned in this case
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CASE NO.:
Appeal (civil) 1519 of 2006
PETITIONER:
Bombay Dyeing & Mfg. Co. Ltd
RESPONDENT:
Bombay Environmental Action Group & Ors
DATE OF JUDGMENT: 07/03/2006
BENCH:
S.B. Sinha & P.P. Naolekar
JUDGMENT:
J U D G M E N T
[Special Leave Petition (Civil) No.23040 of 2005]
With
CIVIL APPEAL NO. 1528 of 2006
[Arising out of SLP (C) No. 24415 of 2005]
CIVIL APPEAL NO. 1546 of 2006
[Arising out of SLP (C) No. 23317 of 2005]
CIVIL APPEAL NO. 1541 of 2006
[Arising out of SLP (C) No. 23500 of 2005]
CIVIL APPEAL NO. 1532 of 2006
[Arising out of SLP (C) No. 24418 of 2005]
CIVIL APPEAL NO. 1540 of 2006
[Arising out of SLP (C) No. 23607 of 2005]
CIVIL APPEAL NO. 1550 of 2006
[Arising out of SLP (C) No. 23609 of 2005]
CIVIL APPEAL NO. 1520 of 2006
[Arising out of SLP (C) No. 23616 of 2005]
CIVIL APPEAL NO. 1536 of 2006
[Arising out of SLP (C) No. 23632 of 2005]
CIVIL APPEAL NO. 1521 of 2006
[Arising out of SLP (C) No. 23700 of 2005]
CIVIL APPEAL NO. 1515 of 2006
[Arising out of SLP (C) No. 23718 of 2005]
CIVIL APPEAL NO. 1538 of 2006
[Arising out of SLP (C) No. 23765 of 2005]
CIVIL APPEAL NO. 1518 of 2006
[Arising out of SLP (C) No. 24419 of 2005]
CIVIL APPEAL NO. 1523 of 2006
[Arising out of SLP (C) No. 23794 of 2005]
CIVIL APPEAL NO. 1543 of 2006
[Arising out of SLP (C) No. 23810 of 2005]
CIVIL APPEAL NO. 1517 of 2006
[Arising out of SLP (C) No. 23815 of 2005]
CIVIL APPEAL NO. 1522 of 2006
[Arising out of SLP (C) No. 26193 of 2005]
CIVIL APPEAL NO. 1530 of 2006
[Arising out of SLP (C) No. 26088 of 2005]
CIVIL APPEAL NO. 1534 of 2006
[Arising out of SLP (C) No. 26089 of 2005]
CIVIL APPEAL NO. 1526 of 2006 and
[Arising out of SLP (C) No. 25048 of 2005]
CIVIL APPEAL NO. 1516 of 2006
[Arising out of SLP (C) No. 26090 of 2005]
S.B. SINHA, J :
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Leave granted in all SLPs.
INTRODUCTION
Whether any synthesis between environmental aspects and building
regulation vis-`-vis the scheme floated by the Board of Industrial and
Financial Reconstruction (for short 'BIFR') in terms of the provisions of the
Sick Industrial Companies (Special Provisions) Act, 1985 (for short,
'SICA') herein is possible is the core question involved in these appeals.
BACKGROUND FACTS
The First Respondent herein is a public charitable trust. Its aims and
objects, inter alia, are to look after the environment in all respects. It had
allegedly initiated and/or participated in matters of environmental
importance as regard preservation and improvement wherefor it had moved
the court in public interest on several occasions. The Second Respondent
herein is said to be the honorary Secretary of the First Respondent and
served in various committees appointed by the Central and State
Governments as also by the Bombay High Court.
The said respondents filed a writ petition questioning the validity of
Development Control Regulation No. 58 (DCR 58) framed by the State of
Maharashtra in terms of the Maharashtra Regional and Town Planning Act,
1966 [for short "the MRTP Act"]. The Respondents in the writ application,
some of whom are Appellants herein, were/ are owners of various cotton
textile mills.
DCR 58 admittedly was made by the State of Maharashtra with a view
to deal with the situation arising out of closure and/or unviability of various
cotton textile mills occasioned inter alia by reason of a strike resorted to by
the workers thereof.
WRIT PROCEEDINGS
The writ petition questioning the validity of DCR 58 by the First and
Second Respondents was filed allegedly to protect the interests of the
residents of Mumbai and to improve the quality of life in the town of
Mumbai which is said to have drastically been deteriorated during the last
fifteen years as also for preventing further serious damage to the town
planning and ecology so as to avoid an irretrievable breakdown of the city.
The main thrust of the writ petitioners was to ensure "open spaces" for the
city and to provide the crying need of space for public housing.
In the said writ petition, apart from the State of Maharashtra, the
Municipal Corporation of Greater Mumbai (MCGM), the Maharashtra
Housing and Area Development Authority (MHADA), the National Textile
Corporation (NTC) North Maharashtra and South Maharashtra were
impleaded as respondents. Before the High Court, a large number of mill
owners and others who allegedly have invested a huge sum on the lands of
the mill owners or otherwise interested in implementation of DCR 58 of
2001 filed applications for their impleadment as parties therein which were
opposed by the writ petitioner- respondents. The said applicants were,
however, allowed to intervene in the matter. It is, however, not in dispute
that the purchasers from National Textile Corporation were not impleaded as
parties therein who are now before us. On or about 2.6.2005, the writ
petitions-Respondents took out a Chamber Summons seeking to amend the
writ petition. The proposed amendments inter alia related to:
"i) a challenge to the clarification dated 28th
March, 2003 issued by Respondent No. 3 on the
ground that the same seeks to permit residential
user and is therefore an amendment of DCR 58 of
2001; and
ii) the alleged requirement of Environmental
Impact Assessment (EIA) in pursuance of
notification dated 27th January, 1994 as amended
by notification dated 7th July, 2004 issued under
the provisions of the Environment Protection Act."
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The said Chamber Summons was allowed by an order dated 7.7.2005
directing:
"We are fully satisfied that the amendments
sought are necessary and essential in the above
Petition especially when the above petition is a PIL
petition, which is yet to be admitted. The
Respondents will have full opportunity to deal
with these amendments by filing an additional
affidavit \026 in \026reply. Under these circumstances,
Chamber Summons is made absolute in terms of
prayer clause (a). Amendment to be carried out on
or before 16.7.2005\005"
HIGH COURT JUDGMENT
The aforementioned writ petition was allowed by the Bombay High
Court on 18.02.2005. By its judgment, the Division Bench of the High
Court, inter alia, held :
(i) DCR 58 should be construed having regard to the importance of open
space and public space;
(ii) By reason of the 2001 amendment, no substantial change had been
made and the amendments carried out therein must be construed
having regard to the expression 'development' which included
'demolition of structures'.
(iii) DCR 58 as amended must be harmoniously construed so as to uphold
the constitutionality thereof. The expression 'open space' would take
within its ambit the same space as was obtaining after demolition.
(iv) DCR 58, if not construed in the manner as contended by the writ
petitioners would render it ultra vires Articles 14, 21 and 48-A of the
Constitution of India.
(v) Sales carried out by the National Textile Corporation were contrary to
the scheme framed by BIFR as also the orders of this Court dated
05.05.2005
(vi) NTC as a State should have taken steps to modernize its mills or start
other textile mills. It could not act like a private mill owner. Its high
profits should not be expended towards anything which would be
contrary to the objectives for which the Acts of 1974 and 1994 were
enacted, as also the scheme of the BIFR and the orders of this Court.
(vii) Doctrine of prospective overruling has no application in the instant
case.
(viii) The High Court refused to dismiss the public interest litigation on the
ground of delay in view of the enormity of the issues involved. In
support of the said contention, it principally relied on the decision of
this Court in M/s. Lohia Machines v. Union of India [AIR 1985 SC
421].
(ix) It concluded:
"(a) In amended DCR 58(1)(b), "open lands"
would include lands after demolition of structures.
(b) Clarification dated 28th March, 2003 is clearly
violative of Section 37 of MRTP Act and Article
21 of the Constitution of India.
(c) The issue whether the amended DCR 58 is
contrary to Section 37 of MRTP Act or Article 21
of the Constitution of India, is kept open.
(d) All the constructions carried out by various
Developers are clearly in violation of EIA
Notification as amended on 7th July, 2004, as
admittedly none of them have obtained clearance
from Ministry of Environment and Forests.
(e) All sales of Mill lands carried out by NTC are
clearly contrary to the Supreme Court orders dated
11th May, 2005 and 27th September, 2002 and
contrary to the sanctioned BIFR schemes."
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Upon taking into consideration the provisions of the 1994
Amendment Act and SICA, it was held:
(i) State also has a stake in the mills because they meet the requirements
of cheap and quality cloth and furthermore provide work and
livelihood to many.
(ii) An ecological imbalance would be created by proliferation of high-
rise structures in Girangaon area, which was essentially planned for
commercial and industrial activities.
(iii) DCR 58 facilitates the implementation of measures for revival,
rehabilitation and modernisation of closed, sick and potentially viable
sick mills and must, thus, be construed as such.
(iv) NTC should take all such measures as are necessary to protect and
encourage the industry and not contrary thereto or inconsistent
therewith.
(v) It was necessary to amend DC Regulations to confer additional rights
and incentives to enable NTC and the mill owners revive the mills.
(vi) The Commissioner has discretion to permit utilisation of existing built
up area and open lands as well as the balance FSI.
(vii) NTC has a statutory obligation to revive, rehabilitate, or modernise
the mills.
(viii) Commissioner has the power to allow re-construction and demolition
of existing structures, but re-construction is limited to the extent of
built up area of the demolished structures.
(ix) Combination of properties whether under common ownership or
otherwise and joint development is permitted provided FSI is in
balance.
(x) If the textile mill has shifted or the owner establishes a diversified
industry then further obligation is cast to offer on priority in the re-
located mill or diversified industry, as the case may be, employment
to the workers.
(xi) Fruits and benefits of development and re-development cannot be
retained by owners but they have to be passed on to those who are
legitimately entitled thereto.
(xii) Monies are required to be put in Escrow Account.
(xiii) It is a complete and comprehensive code so far as development and
re-development of lands of cotton textile mills is concerned. Mill
owners must not be allowed to trade in the properties owned by it.
(xiv) The scheme is very much workable as the regulation allows enough
free play to meet the obligations towards workers and financial
institutions.
(xv) The intent is to control the development and re-development by
making comprehensive regulatory measures, the portions becoming
vacant after demolition of existing built-up areas have to be included
in the concept "open lands."
As regards, the clarification made by the State dated 28.3.2003, it was
opined that the same amounts to amendment of DCR 58 and, thus, not being
a clarification simpliciter in terms of DCR 62(3), the same was
unsustainable. The said clarification was also ultra vires Article 21 of the
Constitution of India.
As regards non-compliance of the notification dated 07.07.2004, it
was observed that none of the mills obtained clearance as per the EIA
Notification in spite of High Court's directions to do so and had been
carrying on construction activities. MCGM as also the State of Maharashtra
did not take any effective step to ensure compliance of the EIA notification.
Even the public hearings conducted by the Maharashtra Pollution Control
Board were not done satisfactorily. It directed that the public hearings be
conducted by the Ministry of Environment and Forests itself, keeping in
view the enormity of ecological imbalance and environmental degradation
and also keeping in mind 'Precautionary Principle' and the principle of
'sustainable development.'
In its judgment, the High Court furthermore opined:
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(i) MCGM has not ensured at all, while sanctioning the building plans,
compliance of the provisions relating to public amenities.
(ii) No step for compliance with EIA Notification had been taken ever by
MCGM..
(iii) MCGM did not ensure furthermore that all the Mill owners provide
free housing of 225 Square feet to the occupants. Despite mandatory
nature of DCR 58 (7) none of the sanctioned plans provide for any
housing for the mill workers/occupants.
(iv) MCGM has not ensured surrendering of lands for "open spaces" and
"public housing" as per amended DCR 58, although any construction
could commence only after physical surrender of lands as "open
spaces" and "public housings."
(v) Since, MCGM had completely abdicated all its basic functions, State
of Maharashtra was ordered to take immediate remedial measures.
SUBMISSIONS
We have heard a large number of counsel appearing for the parties.
Submissions of the learned counsel appearing for the Appellants and
supporting respondents are as under:
Re: DCR 58
(A) DCR 58, as amended in 2001, shall apply not only to a sick mill but
also to a closed mill being unviable which had opted for revival/
modernization/shifting. The original DCR 58 being not invalid, the
mere grant of additional benefits would not make it ultra vires.
(B) The State cannot be said to have ignored various conflicting
objectives while carrying out the amendment in DCR 58.
(C) The High Court, in exercise of its jurisdiction of judicial review, could
not have interfered with a policy decision of the State.
(D) The High Court committed a manifest error in holding that the
amended version of DCR 58 vis a vis the term 'open space' would
have the same meaning as was contemplated under DCR 58 of 1991.
(E) The High Court failed to appreciate that reading down of DCR 58 was
impermissible in law.
(F) The High Court ought to have taken into consideration the past
experience of the State necessitating amendment of DCR.
(G) The High Court furthermore failed to take note of the fact that the
committees appointed by the State also made recommendations that
the mill owners would be allowed to develop their lands.
(H) Two different interpretations of DCR 58 having been found by the
High Court to be possible, it could not have arrived at a conclusion
that clarificatory notification dated 28.03.2003 amounted to an
amendment of the Regulation and, thus, void.
(I) The impugned judgment is wholly unsustainable as several irrelevant
factors, e.g. deluge in the city of Bombay in 2005, were taken into
consideration for the purpose of interpretation of DCR 58.
(J) The findings of the High Court would lead to a radical discrimination
between cotton textile mills and other industries which being not
based on any rational criteria renders it unconstitutional being
violative of Article 14 of the Constitution of India.
(K) The High Court failed to take into consideration the fact that the
equity was in favour of the appellants herein as they having already
demolished the building as having created third party interests, should
not have been asked to go back to the same position as was obtaining
in the year 1991.
(L) If the impugned judgment is upheld, several provisions of DCR 58, as
for example, clause (6) thereof would become otiose and redundant
and, thus, interpretation of the High Court in respect of DCR 58 is
unsustainable.
(M) No foundational fact having been laid in the writ petition to show as
to how the clarification amounts to amendment of DCR 58, the High
Court committed a manifest error in arriving at a finding that the said
Regulations are ultra vires Section 37 of the Act and/or Article 21 of
the Constitution of India.
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(N) The Respondent-writ petitioners were guilty of serious delay and
laches in filling of the writ petition and thus it was liable to be not
dismissed in limine.
Re: Validity of sales of 5 mills by NTC
(a) The High Court in granting relief in favour of the writ petitioners
failed to take into consideration relevant factors and based its decision
on irrelevant factors and, thus, misdirected itself in law.
(b) The judgment of this Court in Bombay Dyeing & Manufacturing Co.
Ltd. v. Bombay Environmental Action Group and Ors. [(2005) 5 SCC
61] being final and binding on the parties, the High Court committed a
serious illegality in interfering therewith.
(c) BIFR scheme had wrongly been taken recourse to for the purpose of
construction of the Regulation.
Submissions of Writ Petitioners \026 Respondents No. 1-2
(1) DCR broadly lays down a scheme of land uses and zoning, Clause 58
thereof as amended in 2001 should be read in conformity with the
provisions of the MRTP Act.
(2) The expression 'open land' as contained in DCR 58 must be
interpreted in such a manner so as to enable the concerned authorities
to sanction a building plan in terms of the extant regulations.
(3) On a plain construction of DCR 58 of 2001, it has rightly been held by
the High Court that the intention of the State evidently was to give
only double FSI and not to diminish the stake of MCGM and
MHADA in the mill land.
(4) Interpretation of DCR 58 by the State has defeated the purport and
object of the Act.
(5) For the purpose of upholding the constitutionality of DCR 58, the
same was required to be read down, failing which it is rendered
unconstitutional.
(6) The effect and purpose of DCR 58 as clarified by the state only
having come to the notice of the writ petitioners in 2005 and as the
writ petition was filed by them immediately thereafter, the same was
not liable to be dismissed on the ground of delay and laches on their
part.
(7) In view of the subsequent events, this Court may lay down the
principles for the purpose of moulding the reliefs and remit the matter
to the High Court for consideration of the matter afresh.
(8) MHADA and the MCGM having taken different stands before the
High Court, that they should not be permitted to support the State
before this Court.
(9) All applications for grant of permission for development/
redevelopment was required to be considered having regard to the
nature of the land as would be existing after demolition of the existing
structures.
STATUTORY SCHEME
Bombay Town Planning Act, 1954 replaced the Bombay Town
Planning Act 1915 which became applicable to the entire State of
Maharashtra including the town of Mumbai.
In the year, 1966, the legislature of the State of Maharashtra with a
view to make provisions for planning and development and use of land in
regions established for that purpose and for constitution of Regional
Planning Boards therefor and for other purposes mentioned in the preamble
thereto enacted the MRTP Act repealing and replacing the Bombay Town
Planning Act, 1954. It came into force with effect from 11th January, 1967.
MRTP Act provides for formulation of regional plans and
development plans. Definitions of some of the expressions which are
relevant for our purpose are as under:
2(7) "Development" with its grammatical variations means the
carrying out of buildings, engineering, mining or other
operations in, or over, or under, land or the making of any
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material change, in any building or land or in the use of any
building or land or any material or structural change in any
heritage; building or its precincts and includes demolition of
any existing building structure or erection or part of such
building, structure of erection; and reclamation, redevelopment
and lay-out and sub-division of any land; and "to develop" shall
be construed accordingly;
2(9) "Development plan" means a plan for the development or
re-development of the area within the jurisdiction of a planning
Authority and includes revision of a development plan and
proposals of a special planning Authority for development of
land within its jurisdiction;
2(9A) "development right" means right to carry out
development or to develop the land or building or both and
shall include the transferable development right in the form of
right to utilise the Floor Space Index of land utilisable either on
the remainder of the land or partially reserved for a public
purpose or elsewhere, as the final Development Control
Regulations in this behalf provide;
2(13A) "Floor Space Index" means the quotient or the ratio of
the combined gross floor area to the total area of the plot, viz.: -
Floor Space Index = "
Section 2(27) defines regulations made under Section 159 of the
MRTP Act and includes zoning and other regulations made as part of a
regional plan, development plan or town planning scheme. The land-use
maps and the development control rules/ regulations together comprise the
development plan under Section 22. The land-use map indicates the zone in
which a piece of land falls, in regard whereto the permissible uses are
specified in the rules/ regulations. In each of such zonal plan, although the
industrial areas have been delineated separately but existence of each of the
cotton textile mills therein has specifically been shown which evidently
shows that cotton textile mills had been given a special status.
The regional plan is drawn up by the State Government in terms of
Section 14 read with Section 17 of the MRTP Act. Section 14 inter alia
mandates specification of land uses, i.e., residential, industrial, agricultural,
etc., reservation for open spaces, gardens, etc., reservation and conservation
of areas of natural scenery as also infrastructure such as transport, water
supply, drainage, sewerage, etc.
Section 21 mandates drafting of a Development Plan by every
Planning Authority for the area within its jurisdiction.
Section 22 lays out the contents of such development plan indicating
the manner of use and development of land. As far as possible, the same is to
provide for:-
a) Allocation of land for residential, industrial, commercial,
agricultural uses, etc;
b) Designation of land for public purposes;
c) Designation of areas for open spaces, playgrounds, stadia,
zoological gardens, green belts, nature reserves, sanctuaries and
dairies;
d) Transport and communication;
e) Public utilities and amenities;
f) Reservation of land for community facilities and services.
Section 37 permits modification of a Development Plan by the
Planning Authority or in cases of urgency by the State Government in
exercise of its power under Sub-section 1AA of Section 37 which reads as
under:
"(1AA) (a) Notwithstanding anything contained in sub-sections
(1), (1A) and (2), where the State Government is satisfied that
in the public interest it is necessary to carry out urgently a
modification of any part of, or any proposal made in, a final
Development Plan of such a nature that it will not change the
character of such Development Plan, the State Government
may, on its own, publish a notice in the Official Gazette, and in
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such other manner as may be determined by it, inviting
objections and suggestions from any person with respect to the
proposed modification not later than one month from the date
of such notice, and shall also serve notice on all persons
affected by the proposed modifications and the Planning
Authority.
[Emphasis supplied]
Section 38 provides for periodic revisions of the development plan
making it mandatory to revise the same at least once in every 20 years.
Section 43 restricts change in use or development of land without the
written permission of the Planning Authority. Such application is required to
be made in terms of Section 44 of the Act.
Section 45 confers power to grant such permission whereas Section 46
makes it mandatory for the planning authority to have due regard to the
provisions of the draft of final plan or a sanctioned plan.
Section 159 of the MRTP Act empowers any Regional Board or
Development Authority to make regulations consistent with the provisions
thereof or the rules made thereunder inter alia to carry out the purposes
thereof. Sub-section (2) of Section 159 empowers the State Government to
make special development control regulations consistent therewith and the
rules made thereunder to carry out the purpose of executing a Special
Township Project and such regulations may be a part of Development
Control Regulations or Development Plan or Regional Plan, as the case may
be.
In terms of the MRTP Act, Development Control Rules (DCR), 1967
were framed. The State Government took a policy decision to frame new
DCR in 1990 wherefor suggestions / opinions from the public were invited.
The State of Maharashtra in exercise of its power conferred on it
under Section 159(2) of the MRTP Act framed the Development Control
Regulations, 1991 (for short "the 1991 Regulations"). The Development
Plan had been notified in the year 1981 and the Development Control
Regulations formed a part thereof. The said regulations, indisputably, were
framed upon carrying out the requisite formalities.
The expression "existing building" is defined in Regulation 2(28) to
mean "a building or structure existing authorisedly before the
commencement of these regulations. The expression Floor Space Index
(FSI) is defined under Regulation 2(42) to mean "the quotient of the ratio of
the combined gross floor area of all floors, excepting areas specifically
exempted under these Regulations to the total area of the plot. Regulation
3(1) makes the regulations applicable to "\005all development, redevelopment,
erection and/ or re-erection of a building, change of user, etc., as well as to
the design, construction, reconstruction, and additions and alterations to a
building".
Regulation 3(2) reads as under:
"Part construction \026 where the whole or part of a
building is demolished or altered or reconstructed/
removed, except where otherwise specifically
stipulated, these regulations apply only to the
extent of the work involved."
In terms of Regulation 21 whenever more than one building is
proposed on any land or where the land development measures more than
1000 sq. m. in a residential, commercial or industrial zone, it is mandatory
to prepare a lay-out plan. A lay-out plan would also be necessary where
sub-divisions are required to be made. Such plan inter alia has to include "a
table indicating the size, area and use of all the plots in the sub-division/ lay-
out plan". It should also contain "a statement indicating the total area of the
site area utilized under roads, open spaces for parks, playgrounds, recreation
spaces and development plan designations, reservations and allocations,
schools, shopping and other public places along with their percentage with
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reference to the total area of the site\005"
Land uses have been provided for in Regulation 9 stating that uses of
all lands should be regulated in regard to type and manner of development/
redevelopment as specified in Table \026 4. In Table \026 4 inter alia the
following uses have been mentioned:
(a) Residential
(b) Commercial
(c) Industrial
(d) Transportation
(e) Public and semi-public
Regulation 32 read with Table -14 prescribes the floor space indices
in relation to the town of Bombay stating that for residential zone, it would
be 1.33 whereas for the service zone it would be 1.00.
Item \026 3 of Table \026 14 specifies different zones stating:
"Service Industrial Zone (I-1)
General Industrial Zone (I-2)
Special Industrial Zone (I-3)
(a) For users permissible in the
zone in the Island City and in
Suburbs and Extended Suburbs
1.00
(b)Textile Mills -
1.00
Island City and Suburbs and
Extended Suburbs.
In the case of reconstruction,
modernization or renovation,
where a textile activity is to be
continued, the FSI shall not
exceed 1.33 in the Island City
and 1.00 in the Suburbs and
Extended Suburbs."
Regulation 34 provides for available Transferable Development
Rights (TDR) if the development potential of a plot is separated from the
land. TDR so granted can be alienated in the manner prescribed by the
regulation. Regulation 35, in the matter of calculating the floor space index
\026 built up area in respect of a plot, requires exclusion of certain areas for
large plots in residential and commercial zones, i.e., plots exceeding 2500
sq. m. approx., i.e., 15% of the area has to be excluded for recreational
amenity, open space, etc.
Regulation 51(1) speaks of ancillary uses. Regulation 52 provides
that what could be done in terms of Regulation 51 can be done also in terms
of Regulation 52; whereas Regulation 53 provides that what could be done
in terms of Regulations 51 and 52 could be done also in terms of Regulation
53. Regulation 54(1)(i) provides for industries in C-2 zone wherein also
commercial uses as specified therein are permissible.
Regulations 56 to 58 provide for user of land for industrial zones.
Regulation 56 of the 1991 Regulations provides for the General
Industries Zone (I-2 Zone) which includes any building or part of a building
or structure in which products or materials of all kinds and properties are
fabricated, assembled or processed. Sub-regulation (2) of Regulation 56,
inter alia, enumerates textile' manufacture except manufacture of rope,
bandage, net and embroidery using electric power upto 37.5 KW.
It is not disputed that all the mill lands fall in either residential or I-2
Zones. The I-2 zones permits buildings and premises to be used for
industrial and accessory uses except one category under sub-regulation (2)
of Regulation 56 new textile mills cannot be constructed in the said areas.
Sub-regulation (3) of Regulation 56 contains a non-obstante clause
providing that service industries and service industrial estates shall be
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permitted in the General Industries Zone. Sub-regulations 3(b), 3(c) and
3(d) of Regulation 56 read as under:
"(b) With the previous approval of Commissioner
and on such conditions as deemed appropriate by
him, the existing or newly built-up area of unit, in
the General Industrial Zone (Zone I-2), (including
industrial estates) excluding that of cotton textile
mills, may be permitted to be utilized for an office
or commercial purposes as a part of a package of
measures recommended by the Board of Industrial
and Financial Reconstruction (BIFR), Financial
Institutions and Commissionerate of Industries for
the revival/ rehabilitation of potentially viable sick
industrial units.
(c) With the previous approval of the
Commissioner, any open land or lands or industrial
lands, in the General Industrial Zone (I-2 Zone) be
permitted to be utilized for any of the permissible
users in the Residential Zone (R-1 Zone) or the
Residential Zone with shop line (R-2 Zone) or for
those in the Local Commercial Zone (C-1 Zone)
subject to the following.
(d) With the previous approval of the
Commissioner, and subject to such terms as may
be stipulated by him, open land in existing
industrially zoned land or space, excluding land or
space of cotton textile mills, which is unoccupied
or is surplus to requirement of the industry's use
may be permitted to be utilized for office or
commercial purposes but excluding warehousing."
Sub-regulation (4) of Regulation 56 deals with other uses in the
General Industrial Zone.
Regulation 57 of the 1991 Regulations provides for Special Industrial
Zone known as I-3 Zone. Manufacture of textile goods do not come within
the purview thereof. In terms of the said Regulation, similar restrictions on
land user have been provided except service industries and service industrial
estates. Change of user is allowed for lands other than lands of cotton textile
mills.
Regulation 57(4)(c) is in pari materia with Regulation 56(3)(c).
LEGAL HISTORY OF DCR 58
DCR 58 of 1991 provided for development or redevelopment of lands
of cotton textile mills; in terms whereof, modernization of mills and
development of surplus lands in the manner specified therein was to be
promoted. It, furthermore, provided for development of mill lands as a part
of package of BIFR \026 approved rehabilitation schemes and also for
modernization and shifting thereof. Pursuant to the said Regulation, the
cotton textile mill owners could give one of the options out of the following:
(i) The mill owners could continue to operate their mills even though it
was running into losses. This was the status quo option which entailed
no land being surrendered to MHADA as well as for public greens.
(ii) The second option entailed retaining the outer shell of the mill
structures and building commercial structures within the mill
structure.
(iii) The third option entailed two steps. The first step was raising of
construction within the old structure and the second step was to
construct on the part of open spaces.
(iv) The fourth option ensured demolition of the entire old structures and
sharing the entire mill lands in approximately three equal proportions.
The first part would remain with the mill owner which he would be
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entitled to redevelop. The second part would go to MHADA and the
third part would go to public greens.
In terms of the said offer, only two mills exercised the second option
and three opted for the third. Nobody had opted for the fourth option
presumably because pursuant thereto about 2/3rd of the land possessed by the
owner of the mill was required to be surrendered.
DCR 58 provides for a complete code. A distinction, therein has been
made between cotton textile mills on the one hand and non-cotton textile
mills, on the other.
In 2001, DCR 58 was amended/ modified. DCR 58 as amended in the
year 2001 reads as under:
"58. Development or redevelopment of lands of cotton textile
mills;
(1) Lands of sick and/or closed cotton textile mills. -- With the
previous approval of the Commissioner to a layout prepared for
development or redevelopment of the entire open land built-up
area of the premises of a sick and/or closed cotton textile mill,
and on such conditions deemed appropriate and specified by
him, and as a part of a package of measures recommended by
the Financial Institutions and Commissionerate of Industries for
the revival/rehabilitation of a potentially viable sick and/or
closed mill, the Commissioner may allow;
(a) The existing built-up areas to be utilised-
(i) for the same cotton textile or related user subject to
observance of all other Regulations;
(ii) for diversified industrial users in accordance with the
industrial location policy, with office space only ancillary to
and required for such users, subject to and observance of all
other Regulations;
(iii) for commercial purposes, as permitted under these
Regulations;
(b) Open lands and balance FSI shall be used as in the Table
below:
-----------------------------------------------------------
Sr. Extent Percentage Percentage to Percentage to
No. to be earmar- be earmarked be earmarked &
ked for recr- and handed marked & to be
ation Ground over for dev- developed for
/Garden, Play opment by residential or
ground or any MHADA for commercial
other open public housing user to be
user as spec- /(for mill developed
ified by the worker's hous- (including
Commissioner ing as per users permis-
guidelines ssible in res-
approved by idential or
Government to commercial
be shared zone as per
equally) these Regulat-
ions) or
diversified
industrial
users as per
Industrial
Location
Policy) to be
developed by
the owner
-----------------------------------------------------------
(1) (2) (3) (4) (5)
-----------------------------------------------------------
1. Upto and 33 27 40
inclusive
of 5 Ha.
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2. Between 5
Ha. and 33 34 33
upto 10 Ha.
3. Over 10 Ha. 33 37 30
-----------------------------------------------------------
Note
(i) In addition to the land to be earmarked for recreation
ground/garden/play ground or any other open user as in column
(3) of the above Table, open spaces, public amenities and
utilities for the lands shown in columns (4) and (5) of the above
Table as otherwise required under these Regulations shall also
be provided.
(ii) Segregating distance as required under these Regulations
shall be provided within the lands intended to be used for
residential/commercial users.
(iii) The owner of the land will be entitled to Development
Rights in accordance with the Regulations for grant of
Transferable Development Rights as in Appendix VII in respect
of the lands earmarked and handed over as per column (4) of
the above Table. Notwithstanding anything contained in these
Regulations, Development Rights in respect of the land
earmarked and handed over as per column (3) shall be available
to the owner of land for utilisation in the land as per column (5)
or as Transferable Development Rights as aforesaid.
(iv) Where FSI is in balance but open land is not available, for
the purposes of column (3) and (4) of the above Table, land will
be made open by demolishing the existing structures to the
extent necessary and made available accordingly.
(v) Where the lands accruing as per columns (3) and (4) are, in
the opinion of the Commissioner of such small sizes that they
do not admit of separate specific uses provided for in the said
columns, he may, with the prior approval of Government,
earmark the said lands for the use as provided in column (3).
(vi) It shall be permissible for the owners of the land to submit
a composite scheme for the development or redevelopment of
lands of different cotton textile mills, whether under common
ownership or otherwise upon which the lands comprised in the
scheme shall be considered by the Commissioner in an
integrated manner.
(2) Lands of cotton textile mills for purpose of modernisation:-
With the previous approval of the Commissioner to a layout
prepared for development or redevelopment of the entire open
land and/or built-up area of the premises of a cotton textile mill
which is not sick or closed, but requiring modernisation on the
same land as approved by the competent authorities, such
development or redevelopment shall be permitted by the
Commissioner, subject to the condition that it shall also be in
accordance with scheme approved by Government provided
that with regard to the utilisation of built-up area, the provisions
of Clause (a) of Sub-Regulation (1) of this Regulation shall
apply and, if the development of open lands and balance FSI
exceeds 30 per cent of the open land and balance FSI, the
provisions of Clause (b) of sub-regulation (1) of this Regulation
shall apply.
Notes:
(i) The exemption of 30 per cent as specified above may be
availed of in phases, provided that, taking into account all
phases, it is not exceeded in aggregate.
(ii) In the case of more than one cotton textile mill owned by
the same company, the exemption of 30 per cent as specified
above may be permitted to be consolidated and implemented on
any of the said cotton textile mill lands within Mumbai
provided, and to the extent, FSI is in balance in the receiving
mill land.
(3) Lands of cotton textile mills after shifting:
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If a cotton textile mill is to be shifted out side Greater Bombay
but within the State, with due permission of the competent
authorities, and in accordance with a scheme approved by
Government, the provisions of Sub-clauses (a) and (b) of sub-
regulation (1) of its Regulation shall also apply in regard to the
development or redevelopment of its land after shifting.
(4) The condition of recommendation by the Board of Industrial
and Financial Reconstruction (BIFR) shall not be mandatory in
the case of the type referred to in sub-regulations (2) and (3)
above.
(5) Notwithstanding anything contained above, the
Commissioner may allow additional development to the extent
of the balance FSI on open lands or otherwise by the cotton
textile mill itself for the same cotton textile or related user.
(6) With the previous approval of the Commissioner to a layout
prepared for development or redevelopment of the entire open
land and/or built up area of the premises of a cotton textile mill
which is either sick and/or closed or requiring modernisation on
the same land, the Commissioner may allow,:
(a) Reconstruction after demolition of existing structures
limited to the extent of the built up area of the demolished
structures, including by aggregating in one or more structures
the built up areas of the demolished structures;
(b) Multi-mills aggregation of the built up areas of existing
structures where an integrated scheme for demolition and
reconstruction of the existing structures of more than one mill,
whether under common ownership or otherwise, is duly
submitted, provided that FSI is in balance in the receiving mill
land.
(7) Notwithstanding anything contained above-(a) if and when
the built up areas of a cotton textile mill occupied for residential
purposes as on the 1st of January 2000 developed or Page 359
redeveloped, it shall be obligatory on the part of the land owner
to provide to the occupants in lieu of each tenement covered by
the development or redevelopment scheme, free of cost, an
alternative tenement of the size of 225 sq. ft. carpet area;
(b) if and when a cotton textile mill is shifted or the mill owner
establishes a diversified industry, he shall offer on priority in
the relocated mill or the diversified industry, as the case may
be, employment to the worker or at least one member of the
family of the worker in the employ of the mill on the 1st
January 2000 who possesses the requisite qualification or skills
for the job;
(c) for the purpose of Clause (b) above, the cotton textile mill
owner shall undertake and complete training of candidates for
employment before the recruitment of personnel and starting of
the relocated mill or diversified industry takes place.
8(a) Funds accruing to a sick and/or closed cotton textile mill or
a cotton textile mill requiring modernisation or a cotton textile
mill to be shifted, from the utilisation of built up areas as per
Clause (a) of sub-regulation (1) and as per Clauses (a) and (b)
of sub-regulation (6) or from the sale of Transferable
Development Rights in respect of the land as per columns (3)
and (4) of the Table contained in Clause (b) of sub-regulation
(1) or from the development by the owner of the land as per
column (5), together with FSI on account of the land as per
column (3), shall be credited to an escrow account to be
operated as hereinafter provided.
(b) The funds credited to the escrow account shall be utilised
only for the revival/rehabilitation or modernisation or shifting
of the cotton textile mill, as the case may be, provided that the
said funds may also be utilised for payment of worker's dues,
payments under Voluntary Retirement Schemes (VRS),
repayment of loans of banks and financial institution taken for
the revival/rehabilitation or modernisation of the cotton textile
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mill or for its shifting outside Greater Mumbai but within the
State.
9(a) In order to oversee the due implementation of the package
of measure recommended by the Board of Industrial and
Financial Reconstruction (BIFR) for the revival/rehabilitation
of a potentially sick and/or closed textile mill, or schemes
approved by Government for the modernisation or shifting of
cotton textile mills, and the permissions for development or
redevelopment of lands of cotton textile mills granted by the
Commissioner under this Regulation, the Government shall
appoint a Monitoring Committee under the chairmanship of a
retired High Court Judge with one representative each of the
cotton textile mill owners, recognised trade union of cotton
textile mill workers, the Commissioner and the Government as
members.
(b) The Commissioner shall provide to the Monitoring
Committee the services of a Secretary and other required staff
and also the necessary facilities for its functioning.
(c) Without prejudiced to the generaility of the functions
provided for in Clause (a) of this sub-regulation, the Monitoring
Committee shall, --
(i) lay down guidelines for the transparent disposal by sale
otherwise of built up space, open lands and balance FSI by the
cotton textile mills;
(ii) lay down guidelines for the opening operation and closure
of escrow accounts;
(iii) approve proposals for the withdrawal and application of
funds from the escrow accounts;
(iv) monitor the implementation of the provisions of this
Regulation as regards housing, alternative employment and
related training of cotton textile mill workers.
(d) The Monitoring Committee shall have the powers issuing
and enforcing notices and attendance in the manner of a Civil
Court.
(e) Every direction or decision of the Monitoring Committee
shall be final and conclusive and binding on all concerned.
(f) The Monitoring Committee shall determine for itself the
procedures and modalities of its functioning."
REASONS FOR AMENDMENT
We may, at this juncture, take notice of the stand taken by the State
before the High Court. The State of Maharashtra filed several affidavits
before the Bombay High Court stating the backdrop of events leading to
amendment in 2001. It is accepted that the State appointed several
committees to make an in depth study of the matter. In an affidavit affirmed
by one Shri Ramanand Tiwari, Principal Secretary, Urban Development
Department, Government of Maharashtra, on 22nd March, 2005, it was
stated:
"I say that the deteriorating condition of the textile
units and need to have sites for public purpose and
public housing, prompted Government to have a
policy which threw open these lands for
development or redevelopment to facilitate revival
and modernization of mills. Thus, in the year
1991, when the Revised Development Control
Regulations were sanctioned, Regulation 58 for
development of mill land and premises for cotton
textile mills was introduced for the first time."
In the said affidavit, it was categorically stated that a committee under
the Chairmanship of the then Minister for Textiles, Shri Ranjit Deshmukh
was constituted on or about 27th March, 2000. The report by the said
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Committee was submitted on 6.7.2000. It was stated that the Government
duly considered the report of the said Committee and the Cabinet approved
its recommendations on 11.10.2000.
DCR 58 was modified upon following the procedure under Section
37(1AA) of the MRTP Act and in terms of the decision of the Cabinet.
However, in a second affidavit affirmed by Shri Ramanand Tiwari on 10th
August, 2005, some clarification as regard the stand of the State was given.
While meeting the contentions raised by the Writ Petitioners, it was stated:
"I say that a reference to the Ranjit Deshmukh
Committee has been made in my earlier affidavit
dated 22nd March, 2005. I say that in the said
affidavit, the genesis of the amended Regualtion
58 have been elaborately stated. I say that the
Petitioner's contention that the said report has not
been disclosed by the State, is totally unjustified
and unwarranted. I say that when a mention of the
said report has been made in my earlier affidavit,
the Petitioners could have sought a copy of the
said report from the State. Since the Petitioners
have never done so as it can be presumed that the
Petitioners already have a copy of the said report
in their possession but are only putting a pretence
that they do not have a copy. It is also
unbelievable that the Petitioners who otherwise
have all the relevant information including various
reports on which they rely in the petition as filed as
well as the amended petition do not have a copy of
the said Ranjit Deshmukh Committee Report. In
any event, the State has no objection to furnishing
a copy of the report of the Ranjit Deshmukh
Committee if the Petitioners so desire."
The deponent of the said affidavit further denied and disputed the
contention raised on behalf of the petitioner that the Government intended to
side with the private developers at the cost of the city as a whole and had not
made any amendment in furtherance of the Charles Correa Committee
Report. It was stated:
"\005I say that as stated in my earlier affidavit dated
22.3.2005, the State Government has culled out
certain recommendations of the Correa Committee
as also certain recommendations of the Ranjit
Deshmukh Committee whilst coming to a
conclusion the need for, and thereafter
incorporating suitable amendments to the said
DCR 58."
The said stand of the State, however, underwent some change when
the same deponent in his third affidavit dated 17th August, 2005 in purported
clarification of the earlier stand of the State stated:
"I am making this further affidavit in order to
explain the position with regard to the change
made with regard to Regulation 58(1)(b) and the
clarification issued on March 28, 2003. The Ranjit
Deshmukh Committee gave its report on July 06,
2000. Thereafter, the report was circulated to all
the concerned departments, the Urban
Development Department, the Labour Department,
the Textile Department and the Industries
Department. A detailed Cabinet note was prepared
for consideration by the Cabinet which not only
included the recommendations of the Ranjit
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Deshmukh Committee report but also specifically
the views of the various departments. On this
aspect, the views of the Urban Development
Department were that in view of the prevailing
regulation 58 which required sharing of lands after
demolition under Regulation 58(1)(b) the Mill
Owners were not willing to come forward with
proposals since the same would not be viable for
them. It was the view of the Department that in
order to make revival feasible and possible the area
available after demolition of existing structure
should be excluded from computation of the land
to be shared. After the Cabinet decision, the then
Secretary whilst formulating the amendments and
the proposed modification to regulation 58
specifically included the deletion of the words
beginning with "lands after demolition" upto
"scheme to" and substitution thereof by the words
"balance FSI shall". This was the subject matter of
Item (A-6) of schedule I to the Public Notice
which was issued on November 29, 2000."
Evidently, the Charles Correa Committee Report had not been given
effect to, but the same as would appear hereinafter had been taken note of by
the Deshmukh Committee.
A fourth affidavit again came to be filed by the same deponent on 29th
August, 2005.
REPORTS OF THE TWO COMMITTEES \026RELEVANCE
It may also be of some interest to refer to the report of the two
Committees.
The State of Maharashtra appointed a committee headed by Shri
Charles Correa, Architect/ Planner in 1996. The development under 1991
Regulation was put on hold from 1996 to 2001. In Part I of the Report, the
Committee lamented that out of the 53 mills, they could gain access only to
26 mills. They advocated for aggregation of mills. They identified those
which were viable or considered viable and suggested that the lands of
unviable mills should be disposed of. It proposed a holistic development of
the mill lands. It also noticed the need for leaving open spaces. It took into
consideration other factors, namely, transport, urban form, open spaces and
employment generation. As regard open spaces, it stated:
"The Public Open Spaces proposed (see fig 23)
vary in size from large Maidans to small
Neighbourhood Parks, so that a variety of different
open-air activities can take place. In front of the
Railway Stations, large Pedestrian plazas have
been proposed, surrounded by shopping arcades
(so that the people can pick up their vegetables and
other purchases on their way home \026 a classic
pattern found all over Mumbai). Then again, the
principal roads can be widened and lined with
trees, so that they are converted into leafy
boulevards."
A second committee was constituted but it did not submit any report.
Another Committee was constituted under the Chairmanship of Shri
Ranjit Deshmukh, the then Minister for Textiles and included a
representative of all the Ministries and Departments concerned including the
Urban Development Department. The Committee appointed a sub-
committee. The sub-committee inter alia took into consideration the
recommendations of the Charles Correa Study Group, prevailing provisions
belonging to textile mills, prevailing state of affairs with respect thereto,
demands of the National Textile Industries Board. It also held discussions
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with various bodies including the mill workers and mill owners as also MPs
and MLAs of the town of Mumbai. It, however, carried out actual site
inspection of some textile mills only. The Committee recommended:
"Since rule 58(1)(a) contains the term "newly
built-up", it is presumed that it permits new
construction. But, carrying out such new
construction means using the balance Floor Space
Index and consequently using the adjoining open
space. Thus, using open space in this manner
under the provisions of rule 58(1)(a) means
indirectly to override the provisions of rule
58(1)(b). Hence, in order to more clearly
distinguish the boundary line between rule 58(1)(a)
and 58(1)(b) following amendments are required to
be carried out in this rule under section 37.
(a) The words "or newly" in rule 58(1)(a)
should be excluded.
(b) The words "permissible FSI and" in rule
58(1)(a)(i) should be excluded.
(c) The words "FSC of 1.00 and" in rule
58(1)(a)(ii) should be excluded.
Upon making aforesaid changes the rule 58(1)(a)
shall be limited to the extent of new use of the
existing buildings of the mills only and exercise of
rule 58(1)(b) shall be regarding development of the
available open lands and land becoming vacant
upon demolition of the existing buildings.
However, such development shall be subject to
permissible FSI."
In Paragraph 19.1, it made some suggestions for giving
encouragement to revival of mills stating:
"\005Hence the provisions of rule 58(1)(b) should be
made more attractive and in order to promote
revival, the mills owners should be permitted to
use the development rights of the open lands, to be
handed over to municipal corporation, in the lands
of their share as per column (5) of the aforesaid
Table (even if such lands are situate in Mumbai
island) and for this purpose the prevailing
provision of rule 58(1)(b) should be amended as
per section 37. Such recommendation is also made
by the Korea (sic Correa) Study Group."
It furthermore encouraged modernization of mills. It suggested
certain incidental amendments also.
From what has been noticed hereinbefore, it is evident that as per the
suggestion of Ranjit Deshmukh Committee the words "or newly" were
omitted as according to it, it may give rise to a lot of confusion. From
paragraph 18.8 of the report also, it appears that the said Committee
suggested use of different language, namely, "lands after demolition of
structure". We find from the said report that the Committee suggested a
draft in respect of DCR 58(1)(b) of the Regulations. It is in that context, we
may have to consider the second affidavit affirmed by Shri Ramanand
Tiwari when he stated that the Cabinet had approved the report albeit not in
its entirety.
The draft regulations thereafter were notified for considering the
objections thereto, if any. Several objections were filed, they were
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considered by the appropriate authority including the planning authority.
Evidently, the said two reports were considered by the Cabinet but it
intended to give more to the mill owners than what was recommended inter
alia by introducing sub-regulation (6) of DCR 58. The intent and purport of
the State is apparent from DCR 58. It accepted a major part of the
recommendations of the Deshmukh Committee but thought that the mill
owners should be given something more.
PUBLIC INTEREST LITIGATION : SCOPE OF
While entertaining a public interest litigation of this nature several
aspects of public interest being involved, the Court should find out as to how
greater public interest should be subserved and for the said purpose a
balance should be struck and harmony should be maintained between
several interests such as (a) consideration of ecology; (b) interest of workers
(c) interest of public sector institution, other financial institutions, priority
claimed due to workers; (d) advancement of public interest in general and
not only a particular aspect of public interest; (e) interest and rights of
owners; (f) the interest of a sick and closed industry; and (g) schemes framed
by BIFR for revival of the company.
The courts in doing so would have to take into consideration a large
number of factors, some of which may be found to be competing with each
other. It may not be proper to give undue importance to one at the cost of
the other which may ultimately be found to be vital and give effect to the
intent and purport for which the legislation was made.
Scope of Public Interest Litigations in view of several decisions of
this Court has its own limitations. We would hereinafter notice a few of
them.
In Raunaq International Ltd. v. I.V.R. Constructions Ltd. & Ors.
[(1999) 1 SCC 492], this Court highlighted that the public interest litigation
should not be a mere cloak. The court must be satisfied that there is some
element of public interest involved in entertaining such a petition. The court
also cautioned that before entertaining a writ petition and passing an interim
order overwhelming public interest should be taken into consideration
therefor. It was further observed :
"\005 It is important to bear in mind that by court
intervention, the proposed project may be considerably
delayed thus escalating the cost far more than any saving
which the court would ultimately effect in public money
by deciding the dispute in favour of one tenderer or the
other tenderer. Therefore, unless the court is satisfied that
there is a substantial amount of public interest, or the
transaction is entered into mala fide, the court should not
intervene under Article 226 in disputes between two rival
tenderers."
In Ashok Lanka v. Rishi Dixit [(2005) 5 SCC 598], this Court opined:
"\005 it is well settled that even in a case where a
petitioner might have moved the Court in his
private interest and for redressal of personal
grievances, the Court in furtherance of the public
interest may treat it necessary to enquire into the
state of affairs of the subject of litigation in the
interest of justice."
This was also the view taken in Guruvayoor Devaswom Managing
Committee v. C.K. Rajan [(2003) 7 SCC 546 at para 50], Shivajirao
Nilangekar Patil v. Dr. Mahesh Madhav Gosavi [(1987) 1 SCC 227] and
Chairman & MD, BPL Ltd. v. S.P. Gururaja and Others, (2003) 8 SCC 567.
In K.K. Bhalla v. State of M.P. & Ors. [2006 (1) SCALE 238], it was
stated:
"The Appellant has brought to the notice of the
High Court that a malady has been prevailing in
the department of the State of Madhya Pradesh and
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the JDA. It may be true that the Appellant did not
file any application questioning similar allotments
but it is well-settled if an illegality is brought to the
notice of the court, it can in certain situations
exercise its power of judicial review suo motu\005"
This Court times without number, however, has laid down the law as
regard limited scope of public interest litigation. It sounded note of caution
for entertaining public interest litigation in service matters [See Dr. B. Singh
v. Union of India and Others, (2004) 3 SCC 363], in questioning the validity
or otherwise of a statute or when a statute is enacted in violation of the
direction of a superior court [See Ashok Kumar Thakur v. State of Bihar &
Ors. [(1995) 5 SCC 403]. But, we cannot also shut our eyes to the fact that
this Court has entertained a large number of public interest litigations for
protection of environmental and/ or ecology. [See .M.C. Mehta group of
cases and T.N. Godavarman Thirumulpad v. Union of India and Others,
(2006) 1 SCC 1]
Public interest litigations, thus, have been entertained more frequently
where a question of violation of the provisions of the statutes governing the
environmental or ecology of the country has been brought to its notice in the
matter of depletion of forest areas and/ or when the executive while
exercising its administrative functions or making subordinate legislations
has interfered with the ecological balance with impunity. The High Court of
Bombay, therefore, cannot be faulted with for entertaining the writ petition
as a public interest litigation.
PRINCIPLES OF INTERPRETATION
Before us, the learned counsel appearing for the parties have relied on
several principles of interpretation of statute.
The golden rule of interpretation is that unless literal meaning given to
a document leads to anomaly or absurdity, the principles of literal
interpretation should be adhered to. [See Compack (P) Ltd. v. CCE, (2005)
8 SCC 300, Gurudevdatta VKSSS Maryadit v. State of Maharashtra, (2001)
4 SCC 534, Dayal Singh v. Union of India, (2003) 2 SCC 593 and Swedish
Match AB v. Securities and Exchange Board, India, (2004) 11 SCC 641].
The learned Judges of the High Court as also this Court have been
taken through the provisions of the MRTP Act, those of the DCR and in
particular DCR 58 as framed in 1991 as well as in 2001 times without
number. With the assistance of different counsel appearing for different
purpose, we have read, re-read and re-read several provisions. Before us,
several principles, canons and rules of interpretation have been emphasized.
We have not only been taken through various decisions of this Court but also
various authorities and treatises dealing with the subject of interpretation of
statutes.
We have also been asked by the learned counsel for the parties to
interpret the impugned legislation in the light of constitutional scheme and in
particular Articles 14 and 21 of the Constitution of India, the provisions of
the MRTP Act, the doctrine of sustainable development and various other
principles. In the aforementioned situation, it is not possible for us to take
recourse to the golden rule.
As would appear from the discussions made hereinafter, we are,
however, of the opinion that for correct interpretation of DCR 58, the
principles of purposive interpretation should be applied.
In Francis Bennion's Statutory Interpretation, purposive construction
has been described in the following manner:
'A purposive construction of an enactment is one
which gives effect to the legislative purpose by\027
(a) following the literal meaning of the enactment
where that meaning is in accordance with the
legislative purpose (in this Code called a
purposive-and-literal construction), or
(b) applying a strained meaning where the literal
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meaning is not in accordance with the legislative
purpose (in the Code called a purposive-and-
strained construction).'
In K.L. Gupta & Ors. v. The Bombay Municipal Corporation and Ors.
[1968 (1) SCR 274], it was stated:
"\005Before examining the contentions on the points
of law raised in this case, it is necessary to
appreciate what the Act sought to achieve and why
it was brought on the statute book. In order to do
this, it is necessary to take stock of the position at
the time of its enactment so that attention may be
focussed on the situation calling for a remedy and
how the legislature sought to tackle it..."
However, the pith of this statement has now found form in the
doctrine of purposive construction, as accepted by this Court in several
cases.
In Maruti Udyog Ltd. v. Ram Lal and Others [(2005) 2 SCC 638],
while interpreting the provisions of Industrial Disputes Act, 1947, the rule of
purposive construction was followed.
In Reserve Bank of India v. Peerless General Finance and Investment
Co. Ltd. [(1987) 1 SCC 424] this Court stated:
"\005If a statute is looked at, in the context of its
enactment, with the glasses of the statute-maker,
provided by such context, its scheme, the sections,
clauses, phrases and words may take colour and
appear different than when the statute is looked at
without the glasses provided by the context. With
these glasses we must look at the Act as a whole
and discover what each section, each clause, each
phrase and each word is meant and designed to say
as to fit into the scheme of the entire Act\005"
In 'The Interpretation and Application of Statutes', Reed Dickerson,
at p.135 discussed the subject while dealing with the importance of context
of the statute in the following terms:
'... The essence of the language is to reflect,
express, and perhaps even affect the conceptual
matrix of established ideas and values that
identifies the culture to which it belongs. For this
reason, language has been called "conceptual map
of human experience".'
In Punjab Land Development and Reclamation Corpn. Ltd. v.
Presiding Officer, Labour Court, Chandigarh [(1990) 3 SCC 682], this
Court referred to the following passage from Hans Kelsen's Pure Theory
Law of Law:
"\005The legal act applying a legal norm may be
performed in such a way that it conforms (a) with
the one or the other of the different meanings of
the legal norm, (b) with the will of the norm-
creating authority that is to be determined
somehow, (c) with the expression which the norm-
creating authority has chosen, (d) with the one or
the other of the contradictory norms, or (e) the
concrete case to which the two contradictory
norms refer may be decided under the assumption
that the two contradictory norms annul each other.
In all these cases, the law to be applied constitutes
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only a frame within which several applications are
possible, whereby every act is legal that stays
within the frame."
[See also High Court of Gujarat v. Gujarat Kishan Mazdoor
Panchayat, (2003) 4 SCC 712, Indian Handicrafts Emporium and Others v.
Union of India and Others, (2003) 7 SCC 589 and Deepal Girishbhai Soni
and Others v. United India Insurance Co. Ltd., Baroda, (2004) 5 SCC 385,
para 56]
In Balram Kumawat v. Union of India and Others, [(2003) 7 SCC
628], this Court held that if special purpose is to be served even by a special
statute, the same may not always be given any narrow and pedantic, literal
and lexical construction nor doctrine of strict construction should always be
adhered to.
In Pratap Singh v. State of Jharkhand and Another [(2005) 3 SCC
551], this Court emphasized assignment of contextual meaning to a statute
having regard to the constitutional as well as international law operating in
the field. Strict adherence to the procedure, subject to just exceptions, was
highlighted therein.
However, in P.S. Sathappan (Dead) By LRS. v. Andhra Bank Ltd. and
Others [(2004) 11 SCC 672], it was observed that in the guise of purposive
construction one cannot interpret a section in a manner which would lead to
a conflict between two sub-sections of the same section.
Having noticed the principles of purposive construction, we may take
note of certain other principles which are necessary to be considered for
proper interpretation of DCR 58.
It is well-settled principle of law that in the absence of any context
indicating a contrary intention, the same meaning would be attached to the
word used in the latter as is given to them in the earlier statute. It is trite that
the words or expression used in a statute before and after amendment should
be given the same meaning. When the legislature uses the same words in a
similar connection, it is to be presumed that in the absence of any context
indicating a contrary intention, the same meaning should attach to the words.
In Venkata Subamma and another v. Ramayya and others [AIR 1932
PC 92], it is stated that an Act should be interpreted having regard to its
history and the meaning given to a word cannot be read in a different way
than what was interpreted in the earlier repealed section.
It is also a fundamental proposition of construction that the effect of
deletion of words must receive serious consideration while interpreting a
statute as this has been repeatedly affirmed by this Court in a series of
judgments. [See Commr. Of Income-tax/Excess Profits Tax, Bombay City
v. Messrs. Bhogilal Laherchand including Batliboi and Co., Bombay, AIR
1954 SC 155, The Mangalore Electric Supply Co. Ltd. v. The Commissioner
of Income Tax, West Bengal, (1978) 3 SCC 248, His Holiness Kesavananda
Bharati Sripadagalvaru v. State of Kerala and Another, (1973) 4 SCC 225
and M/s. Onkarlal Nandlal v. State of Rajasthan and Another (1985) 4 SCC
404].
It is furthermore well-known that when the statute makes a distinction
between the two phrases and one of the two is expressly deleted, it is
contrary to the cardinal principle of statutory construction to hold that what
is deleted is brought back into the statute and finds place in words which
were already there in the first place.
In Charles Bradlaugh v. Henry Lewis Clarke [(1883) 8 AC 354],
Lord Watson as regards conscious omission from the statute stated the law,
thus:
"I see no reason to suppose that all these omissions
were accidental, and as little reason to suppose that
the enactments with regard to personal disabilities
were intentionally left out, whilst the express
mention made of common informers was omitted
through accident or inadvertence."
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It is also a well-settled principle of law that common sense
construction rule should be taken recourse to in certain cases as has been
adumbrated in Halsbury's Laws of England (Fourth Edition) Volume 44(1)
(Reissue). We would refer to the said principle in some details later.
INTERPRETATION OF ACT AND REGULATIONS
DCR 58 has been attempted to be interpreted in more than one manner
by the learned counsel appearing for the parties.
DCR 58 was made to revive and resurrect neighbourhoods, foster
development, regenerate lands which had become sterile, encourage the
shifting of textile mills (thereby reducing the attendant strain and industrial
activity places on civil amenities) and pay off chronic arrears and dues of
workers, banks institutions, statutory dues, etc. In its operation and
implementation new DCR 58 would also unlock large real estate and make it
available to residents.
A statute, it is well known, is to be read as a whole. Subordinate
legislation indisputably has to be read in the light of the provisions of the
Act whereunder it has been made. It, however, must be read having regard
to the purpose and object for which the statute is made.
The MRTP Act provides for formulation of regional plans and
development plan. The planning authority, before a plan is finalized, is
required to see that the provisions thereof have been fully complied with.
The MRTP Act provides for appointment of a town planning officer who
possesses requisite qualification. The MRTP Act lays down the matters
which are mandatorily required to be considered by the planning authority in
all the stages, namely, survey, preparation, submission and sanction of
development plan. While doing so, it is bound to take into consideration a
large number of factors as specified therein. The State has been conferred
with a special power to frame development control regulations in terms of
Section 159(2) of the MRTP Act. Development Control Regulations have
been framed in terms of the said provisions. The State has furthermore been
given a power to supervise and maintain control over the planning
authorities. Such control may be exercised in more than one manner. The
planning authority is not only required to obtain statutory sanction and
approval wherever applicable, but the State, has also been conferred with a
special power to make a development plan subject, of course, to the
condition that the same shall not change the character of such development
plan.
Section 22 of the MRTP Act provides for the contents of the
development plan, i.e., to be divided into several areas for allocating the use
of land for the purposes as, for example, residential or commercial,
proposals for designation of land for public purposes, proposal for
designation of areas for open spaces, playgrounds, stadia, zoological
gardens, green belts, nature reserves, sanctuaries, dairies, transports and
communications, such as roads, highways, parkways, railways, waterways,
canals and airports, including their extension and development, water
supply, drainage, sewerage, etc. and reservation of land for community
facilities and services. Whereas designation and/ or reservation of areas for
certain public purposes would vary from place to place, ut must take care of
not only the public purposes but also several others including open spaces.
Water supply, drainage, sewerage, and other public utilities including
electricity and gas or highways or waterways, schools, etc., however, would
be considered to be equally important.
A planning authority, therefore, must take into consideration all the
relevant factors, although in a given case, one gets priority over the other.
Ordinarily, it would not be for the court to substitute its decision to that of
the planning authority unless an appropriate case is made out therefor.
When, however, question of public interest comes up, the court indisputably
would try to delicately balance the different factors, if possible.
Both open space as also the other factors relevant for making the
regulation would be in public interest. The question would, however, be as
to which is of greater public interest. Public interest, thus, would be a
relevant factor also for interpretation of the statute. Public interest so far as
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maintenance of ecology is concerned pertains to a constitutional scheme
comprising of Articles 14, 21, 48A and 51A(g) of the Constitution of India,
the other factors are no less significant. [See also T.N. Godavarman
Thirumalpad vs. Union of India and Others, (2002) 10 SCC 606, N.D. Jayal
and Another vs. Union of India and Others, (2004) 9 SCC 362 and Vellore
Citizens' Welfare Forum vs. Union of India and Others, (1996) 5 SCC 647].
All concerned, namely, operating agencies, the State Government, the
National Textile Mills as also BIFR interpreting the said regulation opined
that sharing of land is imperative, but the question remains, to what extent?
Whether radical changes were made in the year 2003, when the State made
the aforementioned clarification would again be a question which is required
to be posed and answered. Was such a clarification in consonance with the
reports of Charles Correa Committee and the Ranjit Deshmukh Committee?
Did 2000 acres of vacant land which would have been otherwise available
come down to 50 acres? Had any balance been struck between the original
concept of sharing of lands by Bombay Municipal Corporation, MHADA
and the mill owners? It is in the aforementioned backdrop, the nature of
change must be considered. The amendment in 2001, therefore, must be
interpreted having regard to the provisions of the MRTP Act which
professed increase in the ecological interest by providing more open space
and not decreasing the same, but again the question would be "was there any
reduction"? The amendments in the regulation must be construed in
furtherance of the legislative policy and not in derogation thereof. But,
while doing so, the past experience of the State which paved the necessities
for modifying the earlier regulation should not be forgotten.
A statutory scheme herein also by way of Section 22 clearly speaks
about open spaces. The Legislative Act confers guidelines which advocates
the necessity of environmental impact assessment. The State, when it
exercises its power under Section 37 of the MRTP Act is required to act
within the four-corners of the Act. Any modification or amendment must
address the environmental consequences together with other relevant factors.
As a logical corollary, it must also be determined as to whether the
amendments amounted to a minor modification or substantive one. Literal
interpretation of the Act and the Rules would give rise to many anomalies.
It would not advance the object and purport of the Act. It would also create
difficulties in implementing the statutory scheme.
Having said so, we have no other option but, as indicated
hereinbefore, to take recourse to the principles of purposive construction and
interpret DCR 58 in accordance with the scope and object of the Act. For
the said purpose, we may also have to consider various aspects of the matter.
We would make an attempt in this behalf.
SCOPE OF JUDICIAL REVIEW VIS-@-VIS LEGISLATIVE POLICY
A policy decision, as is well known, should not be lightly interfered
with but it is difficult to accept the submissions made on behalf of the
learned counsel appearing on behalf of the Appellants that the courts cannot
exercise their power of judicial review at all. By reason of any legislation
whether enacted by the legislature or by way of subordinate legislation, the
State gives effect to its legislative policy. Such legislation, however, must
not be ultra vires the Constitution. A subordinate legislation apart from
being intra vires the Constitution, should not also be ultra vires the parent
Act under which it has been made. A subordinate legislation, it is trite, must
be reasonable and in consonance with the legislative policy as also give
effect to the purport and object of the Act and in good faith.
In P.J. Irani v. The State of Madras [(1962) 2 SCR 169], this Court
has clearly held that a subordinate legislation can be challenged not only on
the ground that it is contrary to the provisions of the Act or other statutes;
but also if it is violative of the legislative object. The provisions of the
subordinate legislation can also be challenged if the reasons assigned
therefor are not germane or otherwise mala fide. The said decision has been
followed in a large number of cases by this Court. [see also M/s. Punjab Tin
Supply Co., Chandigarh and Others vs. Central Government and Others,
(1984) 1 SCC 206].
It is interesting to note that in Secretary, Ministry of Chemicals &
Fertilizers, Government of India v. Cipla Ltd. & Ors. [(2003) 7 SCC 1], this
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Court opined :
"It is axiomatic that the contents of a policy document
cannot be read and interpreted as statutory provisions.
Too much of legalism cannot be imported in
understanding the scope and meaning of the clauses
contained in policy formulations. At the same time, the
Central Government which combines the dual role of
policy-maker and the delegate of legislative power,
cannot at its sweet will and pleasure give a go-by to the
policy guidelines evolved by itself in the matter of
selection of drugs for price control. The Government
itself stressed on the need to evolve and adopt transparent
criteria to be applied across the board so as to minimize
the scope for subjective approach and therefore came
forward with specific criteria. It is nobody's case that for
any good reasons, the policy or norms have been changed
or have become impracticable of compliance."
[Emphasis supplied]
The parameters of judicial review in relation to a policy decision
would depend upon the nature as also the scope and object of the legislation.
No hard and fast rule can be laid down therefor. The court normally would
not, however, interfere with a policy decision which has been made by
experts in view of the fact that it does not possess such expertise.
Divergent opinions, however, have been expressed by the authorities
in this behalf. The scope and extent of judicial review of legislation, it is
trite, would vary from case to case.
Reliance has been placed by the Appellants on Maharashtra State
Board of Secondary and Higher Secondary Education and Another v.
Paritosh Bhupesh Kuamr Sheth and Ors. [(1984) 4 SCC 27] wherein this
Court was concerned with a regulation laying down the terms and conditions
for revaluating the answer papers. Indisputably, there exists a distinction
between regulations, rules and bye-laws. The sources of framing regulations
and bye-laws are different and distinct but the same, in our opinion, would
not mean that the court will have no jurisdiction to interfere with any policy
decision, legislative or otherwise.
In R.K. Garg v. Union of India & Ors. [(1981) 4 SCC 675], this
Court noticed that the legislature is presumed to understand and correctly
appreciate the needs of its own people, but the same again would not mean
that judicial review of legislation is impermissible.
In Balco Employees Union v. Union of India [(2002) 2 SCC 333], this
Court while dealing with new economic policies of the elected government
held:
"\005Any such change may result in adversely
affecting some vested interests. Unless any
illegality is committed in the execution of the
policy or the same is contrary to law or mala fide,
a decision bringing about change cannot per se be
interfered with by the court.
Wisdom and advisability of economic policies
are ordinarily not amenable to judicial review
unless it can be demonstrated that the policy is
contrary to any statutory provision or the
Constitution. In other words, it is not for the courts
to consider relative merits of different economic
policies and consider whether a wiser or better one
can be evolved. For testing the correctness of a
policy, the appropriate forum is Parliament and not
the courts\005"
The embargo as regard exercise of power of judicial review may not
be beyond the aforementioned dicta.
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Here, however, we are not at all dealing with an economic policy of
the State, but a special planning statute of which economic factor is only one
of the components. Even then, it has no bearing with the economic policy
affecting the State or general public. DCR 58 deals with only a class of
people \026 who owned and possessed cotton textile mills and want revival/
rehabilitation of their sick or closed textile mills or intend to modernize or
shift their mills.
We may notice that in State of Rajasthan & Ors. v. Basant Nahata
[AIR 2005 SC 3401], it was pointed out :
"The contention raised to the effect that this Court
would not interfere with the policy decision is again
devoid of any merit. A legislative policy must conform
to the provisions of the constitutional mandates. Even
otherwise a policy decision can be subjected to judicial
review\005"
Furthermore, interpretation of a town planning statute which has an
environmental aspect leading to application of Articles 14 and 21 of the
Constitution of India cannot be held to be within the exclusive domain of
the executive.
There cannot be any doubt whatsoever, that the validity and/or
interpretation of a legislation must be resorted to within the parameters of
judicial review, but it is difficult to accept the contention that it is totally
excluded.
Unreasonableness is certainly a ground of striking down a subordinate
legislation. A presumption as to the constitutionality of a statute is also to be
raised but it does not mean that the environmental factors can altogether be
omitted from consideration only because the executive has construed the
statute otherwise.
It is interesting to note that the scope of judicial review is now being
expanded in different jurisdictions. Even judicial review on facts has been
held to be permissible in law. [See Manager, Reserve Bank of India,
Bangalore v. S. Mani and Others, (2005) 5 SCC 100, Sonepat Cooperative
Sugar Mills Ltd. v. Ajit Singh, (2005) 3 SCC 232 and Cholan Roadways
Ltd. v. G. Thirugnanasambandam, (2005) 3 SCC 241].
In Anil Kumar Jha v. Union of India, (2005) 3 SCC 150, it was held
that in an appropriate case, the Supreme Court may even interfere with a
political decision including an action of the Speaker or Governor of the State
although it may amount to entering into a political thicket. [See also
Rameswar Prasad & Ors. v. Union of India & Anr. 2006 (1) SCALE 385].
Furthermore, there are innumerable cases where this Court has even
issued directions despite the fact that the field is covered by some statute or
subordinate legislation. Such directions issued are clear pointers to show
that when a question involving greater public interest or public good
including enforcement of fundamental right arises, this Court bestowed
enormous consideration to public interest. [See Vineet Narain and Others v.
Union of India and Another, (1996) 2 SCC 199, Union of India and Another
v. C. Dinakar, IPS and Others, (2004) 6 SCC 118 and Kapila Hingorani v.
State of Bihar, (2003) 6 SCC 1].
Such directions have more often than not been issued even where the
question involved relates to enforcement of a human right or environmental
aspects. Interpretation and application of constitutional and human rights
had never been limited by this Court only to the black letter of law.
Expansive meaning of such rights had all along been given by the Courts by
taking recourse to creative interpretation which lead to creation of new
rights. By way of example, we may point out that by interpreting Article 21,
this Court has created new rights including right to environmental
protection.
The Wednesbury principles to which reference has been made in The
Trustees of the Port of Madras v. M/s Aminchand Pyarelal and Ors. [(1976)
3 SCC 167] in some jurisdiction are being held to be not applicable in view
of the development in constitutional law in this behalf. [See e.g. Huang and
Others v. Secretary of State for the Home Department [(2005) 3 All. ER
435], wherein referring to R. v. Secretary of State of the Home Department,
ex. P Daly [(2001) 3 All ER 433], it was held that in certain cases, the
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adjudicator may require to conduct a judicial exercise which is not merely
more intrusive than Wednesbury, but involves a full-blown merits judgment,
which is yet more than Ex p. Daly requires on a judicial review where the
court has to decide a proportionality issue. Law is never static; it changes
with the change of time. [See Motor General Traders and Anr. v. State of
Andhra Pradesh and Ors.,(1984) 1 SCC 222 and John Vallamattom v. Union
of India, (2003) 6 SCC 611].
For the foregoing reasons, we are of the opinion that in cases where
constitutionality and/ or interpretation of any legislation, be it made by the
Parliament or an executive authority by way of delegated legislation, is in
question, it would be idle to contend that a court of superior jurisdiction
cannot exercise the power of judicial review. A distinction must be made
between an executive decision laying down a policy and executive decision
in exercise of its legislative making power. A legislation be it made by the
Parliament/ Legislature or by the executive must be interpreted within the
parameters of the well-known principles enunciated by this Court. Whether
a legislation would be declared ultra vires or what would be the effect and
purport of a legislation upon interpretation thereof will depend upon the
legislation in question vis-`-vis the constitutional provisions and other
relevant factors. We would have to bear some of the aforementioned
principles in mind while adverting to the rival contentions raised at the bar in
regard to interpretation of DCR 58 as well as constitutionality thereof.
DCR 58 : INTERPRETATION
For the purpose of interpretation of DCR 58, it may be beneficial to
notice the changes effected by 2001 Regulations vis-`-vis 1991 Regulations:
Old DCR 58
New DCR 58
58. Development or redevelopment
of lands of cotton textile mills;
(1) Lands of sick and/or closed
cotton textile mills. - With the
previous approval of the
Commissioner to a layout prepared
for development or redevelopment of
the entire open land built-up area of
the premises of a sick and/or closed
cotton textile mill, and on such
conditions deemed appropriate and
specified by him, and as a part of a
package of measures recommended
by the Board of Industrial and
Financial Reconstruction (BIFR),
Financial Institutions and
Commissionerate of Industries for
the revival/rehabilitation of a
potentially viable sick mill, the
Commissioner may allow;
(a) The existing or newly built-up
areas to be utilised-
(i) for the same cotton textile or
related user subject to permissible
FSI and observance of all other
Regulations;
(ii) for diversified industrial users in
accordance with the industrial
location policy, with office space
only ancillary to and required for
such users, subject to FSI of 1.00 and
observance of all other Regulations;
(iii) for commercial purposes, as
permitted under these Regulations:
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Provided that in the Island City, the
area used for office purposes shall
not exceed that used earlier for the
same purpose.
(b) Open lands and lands after
demolition of existing structures in
case of a redevelopment scheme to
be used as in the Table below\005
58. Development or redevelopment
of lands of cotton textile mills;
(1) Lands of sick and/or closed
cotton textile mills. -- With the
previous approval of the
Commissioner to a layout prepared
for development or redevelopment of
the entire open land built-up area of
the premises of a sick and/or closed
cotton textile mill, and on such
conditions deemed appropriate and
specified by him, and as a part of a
package of measures recommended
by the Financial Institutions and
Commissionerate of Industries for
the revival/rehabilitation of a
potentially viable sick and/or closed
mill, the Commissioner may allow;
(a) The existing built-up areas to be
utilised-
(i) for the same cotton textile or
related user subject to observance of
all other Regulations;
(ii) for diversified industrial users in
accordance with the industrial
location policy, with office space
only ancillary to and required for
such users, subject to and observance
of all other Regulations;
(iii) for commercial purposes, as
permitted under these Regulations;
Provided that in the Island City, the
area used for office purposes shall
not exceed that used earlier for the
same purpose.
(b) Open lands and balance FSI shall
be used as in the Table below\005
A bare comparison of the said provisions would show that in sub-
regulation (1) of DCR 58, the language remains the same. However, in
clause (a) thereof the words "or newly" have been omitted in the 2001
Regulations. Clause (a) of sub-regulation (1) provides for change of user in
relation to the existing built-up area, subject to the recommendations of
BIFR as a package. The question as to whether the mills which are closed
but were not referred to BIFR come within the purview of the said clause
would be dealt with a little later.
Sub-regulation (1) of DCR 58 provides for an approval of the
Commissioner to a layout prepared for the development or redevelopment of
the entire open land as well as built-up area of the premises of a sick and/or
closed textile mill. For the purpose of grant of sanction as regards change of
user, the Commissioner may specify certain conditions as it may deem
appropriate. Such an approval was sought to be a part of the measure of the
package recommended by BIFR for the revival/rehabilitation of a potentially
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viable sick mill. Only if such conditions are specified, clause (a) shall apply
which provides for change of user relating to existing built-up area.
We have noticed hereinbefore that Regulation 56(3)(b) and
Regulation 57(4)(c) also makes specific provisions for grant of change of
user in respect of sick mills as a part of a package of measures recommended
by BIFR.
The drastic changes have, however, been made in clause (b) of Sub-
regulation (1) of DCR 58. It refers to a case of redevelopment. In clause (b)
the words "after demolition of existing structures in case of a redevelopment
scheme" have been deleted.
DCR 58 as made in 1991 consisted of four different concepts:
(1) Existing built up areas;
(2) Newly built up areas in DCR 58(1)(a);
(3) Open land and
(4) Lands after demolition of existing structures in the case of a
redevelopment scheme in DCR 58(1)(b).
It is not in dispute that the scheme framed thereunder did not work or
in any event did not work to the satisfaction of all the mill owners and other
players including the State.
In view of the limited options contained therein and the consequences
flowing therefrom in terms of the Old Regulations a mill owner could
(i) continue to use the existing cotton textile mill;
(ii) redevelop the existing structure without changing its shell and
without touching the open land in which event, no sharing of land
or structure was necessary;
(iii) retain existing structure and develop the open land in which event
the mill owners were required to share 2/3rd of the open land used;
(iv) demolish the existing structures and develop the entire land,
meaning thereby, the open land as also the land available after
demolition of the existing structure in which event sharing of entire
land was contemplated.
We have noticed that only five mills opted in terms of the old
Regulation. Hardly any development took place. Thus, most textile mills
continued with status quo. Closed mills remained closed, workers had not
been paid their wages, banks and financial institutions did not receive back
their dues. Even the statutory dues and taxes continued to mount. The
structures might have become more dilapidated and ten years went down the
line in the aforementioned scenario. Even otherwise, mills like Phoenix
Mills retained more than 100 years old shell and glassed it up and even in
the said shell, malls, supermarkets, night clubs and restaurants were
constructed. Thus, it resulted in unplanned and unregulated development. It
is in that situation, the State might have thought that workable changes are
necessary wherefor, after taking into consideration some reports, they had
come out with a draft. When the draft was published in terms of Section
37(1AA) of the MRTP Act, 24 objections were received. The writ
petitioners admittedly were not amongst them. The said objections were
placed before the planning authorities. The Bombay Municipal Corporation
had also put inputs as a planning authority. Only thereafter the matter went
back to the State.
The effect of amendment in clause (b) must be seen from the Table
appended thereto. In terms of the Old Regulation in respect of land covering
more than 10 hectares, for green area 33% land was to be set apart, and for
MHADA 37% thereof, whereas the owner retained 30%. Under the new
DCR 58, admittedly the owner of the mill at least obtains construction rights
over 63% of the land as the land in terms of Column 3 gets loaded in
Column 5. The mill owner furthermore even according to the writ
petitioners gets TDR of 37%. Open land in clause (b) is what is not covered
by the built-up area. The balance FSI, indisputably, is not open area.
The meaning of 'open land' must be construed as land other than land
required to sustain the built up area. We may now attempt to understand the
effect of FSI having regard to a concrete example. If the area of a plot is
1000 sq. m., applying the FSI of 1.33, a person will be entitled to construct a
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built up area of 1330 sq. m. If he intends to build a two-storeyed building,
he will utilize 665 sq. m. of land whereas in a case of ground plus four
storeyed building, he will be using 266 sq. m. of land and in case of nine
storeyed structure, he will be using only 133 sq. m.
The greater the height of the building, more lands will be available
either by way of public green or private green as also for MHADA.
However, in such a case, the plinth area will vary significantly. Whereas in
the first case, it would be 665 sq. m., in the third case, it would only be 133
sq.m. although the built up area remains the same.
Taking the illustration as mentioned hereinbefore, the open land in
each case shall vary. Thus, open land would not mean land occupied by the
plinth but would mean land other than that is necessary to sustain the built
up area.
We do not accept the contention of Mr. Salve that clause (b) applies to
open land as also lands after demolition of existing structure in case of a
redevelopment scheme and only because the words "and lands after
demolition of existing structures" had been deleted, the same may not be of
much significance inasmuch as clause (b) of the new regulations will have to
be construed in the light of clause (a). It will bear repetition to state that
whereas clause (a) refers to change of user in relation to the existing built-up
area, clause (b) provides for open lands. The manner in which the
development and/ or redevelopment should take place has been clubbed in
sub-regulation (1) of DCR 58 read with sub-regulation (6) thereof. For
proper interpretation, all the relevant provisions are required to be read
harmoniously.
DCR 58(1)(a) deals with a case of non-sharing of a land as is evident
from the fact that no sharing percentage is provided therein. It, therefore,
envisages change of user for the three purposes mentioned therein, in the
event the existing built-up area is utilized. In terms of the said provision, the
internal area of such structure remains the same although they can be
redesignated or reconstructed. The only benefit conferred by reason thereof
is grant of change of user indicated therein. The State while making this
regulation contemplated that the change of user would enable earning of
additional sums of money from the assets which were unproductive. Clause
(b), however, expressly provides for sharing of land as specified in the Table
therein. The question, however, is as to what would be the extent of open
land available on the spot.
Existing built-up area, in our view, would not be open land. We have
also to take note of the fact that the newly built-up area, as existing in the old
clause (a) of sub-Regulation (1) of DCR 58 has been omitted, the effect
whereof would be noticed a little later.
We are not oblivious of the fact that the word "and" has been used
twice in sub-regulation (1) of DCR 58. It ordinarily shall be read
conjunctively and not disjunctively. However, for the purpose of giving
effect to the said provisions, the rule of purposive construction is required to
be taken recourse to. Sub-regulation (1) speaks of entire open land as well
as built-up area. It speaks of the necessity of having the recommendation of
BIFR as a package of measures. Such recommendations must be for the
revival/rehabilitation of a potentially viable sick mill. The provisions,
therefore, may not apply to a mill which is neither sick nor otherwise not
potentially viable, subject, of course, to the explanation contained in Note
(vi) appended thereto as also sub-regulation (6) thereof.
For the aforementioned purpose, let us at this juncture also notice the
tables appended to clause (b) of sub-Regulation (1) of DCR 58.
Column (2) of the Table refers to the extent of land. Column (3)
provides for percentage to be earmarked for recreation ground/ garden,
playground or any other open user as specified by the Commissioner.
Column (4) refers to percentage to be earmarked and handed over for
development by MHADA for public housing/ for mill worker's housing as
per guidelines approved by the Government to be shared equally. Column
(5) provides for percentage to be earmarked and to be developed for
residential or commercial user (including users permissible in residential or
commercial zone as per these regulations or diversified industrial users as
per Industrial Location Policy) to be developed by the owner.
There is no change in Note (i) or Note (ii). Changes have been made
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in Note (iii) and Notes (iv), (v) and (vi) have been added. Interestingly,
from Note (iii), after the words "Transferable Development Rights as in
Appendix VII" and before the words "in respect of the lands earmarked for
open spaces in column (3)", the expression "only" has been omitted. Thus,
whereas earlier transferable development rights could be granted only for the
purpose of the open lands which were to be handed over to MCGM, i.e.,
about 33%, now apart from that, development rights in respect of lands
earmarked and handed over as per Column (3) have been made available to
the mill owners for utilization thereof as per Column (5) as TDR as
aforesaid. The mill owner, therefore, gets FSI of 1.33. He, furthermore,
gets corresponding TDR to be utilized in the sub-urbs area or to sell the
same. The idea appears to be to give more FSI and TDR to the person who
surrenders the lands.
Things, however, may be different in a case where the mill owner
demolishes a portion of the existing structure and construct new areas so as
to be called 'newly built-up' area on that part of the land remaining the other
part of the structure that it will come within the purview of clause (a)
inasmuch as approval for development would be necessary for the newly
built-up area for change of user. In such a case, requirements of clause (b)
were not required to be complied with as it would squarely fall within the
purview of clause (a).
The omission of the words "or newly" from clause (a) provides for a
guideline. If the entire structure is to be demolished, the newly built-up area
will have to be in terms of clause (b) read with sub-regulation (6). Such
newly built-up structure, having regard to omission from clause (a) would
have no role to play if no built-up area existed. Thus, all new constructions
including constructions on lands after demolition of the existing structure
and new constructions whether under a development or redevelopment
scheme would be covered by clause (b) read with sub-regulation (6) thereof.
If new constructions are raised, FSI, in a case of such development or
redevelopment, being covered by clause (b) would be for the entire plot,
except the built-up area which was existing, FSI having regard to its
statutory definition would, thus, have to be calculated having regard to the
ratio of the total construction to the area of the plot except the land
component of the existing built up area.
There is no dispute as regard grant of better facility to the mill owners
through TDR. The only dispute is what meaning should be attributed to the
expression `balance FSI'.
In order to determine whether vital changes have been effected by
way of the amendment of 2001, both the sub-clauses of sub-regulation (1)
would be necessary to be taken into consideration for construing the words
"balance FSI".
The expression "balance" would mean "apart from" which in turn
would mean apart from the area for which protection has already been given.
Balance FSI would, thus, mean FSI which is available for construction
after excluding the FSI relatable to an already consumed by the existing
built-up structure.
Both the phrases "open lands" as also "balance FSI" contained in
DCR 58(1)(b) play significant role. The word "balance" is crucial which
would naturally mean FSI which is available to be utilized upon open land.
Such balance FSI must be apart from the existing FSI. Indisputably, the
built-up area had consumed some FSI and, thus, when the expression
"balance FSI" is used, the same would mean additional built-up area. It
contemplates that where the entire plot has been used by existing built-up
areas and some open land has been left out on the remaining non-built up
area of the plot additionally unconsumed FSI could be used. It is in that
sense separate. It is true that DCR 58(1) uses the word entire land but the
said expression is followed by the expression "built-up area". "Balance
FSI" in the aforementioned situation would not mean the FSI which is
involved for the purpose of construction of structures not only on the open
land which had been existing but also the land which had become open by
reason of the demolition of the existing structures. It is only in that sense, as
would be amplified from the discussions made hereinafter that the State
intended to give additional protection to the mill owners. If open land is
given its natural or dictionary meaning, no distinction could be made in
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between DCR 58(1)(a) and DCR 58(1)(b), which ex facie would lead to an
anomaly.
In view of the fact that the built up area was to be protected in terms
of sub-regulation (1) of DCR 58, a'fortiori the land component thereof could
be protected under clause (b) thereof. Thus, the same land which was
protected under clause (a) could not become shareable under clause (b)
which would render the distinction between the said provisions otiose.
Balance FSI on open lands or otherwise had also been used in sub-regulation
(5) of DCR 58. It also, thus, gives a significant clue to find out the meaning
of balance FSI. Additional reason for the aforementioned conclusion is that
development or redevelopment of entire open land and built up area of the
premises referred to in DCR 58(1), in the event, the findings of the High
Court are accepted, there would not be any necessity for the State to use two
different words "open land" and "built-up area" separately and distinctly.
The words "built-up area" find its source from the definition of
existing building, as noticed hereinbefore. The existing built-up area was
not to be shared and the same if read with the word "existing", it may be
contrasted with a built-up area additionally but separate and distinct from the
old existing built-up area. The existing built-up area, thus, was sought to be
protected which would mean that they were sought to be protected from
non-shareable land component thereof. It is thus possible to come to the
conclusion that the obligation to share was intended to be absent only so
long as no additional built-up area was created.
In a case where the existing structure is demolished in part, the
balance FSI would be available but in relation to the entire open lands, FSI
has to be calculated taking into account the area of open land appurtenant to
the existing structures. Thus, no basic change had been effected in drafting
the regulation to segregate newly built-up areas from existing built-up areas.
It cannot be denied that the State intended to give more benefits to the mill
owners by reason of 2001 Regulations and, thus, if after demolition of the
entire structure the whole plot is treated to be open land and FSI is
calculated on the basis thereof the purport and object of the amendment will
be defeated. The fact that the State intended to consider the matter relating
to amendment having regard to the fact that there had hardly been any takers
for the 1991 Scheme as it failed to provide sufficient incentives, cannot be
ignored.
Indisputably, though, the Regulations made by the State which is a
piece of subordinate legislation should be read in the light of the statutory
scheme made under the legislative act as also having regard to the
constitutional scheme as contained in Articles 14, 24, 48-A and 51-A(g) of
the Constitution of India, but while doing so the effect and purport for which
such amendment were brought about cannot be lost sight of. The
amendments carried out in the MRTP Act from time to time and clearly the
provisions of Sub-section (2) of Section 26 of the MRTP Act point out that
the State had been leaning towards environmental aspects but that was not
the sole objective.
The title of the regulation reads as a modification to DCR 58. It was,
therefore, not in substitution of the resolution of 1991 nor was it framed by
way of recasting thereof.
In the marginal note, the expression "development or redevelopment"
of land of cotton textile mills has been mentioned. What, therefore, in focus
was the land of cotton textile mills. The expression "land", thus, plays an
important role. Although a marginal note may not be determinative of the
content of the provision, it may act as an intrinsic aid to construction. [See
Smt. Nandini Satpathy v. P.L. Dani and another , AIR 1978 SC 1025, para
33].
The expression "development or redevelopment" in the marginal note
does not advance the contention of the writ petitioners that DCR 58 does not
frame change of user to non-textile mill users. Indisputably, having regard
to the provisions of the entire Regulation, DCR 58 is a special provision. It
is a self-contained code. It provides for a large number of things. The State
while making the said legislation was required to provide for almost all the
eventualities in respect of the different categories of cotton textile mills.
They could be, apart from the sick mills referred to BIFR; (a) closed, (b)
non-closed mills intending to modernization, (c) non-closed mills intending
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to shifting, (d) sick mills which have not been referred to BIFR under SICA
and, thus, no scheme wherefor was made. There were multiple options and
one mill or the other may fall in more than one category. A closed mill may
come within the purview of DCR 58(1)(a) or 58(1)(b) or 58(6). Some of the
NTC mills also may come within one or more categories. It is possible and
in fact some of the mill owners had opted for one or more of the multiple
options of development/ redevelopment activity in terms of the said
regulation. By way of example, Ruby Mill opted for both modernization
and shifting and permission had been granted therefor. The fact that DCR
58 is a self-contained code is evident from sub-regulation (8) which provides
that funds accruing to a sick, closed or mill requiring modernization or
shifting shall be credited to an escrow account, which shall be utilized only
for revival/ rehabilitation, modernization or shifting of the industry. Sub-
regulation (9) provides a mechanism for putting this into place. The State,
not only endeavoured to take care of needs of various categories of cotton
textile mills but also made attempts to find out a solution having regard to
the fact that the 1991 Regulations did not work. By framing DCR 58,
therefore, a mechanism was sought to be provided for achieving the purpose
of providing some relief to all players in the field.
The said Regulations were framed under Section 22(m) of the MRTP
Act for controlling and regulating the use and development of land. They
are not, and cannot be, treated to be provisions for compulsory acquisition of
land. It also does not provide for reservation and/ or designation in a
development plan.
In sub-regulation (1) of DCR 58, the phrase "lands of sick and/ or
closed cotton textile mills" has been used. The same phrase has been used in
Regulations 58(6), 58(8)(a) and 58(9)(a). DCR 58(1) read with DCR 58 (4)
although postulates recommendations by BIFR, the words "closed mills"
also find place both in Regulations 58(1) and 58(6). We have heretobefore
noticed the statutory meaning attributed to the expression "exiting building".
DCR 58(1)(a) deals with existing structure which could have been
subjected to modification internally. DCR 58(1)(b) deals with the rest of it,
namely, open land. Under old regulation, the expression "open land" would
mean such lands which were required to sustain built-up area. The concept
finds place in DCR 58(6). In terms of DCR 58(1)(a), thus, no demolition is
contemplated which in turn would mean that no sharing of land also is
contemplated, i.e., the land owners are not required to surrender any land.
However, it contemplates change of user. It contemplates:
(i) the old cotton textile mills may continue to operate;
(ii) Alternatively, it may take recourse to "related user", i.e., user
related to such mills.
(iii) It could also take recourse to "diversified industrial user", meaning
thereby, user other than cotton textile mill and would include uses
for other industries in terms of the industrial location.
It is not in dispute that a long list of industries is contained in the said
policy. It could further be used for commercial purpose and the same having
regard to the regulations would also include residential purposes.
In terms of DCR 58(1)(a), there could be no demolition and only the
existing structures, namely, those which were existing prior to coming into
force of the said Regulation should be developed by utilizing the existing
structure which could not either be demolished or reconstructed or
relocated.
The contention of Mr. Salve that the word "demolition" brought about
by reason of 1994 amendment in Section 2(7) of the MRTP Act plays a
significant role also cannot be accepted for more than one reason.
The amendment of 1994 appears to be clarificatory in nature, having
regard to the fact that prior thereto the land owners could carry on
demolition without prior intimation and/ or obtaining permission from the
corporation. The High Court, therefore, in its judgment wrongly laid undue
emphasis thereupon.
Furthermore, in DCR 58 the word redevelopment had all along been
used. By reason of the said amendment, no different meaning which would
not be in consonance with the object should be attributed. Whatever that
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may mean, redevelopment contemplates in its ordinary parlance a renewal or
substitution of development and involves pulling down of the structures.
Development by way of demolition cannot mean that DCR 58(1) would
permit not just the retention of the structure (shell) but also demolition of
structure (shell). The purpose for introducing the said amendment,
therefore, was for a different purpose and could not have been used for the
purpose of construction of DCR 58.
It has not been disputed that keeping in view of the fact that the
structures of the mills had been built long long time back, they had
sprawling existing structures. Ranjit Deshmukh Committee Report does not
categorically state that the balance FSI has to be calculated only from the
open land which was available before demolition and not from the land
which became open by reason of demolition of structures existing thereon.
It is true that the lands of different mills had different built-up areas.
Balance FSI was required to be calculated on the basis thereof. The extent
of vacant land available for the purpose of distribution would indisputably
depend upon the extent of structures which had been standing on the lands
but the same is a fortuitous circumstance. Only because in a given case, the
extent of the area to be given to MHADA or MCGM would be
comparatively less than the case of land belonging to other mills, the same
by itself cannot be a ground for construing DCR 58 differently.
Furthermore, in Note (iv) of DCR 58(1)(b) itself, it is categorically
stated that land would become open by demolishing the existing structure
which also points to the fact that the contentions of the Respondents \026 Writ
Petitioners are not correct in view of the fact that if the land after demolition
was already subsumed under open land, it was not necessary to deal with the
same subject specifically with land which had become open on demolition.
It is also interesting to note that in DCR 58(6)(a) the words "reconstruction
after demolition of existing structures limited to the extent of the built up
area of the demolished structure\005" have been used with reference to
"development/ redevelopment of the entire open land and/ or built up area of
premises\005" which would also go to show that in the event, the
interpretation as advocated by Mr. Salve is accepted, such detailed and
specific references to the specific contingency of openness of land arising
after and upon demolition or reconstruction done after demolition would
become wholly meaningless.
It is, thus, clear that the expression "open lands" is meant to connote
lands other than lands available after demolition of existing structures. [See
Lennon v. Gibson, (1919) AC 709 at 711, Craies on Statute Law, Seventh
Edition, page 141 and G.P. Singh's Principles of Statutory Interpretation,
Ninth edition, page 258].
Having said so, let us take a re-look at sub-regulation (6) of DCR 58.
Sub clauses (a) and (b) of sub-regulation (6) refer to built-up areas which
would mean that such area which the owner of the mill had built whether
existing or after demolition. The statute contemplates retention of the built-
up area that means the same area which the owner could retain had the
building been not demolished. The area which the structure had occupied is
intended to be left with the mill owner. However, how much area would be
allowed to be retained, would inevitably differ from mill to mill. Sub-
regulation (6) merely provides for a guiding principle that the owners of the
mill would be permitted to retain the existing structure and built-up area;
precisely that is the concept of sub-regulation (6). In other words, rebuilding
to the same effect or aggregation between different plots is permitted so long
the existing built up area is demolished and the same would not require
sharing of any land thereunder, provided of course that existing built up area
is not enhanced. DCR 58(6) is carved out of DCR 58(1)(b). In terms of it
only the construction is permitted for the same area for the purpose of
reconstruction. It is also worth noticing that both old and new regulation
speak of retention of same structure. DCR 58(6), thus, confers an additional
benefit in respect of cases falling within DCR 58(1)(a) allowing inter alia:
(a) demolition which it could not do under DCR 58(1)(a);
(b) it does not require any sharing for which benefit was also available
under DCR 58(1)(a);
(c) built up area remaining the same, the shape, size and nature of the
existing structure could be changed which could not be done under
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DCR 58(1)(a);
(d) The second part of sub-regulation (6) permits aggregation on the
same single mill plot, which was not available under DCR
58(1)(a), subject of course to the existing built up area remaining
the same.
The contention of BEAG is that the implementation of DCR 58 would
lead to a disastrous result and in this behalf our attention was drawn to a
sanctioned plan in respect of Mill No. 4 to show that the consequences
thereof would be that the share of MCGM and MHADA would come to
662.61 sq. m. and 542.13 sq. m. respectively, although the plot area of Mill
No. 4 is 58,458.36 sq. m. We do not find any merit in the said contention as
keeping in view of our finding aforementioned, the built up area was
required to be deducted therefrom. With a view to examine the said
contention, we may hereinbelow notice some charts in respect of Mill No. 1
and Mill No. 4:
Mill No. 1
Existing Development
PLOT AREA
(EXCL. SET BACK AREA)
47,730.28 SQ.M.
EXIST. PLINTH AREA
22,950.58 SQ.M.
RATIO OF GROUND COVER
48.08%
EXISTING R.G. AREA
ALMOST NIL
Proposed Development
PLOT AREA
(EXCL. SET BACK AREA)
47,730.28 SQ.M.
PROP. PLINTH AREA
3,980.00 SQ.M.
RATIO OF GROUND COVER
8.34%
LAYOUT R.G. DCR 21
11,910.00 SQ.M.
M.C.G.M.
4,058.65 SQ.M.
R.G. + M.C.G.M.
15,968.65 (33.5%)
Computation of Open Land
1.
PLOT AREA
(EXCL. SET BACK AREA)
47,730.28 SQ.M.
2.
LAND COMPONENT OF
EXISTING B.U. AREA
UNDER DCR 58(6)
i.e. EXISTING BU AREA
PERMISSIBLE FSI
47,123.67 SQ.M.
1.33
35,437.29 SQ.M.
3.
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(i)
(ii)
(iii)
BALANCE OPEN LAND
TO BE SHARED UNDER DCR
58(1)(b)
SHARE OF MCGM (33%)
SHARE OF MHADA (27%)
SHARE OF OWNER (40%)
12,298.99 SQ.M.
4,058.67 SQ.M.
3,320.73 SQ.M.
4,919.60 SQ.M.
OWNER'S HOLDING [2+3(iii)]
40,356.89 SQ.M.
Mill No. 4
Existing Development
PLOT AREA
(EXCLU. SET BACK AREA)
58,458.36 SQ. M.
EXIST. PLINTH AREA
39,304.83
RATIO OF GROUND COVER
67.20%
EXISTING R.G. AREA
ALMOST NIL
Proposed Development
PLOT AREA
(EXCL. SET BACK AREA)
58,458.36 SQ.M.
PROP. PLINTH AREA
10,789.40 SQ.M.
RATIO OF GROUND COVER
18.45%
LAYOUT R.G. DCR 21
17,423.51
M.C.G.M.
662.61 SQ.M.
R.G. + M.C.G.M.
18086.12 SQ.M.
Computation of Open Land
1.
PLOT AREA
(EXCL. SET BACK AREA)
58,458.36 SQ.M.
2.
LAND COMPONENT OF
EXISTING B.U. AREA
UNDER DCR 58(6)
i.e. EXISTING BU AREA
PERMISSIBLE FSI
75,079.11 SQ.M.
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1.33
56,450.46 SQ.M.
3.
(i)
(ii)
(iii)
BALANCE OPEN LAND
TO BE SHARED UNDER DCR
58(1)(b)
SHARE OF MCGM (33%)
SHARE OF MHDA (27%)
SHARE OF ONER (40%)
2,007.90 SQ.M.
662.61 SQ.M.
542.13 SQ.M.
803.16 SQ.M.
OWNER'S HOLDING [2+3(iii)]
57253.62 SQ.M.
For computing the extent of the land required to be shared, the plinth
area will have no relevance. So far as Mill No. 4 is concerned, having
regard to the existing built up area, the share of MCGM and MHADA would
be on a low side, but it is evident that so far as Mill No. 1 is concerned,
whereas the plot area was only 47,730.28 sq. m., having regard to the built
up area, the share of MCGM and MHADA would come to 4,058.67 sq. m.
and 3,320.73 sq. m. respectively. These are indicative of the fact that the
extent of open land to be shared by the owners with MCGM and MHADA
would depend upon the built up area of the structure which existed on site.
The share of MCGM and MHADA, therefore, would vary from case to case
and, thus, we cannot determine the question keeping in view only the case of
one mill and not the others.
We do not furthermore agree with the approach of the High Court in
interpreting the aforementioned provisions having regard to certain other
factors, namely, deluge in Bombay in the year 2005 as also the requirements
of the entire population of Bombay from environmental aspect. Such factors
cannot be taken into consideration for interpretation of a statute. We cannot
look to a statute with a coloured glass, we have to consider the provisions as
the legislature thought. The same should be subject, of course, to the
constitutional and other limitations.
At this juncture, we may consider the cases of the closed mills.
CLOSED INDUSTRIES
No specific provision has been made for industries which are closed
but for one reason or the other had not been referred to BIFR. A mill may
be closed although the company which owns it and having other businesses
or other properties is not sick company in terms of SICA. From its other
resources, it can modernize or shift the industry. But, there may be a case
where the mill is the only property, if it lies closed and no action is taken for
its revival, the same may defeat the purpose for which DCR 58 was made, or
the company although as such is not sick but finds it difficult to arrange
funds for revival of the closed mill. The doctrine of purposive interpretation
in such a case has to be applied. The expression "sick and/ or closed" used
in sub-regulation (1) of DCR 58 must be read as disjunctive and not
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conjunctive.
Furthermore, in this behalf the principles of common sense
construction, as noticed hereinbefore, should be taken recourse to. In
Halsbury's Laws of England (Fourth Edition) Volume 44(1) (Reissue), the
law is stated in the following terms:
"1392. Commonsense Construction Rule. It is a
rule of the common law, which may be referred to
as the commonsense construction rule, that when
considering, in relation to the facts of the instant
case, which of the opposing constructions of the
enactment would give effect to the legislative
intention, the court should presume that the
legislator intended common sense to be used in
construing the enactment.
1477. Nature of presumption against absurdity. It
is presumed that Parliament intend that the court,
when considering, in relation to the facts of the
instant case, which of the opposing constructions
of an enactment corresponds to its legal meaning,
should find against a construction which produces
an absurd result, since this is unlikely to have been
intended by Parliament. Here 'absurd' means
contrary to sense and reason, so in this context the
term 'absurd' is used to include a result which is
unworkable or impracticable, inconvenient,
anomalous or illogical, futile or pointless, artificial
or productive of a disproportionate counter-
mischief.
1480. Presumption against anomalous or illogical
result. It is presumed that Parliament intends that
the Court, when considering, in relation to the facts
of the instant case, which of the opposing
constructions of an enactment corresponds to its
legal meaning, should find against a construction
that creates an anomaly or otherwise produces an
irrational or illogical result. The presumption may
be applicable where on one construction a benefit
is not available in like cases, or a detriment is not
imposed in like cases, or the decision would turn
on an immaterial distinction or an anomaly would
be created in legal doctrine. Where each of the
constructions contended for involves some
anomaly then, in so far as the court uses anomaly
as a test, it has to balance the effect of each
construction and determine which anomaly is
greater. It may be possible to avoid the anomaly
by the exercise of a discretion. It may be,
however, that the anomaly is clearly intended,
when effect must be given to the intention. The
court will pay little attention to a proclaimed
anomaly if it is purely hypothetical, and unlikely to
arise in practice."
If such an interpretation is not given, a very valuable asset would be
rendered sterile. If it is to be construed that a scheme made by BIFR is the
condition precedent for applicability of DCR 58 by reason whereof the
benefit conferred thereunder would not be available in like cases for no
apparent reasons whatsoever particularly when it was the intention of the
State that all categories of the mills which require rehabilitation, revival or
modernization should be brought within the purview of DCR 58.
It is, thus, not possible to accept Mr. Salve's submission that even a
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closed mill although not covered under DCR 58 may be utilized for
purposed mentioned in Regulation 56.
Indisputably, there may be closed mills which have not been referred
to BIFR or otherwise not capable of being referred to. The spirit of making
DCR 58 was to revival and/ or rehabilitation of the cotton textile mills.
Revival of closed mill was also, thus, a component part of the scheme
behind framing of DCR 58. It may be true that in terms of sub-regulation
(1) of DCR 58 recommendation of the BIFR is contemplated but
recommendation of BIFR would be necessary where it is otherwise
available. If it is insisted that the recommendation by BIFR was mandatory
even for closed mill, much of the significance for using the words `and/or
closed' after the word `sick' is lost. A closed mill would mean a mill in
respect whereof closure has been effected in accordance with law. Such
closure can be effected in accordance with law in terms of the provisions of
the Industrial Disputes Act. Before effecting a closure under the Industrial
Disputes Act, notice has to be given to the State and in certain cases its prior
permission is also required to be obtained. Thus, all cases, which entail
closure of an industry, would be within the knowledge of the State. The
State through its machinery can furthermore verify the genuineness or
otherwise of such closure. In such a case, even in terms of the provisions of
the Industrial Disputes Act having regard to the purport and object for which
the same had been enacted, the authorities thereunder as also for the State a
duty is cast to restore back the industrial peace. [See State of Rajasthan &
Anr. v. Mohammed Ayub Naz, (2006) 1 SCALE 79].
SICK MILLS
SICA is a special statute. It is an Act made by the Parliament. It was
enacted in the public interest so as to make special provisions with a view to
securing the timely detection of sick and potentially sick companies owning
industrial undertakings, the speedy determination by a Board of experts of
the preventive, ameliorative, remedial and other measures which need to be
taken with respect to such companies, the expeditious enforcement of the
measures so determined and for matters connected therewith or incidental
thereto. SICA was enacted for giving effect to the policy of the State
towards securing the principles specified in clauses (b) and (c) of Article 39
of the Constitution of India. It would prevail over other statutes including
MRTP and the Regulations framed thereunder.
Section 3(e) of SICA defines "industrial company" to mean "a
company which owns one or more industrial undertakings." "Industrial
undertakings" has been defined in Section 3(f) of SICA. "Sick industrial
company" has been defined in Section 3(o) of SICA to mean "an industrial
company (being a company registered for not less than five years) which has
at the end of any financial year accumulated losses equal to or exceeding its
entire net worth". Section 15 of SICA provides for reference to a Board
where an industrial company has become a sick industrial company for
determination of the measures which should be adopted with respect thereto.
Section 17 provides for the power of Board to make suitable orders on the
completion of inquiry. Various provisions have been laid down in Chapter
III of SICA enabling the Board to issue several directions. Section 32 of
SICA provides for a non-obstante clause stating that the provisions thereof
shall prevail notwithstanding anything contained in any other law for the
time being in force or in the Memorandum or Articles of Association of an
industrial company or in any other instrument having effect by virtue of any
law except enactments specified therein.
The question as regards the interpretation of the sick industries
contained in sub-regulation (6) of DCR 58 must be considered from that
perspective.
DCR 58(6) is adjunct to the other provisions. Although on some
occasions, DCR 58(2) may apply without DCR 58(6). However, there is no
such machinery so far as sick mills are concerned, it is, therefore, difficult to
comprehend that those mills which are sick but not referred to BIFR also can
take advantage of sub-regulation (6). How an industrial undertaking
belonging to a company which is sick should be determined to be so as laid
down under the provisions of SICA. Only in a case where a company is sick
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in terms of the 1985 Act, an industrial undertaking belonging to it may be
subject matter of the provisions thereof. The State for that matter neither
has any statutory power or competence to deal with sick undertakings.
Furthermore, the extent to which such sick company requires protection to
the extent of the sickness of the industrial undertaking cannot also be gone
into by the State or for that matter by any other authority apart from BIFR.
MODERNIZATION/ SHIFTING
Sub-regulation (2) of DCR 58 deals with cases requiring
modernization. For invoking the said provision, certain steps are required to
be taken which are as under:
(i) Application for Scheme of Modernization to
Government (Competent Authority i.e.
Corporation and Textile Department, Government
of Maharashtra) as per DCR 58(2) read with
58(6)(a)(b) as the case may be.
(ii) Scrutiny by the Department of Textiles.
(iii) Approval to Scheme by Government (with
direction to approach MCGM for further approval
as per Regulation 58(2) read with 58(6)(a)(b).
(iv) Application by Owner to Municipal Commissioner
for a layout prepared for development or
redevelopment of the entire open land and/ or built
up areas of the premises of mill. With regard to
the utilization of built up area (if reconstruction,
aggregation is proposed then it has to be read with
58(6)(a)(b) as the case may be), the provisions of
clause (a) of sub-regulation 1 of these regulations
shall apply and if the development of open lands
and balance FSI exceeds 30% of the open land and
balance FSI, the provision of clause (b) sub-
regulation 1 of this regulation shall apply.
As per Notes (ii) \026 in case of more than one cotton
textile mills owned by the same company, the
exemption of 30%, as specified above, may be
permitted to be consolidated.
Permission for development or redevelopment
granted as per 58(2) read with 58(6)(a)(b).
(v) Ready for Implementation for Scheme of
Modernization.
(vi) As per 58(8)(a)(b) \026 Funds accruing in ESCROW
Account, monitored by Monitoring Committee as
per DCR 58(9)(a).
If it fulfills the said requirements, it becomes entitled to utilization of
open land and FSI to the extent of 30% of the balance FSI available. Under
1991 Regulation, the mill owners in terms of the similar provision was
entitled to the exemption of 15% which by reason of 2001 Regulations had
been raised to 30%. Furthermore, for providing the incentive for
modernization where there exists more than one textile mill, the exemption
may also be consolidated on any of the mill land subject to the extent of
balance FSI in the receiving land without having to share land as would be
evident from Note (ii) appended thereto.
However, sub-regulation (6) of DCR 58 may not be available to an
applicant intending to modernize its mill where aggregation is not resorted to
and no demolition of the existing built up area is involved as also open
lands/ balance FSI are utilized for additional constructions as per DCR
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58(1)(b) but in appropriate cases, evidently it has to share.
For the purpose of change of user of the lands, previous approval of
the Commissioner to a layout plan in accordance with the Scheme approved
by the Government is necessary. In terms of the said provision, Clause (a)
of Sub-regulation (1) thereto shall apply as regard utilization of the built-up
area and clause (b) shall apply in relation to development of open lands and
balance FSI exceeds 30% of the open land and for balance FSI clause (b) of
sub-regulation (1) shall apply. Sub-regulation (3) applies in respect of the
cotton textile mills which intend to shift with the permission of the
competent authorities and in accordance with the scheme approved by the
Government. In terms of the said provision also, Clauses (a) and (b) of sub-
regulation (1) of DCR 58 would apply in regard to the development or
redevelopment of its land after shifting. Sub-Regulation (4) provides that in
case of modernization and shifting, recommendation by BIFR would not be
mandatory which implies that such recommendation shall be mandatory.
DCR 58(3) provides for shifting. Shifting of industries outside the
town is encouraged.
Ruby Mills Limited, which is one of the Appellants in civil appeal
arising out of SLP (C) No. 23634 of 2005, is one of the companies which
had opted for shifting. It had, however, made a scheme for shifting-cum-
modernization under the said provisions as also commercial development of
a portion of its textile mill land.
OTHER REGULATIONS
Sub-regulation (5) provides for additional development to the extent
of balance FSI on open lands or otherwise by the cotton textile mill itself not
only for the same cotton textile but also for related user. The calculation of
FSI indisputably would be in terms of the Appendix VII.
Sub-regulation (6) provides for multi-mill aggregation. This
provision in certain respects is to be considered with Note (vi) of sub-
regulation (1) of DCR 58. The aforementioned clause cannot be read in
isolation. It has to be read in conjunction with the other regulations. It
would apply to a case which might have otherwise been covered by sub-
regulations (1), (2), (3) and (5). But the same would not mean that a part of
sub-regulation (1) and a part of sub-regulation (2) cannot be applied in a
given case. Although sub-regulation (6) does not specifically refer to the
recommendations of BIFR as imperative where the other sub-regulations are
applicable, sub-regulation (6) cannot be read as a 'stand alone' clause.
The writ petitioners contended that sub-regulation (6) should be read
independently so that its benefit may not become obtainable while obtaining
benefit under one or the other sub-regulation. Such a construction would
defeat the other provisions of the regulation. We have noticed hereinbefore
that Regulations 56 and 57 deal with industries located in I-2 and I-3 zones.
Both in Regulations 56 and 57 cotton textile mills had expressly been
excluded from a general power to convert the user into a residential or
commercial purpose. If such a provision was required to be made in making
an exception in relation to the cotton textile mill, it was not necessary for the
State to frame the regulation in its present form. If sub-regulation (6) of
DCR 58 is read in the manner suggested by the learned counsel for the
Respondents, other parts of DCR 58 would have been unnecessary. Sub-
regulation (6) specifically refers to sick and/ or closed or requiring
modernization on the same land. Such cases would, thus, bring within its
purview only closed mills which had not been referred to BIFR but the
change of user, must be confined to DCR 58 itself and not under DCR 56.
The construction that we have put on DCR 58(6), furthermore, does not
cause any injustice to any party. If an industrial undertaking is really sick
within the provisions of the 1985 Act, for the purpose of availing the
benefits under DCR 58, it can refer the question to BIFR and once a scheme
is framed as regard revival and/ or rehabilitation, the owner of the mill can
take recourse thereto. The lands of the cotton textile mills, thus, although
become open lands available but therefor they cannot be used for purposes
specified in I-2 Zone. Sub-regulation (6) of DCR 58 must be read in sharp
contrast to Sub-regulation (3)(c) of Regulation 56 and Sub-regulation 4(c) of
Regulation 57 which permits a change of user to industrial lands other than
lands of cotton textile mills. Sub-regulation (6) of DCR 58 although
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contains no power to change of user but the same had been provided in other
clauses. If it is not held that sub-regulation (6) contains the power to change
user in respect of existing structures, a'fortiori it may not be possible to give
effect thereto as there would be no power to user of change of land under
existing structures.
So far as NTC mills are concerned, development had taken place as a
package of measure recommended by BIFR. Indisputably, the same would
come within the purview of sub-regulation (1) of DCR 58 but in certain
cases sub-regulation (6) also may be attracted. Each of the relevant sub-
regulations of DCR 58 confers regulatory power upon the Commissioner of
the State. Development or redevelopment in terms of sub-regulations (1),
(2), (3) and (5) are required to be made in terms of a layout plan as approved
by the Commissioner and in case of modernization as per the scheme
approved by the State. As the said provisions, contain a safeguard, namely,
prior approval of the Commissioner, all the mill owners irrespective of the
fact that they fall in different categories in terms of the regulations would,
thus, be entitled to take benefit of clause (6) subject to strict compliance of
other provisions.
CONSTITUTIONALITY OF DCR 58
The constitutionality of DCR 58 had been questioned principally on
three grounds, namely, it is violative of: (i) Article 21; (ii) Article 14; and
(iii) it is not in consonance with Article 48-A of the Constitution of India.
The High Court, however, read DCR 58 on the touchstone of Article
21 as also Article 48-A of the Constitution of India. The High Court did not
go into the question of its constitutionality. It proceeded on the basis that if
the said provision is read down, the same would render the provision
constitutional. It is no doubt true that a planning regulation which requires
to meet environmental challenges may not be interpreted in the same fashion
as economic legislation. But whether it is necessary to apply the strict
scrutiny test or not, would depend upon the statute. The State, while
exercising its power to make a subordinate legislation, may or may not
obtain expert opinion. But invariably the Court would satisfy itself as to
whether relevant factors as laid down in the legislative act had been taken
into consideration.
The question, however, raised in these appeals is as to whether
requirements to obtain such expert opinion so as to enable the court to look
at the quality of the input both with reference to its source as also the scope
thereof is mandatory in nature. In this case, in our opinion, the said question
need not be gone into in great detail. We would, however, broadly consider
the same. The court ordinarily is required to consider the constitutionality of
the subordinate legislation within the accepted norms. We have hereto
before, noticed the parameters of judicial review. The question raised,
therefore, will have to be considered having regard thereto.
A matter involving environmental challenges may have to be
considered by a superior court depending upon the fact as to whether the
impugned action is a legislative action or an executive action. In case of an
executive action, the court can look into and consider several factors,
namely,
(i) Whether the discretion conferred upon the statutory authority had
been property exercised;
(ii) Whether exercise of such discretion is in consonance with the
provisions of the Act;
(iii) Whether while taking such action, the executive government had
taken into consideration the purport and object of the Act;
(iv) Whether the same subserved other relevant factors which would
affect the public in large;
(v) Whether the principles of sustainable development which have
become part of our constitutional law have been taken into
consideration; and
(vi) Whether in arriving at such a decision, both substantive due
process and procedural due process had been complied with.
It would, however, unless an appropriate case is made out, be difficult
to apply the aforementioned principles in the case of a legislative act. It is
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no doubt true that Articles 14, 21, 48-A of the Constitution of India must be
applied both in relation to an executive action as also in relation to a
legislation, however, although the facet of reasonableness is a constitutional
principle and adherence thereto being a constitutional duty may apply, the
degree and the extent to which such application would be made indisputably
would be different. Judicial review of administrative action and judicial
review of legislation stand on a different footing. What is permissible for
the court in case of judicial review of administrative action may not be
permissible while exercising the power of judicial review of legislation.
It may, however, be a different thing to contend that the legislation
had been enacted without constitutional principles in mind. The real
question is whether the constitutional mandates had been complied with in
making such legislation.
We do not agree with the contention of Mr. Jethmalani, that Article 21
of the Constitution of India should be literally construed as was done in A.K.
Gopalan v. State of Madras [1950 SCR 88]. In view of the fact that the
factors governing the quality of life have been included in the expression
"life" contained in Article 21 by reason of creative interpretation of the said
provision by this Court, is it possible to argue that Article 21 does not
provide for an absolute immunity? Article 21 does not only refer to the
necessity to comply with procedural requirements, but also substantive
rights of a citizen. It aims at preventive measures as well as payment of
compensation in cases human rights of a citizen are violated. So far as the
question of compliance of the procedural due process is concerned, it was
conceded before the High Court by the writ petitioners \026 Respondents that
the procedural requirements laid down in provisions of Section 37 of the
MRTP Act had been complied with.
We, however, are unable to uphold the contention of Mr. Salve, as at
present advised, that before making DCR 58 in the year 2001, it was
obligatory on the part of the State to accept in toto the recommendations
made by the Expert Committees who had undertaken certain exercises; the
equities should have been adjusted and the provisions of the pollution laws
including the provisions of sub-section (2) of Section 28 of the MRTP Act
should have been considered. A presumption arises as regards the
constitutionality of a statute. Such a presumption would also arise in a case
of subordinate legislation. As indicated hereinbefore, a subordinate
legislation, however, shall be susceptible or vulnerable to challenge not only
on the ground that the same offends Articles 14, 21 read with Article 48-A
of the Constitution of India but also that the provisions of the MRTP Act are
unreasonable.
In the instant case, the State appointed two committees. They have
been taken into consideration by the State, may albeit be only in part. The
State might not have agreed with the entirety of the report. The State might
have taken into consideration other factors which would subserve the
purport and object of the regulation. But, it will be difficult for us to arrive
at a finding that the environmental aspects had totally been ignored. To
what extent, DCR 58 would be commensurate with the ideal ecological
condition as is suggested by the experts is one thing but it is another thing to
say that no consideration at all in this behalf had been made by it. The State
in its affidavit categorically stated that the said reports had fallen for
consideration and had been accepted by it but in the third affidavit it has
merely been stated that the State intended to give more than what was
suggested in the said report. It has been accepted by the parties that certain
suggestions have been accepted in toto and the provisions have been
amended pursuant thereto or in furtherance thereof.
The Ranjit Deshmukh Committee, not only visited some mills but also
took recourse to the consultative process. Even the Charles Correa
Committee visited all the public sector textile mills. While taking the said
reports into consideration, the State acquainted itself with the existing
ground realities as they then existed.
For the purpose of striking down a legislation on the ground of
infraction of the Constitutional provisions, the court would not exercise its
jurisdiction only because the recommendations of the committees had not
been accepted in toto but would do so inter alia on the ground as to whether
they otherwise violate the constitutional principles.
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Arbitrariness on the part of the legislature so as to make the legislation
violative of Article 14 of the Constitution should ordinarily be manifest
arbitrariness. What would be arbitrary exercise of legislative power would
depend upon the provisions of the statute vis-`-vis the purpose and object
thereof. [See Sharma Transport v. Government of Andhra Pradesh, (2002) 2
SCC 188, para 25, Khoday Distillery v. State of Karnataka, (1996) 10 SCC
304 and Otis Elevator Employees' Union S. Reg. and Others v. Union of
India and Others, (2003) 12 SCC 68, para 17].
In Om Prakash and Others v. State of U.P. and Others, [(2004) 3 SCC
402], this Court has held that the test of reasonableness is nothing
substantially different from social engineering, balancing of interests or any
other formulae which modern sociological theories suggest as an answer to
the problem of judicial interference.
In Cipla Ltd. (supra), this Court in relation to a legislation while
interpreting the statutory provisions on the touchstone of Article 14 of the
Constitution of India, was of the opinion:
"\005\005. the Government exercising its delegated
legislative power should make a real and earnest
attempt to apply the criteria laid down by itself.
The delegated legislation that follows the policy
formulation should be broadly and substantially in
conformity with that policy, otherwise it would be
vulnerable to attack on the ground of arbitrariness
resulting in violation of Article 14."
It was further opined:
"\005Broadly, the subordinate law-making authority
is guided by the policy and objectives of the
primary legislation disclosed by the preamble and
other provisions. The delegated legislation need
not be modelled on a set pattern or prefixed
guidelines. However, where the delegate goes a
step further, draws up and announces a rational
policy in keeping with the purposes of the enabling
legislation and even lays down specific criteria to
promote the policy, the criteria so evolved become
the guideposts for its legislative action. In that
sense, its freedom of classification will be
regulated by the self-evolved criteria and there
should be demonstrable justification for deviating
therefrom. \005\005"
The amendment to DCR 58 was carried out 10 years after the original
DCR 58 was introduced. Before doing so, due consultative process as laid
down in Section 37 of the MRTP which involves suggestions and objections
from public and the concerned statutory authorities was taken recourse to.
Consideration of the same by Dy. Director of Town Planning and thereafter
promulgation of the same in the form of direct regulation establishes that the
same is not ex facie arbitrary in nature, particularly when most of the
suggestions of the said Committees were accepted.
So far as the argument based on violation of Article 48-A of the
Constitution is concerned, the provisions thereof are required to be construed
as a part of the principle contained in Article 14 of the Constitution of India.
A statute may not be ultra vires Article 48-A itself if it is not otherwise
offensive of Articles 14 and 21 of the Constitution of India. What, however,
cannot be done for striking down legislation can certainly be done for
striking down executive action. [See K.K. Bhalla v. State of M.P. & Ors.,
2006 (1) SCALE 238 and S.N. Chandrashekar and Anr. v. State of
Karnataka and Ors., [JT 2006 (2) SC 202].
Ecological factors indisputably are very relevant considerations in
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construing a town planning statute. The court normally would lead in favour
of environmental protection in view of the creative interpretation made by
this Court in finding a right of environmental including right to clear water,
air, etc. under Article 21 of the Constitution of India. But, in this case, we
are not dealing with a similar problem. It must be borne in mind while
interpreting DCR 58 that there exists a stark distinction between the
interpretation of planning and zoning statutes enforcing ecology vis-`-vis
industrial effluents and hazardous industries and those relating to concerted
efforts at rehabilitating the industry. It is around this pivot that interpretation
must revolve. It is also interesting to note that in American Jurisprudence
2d, wherein at page 496 of vol. 82, it is stated that zoning laws should be
construed strictly in favour of the property owners and that they should not
be extended by implication to include restrictions not clearly prescribed.
Ecology in terms of DCR 58 has not been marginalized. The statute does
not prescribe any fixed norm. It provides for guidelines. It has not been
shown that the said guidelines have been violated. The environmental
aspect considered in DCR 58 may not be to everybody's satisfaction but the
regulation in question has to be interpreted having regard to the purport and
object for which the same was enacted, meaning thereby, a holistic approach
to a large number of problems.
DCR 58 was made in a special situation. In any other situation,
probably this Court might have interpreted a similar provision differently.
But, DCR 58 seeks to strike a balance between different public interest. The
State has its own limitations. DCR 58 cannot be struck down solely on the
ground that the interest of the common citizen (from the ecological point of
view) has been affected, unless its actions are considered to be unfair.
The State indeed in making the regulation intended to solve a
longstanding problem wherewith it was beset. The State while framing the
aforementioned regulation had to deal with various objectives in mind. It
might have taken recourse to trial and error method. It started with an
experiment in the year 1991 but having failed therein it introduced a new
policy. The State considered the same to be fair on its part.
We must take notice of the fact that the 1991 Regulation failed to
achieve the desired objective forcing the State to take a conscious policy
decision, which according to it, would satisfy everybody's need. All players
may not feel happy as evidently a group of workers and the writ petitioners
are not. Even the Bombay Municipal Corporation and MHADA had shown
its reservation but the same by itself would not resist us in any manner in
arriving at a correct interpretation. In Forward Construction Co. and Others
vs. Prabhat Mandal (Regd), Andheri and Others [(1986) 1 SCC 100], it was
clearly recognized that in a given case there can be more than one public
interest and these interests can be in conflict with each other. The law maker
has to make his choice and preferring one to the other is inevitable.
A substantive law as also delegated legislation raises a presumption of
constitutionality. Attempt is, thus, required to be made for upholding the
same.
Sale of lands belonging to mills which are absolutely unviable and/ or
those which are lying closed for one reason or the other as also those who
intend to modernize their mills and/ or shifting the same and/ or part of it
must be kept for consideration in the matter of interpretation of DCR 58.
Applying the principles which can be culled down from the
aforementioned decisions, we are unable to hold that DCR 58 is
unconstitutional.
CLARIFICATION
The State of Maharashtra admittedly issued a clarification on
28.03.2003. It did so in purported exercise of its power under sub-regulation
(2) of Regulation 63 of Regulations. The High Court held the said
clarification to be ultra vires Section 37 of the Act on the premise that by
reason thereof, amendment to the regulation had been carried out.
As of fact we may, however, notice that the State of Maharashtra
started granting approvals in terms of DCR 58 of 2001 much prior to
28.03.2003. It is, therefore, not correct to contend that the permission had
been granted after issuance of the said clarification. In terms of such
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approvals, combined permission had been granted invoking one or more
sub-regulations of DCR 58.
However, the submission of the learned counsel appearing on behalf
of the Appellants to the effect that the said clarification is binding and
conclusive upon all concerned cannot be accepted. No interpretation of a
State can be said to be binding on courts. It may have a persuasive value.
The court in certain situations, in the event two interpretations are possible
including the one as interpreted by the State, may accept the latter but the
same would not mean that once a statutory power of interpretation or
clarification had been exercised by the State, the court's hands are tied. In
fact, the learned Advocate General appearing on behalf of the State of
Maharashtra accepted the said legal position.
We may, however, place on record that similar interpretation must be
held to have been made by MCGM as it granted sanction in respect of
several plans in the line of interpretation made by the State. The
clarification was issued having regard to a letter of MCGM dated 28.08.2001
to the Urban Development Department stating as to how it understood DCR
58 of 2001 which was confirmed by the Urban Development Department.
Thus, although at one point of time they interpreted DCR in the same
manner as that of the State; only much later they raised a doubt which was
bona fide. Only with a view to clear the air of doubt, the clarification was
issued by the State.
It is interesting to note that in paragraph 23 of the writ petition, the
writ petitioners treated the purported reduction in area attributable to DCR
58 as amended in 2001 and not because of any purported change brought
about by clarification made in 2003.
Furthermore, it is one thing to say that the clarification is beyond the
statutory power of the State or plainly contrary to the regulations, the effect
whereof is required to be determined, but it is another thing to say that while
doing so the State gives out its mind as to what it meant thereby as an author
of the regulations. The grievance of the writ petitioner respondents
primarily in that behalf is that in terms of the said clarification,
reconstruction on land made available after demolition of the existing
structure is to be in terms of sub-regulation (6) of DCR 58 and the user
thereof is proposed to be changed from industrial to commercial or
residential under sub-regulation (1)(a)(iii).
We have interpreted the aforementioned provision independently and
we agree that such construction of DCR 58 was possible. But, we also do
not agree therewith in its entirety as has been indicated hereinbefore.
The writ petitioners intend to construe sub-regulation (6) of DCR 58,
as a stand alone clause, with which for the reasons stated hereinbefore, we
do not agree. If some mill owners claim the right to change of user under
sub-regulation (6) alone, the same would be in the teeth of the interpretation
of DCR 58. It cannot be said that by taking recourse to the said power of
clarification the State has improperly exercised its power. Reference to
resolution dated 27.08.2003 passed by MCGM, does not have the effect of
clarification being set at naught for DCR 58. Similarly, the letter dated
24.07.2003 issued by the Chief Executive Officer of MHADA to the
Housing Board or the State Government also does not talk about the
incorrectness or otherwise of the clarification issued by the State but as
regards the effect of DCR of 2001. MAHDA before us categorically stated
that it would abide by the decision of the State of Maharashtra despite the
letter dated 24.07.2003, which was made the only basis for filing the
affidavit before the High Court. Mr. Singhvi appearing for MCGH did not
raise any contention contrary to that of the State.
According to Mr. Chagla, the clarification made by the State will have
the following legal effects:
(i) Excluding lands after demolition of existing structures;
(ii) Excluding the land required to support the FSI of existing built up
areas;
(iii) Introducing change of user in DCR 58(6)
(iv) Altering the meaning of "existing built up areas" in DCR 58(1)(a).
(v) Permitting residential user under DCR 58(1)(a)(iii);
(vi) Obviating surrender of land under DCR 58(6) in respect of newly
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built up areas despite change of user.
(vii) Dispensing with prerequisite of BIFR in DCR 58(1).
Most of the contentions raised by Mr. Chagla stand answered by our
findings recorded hereinbefore. They may, however, be briefly dealt with in
seriatim.
(i) The exclusion of land after demolition of existing structure was not
brought about by 2003 clarification for the first time but it is apparent
from 2001 Regulations themselves. We have heretobefore held that
DCR 58 as interpreted by the State was valid to a large extent.
(ii) As permissions as regard the layout plans had been given, sanctioning
building plans by the statutory authorities and/or approval of scheme
by the State Government in 2001 and 2002, i.e., after DCR 58 came
into force and much prior to the 2003 clarification, no change as such
was brought about thereby.
(iii) If sub-regulation (6) of DCR 58 is to be read along with other
regulations, the stand of the State must be held to be correct. Reading
of sub-regulation (6) with other parts of DCR 58 is not only for the
purpose of change of user but also as regard the restrictions and
limitations imposed thereby. It is, therefore, not correct to contend
that the approach of the State was to somehow find an interpretation
that furthered the purpose of not requiring sharing of land by the land
owners and by reason of the clarification that end was attained
substantially.
(iv) & (v) These submissions are not dependent upon 2003 clarification.
The meaning of the words "entire land" and "built up area" vis-`-vis
permissibility of residential user arose from 2001 Regulations which
had merely been reiterated in 2003 clarification.
(vi) DCR 58(6) itself contemplates absence of sharing obligation so long
as there was no increase in the built up area of the existing structure.
The 2003 clarification of the State is in tune therewith.
(vii) The expression 'sick' used in sub-regulation (6) must necessarily be
those industries which were are referred to BIFR and not any other
sick mill, as the State or any other statutory authority under
regulations are not authorized to determine as to whether a mill is sick
or not or the extent thereof and/ or remedial measures therefor within
the meaning of the provisions of the said regulations.
CONTEMPORANEOUS EXPOSITO/ EXECUTIVE CONSTRUCTION
It was contended by the petitioners before us that the High Court
ought to have applied the doctrine of contemporanea exposito while
interpreting DCR 58 of 2001 and the Clarification of 2003. We have
indicated hereinbefore that we do not agree with the said contention but as
the learned counsel appearing for the appellants have relied upon some
decisions of this Court, the same may be noticed at this juncture.
In Union of India and Another v. Azadi Bachao Andolan and Another
[(2004) 10 SCC 1], this court was concerned with a statutory power
exercised by the Board of Direct Taxes in issuing directions to the Income
Tax Officers as to how they should deal with the cases falling within the
purview of Indo-Mauritius Double Taxation Avoidance Convention, 1983.
The Court itself held that the principles adopted in interpretation of treaties
are not the same as those in interpretation of a statutory legislation on the
ground that the principle which needs to be kept in mind in the interpretation
of the provisions of an international treaty, including one for double taxation
relief, is that treaties are negotiated and entered into at a political level and
have several considerations as their basis; whereas a statute has to be
interpreted keeping in mind the well known principles or canons of
interpretation of statutes.
It is in the aforementioned context the court therein took recourse to
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the doctrine of contemporanea expositio. The court itself referred to a
decision of the Calcutta High Court in Baleshwar Bagarti v. Bhagirathi Dass
[ILR 1908 (35) Cal. 701] wherein it was held that the court interpreting the
statute would give much weight to the interpretation. The said decision,
therefore, is not an authority for the proposition that the court has no
jurisdiction to take a contrary view.
It is interesting to note that the Bench referred to a judgment of the
Constitution Bench of this Court in Collector of Central Excise, Vadodara v.
Dhiren Chemical Industries [(2002) 2 SCC 127], wherein S.N. Variava, J.
was a party. Therein, it was laid down :
"11. We need to make it clear that, regardless of the
interpretation that we have placed on the said phrase, if
there are circulars which have been issued by the Central
Board of Excise and Customs which place a different
interpretation upon the said phrase, that interpretation
will be binding upon the Revenue."
However, in Kalyani Packaging Industry v. Union of India and
Another, (2004) 6 SCC 719], Variava, J. explained the said decision and
clarified that in a case of conflict between circulars of the Board and the
judgment of the court, the latter will prevail.
It is also of some interest to note that House of Lords in Gullick v.
West Norfolk Area Health Authority, [1986 AC 112] opined that an
incorrect statement of the law appearing in a circular can be struck down.
In Municipal Corpn. for City of Pune v. Bharat Forge Co. Ltd. [(1995)
3 SCC 434], it was stated:
"What has been stated relating to "executive
construction" or "practical construction" which has
been relied on by the learned Advocate General,
would not persuade us to agree with him in this
submission, though it may be permissible to take
note of post-enactment history to find out as to
how an enactment was understood on the principle
of "contemporanea expositio"
[See also Ajay Gandhi v. B. Singh, (2004) 2 SCC 120]
In Jamshed N. Guzdar v. State of Maharashtra [(2005) 2 SCC 591], it
is stated:
"\005We are afraid, when it comes to interpretation
of the Constitution, it is not permissible to place
reliance on contemporanea expositio to the extent
urged. Interpretation of the Constitution is the sole
prerogative of the constitutional courts and the
stand taken by the executive in a particular case
cannot determine the true interpretation of the
Constitution..."
From what we have noticed hereinbefore, it is abundantly clear that
the principle of contemporaneous expositio cannot be said to have universal
application. Each case must be considered on its own facts. An executive
construction is entitled to respect but is not beyond the pale of judicial
review.
ARE REGULATIONS AND CLARFICIATION ULTRA VIRES
SECTION 37 OF THE MRTP ACT ?
We may, with a view to examine the said question more closely, take
note of the following facts which more or less are undisputed. Certain plots
were reserved and uses were designated for specified purposes in the
development plan. The mill lands are constituted in wards of the Bombay
Municipal Corporation, namely, A, E, F (South), F (North), G(South),
G(North) and L. The lands of the mills were designated as I-2, I-3 or
Residential (Retention Activity) Zones. The contention of the writ
petitioners is that DCR 58 changes the character of development plan which
would include all regulations framed under the MRTP Act. Section 37
(1AA) of the MRTP Act itself suggests that the changes would be of such
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nature that would not change the character of such development plan which
would be otherwise permissible in terms of Section 37. Fundamental
changes or even very significant changes would not normally apply to such a
situation. It has not been suggested that while effecting the change of user,
designation of uses for specified purposes would change. The identified
reservation for open spaces in the development plan did not include mill
lands. In spite of modification, the mill lands are not to be included in any
such reservation. To the said extent, there would not be any change at all.
Another question which has been raised is as to whether major modification
has been effected although Section 37 contemplates only minor changes.
It is axiomatic that for the said purpose Section 37 of the MRTP Act
must be read in the context of Section 22-A thereof which provides for
substantial changes.
It is also to be borne in mind that whereas the heading of Section 37,
prior to amendment, provided for minor modification, the word "minor" has
been deleted and in that view of the matter emphasis should be laid on the
fact or as to whether such modification alters the basic character of the
development of Greater Bombay or not. It would give rise to a further
question, namely, as to whether by reason thereof a radical transformation
has taken place as regards its basic features, including its identity, which
a'fortiori would mean as to whether the modified development plan stands
unrecognized from the original one. Such a conclusion could have been
arrived at if a green area has been eliminated or a green area has been
allotted to be used for commercial purposes as was the case in Bangalore
Medical Trust v. B.S. Muddappa & Ors. [(1991) 4 SCC 54]. In that case,
this Court, while construing the Town Planning Act, opined that reservation
of open spaces for parks and playgrounds is universally recognized as a
legitimate exercise of statutory power rationally related to the protection of
the residents of the locality from the ill-effects of urbanization stating:
"The statutes in force in India and abroad reserving
open spaces for parks and playgrounds are the
legislative attempt to eliminate the misery of
disreputable housing condition caused by
urbanisation. Crowded urban areas tend to spread
disease, crime and immorality.."
Here, the court was considering the question as to whether discretion
vested in the executive head had correctly been exercised or not. We are not
concerned with such a question in the instant case. If certain number of sites
were reserved in the development plan for public purposes and change of
user had been effected as for example, whether some of the green areas had
been converted to commercial uses, the matter might have been different.
The terms 'modification' or 'change' have often been the subjects of
judicial interpretation.
The meaning of the expression "change" came up for consideration in
Forward Construction Company v. Prabhat Mandal [(1986) 1 SCC 100],
wherein after noticing its dictionary meaning, it was observed:
"\005So, the general meaning of the word "change"
in the two dictionaries is "to make or become
different, to transform or convert". If the user was
to be completely or substantially changed only
then the prior modification of the development
plan was necessary."
The question as regard the process of modification of a plan came up
for consideration in Legg v. Ilea [1972 (3) All ER 177] wherein it was
stated:
"\005the process involved in modification is thus
one of alteration and it must be considered how
radical the alteration is. The alteration may consist
of additions or subtractions or other changes in
what is already there or, no doubt, any
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combination of these. But, throughout, there must,
I think, be the continued existence of what in
substance is the original entity. Once one reaches
a stage of wholesale rejection and replacement, the
process must cease to be one of modification\005"
Yet again in Puran Lal v. President of India [(1962) 1 SCR 688], it
was stated:
"The word modification means the action of
making changes in an object without altering its
essential nature or character\005"
Mr. Chagla strongly relied upon a decision of a Division Bench
decision [Coram Justice B.P. Singh, CJ (as His Lordship then was) and
Justice Ranjana Desai] of the Bombay High Court in M.A. Panshikar v.
State of Maharashtra through its Urban Development Department & another,
[2002 (5) BCR 318] wherein the Bench observed that Section 37(1AA)
empowers the State to effect changes both minor and even major so long it
does not change the character of the plan. In that case itself the Bench held
that the modification in question did not bring about a change in the
character of development plan on account of the increased FSI specified
therein.
Reliance has also been placed by Mr. Chagla on Pune Municipal
Corporation and Another v. Promoters and Builders Association and
Another [(2004) 10 SCC 796] wherein while interpreting Section 37 of the
Act a passing reference was made that such changes should be minor in
nature. This Court therein did not consider the amendment carried out in the
marginal note thereof. In that case, the State Government while allowing a
proposal for modification submitted by Pune Municipal Corporation added
some words which were challenged on the ground that the same was beyond
the powers of the State Government under Section 37. Such a contention
was upheld by the High Court. This Court, however, reversed the said
decision. In the said decision, the meaning and scope of the phrase
"character of plan" did not directly or indirectly fall for consideration. The
expression "minor changes" were used by this Court only for holding that
the State Government exercises wide discretion. The said words were not
used for determination of the scope and ambit of the phrase "character of the
plan".
Reliance has also been placed by Mr. Chagla upon a decision of this
Court in Balakrishna H. Sawant and Others v. Sangli, Miraj & Kupwad City
Municipal Corpn. and Others [(2005) 3 SCC 61] wherein also a case of this
nature did not fall for consideration.
We may place on record that the total area affected by the change on
an average would be approximately 3.07% of the total area of the wards and
the mill lands occupy only 0.6% of the entire land area of Bombay.
When the question as regard validity or otherwise of the 1991
Regulations came up for consideration before the Bombay High Court,
Sujata Manohar, J. (as the learned Judge then was) speaking for the Division
Bench in Nivara Hakk Samiti [WP No. 963 of 1991] wherein the writ
petitioners also were parties observed that the word "modification" being
somewhat indefinite in its ambit must be distinguished from a radical
illustration.
A development plan is an organic document in the sense that periodic
changes are contemplated thereby. A development plan is required to be
changed every 20 years. Such changes are to be brought about keeping in
view the past experience of the planning authority and the intended future
development of the town. While, therefore, interpreting the words "change
in the character of plan" the question would be as to whether the change in
the character is referable to alteration of the entire plan. The change in the
character would, therefore, necessarily mean the change in the basic feature
thereof and the entire plan as a whole wherefor the same must be read in
totality. In this case, the changes made do not brought about any significant
changes so as to come to a conclusion that its basic features are altered.
For the reasons aforementioned, we are of the considered view that
the clarification issued by the State is not violative of Section 37 of the
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MRTP Act.
SUSTAINABLE DEVELOPMENT AND PLANNED DEVELOPMENT
VIS-@-VIS ARTICLE 21 OF THE CONSTITUTION OF INDIA
It is often felt that in the process of encouraging development the
environment gets sidelined. However, with major threats to the
environment, such as climate change, depletion of natural resources, the
entrophication of water systems and biodiversity and global warming, the
need to protect the environment has become a priority. At the same time, it
is also necessary to promote development. The harmonization of the two
needs has led to the concept of sustainable development, so much so that it
has become the most significant and focal point of environmental legislation
and judicial decisions relating to the same. Sustainable development, simply
put, is a process in which development can be sustained over generations.
Brundtland Report defines 'sustainable development' as development that
meets the needs of the present generations without compromising the ability
of the future generations to meet their own needs. Making the concept of
sustainable development operational for public policies raises important
challenges that involve complex synergies and trade offs.
The Indian judiciary has time and again recognised this principle as
being a fundamental concept of Indian law.
In Vellore Citizens' Welfare Forum v. Union of India and Others
[(1996) 5 SCC 647], this Court laid down the salient principles of
sustainable development consisting of the Precautionary Principle and the
Polluter Pays Principle being its essential features stating:
"The "Precautionary Principle" \027 in the context
of the municipal law \027 means:
(i) Environmental measures \027 by the State
Government and the statutory authorities \027 must
anticipate, prevent and attack the causes of
environmental degradation.
(ii) Where there are threats of serious and
irreversible damage, lack of scientific certainty
should not be used as a reason for postponing
measures to prevent environmental degradation.
(iii) The "onus of proof" is on the actor or the
developer/industrialist to show that his action is
environmentally benign.
12. "The Polluter Pays Principle" has been held to
be a sound principle by this Court in Indian
Council for Enviro-Legal Action v. Union of India.
The Court observed: (SCC p. 246, para 65)
"... we are of the opinion that any principle
evolved in this behalf should be simple, practical
and suited to the conditions obtaining in this
country".
The Court ruled that: (SCC p. 246, para 65)
"... once the activity carried on is hazardous or
inherently dangerous, the person carrying on such
activity is liable to make good the loss caused to
any other person by his activity irrespective of the
fact whether he took reasonable care while
carrying on his activity. The rule is premised upon
the very nature of the activity carried on".
Consequently the polluting industries are
"absolutely liable to compensate for the harm
caused by them to villagers in the affected area, to
the soil and to the underground water and hence,
they are bound to take all necessary measures to
remove sludge and other pollutants lying in the
affected areas". The "Polluter Pays Principle" as
interpreted by this Court means that the absolute
liability for harm to the environment extends not
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only to compensate the victims of pollution but
also the cost of restoring the environmental
degradation. Remediation of the damaged
environment is part of the process of "Sustainable
Development" and as such the polluter is liable to
pay the cost to the individual sufferers as well as
the cost of reversing the damaged ecology."
This Court, referring to Articles 48-A and 51-A(g) of the Constitution
of India, observed that the aforementioned principles are part of the
constitutional law.
In Intellectual Forum, Tirupathi v. State of A.P. & Ors. [JT 2006 (2)
SC 568], it was stated:
"In light of the above discussions, it seems fit to
hold that merely asserting an intention for
development will not be enough to sanction the
destruction of local ecological resources. What
this Court should follow is a principle of
sustainable development and find a balance
between the developmental needs which the
respondents assert, and the environmental
degradation, that the appellants allege."
The MRTP Act does not exclude these principles. Unless they are so
excluded, they are to be read in the statute both in the substantive legislation
as also delegated legislation.
In A.P. Pollution Control Board v. Prof. M.V. Nayudu (Retd.) and
Others [(1999) 2 SCC 718], this Court reiterated the necessity of
institutionalizing scientific knowledge in policy-making or using it as a basis
for decision-making by agencies and courts.
In Narmada Bachao Andolan v. Union of India and Others, [(2000) 10
SCC 664], this Court emphasized the exercise which is required to be
undertaken by the committees before policy decisions are taken.
In M.C. Mehta v. Union of India and Others [(1996) 4 SCC 351], this
Court directed shifting of industries which are not in conformity with the
provisions of the Master Plan.
Yet again in M.C. Mehta v. Union of India and Others [(2004) 6 SCC
588], this Court negatived the attempt on the part of the State for in situ
regularization by way of change of policy. The court emphasized that in
terms of Article 243-W of the Constitution of India, the Municipalities have
constitutional responsibilities of town planning stating:
"The Municipal Corporation has the responsibility
in respect of matters enumerated in the Twelfth
Schedule of the Constitution of India, regulation of
land use, public health, sanitation, conservancy,
solid-waste management being some of them\005"
In M.C. Mehta v. Union of India and Others [(2005) 2 SCC 186], this
Court issued further directions stating that the Government must have due
regard in letter and spirit to aspects that have been mentioned in the earlier
place including rights of individuals who are residents of the localities under
consideration for in situ regularization by amendment of the Master Plan.
In M.C. Mehta v. Kamal Nath and Others [(1997) 1 SCC 388], it was
stated:
"\005The resolution of this conflict in any given case
is for the legislature and not the courts. If there is a
law made by Parliament or the State Legislatures
the courts can serve as an instrument of
determining legislative intent in the exercise of its
powers of judicial review under the Constitution.
But in the absence of any legislation, the executive
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acting under the doctrine of public trust cannot
abdicate the natural resources and convert them
into private ownership, or for commercial use. The
aesthetic use and the pristine glory of the natural
resources, the environment and the ecosystems of
our country cannot be permitted to be eroded for
private, commercial or any other use unless the
courts find it necessary, in good faith, for the
public good and in public interest to encroach upon
the said resources."
[Emphasis supplied]
In Consumer Education & Research Society v. Union of India and
Others [(2000) 2 SCC 599], this Court issued certain directions directing the
State to constitute a committee consisting of experts for study of the relevant
environmental aspects as also for study of the effects of the present limited
mining operation permitted by this Court. The State Government was
further directed to take steps to monitor air and water pollution in that area.
Such a Committee having been constituted and the report having been
submitted, this Court in [(2005) 10 SCC 185] issued some directions to the
State:
"Considering all these aspects, we are of the view
that the recommendation of the expert body to the
effect that the mining operations should not be
allowed within 2.5 km beyond the boundaries of
Narayan Sarovar Wildlife Sanctuary which
obviously means the notified boundary in force, is
prima facie acceptable and could serve as a
guideline in the matter of grant or renewal of
mining leases by the State Government. Final
orders in this regard will be passed after the details
mentioned in the next paragraph are furnished."
This Court, therefore, in appropriate cases may monitor
implementation of the constitutional policy of sustainable development upon
directing the State to appoint expert committees.
In Sushanta Tagore and Others v. Union of India and Others [(2005)
3 SCC 16], this Court was concerned with interpretation of the provisions of
Visva-Bharati Act, 1951 which was enacted to preserve and protect the
uniqueness, tradition and special features of Visva-Bharati University.
Therein, this Court opined:
"It may be true that the development of a town is
the job of the Town Planning Authority but the
same should conform to the requirements of law.
Development must be sustainable in nature. A land
use plan should be prepared not only having regard
to the provisions contained in the 1979 Act and the
Rules and Regulations framed thereunder but also
the provisions of other statutes enacted therefor
and in particular those for protection and
preservation of ecology and environment.
As Visva-Bharati has the unique distinction
of being not only a university of national
importance but also a unitary one, SSDA should be
well advised to keep in mind the provisions of the
Act, the object and purpose for which it has been
enacted as also the report of the West Bengal
Pollution Control Board. It is sui generis."
In that case, this Court interfered as the planning authorities were
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found to have violated the provisions of a Parliament Act which had a direct
ecological impact of a special nature on the area over which the Visva
Bharati University had jurisdiction.
Mr. Chagla relied upon some decisions of this Court in this behalf
which we may notice now.
In Indian Handicrafts Emporium and Others v. Union of India and
Others [(2003) 7 SCC 589], wherein one of us was a party, this Court
opined:
"The provisions of the said Act must be construed
having regard to the purport and object it seeks to
achieve. Not only, inter alia, wild animal is to be
protected but all other steps which are necessary
therefor so as to ensure ecological and
environmental security of the country must be
enforced. \005\005\005"
In Virender Gaur and Others v. State of Haryana and Others [(1995) 2
SCC 577], it was stated:
"It is seen that the open lands, vested in the
Municipality, were meant for the public amenity to
the residents of the locality to maintain ecology,
sanitation, recreation, playground and ventilation
purposes. The buildings directed to be constructed
necessarily affect the health and the environment
adversely, sanitation and other effects on the
residents in the locality. Therefore, the order
passed by the Government and the action taken
pursuant thereto by the Municipality would clearly
defeat the purpose of the scheme\005"
Lahoti, J. (as the learned Chief Justice then was) speaking for a
Division Bench of this Court in Friends Colony Development Committee v.
State of Orissa and Others [(2004) 8 SCC 733] stated the law in the
following terms:
"In all developed and developing countries there is
emphasis on planned development of cities which
is sought to be achieved by zoning, planning and
regulating building construction activity. Such
planning, though highly complex, is a matter based
on scientific research, study and experience
leading to rationalisation of laws by way of
legislative enactments and rules and regulations
framed thereunder. Zoning and planning do result
in hardship to individual property owners as their
freedom to use their property in the way they like,
is subjected to regulation and control. The private
owners are to some extent prevented from making
the most profitable use of their property. But for
this reason alone the controlling regulations cannot
be termed as arbitrary or unreasonable. The private
interest stands subordinated to the public good. It
can be stated in a way that power to plan
development of city and to regulate the building
activity therein flows from the police power of the
State. The exercise of such governmental power is
justified on account of it being reasonably
necessary for the public health, safety, morals or
general welfare and ecological considerations;
though an unnecessary or unreasonable
intermeddling with the private ownership of the
property may not be justified."
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These decisions do not lay down any law which is different from what
we have said herein. The development of the doctrine of sustainable
development indeed is a welcome feature but while emphasizing the need of
ecological impact, a delicate balance between it and the necessity for
development must be struck. Whereas it is not possible to ignore inter-
generational interest, it is also not possible to ignore the dire need which the
society urgently requires.
In a case of this nature, an endeavour should be made in giving effect
to the intention of the legislature. For the said purpose, it is necessary to
ascertain the object the legislature seeks to achieve. It may also be
necessary to address questions as regards the nature of the statute. Does the
statute ex facie point out degradation of the environment? Would by change
of user envisaged by the legislature, the existing open space be decreased?
Would it be necessary in view of the legislative scheme to invoke the
precautionary principles?
Answers to the said questions in this case are to be rendered in the
negative. The main purpose of the legislation is revival of industry inter alia
by modernisation and shifting of industry. Article 21 guarantees a right to a
decent environment and, thus, what should be the parameters therefor would
essentially be a legislative policy. Undoubtedly, different criteria may be
laid down to achieve different purposes. When the discretionary power
under a statute is arbitrarily exercised, evidently the court will not tolerate
the same and strike it down. DCR 58, however, ex facie does not impair
sustainable development of the town of Bombay.
Mr. Salve has placed before us several decisions of American Courts
to suggest that environmental considerations into town planning laws have
got the upper hand in the matter of interpretation of the town planning
provisions in a broad manner. The said discussions are not relevant for our
purpose. He further relied upon a decision of House of Lords in South
Bucks District Council v. Porter Chichester District Council v. Searle and
others [(2003) 3 All ER 1] wherein it was held:
"Over the past 60 years there has been ever-
increasing recognition of the need to control the
use and development of land so as to prevent
inappropriate development and protect the
environment. This is, inevitably, a sensitive
process, since it constrains the freedom of private
owners to use their own land as they wish. But, it
is a very important process, since control,
appropriately and firmly exercised, enures to the
benefit of the whole community."
The statement of law propounded by us do not lay anything contrary
to the said dicta. Herein, an attempt has been made to interpret DCR 58 in
such a manner so that it not only enures to the benefit of the whole
community but also give effect to the purport and object thereof.
REDUCTION IN GREEN AREAS IS-@-VIS ENVIRONMENTAL
IMPACT ASSESSMENT
While considering the environmental aspect, we must not forget that
before constructions are allowed to be commenced and completed, the
exercise for environmental impact assessment is mandatorily required to be
done by the competent authority. An expert body albeit within the
fourcorners of the regulatory provisions would be entitled to consider the
entire question from the environmental aspect of the matter which would
undoubtedly take into consideration all relevant factors including the
question as to whether the same is likely to have adverse effects on ecology
or not. Consideration of ecological aspects from the court's point of view
cannot be one sided. It depends on the fact situation in each case. Whereas
the court would take a very strict view as regard setting up of an industry
which is of a harazardous nature but such a strict construction may not be
resorted to in the case of town planning. The counsel before us referred to
the decision in Padma v. Hiralal Motilal Desarda and Others [(2002) 7 SCC
564], wherein it was stated:
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"The significance of a development planning
cannot therefore be denied. Planned development
is the crucial zone that strikes a balance between
the needs of large-scale urbanization and
individual building. It is the science and aesthetics
of urbanization as it saves the development from
chaos and uglification. A departure from planning
may result in disfiguration of the beauty of an
upcoming city and may pose a threat for the
ecological balance and environmental safeguards."
This, however, has no relevance in the present case. Whereas even in
a case of town planning, the court may consider the action on the part of the
State while exercising its discretionary jurisdiction in changing the user with
all seriousness; it deserves particularly when it is contrary to the
development plan, it may not do so where it is within the contours thereof.
The question has to be considered having regard to the fact that in
stead and place of industries which would have otherwise a far larger
environmental impact vis-`-vis the buildings which would be constructed
would be used for residential or commercial purposes. The problem will
have to be addressed from the point of view that as a part of the scheme
framed by the State in making DCR 58, the money would be invested not
only for the purpose of revivial and / or rehabilitation of the sick or closed
mills, the same would also give a boost to modernization and/ or shifting of
mills and/ or parts thereof from residential area to outside the town of
Bombay. It is not disputed that modernization and shifting of the mills from
Bombay to the suburbs would go a long way in solving ecological problems
of the town. If some mills opt for modernization, the ecological impact
would be lesser than the mills which are existing for a very long time.
While setting up modern mills in place of old ones, evidently approval of the
Commissioner and sanction of the State in relation to the scheme would be
imperative and while doing the exercise of scrutiny as regard environmental
impact assessment would be required to be gone into.
Furthermore, such a step would also be in consonance with the present
economic policy of the State viz. the policy of disinvestment and
privatization. Such a policy is not alien to the scheme of MRTP Act.
We, however, fail to understand that if raising of construction by the
mill owners had been questioned on ecological considerations why the
Appellants failed and/ or neglected to raise such a contention as regard the
constructions to be raised by MHADA. Construction of buildings, if results
in an impact on ecology; it was expected that the writ petitioners \026
Respondents would question the validity thereof. They might have not done
so having regard to the fact that the same would invite adverse comments
from the workers. Even the mill owners did not question the
constitutionality of such a provision presumably because they considered the
provisions of DCR 58 as part of a package deal. Presumably, they also
thought that if change of user is granted, even sale of a portion of land would
compensate them for the portion they are required to surrender to MCGM by
way of public greens and/ or housing schemes to be undertaken by
MHADA.
The notification of 7th July, 1994 under the Environment Protection
Act, 1986 sought to amend the notification dated 27th January, 1994. The
primary purpose for issuing such notification was to state in detail the nature
of the project, the extent of work carried on in respect thereof which would
require environmental impact assessment clearance from the committee.
Before us, the findings of the High Court as regard requirement to
comply with the statutory directions issued by the Central Government for
the purpose of getting the environmental impact assessment in respect of
each and every project is not in question. Parties before us have raised rival
contentions. It was contended by some of the Appellants that the said
notification will have no application in the matters they represent;
contentions have also been raised that despite the said notification having
come into force, the building plans are being sanctioned and constructions to
a large extent are being carried out without obtaining clearance from the
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E.I.A. Committee. We do not intend to determine the factual dispute
keeping in view the fact that in cases in which the said notification would
apply, the committee required to assess the environmental impact as regard
each project shall go into the individual cases and pass appropriate orders.
The apprehension that by reason of the 2001 Regulations, the existing
green area would be reduced, does not appear to be based on any factual
data. According to the Respondent Nos. 1 and 2, in terms of 1991
Regulations, the residents would have got 165 acres for greens whereas
under the new Regulations, they would get approximately 32 acres of
greens.
'Reduction in green areas' envisages reduction of an area which was
existing.
The said submission does not have any factual foundation. No actual
greens existed by way of designation under Section 22(c) of the MRTP Act
or otherwise under any other legislation. In any event, DCR 58 of 1991 did
not work. Increase in FSI by reason of 2001 Regulations even according to
Mr. Salve would have added many more floors which thus became
otherwise permissible in law. It ensures giving of some areas voluntarily by
the mill owners. It is, however, one thing to say as to what actual area
would be available for public greens but it is another thing to say that by
reason thereof a change in the character of plan itself has taken place as a
result whereof the green areas would be reduced. The Appellants have
contended that in terms of the 2001 Scheme, the extent of actual surrender
has substantially gone up in comparison to the offer of surrender made
during the period 1991-2001. They have contended that the lands available
to MCGM and MHADA would also be higher. It is also the contention of
the Appellants that larger volumes of private greens which would be
available although the same may not be a substitute for public greens, but
would certainly enhance the ecological balance. It is also contended that the
land area available towards the owner's component would be higher and the
private green areas emerging therefrom would also be correspondingly
higher. Dr. Singhvi has further submitted that by reason of implementation
of the Zonal Regulations, three more Shivaji Parks would be added.
The contentions raised by the Appellants may or may not be correct.
However, only because the ideal situation could not be brought about by the
State while inserting 2001 Regulations, the same, in our opinion, would not
lead to a conclusion that the same would be ultra vires Section 37(1AA) of
the MRTP Act.
If the government intends to create more green areas in mill lands it
has to avail of one of three alternatives, namely:
(a) designation/reservation in terms of Section 22(c);
(b) acquisition of land; or
(c) voluntary surrender of land.
It was contended by the NTC that DCR 58 of 2001 is an attempt to
induce higher voluntary surrender of land by the mill owners. The first two
alternatives would only put additional time and costs for the government in
terms of procedures for acquisition and payment of compensation.
It was also contended that through the Integrated Development
Scheme, NTC have made themselves liable to surrender 26 acres of land to
MHADA and 23 acres to MCGM. It is estimated that for all the mills more
than 70.00 acres of land would be available for public greens and value
thereof would approximately be 750 crores (calculated on the basis of
auction price).
It is not at all in dispute that all the 58 cotton textile mills are spread
over seven wards of MCGM, namely, A, E, F (South), F (North), G(South),
G(North) and L. They are not spread over the entire town of Bombay. The
mill lands occupy only 3.07% of the wards and 0.65% of the entire town of
Bombay as is evident from the following chart:
S.No.
Name of Ward
No. of mills
% of area occupied by
mills
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1.
A
1
0.31%
2.
E
12
6.61%
3.
F(South)
13
5%
4.
F(North)
1
0.67%
5.
G(South)
25
9.95%
6.
G(North)
3
1.43%
7.
L
3
0.88%
From the affidavit affirmed by Shri Raoul S. Thackersey, it appears
that the mill lands available for development, both open and built-up area,
aggregate 400 acres approx. and not 600 acres of land as contended by the
writ petitioners. Approximately, 200 acres of mill lands comprising running
textile mills are not available for development.
Out of the total lands, 87% of the lands occupied by the mill owners
are freehold lands and 13% of the lands are lease-hold either from the State
or private parties. All the textile mills are not within I-2 Zones. 13 cotton
textile mills are situated within the residential zone.
As per the provisions of DCR 58 of 1991, it was in the discretion of
the owner whether to come forward for total redevelopment of the mill and/
or to utilize the existing built up area for commercial purposes, etc.
However, out of the area which would have been available for sharing lands
with M.C.G.M./ MHADA under DCR 58 of 1991 in the cases of the
proposals which were approved for total/ partial redevelopment would have
been as under:
S.No.
Name of the Mill
Land for
MCGM in
sq. m.
Land for
MHADA in
sq. m.
Others (for
public
housing) in
sq. m.
1.
Matulya Mill
5641.40
4616.46
Nil
2.
Swadeshi Mill
24482.00
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12612.13
12612.13
3.
Moder Mill
8626.56
7058.12
Nil
However, the area available for M.C.G.M. & MHADA for the
proposals approved under modified DCR 58 of 2001 for total/ partial
redevelopment are as under:
S.No.
Name of the Mill
Proposed as per the provisions of
modified DCR 58(1)(b)
MCGM in sq.
m.
MHADA in sq.
m
1.
Standard Mill (China Mill)
1525.14
1247.84
2.
Standard Mill Prabhadevi
1247.80
1020.93
3.
Morarjee Goculdas Unit No.
1
4479.37
1276.96
Located at
Kandivli Unit
4.
Morarjee Goculdas Unit No.
2
5.
Piramal Mill
1533.46
1254.65
6.
Mafatlal Mill Unit No. 3
588.41
481.43
7.
Matulya Mill
474.68
388.37
8.
Modern Mill
1163.31
Nil
9.
Shreeram Mill
1848.25
1572.20
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10.
Victoria Mill
545.34
4537.10
11.
Hindustan Spg. & Wvg.
Mill Unit No. 1 & 2
662.61
542.12
12.
Hindustan Spg. & Wvg.
Mill (Crown Mill Division)
1134.81
928.67
13.
Simplex Mill
1363.54
1115.63
14.
New Great Eastern Spg. &
Wvg. Mills
1533.30
1254.52
15.
Swan Mill (Kurla)
4663.70
3815.76
16.
Kohinoor Mills No. 3
2628.00**
2946.54***
17.
India United Mill No. 2 & 3
7873.63**
8828.01***
18.
Elhpinstone Mills
2796.40**
3135.35**
19.
Jupiter Mills
1484.75**
1664.72***
20.
New Hind Textile Mills
2034.88**
2281.54***
21.
Mumbai Mills (Sakseria
Mills)
10631.02**
11919.63***
22.
Apollo Mills & its property
i.e. Morarka Bungalow
4714.81**
5286.33***
23.
Swan Mill (Seweree)
4059.00
3321.00
24.
Western India Spg. & Wvg.
Mill
1436.00
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1175.00
25.
Bombay Dyeing (Spring
Mill Wadala)
25775.24
26556.30
26.
Bombay Dyeing Textile
Mill (Lower Parel)
7052.86
5770.52
** Proposed to be earmarked and handed over at India United Mill No. 2
& 3.
*** Proposed to be earmarked at New Hind Textile Mill and India United
Mill No. 2 & 3"
The difference can, thus, at once be felt.
The main features of the new DCR 58 will have to be construed
having regard to the changes brought about thereby. For the aforementioned
purpose, we may notice the following chart showing the purported reduction
of space:
Ward
A
E
F(South)
F(North)
G(South)
G(North)
L
% of total
Open Space
in each ward
as per old
DCR 58
5.79%
9.29%
4.47%
6.12%
12.43%
4.40%
19.30%
% of total
Open Space
in each ward
as per new
DCR 58
5.73%
7.84%
3.37%
5.97%
10.29%
4.08%
19.11%
Ward wise
reduction in
open space
0.06%
1.45%
1.1%
0.15%
2.14%
0.32%
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0.19%
If Regulation prior to 1991 was implemented, the average of the
Green Areas would have come to 8.33% whereas after 1991, it comes to
8.16%. From what has, thus, been noticed hereinbefore, it is difficult to
agree with the contentions of the writ petitioners that there had been
substantial reduction in green area. It must also be placed on record that
civic load in respect of residential construction so far as land occupied by the
mills owners was more than the present ratio of FSI at 1.33%. FSI given for
construction of buildings to MHADA itself would be 1.596 i.e. almost 1.6%.
It is contended on behalf of the Appellants that out of the total area of
2,430,000 sq. m., the lands which would be available to MCGM as public
green is 11.53% and the private greens works out to be 20.87%, thus,
totalling 32.43%. It is also contended that the purported reduction ward-
wise will vary from 0.06% to 2.14% and in most cases it would be 1.1% or
less. From what has been noticed hereinbefore, it is evident that the
purported reduction in green area compared to pre-1991 situation, would
not create much difference so far as maintenance of the ecological balance is
concerned by giving effect to 2001 Regulations vis-`-vis the 1991
Regulations.
SALE OF LANDS OF NTC MILLS
A large number of cotton and other textile mills were situate in the
town of Bombay. The workmen of the said cotton textile mills resorted to a
strike as a result whereof a large number of textile mills were closed. The
mills occupied lands measuring about 600 acres.
The Parliament of India enacted the Sick Textile Undertakings
(Nationalisation) Act, 1974 (for short "the 1974 Act") for acquisition and
transfer of the sick textile undertakings, and the right, title and interest of the
owners thereof specified in the First Schedule appended thereto. The said
Act received the assent of the President of India on 21st December, 1974. It
came into force from 1st day of April, 1974. In terms of Section 3 of the said
Act, every sick textile undertaking and the right, title and interest of the
owners thereto stood transferred to and vested absolutely in the Central
Government with effect from the appointed day. The sick textile
undertakings which stood vested in the Central Government by virtue of
sub-section (1) of Section 3 of the said Act had been transferred to and
vested in the National Textile Corporation.
The Parliament of India again enacted the Textile Undertakings
(Nationalisation) Act, 1995 (for short "the 1995 Act") for acquisition and
transfer of textile undertakings specified in the First Schedule appended
thereto with a view to augmenting the production and distribution of
different varieties of cloth and yarn so as to subserve the interests of the
general public for matters connected therewith or incidental thereto. In
terms of the provisions of the said Act, 25 mills notified thereunder vested in
NTC. It, inter alia, has two subsidiaries, viz., National Textile Corporation
(South Maharashtra) and National Textile Corporation (North Maharashtra).
By reason of the 1974 Act and the 1995 Act, about 119 textile mills situate
throughout the country were nationalized. Out of the 25 mills of National
Textile Corporation which are in the town of Bombay, 18 mills were lying
closed. 14,800 employees were retrenched. National Textile Corporation
together with its six other subsidiary corporations were referred to BIFR
under SICA sometime between 1992-1993. The said proceedings remained
pending for nearly ten years. BIFR formulated eight schemes. The schemes
were approved by all concerned as well as the operating agencies. The
matter came up before this Court and by an order dated 27.9.2002 the
scheme as sanctioned by BIFR was directed to be implemented.
The said order was passed in a special leave petition filed by NTC
(IDA) Employees Association v. Union of India & Ors. [SLP No. 16732 of
1997 dated 7.5.1999] which is in the following terms :
"\005We have been informed that BIFR has already
formulated right schemes which stand approved by all
concerned and agencies. Let the schemes as sanctioned
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by BIFR be implemented. The Special Leave Petition
and the Transfer Petition stand disposed of
accordingly."
The salient features of the said schemes are as under:
(a) One time settlement qua banking institutions;
(b) Identification of closed unviable mills;
(c) Sale of surplus assets including land;
(d) Rehabilitation/revival of unviable mills;
(e) An Asset Sale Committee (ASC) under Section 32(1) of the SICA Act
for the sale of the assets was to be constituted. A nominee of BIFR
was one of the members thereof. It was constituted to ensure
transparency in the sale of assets of the mills.
Guidelines for the said ASC had also been set out. Pursuant to or in
furtherance of the said schemes, National Textile Corporation closed down
unviable mills and mobilized a large sum towards implementation thereof.
Some of the steps taken in this behalf are as under:
(a) An amount of Rs. 643.94 crores were spent by the National Textile
Corporation for payment of Modified Voluntary Retirement Scheme
to workers. The said amount was disbursed before April, 2003.
(b) National Textile Corporation issued bonds (series No. IX) whereby a
sum of Rs. 2028 crores was raised. The said bonds carried interest
ranging from 6.10% to 10% per annum.
(c) Expenses have been incurred towards wage bills amounting to Rs.
1839 crores. The accumulated total loss of National Textile
Corporation was about Rs. 4055.35 crores including the amounts
payable to the banks/ financial institutions.
(d) An amount of Rs. 84 crores had been paid to the workers on account
of Provident Fund and ESI dues.
(e) Having regard to the one time settlement arrived at with banks and
financial institutions, a sum of Rs. 72 crores had been paid.
Pursuant to the said Scheme dated 25.7.2002, National Textile
Corporation submitted an Integrated Development Plan on 3.5.2005 for all
the 25 mills situate in the town of Bombay. The said scheme was prepared
keeping in view DCR 58 as modified in 2001.
On or about 27.10.2004, Municipal Corporation of Greater Mumbai
(MCGM), however, approved the scheme only for seven mills, permitting
sale of five mills and surrender of India United Mills 2 and 3 as well as New
Hind Textile Mill as share of Maharashtra Housing and Area Development
Authority (MHADA) and MCGM.
An integrated plan was set out for sale of lands in terms whereof lands
situate in other mills were kept aside to provide open lands which may be
required in the event the writ petition filed by the Writ Petitioners -
Respondents was allowed. Negotiations were held between the purchasers
and NTC as regards sale of the said land. Several queries were made by the
intending purchasers which were duly answered. Specific assurances were
given to the bidders by NTC that deficiencies in open space shall be made
good by making available equivalent open space from its other mills in the
vicinity, in the event the writ petition was allowed. Clarifications were also
issued to the effect that NTC was committed to sell lands specified in respect
of each mill as well as specified in FSI as approved by the Bombay
Municipal Corporation and, thus, any extra surrendering of land, if any
occasion arises therefore, would be borne by it. It was furthermore clarified
that "assuming that the court decides otherwise, then NTC has other mills to
offer as far as the share of MHADA and MCGM is concerned and NTC will
take care of the interest of the purchasers". An undertaking had also been
given by it in the High Court which was duly recorded in its interim order
dated 1.4.2005 which reads as under :
"On behalf of NTC the learned counsel submits
that they should be allowed to proceed with the
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sale of Jupiter Mills. The matter is pending before
this Court. However, considering the urgency
which counsel make out any further as NTC has 25
mills the request for confirming the sale can be
agreed to, subject to the following conditions:
(i) NTC will file an undertaking in this Court, that
on the Court passing an order on interim relief they
will comply with the order of the Court including
if a situation arises of reserving the land in the
other mills for which development is sought in
terms of the order that may be passed by the Court.
On such undertaking being filed, it is open to NTC
to confirm the sale of Jupiter Mills."
It was further directed:
"(ii) Considering that the matter has now been
adjourned to 20-4-2005 Respondent 2 Municipal
Corporation directed not to approve any further
layouts, issue IOD, or CC without the permission
of this Court or till further orders."
As regard, sale of lands from NTC Mills, the High Court in its
judgment opined that the sale of its mills by NTC was contrary to this
Court's orders dated 11.05.2005 and 27.09.2002 as also contrary to the
BIFR scheme in the following terms :
"273. It is very clear from the order of the Supreme
Court dated 11th May, 2005, that every sale after the
said order by either NTC-MN or NTC-SM will be only
in terms of the scheme framed by the BIFR. Only sale
of land from Jupiter Mills had taken place earlier.
274. But even the sale of land from Jupiter Mills will
have to be in accordance with the BIFR scheme, as per
earlier order of the Supreme Court dated 27th
September, 2002.
275. The sanctioned scheme of BIFR, clearly provides
that the surrender of land to MCGM and MHADA in
respect of each mill shall be out of the land of such
mill itself and not out of the land of some other mill.
Hence, the integrated scheme in respect of 7 mills
approved by MCGM on 27th October, 2004 (which
provides for aggregation of land to be surrendered to
MCGM and MHADA in respect of the five mills sold,
on two other mills) is contrary to the sanctioned
scheme, which clearly does not contemplate any such
integration, (emphasis supplied).
276. In paragraph 5 of the affidavit dated 12th
September, 2005 filed by NTC, it is expressly admitted
that the integrated development scheme submitted to
MCGM is a modification of the sanctioned scheme of
BIFR. It is stated that a proposal for modification of the
sanctioned scheme has been made to BIFR about a year
ago. It is submitted by the Petitioners that this
application for sanction of the BIFR to such
modifications was made in view of the direction of the
Supreme Court dated 27th September 2002 "Let the
scheme as sanctioned by BIFR be implemented". It
is stated in the said affidavit of NTC that "The
sanction of BIFR is awaited and Respondent Nos. 3
and 4 will implement the same after approval of
BIFR". However, contrary to the aforesaid statement
and in breach of the orders of the Hon'ble Supreme
Court, NTC has sold five mills under the integrated
development scheme approved by MCGM without the
approval of the BIFR to the modifications in the
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sanctioned scheme.
277. Hence we are clearly of the view that the sale of
lands by NTC from 5 mills viz. (a) Apollo Textile Mills
(SM), (b) Mumbai Textile Mills (SM), (c) Elphinstone
Mills (SM), (d) Kohinoor Mill No. 3 (MN) and (e)
Jupiter Mills are clearly contrary to the sanctioned
BIFR Scheme and both the orders of Supreme Court
dated 11th May, 2005 and 27th September, 2002."
We for the reasons stated hereinafter are not in agreement with the
conclusion of the High Court in this behalf.
It is not in dispute that in the special leave petition wherein the said
order dated 27.09.2002 was passed, the parties therein were not concerned
with the sale of any mill lands or for enforcement and/or interpretation of
any regulation framed under the MRTP Act. The said observations were
made while entertaining an application filed on behalf of the workmen and
not for any other purpose. The observations were not made for the purpose
of determination of any of the issues involved in the matter. It could not,
thus, be treated to be a direction on the part of this Court. The question of
the sale of mill lands by NTC could be held to be invalid if the same had
been effected contrary to the direction of this Court and not otherwise.
ORDER OF THIS COURT DATED 11.5.2005
The order of this Court dated 11th May, 2005 reads as under:
"So far as transactions relating to seven mills
belonging to the National Textile Corporation are
concerned, including sale of Jupiter Mills, it is not
in dispute that transactions have reached a final
stage. The purchasers of Jupiter Mills have already
paid Rs 16 crores and a sum of Rs 376 crores
would pass hands if the transaction is completed. If
the transactions in respect of the mills are not
allowed to be completed, the scheme framed by
BIFR would come to a standstill resulting in
accrual of interest payable by the National Textile
Corporation to the financial institutions besides
other hardships which may be caused to various
other persons including the workers.
We, therefore, having regard to the facts and
circumstances of this case as also the law operating
in the field, are of the opinion that interest of
justice would be subserved if the National Textile
Corporation is permitted to complete the
transactions in terms of the scheme framed by
BIFR but the same shall be subject to the condition
that in the event, the writ petition ultimately
succeeds, the vacant land available from other
mills, if necessary, shall be offered by way of
adjustment."
In the said order, it was recorded:
"Mr Parasaran and Mr Rohatgi, learned Senior
Counsel appearing on behalf of the National
Textile Corporation would contend that keeping in
view the fact that in respect of seven mills,
negotiations have been entered into, they should be
allowed to be sold off and in the event, the writ
petition succeeds, the order of the Court can be
complied with by adjusting vacant land belonging
to the other mills.
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Mr Iqbal Chagla, learned Senior Counsel
appearing on behalf of the writ petitioner
respondents, on the other hand, would urge that the
undertaking directed to be given by the National
Textile Corporation is commensurate with the
suggestion given by Mr Parasaran before this
Court."
So far as order of this Court dated 11.05.2005 is concerned, again the
validity or otherwise of the BIFR scheme and/or implementation thereof was
not in question. An order of this Court, it is well-known, must be construed
having regard to the text and context in which the same was passed. For the
said purpose, the orders of this Court were required to be read in their
entirety. A judgment, it is well settled, cannot be read as a statute. [See
Sarat Chandra Mishra and Others v. State of Orissa and Others, 2006 (1)
SCC 638 and State of Karnataka and Others v. C. Lalitha, 2006 (1) SCALE
73]. Construction of a judgment, it is well settled, should be made in the
light of the factual matrix involved therein. What is more important is to see
the issues involved therein and the context wherein the observations were
made. Any observation made in a judgment, it is trite, should not be read in
isolation and out of context.
While passing the order dated 11.05.2005, this Court merely noted the
terms of the BIFR scheme. It did not issue any direction to the effect that
the sale of the mill land should be effected strictly in terms thereof or in a
particular manner. The BIFR scheme evidently was referred to as this Court
noticed that even statutory authorities constituted under a Parliamentary Act
found it necessary to direct sale of the mill lands in public interest. While
considering a writ petition on an environmental issue, the focus of the court
should have been confined thereto. It was in our considered opinion
impermissible for the High Court to examine the BIFR scheme as if the
environmental issues were considered therein.
The BIFR exercises its jurisdiction under a statute; the objects
whereof are distinct and different from a town planning scheme. The BIFR
is not a town planner. It is not a development authority. It has nothing to
do with the town planning or development scheme or maintenance of
ecological balance. The BIFR was concerned only with the manner in which
sick industrial undertaking should be made to revive. Before passing the
said order, it was required to hear all concerned, namely, the management,
the workmen, the financial institutions, banks etc. as also the operating
agencies. It did so.
BIFR appointed IDBI as an operating agency. The authorities were
concerned with obtaining maximum amount by way of sale of mill lands. It
was in any event not concerned with the interpretation and/or applicability of
the provisions of the MRTP Act or the Regulation framed thereunder. BIFR
was not concerned with the interpretation of DCR 58 and, thus, only because
this Court in its aforementioned orders dated 27.09.2002 and 11.05.2005 had
referred thereto, the same would not mean that thereby any direction was
issued either directly or indirectly that the sale of the lands pertaining to
cotton textile mills must strictly be conducted in accordance with the said
scheme. This Court merely asked the authorities to effect sale of mill land
upon following the scheme framed by BIFR and in accordance with the
procedure laid down therefor. This Court in its order dated 11.5.2005
categorically observed that if the transactions in respect of mills are not
allowed to be completed, the scheme framed by the BIFR would come to a
standstill resulting in accrual of liability of a huge amount by way of interest
payable by NTC to the financial institutions besides other hardships which
may be caused to various other persons including the workers. The scheme
framed by the BIFR, therefore, was taken to be a relevant factor only for the
purpose of determining the issues involved in the appeal which arose out of
an interim order. It was only in that situation mention was made to the
scheme framed by the BIFR and not for any other purpose. This Court, as
would appear from the submissions made by the counsel for the parties
therein merely intended to give effect to the consensus arrived at the bar that
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an undertaking by the NTC to the effect that the order of this High Court
would be complied with by way of adjustment of lands from other mills
would subserve the interest of justice. The validity or otherwise of the
transaction of sales of seven mills of NTC were, thus, not open to a further
determination by the High Court.
The High Court furthermore appeared to have committed a manifest
error in reading down para 5 of the affidavit of Shri Deodutt B. Pandit. It
has been contended before us that the proposed modification by IDBI as has
been referred to therein was not in respect of the five NTC mills, including
Jupter Textile Mill proposed to be sold but was as regards shifting of the
activities of Finlay Mills to Digvijay Textile Mills and that of Gold Mohur
Mills to Sitaram Mills. The proposed modification by the IDBI had nothing
to do with sale of five mill lands and, thus, no attempt was made by NTC to
get the order of the BIFR modified in regard thereto as opined by the High
Court. In any view of the matter, the BIFR scheme did not postulate that the
surrender of lands to MCGM and MHADA should be out of the lands of
each individual mill itself and not out of the lands of some other mills. The
BIFR had no occasion to say so nor could it do so having regard to the
provisions contained in DCR 58. The writ petitioner-respondents have
nowhere denied or disputed that the seven mills which were put up for sale
were unviable ones. The lands pertaining to the mills were found to be
surplus. For the purpose of giving effect to the scheme framed by the BIFR,
indisputably an Asset Sale Committee was constituted to discharge the
functions of overseeing the sale of surplus assets of the said mills. It is
furthermore not in dispute that an Integrated Development Scheme was
framed by NTC with the assistance of the architects which was submitted to
MCGM and the same was duly approved. Sanction of sale of two mills out
of seven mills was not granted evidently in view of the pendency of the writ
petition. The BIFR scheme or the said Integrated Development Scheme
framed by NTC was not in question in the writ petition. Even when the
interlocutory application was being heard, no submission was made as
regard violation of the BIFR scheme or the aforementioned order dated
27.09.2002. Before this Court as also the High Court the question which
arose was as to whether sufficient lands were available in the event the writ
petition was to be allowed.
BIFR SCHEME
The order of the BIFR dated 25.07.2002 passed in Case No.536 of
1992 clearly shows that after hearing the concerned parties it has been
noticed that the Government of Maharashtra although had not given
clearance to sell the surplus lands of all the 13 mills in Mumbai and 5 mills
outside Mumbai, as has been done in other states, agreed that with a view to
compensate therefor MCGM would give additional Floor Space Index (FSI)
and MHADA would give Transfer Development Rights which would not
enable the NTCMNL to earn full consideration for the land. It further
appears that the Government of Maharashtra had not been asked to make
assessment regarding sacrifice, if any, made by them in this behalf or any
benefit which would accrue to them with the sale so that the Board could
consider such a sacrifice/benefit in line with the sacrifices made with others
and if the final stand is not conveyed by the Government, the Board would
decide to confirm winding up of the company which would be detrimental to
all who made sacrifices, wherefor some power was granted. It had further
been noticed therein that the Government of Maharashtra by a letter dated
30.03.2002 i.e. after the 2001 Regulation came into force, although
expressed its inability to give exemption from payment of stamp duty,
categorically stated that necessary permission would be given by the
competent authority strictly as per DCR 58 which also shows that DCR 58
of 1991 was not directed to be taken recourse to. The Board had further
noticed the submissions of the GOI-MOT (promoters) as contained in their
letter dated 08.05.2002, inter alia, to the following effect :
"iii) Appointment of Monitoring Committee to oversee
implementation of the package would not only run
contrary to the provisions of SICA but would also result
in duplication of authority and control. BIFR may direct
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State Government to exclude NTC package from the
purview of such a committee."
It directed constitution of another committee, namely, Assets Sale
Committee (ASC) for bringing in transparency in the sale of assets. Para 21
of the said order runs thus :
"21. Since the GOM had indicated in regard to sale
of land that the necessary permission in this regard would
be given by competent authority strictly as per the
provisions of Regulation 58 of the Development Control
Regulation (DCR) the promoters (GOI-MOT) should
ensure that in the event of any shortfall of funds, which
would be utilized for rehabilitation of other NTC units,
would be brought in by them for rehabilitation of
NTCMNL."
It is, therefore, evident that the Board had all along in its mind the
modified regulations only. Yet again it is evident that for the purpose of
valuation only they had referred to DCR 58 which also goes to show that
they had only in mind the 2001 Regulations and not the 1991 Regulations.
From what we have noticed hereinbefore, it is evident that the High
Court was not correct in holding that the sale of mill lands was contrary to
the scheme framed by the BIFR. Even otherwise it is preposterous to
suggest that having regard to its statutory function. BIFR would issue any
direction which would be to a great extent defeasive of the purpose for
which the schemes were made. We have noticed hereinbefore the anxiety
expressed by the BIFR to have/ save more funds for NTC.
Our attention has also been drawn to the fact that there is nothing to
show that the BIFR scheme provided that the lands were to be surrendered to
MCGM and MHADA from each of the mills and not out of the land of some
other mill. The High Court, therefore, committed an error of records. Even
otherwise, the scheme should have been read in the light of the factual
matrix obtaining therein as also the extant regulation.
It is furthermore not in dispute that sale of the lands was approved by
ASC. One of the directors of the BIFR, again indisputably, was a member
of the said Committee. Once approval of ASC was obtained, the sales were
to be treated as confirmed. The order of this Court dated 11.05.2005 had,
thus, been given effect to.
It is furthermore not in dispute that conveyance deeds had duly been
executed and registered between the parties. It is also not in dispute that
additional lands for open space were available from the two mills which had
not been the subject-matter of sale. The purchasers yet again indisputably
had created third party interest. They had also created financial liabilities by
taking loans from banks/financial institutions.
The writ petitioners in the writ proceedings, we have noticed
hereinbefore, at no point of time questioned the sale of surplus land by NTC.
In fact, challenge to such sale even could not be permitted by the High
Court. Even assuming that the NTC failed and/ or neglected to comply with
the directions contained in the scheme framed by the BIFR and,
consequently, the orders of this Court, the persons aggrieved thereby could
have gone back to BIFR.
It is not in dispute that NTC was a sick company. As a sick company,
it might not have in a position to reopen any close mill at all. Reference to
BIFR in terms of Section 16 of the Act evidently was made for the
aforementioned purpose. If the schemes sanctioned by BIFR are given
effect to, at least some of the NTC mills indisputably would be revived.
SICA, we have noticed hereinbefore, is a special statute. It was enacted by
the Parliament only with a view to meet the contingencies contemplated
therein. The validity or otherwise of the reference made by NTC to BIFR is
not in question. The writ petitioners did not question the validity of the
statutory schemes. No material has been brought before us to show even the
workmen were in any way aggrieved thereby. Had they been so, they could
have preferred an appeal before the BIFR. Even there does not exist any
material to show that at any point of time they had approached the High
Court in judicial review. The workmen were parties in the proceedings
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before BIFR. Presumably BIFR made the said schemes after hearing of
parties concerned including the workmen.
It is not in dispute that the writ petitioners merely filed an affidavit on
12th July, 2005 before the High Court alleging that the sale of surplus land
by NTC was in violation of this Court's order and/ or the scheme framed by
the BIFR. If the prayer in the writ petition had not been amended, we fail to
understand as to on what premise the High Court proceeded to consider the
question as regards the alleged violation of the order of this Court, as also
the BIFR Scheme by NTC for the purpose of setting aside the sale. In a
collateral proceeding, the High Court, in our opinion, could not issue any
direction which would not only be contrary to a statutory scheme but
defeasive of the purport and object for which SICA was enacted.
Furthermore, it was none of the concern of the writ petitioners \026
Respondents as to how BIFR calculated the financial viability by way of sale
of surplus land by NTC. It was equally impermissible for the High Court to
consider as to whether despite their being a provision for multi-mill
aggregation in terms of DCR 2001, the same had been taken into
consideration under BIFR Scheme or not. We have noticed hereinbefore
that for the purpose of considering the validity or otherwise of the sale in
terms of BIFR Scheme itself, ASC was appointed wherein a member of the
BIFR was also represented. We are, therefore, of the firm opinion that the
judgment of the High Court in this behalf is not correct.
EFFECT OF SUCH SALES ON AUCTION PURCHASERS
NTC issued advertisements in several newspapers for sale of five
mills, viz., Jupiter Textile Mill, Mumbai Textile Mill, Apollo Textile Mill,
Kohinoor Mill No. 3 and Elphinstone Spinning and Weaving Mills. Some
of the Appellants herein pursuant to or in furtherance of the said
advertisements submitted their tenders.
It is, furthermore, not in dispute that out of the five mills sold full
payments have been received by National Textile Corporation from the
purchasers of four mills, viz., Jupiter Textile Mill, Mumbai Textile Mill,
Apollo Textile Mill and Kohinoor Mill No. 3. As regards the fifth mill, viz.,
Elphinstone Spinning and Weaving Mills, full payment is yet to be received.
It is, however, not in dispute that the processes of auction sales are
complete and the applicants are bonafide purchasers in duly concluded sales.
Bona fide purchasers in an auction sale for certain purposes are treated
differently. A distinction has all along been made between a decree holder
who came in to purchase under his own decree and a bona fide purchaser
who came in and got at the sale in execution of a decree to which he was not
a party. In a case where the third party is a bona fide auction purchaser,
even if decree is set aside, his interest in an auction sale is saved [See Zain-
ul-Abdin Khan v. Muhammad Asghar Ali Khan - 15 IA 12]. The said
decision has been affirmed by this Court in Gurjoginder Singh v. Jaswant
Kaur (Smt.) and Another [(1994) 2 SCC 368].
In Janak Raj v. Gurdial Singh and Anr. [1967 (2) SCR 77], this Court
confirmed a sale in favour of the Appellant therein who was a stranger to the
suit being the auction purchaser of the judgment-debtor's immovable
property in execution of an ex parte money decree in terms of Order XXI
Rule 92 of the Code of Civil Procedure. Despite the fact that ordinarily a
sale can be set aside only in terms of Rules 89, 90 and 91 of Order XXI of
Code of Civil Procedure, it was opined that the court is bound to confirm the
sale and direct grant of a certificate vesting the title in the purchaser as from
the date of sale when no application in term of Rule 92 was made or when
such application was made and disallowed.
In Padanathil Ruqmini Amma v. P.K. Abdulla [(1996) 7 SCC 668],
this Court upon making a distinction between the decree-holder auction
purchaser himself and a third party bona fide purchaser in an auction sale,
observed :
"\005The ratio behind this distinction between a sale to a
decree-holder and a sale to a stranger is that the court,
as a matter of policy, will protect honest outsider
purchasers at sales held in the execution of its decrees,
although the sales may be subsequently set aside, when
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such purchasers are not parties to the suit. But for such
protection, the properties which are sold in court
auctions would not fetch a proper price and the decree-
holder himself would suffer. The same consideration
does not apply when the decree-holder is himself the
purchaser and the decree in his favour is set aside. He is
a party to the litigation and is very much aware of the
vicissitudes of litigation and needs no protection.
We are not oblivious of the fact that the decisions referred to
hereinbefore have no direct application in the instant case as the sale of NTC
mill lands were not effected in execution of decrees passed by a competent
court of law, but, we have referred thereto only to highlight that having
regard to the principles analogous to the ratio laid down in the
aforementioned decisions the court should make an endeaour to safeguard
the interest of the bona fide purchasers unless and until there exists any
statutory interdict.
It is, thus, absolutely clear that the purchasers of the cotton textile
mills of the NTC cannot be made to suffer for no fault on their part and,
thus, the High Court committed a manifest error in that behalf.
DELAY AND LACHES
Each one of the learned counsel appearing on behalf of the Appellants
had advanced lengthy submissions in regard to the irretrievable injuries
caused to their respective clients by reason of delay and laches on the part of
the writ petitioners in filing the writ petition.
We may notice that the writ petitioners although raised objections
when DCR 58 was proposed to be made in the year 1990 but no such
objection was raised when the State proposed to amend the same in 2000.
The writ petitioners filed a writ petition before the Bombay High
Court questioning the validity of DCR 58 which was dismissed. They did
not prefer any appeal thereagainst. Some of the mill owners, as noticed
hereinbefore, submitted their scheme as also applications for grant of
sanction of their layout plans much before the clarificatory order dated
28.3.2003 was issued by the State. Requisite statutory sanctions had been
obtained in most of the cases.
Plans were also sanctioned pursuant whereto and in furtherance
whereof some of the Appellants had not only entered into development
agreements with third parties; in some cases they demolished the structures,
carried on excavations, raised constructions; in some cases construction
activities are complete and flats had been sold, the purchasers whereof in
turn incurred huge financial liabilities. In almost all the cases, the workers
had been paid a large sum of money which may not be possible to be
recovered. Loans and other financial assistances had been obtained from
banks and other financial institutions by the auction purchasers - appellants
for the said purpose. In some cases, the development agreements have been
fully acted upon.
Some of the mills, as noticed hereinbefore, were closed but not
referred to BIFR. One mill, viz., Bombay Dyeing and Manufacturing
Company Limited wanted to modernize its plants and machines. Ruby Mills
Limited had a scheme of shifting-cum-modernization. Schemes were
submitted by them in terms of the extant regulations. The same had been
approved by the State.
Although the State issued the clarificatory notification as far back on
28.3.2003, no step had been taken by the writ petitioners to question the
validity thereof within the reasonable time. The writ petition was filed on
18.2.2005. Even on 21.3.2005, the writ petitioners filed an affidavit and in
paragraph 27 thereof it was categorically averred that the BIFR Scheme had
no bearing on the validity of the rule. Although, permission for multi-mill
aggregation was granted on 27.10.2004, the validity or legality thereof had
not been questioned in the writ petition. Yet again on 19.4.2005, another
affidavit was affirmed on behalf of the writ petitioners wherein it was
averred that the scheme framed by the BIFR was irrelevant for the purpose
of its decision. An application for amending the writ petition was filed only
on 7.7.2005 wherein a contention as regard the interpretative effect of the
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clarification was raised. Only in the third affidavit dated 12.7.2005, the writ
petitioners raised the question in regard to the correctness or otherwise of
BIFR Scheme for the first time only whereupon an interim order was passed
on 1.4.2005 by the High Court.
On 11th May, 2005, this Court set aside the interim order passed by
the High Court whereafter an advertisement was issued by NTC. Tender
documents were published in newspapers and put on website on 21.6.2005
The last date for submission of the bid was 27.7.2005. On 12.7.2005, the
writ petitioners had put an affidavit that such sale was permissible. The bid
was accepted on 13.8.2005 whereafter ASC approved the sale. After the
writ petition was heard and the judgment was reserved on 14.9.2005, the
writ petitioners only in their written submissions filed on 15.9.2005, raised a
contention that the sales were contrary to BIFR Scheme as also orders of this
Court. The purchasers on different dates in October/ November purchased
lands of the textile mills and took possession after the deeds of conveyances
were executed in their favour. The purchasers indisputably borrowed a huge
amount from banks/ financial institutions and they are required to pay
interest on the said borrowed sums.
Delay and laches on the part of the writ petitioners indisputably has a
role to play in the matter of grant of reliefs in a writ petition. This Court in a
large number of decisions has categorically laid down that where by reason
of delay and/ or laches on the part of the writ petitioners the parties altered
their positions and/ or third parties interests have been created, public
interest litigations may be summarily dismissed. Delay although may not
be the sole ground for dismissing a public interest litigation in some cases
and, thus, each case must be considered having regard to the facts and
circumstances obtaining therein, the underlying equitable principles cannot
be ignored. As regards applicability of the said principles, public interest
litigations are no exceptions. We have heretobefore noticed the scope and
object of public interest litigation. Delay of such a nature in some cases is
considered to be of vital importance. [See Chairman & MD, BPL Ltd. v.
S.P. Gururaja and Others, (2003) 8 SCC 567].
In Narmada Bachao Andolan v. Union of India [(2000) 10 SCC 664],
this Court held:
"\005Any delay in the execution of the project
means overrun in costs and the decision to
undertake a project, if challenged after its
execution has commenced should be thrown out at
the very threshold on the ground of laches if the
petitioner had the knowledge of such a decision
and could have approached the court at that time.
Just because a petition is termed as a PIL does not
mean that ordinary principles applicable to
litigation will not apply. Laches is one of them."
In R. & M. Trust v. Koramangala Residents Vigilance Group [(2005)
3 SCC 91], this Court laid down the law in the following terms:
"\005sacrosanct jurisdiction of public interest
litigation should be invoked very sparingly and in
favour of the vigilant litigant and not for the
persons who invoke this jurisdiction for the sake of
publicity or for the purposes of serving their
private ends."
It was further stated:
"There is no doubt that delay is a very important
factor while exercising extraordinary jurisdiction
under Article 226 of the Constitution. We cannot
disturb a third party interest created on account of
delay. Even otherwise also why should the Court
come to the rescue of a person who is not vigilant
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in his rights."
In State of Maharashtra v. Digambar [(1995) 4 SCC 683], this Court
held:
"\005where the High Court grants relief to a citizen
or to any person under Article 226 of the
Constitution against any person including the State
without considering his blameworthy conduct,
such as laches, or undue delay, acquiescence or
waiver, the relief so granted becomes
unsustainable even if the relief was granted in
respect of alleged deprivation of his legal right by
the state."
However, we do not intend to lay down a law that delay or laches
alone should be the sole ground for throwing out a public interest litigation
irrespective of the merit of the matter or the stage thereof. Keeping in view
the magnitude of public interest, the court may consider the desirability to
relax the rigours of the accepted norms. We do not accept the explanation
in this regard sought to be offered by the writ petitioners. We have no doubt
in our mind that the writ petitioners are guilty of serious delay and laches on
their part.
M/s. Lohia Machines (supra), whereupon the High Court placed
strong reliance, was not a case where a third party interest was created.
Therein, the validity of Rule 19-A of the Income Tax Rules, 1962 was in
question. It may be true that therein the validity of the rule was challenged
after 19 years but the plea of dismissing the writ petition on the ground of
delay was negatived holding that the challenge in regard to the
constitutionality of the said rule was otherwise well-founded. It was not a
case where during the interregnum, the parties altered their position and
third party interest was created. It is in that situation this Court observed
that if a rule made by a rule making authority is found to be outside the
scope of its power, it is void and it is not at all relevant that its validity has
not been questioned for a long period of time; if a rule is void it remains
void whether it has been acquiesced in or not.
The High Court in this case did not declare DCR 58 to be ultra vires
the Constitution or the provisions of the MRTP Act.
In Proprietary Articles Trade Association v. AG of Canada [(1931)
AC 310], the validity of the rule was in question. The decision of the Privy
Council in Attorney General of the Commonwealth of Australia v. Queen
[95 CLR 529] is to the same effect. In this case, the delay is enormous.
Most of the Appellants and, particularly, those who are purchasers have been
suffered considerable financial loss and embarrassment. It had calamitous
consequence to the entrepreneurs who are required to pay lakhs and lakhs of
rupees by way of interest to the banks and other financial institutions per
day. The bona fide of the purchasers of NTC Mill lands had never been in
question in the sense that as the writ petitioners at no point of time
questioned the validity or otherwise of the sale of the lands by filing any
application for amendment of the writ petition, and as noticed hereinbefore,
only during arguments such a contention was raised. The High Court, in our
considered opinion, thus, committed a manifest error in acting thereupon.
Before us, we may notice, a statement has been made across the bar that
keeping in view the orders passed by this Court dated 11th May, 2005, the
sale of NTC mills is seriously not in question.
As we have considered the matter on merits, evidently, we are not
dismissing the writ petition on the ground of delay and laches alone but we
have taken the same as one of the factors in determining the questions raised
before us.
CONFLICTING STAND OF WORKMEN
The workers are vertically divided. Whereas Rashtriya Mill Mazdoor
Sangh (RMMS) sides with the mill owners, Girni Kamgar Sangharsh
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Committee (GKSS) sides with the writ petitioners. They contradict each
other not only from their own stand point vis-`-vis the point of view of the
workers, but also as regards the interpretation and constitutionality of DCR
58. RMMS complains that the High Court did not consider its principal
submissions at all which were placed before it by way of written
submissions, but merely considered only those which were raised by way of
further written submissions. According to them, RMMS is the only
representative and approved trade union under the Bombay Industrial
Relations Act for Greater Bombay. According to them, closure of the cotton
mills affected 2,00,000 workers and because of the strike the mills defaulted
in making payment of wages, provident funds dues, gratuity, etc. to the
workers causing great hardship to them. It played an active role in the
revival / rehabilitation of the NTC mills and other sick mills by representing
the workers' cause before BIFR. It also agrees with the reasons put forward
by the appellants as regards the validity of DCR 58 of 2001. It highlights
the policy/ objectives thereof in great details. It also states:
(i) RMMS has entered into VRS Agreement with the management of
several mills.
(ii) Nearly 10,000 workers of the NTC mills and more than 25,000
workers of private mills, aggregating in all more than 35,000
workers stand to benefit by the VRS Schemes.
(iii) As on date, the NTC mills have discharged their entire liabilities
under the VRS Schemes by making payment to the extent of
398.76 crores payable to these workers.
(iv) The Maharashtra State Textile Corporation has also cleared the
outstanding dues of its workers to the extent of Rs. 22 crores. As
regards the private mills, out of the total amount due to the workers
under VRS Schemes amounting to 808.75 crores, approximately a
sum of 631.05 crores has been paid.
(v) However, approximately Rs. 373 crores remain outstanding to be
paid to approximately 20,000 workers \026 which payments are
directly linked to the development of the lands by the mill owners.
It further argues that if the judgment of the High Court is
implemented, it would cause irretrievable injury and extreme prejudice to
the workers.
Mr. Colin Gonsalves, learned counsel appearing on behalf of GKSS,
on the other hand, not only laid emphasis on the so-called defaults of the
mill owners but had gone to the extent of urging that the workers' dues have
not been paid substantively. He further contended that revival scheme has
not been given effect to and the amount required to be spent therefor had in
fact not been spent. It has further been contended that no guidelines had at
all been framed for the Monitoring Committee by the State for overseeing
the disbursement of funds. According to it, in the case of Mafatlal Centre
although the scheme was sanctioned in 2001, no payment has been made
despite the fact that the company received a sum of Rs. 16 crores from the
sale of the built up areas of Mafatlal Centre at Parel. The workers' dues
being to the extent of 93 crores, the same are in excess of the legal dues of
the workers and only a paltry sum had been paid to them whereas the dues of
the banks had been cleared.
In these appeals, we are not concerned with the said issues. We may,
however, place on record that according to Mr. Sorabjee the statement of
Mr. Colin Gonsalves that nothing had been paid to the workers is baseless
and irresponsible. It was contended that the Union represented by Mr.
Gonsalves impleaded itself in the writ petition filed by it before the High
Court against the MCGM as regard non-disposal of layout plan, etc. wherein
they categorically stated that it would have no objection to the development
of their property subject to realization of the cheques given in favour of the
workers. It is stated that the cheques had been fully realized and the workers
have enjoyed the benefit of payment.
We have pointed out these factors only for the purpose of showing
that this litigation was treated to be a platform for even championing the
cause of the workers although neither the High Court nor this Court is
concerned therewith.
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In terms of the Regulations, the entire amount is to be deposited in the
funds specially created therfor. It is the Committee appointed by the State
alone which can spend the amount. The priority as regard disbursal of such
amount has categorically been laid down in the regulation itself. If the fund
created is not being expended for the purposes mentioned therein, a separate
cause of action will arise therefor. It is, thus, not necessary for us to delve
deep into the said contentions. Guidelines for the Committee are also not
necessary to be laid down. In any event, we are not called upon nor is it
necessary to make any attempt in that regard. However, if any occasion
arises for any of the parties in this behalf, the aggrieved party indisputably
would be at liberty to agitate the same before appropriate forums
CONCLUSION
The upshot of our aforementioned discussions is:
(i) The Public Interest Litigation was maintainable.
(ii) DCR 58 is valid in law. DCR 58(1) applies also to closed mills but
sub-regulation (6) of DCR 58 does not apply to sick industries
which have not been referred to BIFR.
(iii) The clarification made by the State is neither ultra vires Section 37
of the MRTP Act nor is violative of the constitutional provisions.
(iv) DCR 58, as inserted in 2001 and as clarified in 2003, is not
contrary to the principles governing environmental aspects
including the principles of sustainable and planned development
vis-`-vis Article 21 of the Constitution of India.
(v) Judicial review of DCR 58 was permissible in law.
(vi) Sale of NTC mills was not contrary to the BIFR Scheme as also
the orders passed by this Court.
(vii) Although, delay and laches play an important role, as we have
considered the merit of the matter, the writ petition filed by the
Respondent Nos. 1 and 2 is not being dismissed on that ground
alone.
(viii) It is not necessary for us to go into the question as to whether
worker's dues have been paid and also as to whether the committee
had been applying the fund in terms of DCR 58 or not. However,
all such contentions shall remain open.
For the reasons aforementioned, these appeals are allowed, the
impugned judgment of the High Court is set aside. However, in the facts
and circumstances of the cases, there shall be no order as to costs.
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