TaxTMI 
TaxTMI 
2006 (3) TMI 326
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.... Inklee Barooah, C. Rashikant, Shailesh, Gopal Jain, Venkatesh Dhond, P.H. Parekh, Lalit Chauhan, Sumit Goel, Shyam, Mehta, Bhavesh Panjwani, Ms. Menna H. Doshi, Ms. B. Sunita Rao, Amit Bhandari, Sushi Kr. Pathak, U.A. Rana, Sadeep Kharel, Ms. Srabonee Roy, Ravi Gandhi, Dhaval Vussonji, Pratap Venugopal, E. Venu Kumar, Hurshad V. Hameed, Anil Menon, S.U.K. Sagar, Ms. Bina Madhavan, Ambuj Agrawal, Dhaval Mehta, Rekha Palli, Venkatesh Dhand, Shailesh Kalambi, Pritesh Kapoor, Ms. Purnima Bhat Kak, Gopal Jain, C. Reshmikant, S.K. Srivastav, Santosh Paul, Ms. Sheweta Gupta, A.K. Rao, M.J. Paul, Ashok Kumar Gupta, M.K. Dava, Farrukh Rasheed, Ujjainwala S.H., Rakesh Katana, D.N. Mishra, Jay Savla, Gautam Patel, Parag Kabadi, Lynn Periera, Sharan Jagtiani, Devansh Mohta, Ms. Reena Bagga, Ms. Meenakshi Ogra, Ms. Meenakshi, Satya Mitra, M.N. Shroff, Ms. Anuradha Singh, Ms. Aparna Bhat, Ravindra K. Adsure, Sambhaji S. Shinde, V.N. Raghupathy, Anirudha P. Mayee, Mukesh Verma, Ashok B. Jain, D.T. Devale, Manish Shanker, Pankaj K. Singh, Ashish Mohan, Yash Pal Dhingra, N.M. Ganguly, Vinay Navare, Naresh Kumar, C.S. Ashri, Prashant Bhushan, Vishal Gupta, Rohit Kumar Singh, Ms. Sumeet Sharma, Vika....
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....e 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 petitioner-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 28-3-2003 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....
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.... 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 28-3-2003 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 7-7-2004, 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 11-5-2005 and 27-9-2002 and contrary to the sanctioned BIFR schemes." 5.1 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 p....
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....s Article 21 of the Constitution of India. As regards non-compliance of the notification dated 7-7-2004, 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: (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 over by MCGM. (iii)MCGM did not ensure furthermore that all the Mill owners provide free housing of 225 square feet to the occupants. Despite manda....
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....r 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. (N)The Respondent-writ petitioners were guilty of serious delay and laches in filing of the writ petition and thus it was liable to be not dismissed in limine. 8. Re : Validity of sales of 5 mills by NTC (a....
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....pplicable to the entire State of Maharashtra including the town of Mumbai. 10.1 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 11-1-1967. 10.2 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 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 layout and sub-division of a....
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.... (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. 10.7 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 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 no....
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....ection of a building, change of user, etc., as well as to the design, construction, reconstruction, and additions and alterations to a building". 10.15 Regulation 3(2) reads as under : "Part construction 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." 10.16 In terms of Regulation 21 whenever more than one building is proposed on any land or where the land development measures more than 1,000 sq. m. in a residential, commercial or industrial zone, it is mandatory to prepare a layout plan. A layout 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/layout 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 reference to the total area of the ....
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.... 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 up to 37.5 KW. 10.22 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 obstanate clause providing that service industries and service industrial estates shall be 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), ....
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....f 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 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. 11.1 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. 12. 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 ....
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....d 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 columns (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 diff....
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....ed 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 develop....
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....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 generality of the functions provided for in clause (a) of this sub-regulation, the MonitoringCommittee 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.....
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....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." 13.3 The deponent of the said affidavit further denied and disputed the contention raised on behalf of the petitioner that the Government in- tended 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 : ". . .I say that as stated in my earlier affidavit dated 22-3-2005, the State Government has culled out certain recommendat....
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....shtra appointed a committee headed by Shri Charles Correa, Architect/Planner in 1996. The development under 1991 Regulations 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 a classic pattern found all over Mumbai). Then again, the principal roads can be widened and lined with trees, so that they ar....
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....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. 14.5 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. 14.6 The draft regulations thereafter were notified for considering the objections thereto, if any. Several objections were filed, they were consider....
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....he 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." (p. 501) 15.4 In Ashok Lanka v. Rishi Dixit [2005] 5 SCC 598, this Court opined : ". . . 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." 15.5 This was also the view taken in Guruvayur Devaswom Managing Committee v. C.K. Rajan [2003] 7 SCC 546 at para 50, Shivaji Rao Nilangekar Patil v. Mahesh Madhav Gosavi [1987] 1 SCC 227 and Chairman & MD, BPL Ltd. v. S.P. Gururaja [2003] 8 SCC 567. 15.6 In K.K. Bhalla v. State of M.P. [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 th....
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....imes 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. 16.3 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. 16.4 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. 16.5 In Francis Bennion's Statutory Interpretation, purposive construction has been described in the following manner : 'A purposive construction of an enactment is one which giv....
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.... Court [1990] 3 SCC 682, this Court referred to the following passage from Hans Kelsen's Pure Theory Law of Law : "'. . .The 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 only a frame within which several applications are possible, whereby every act is legal that stays within the frame." (p. 720) [See also High Court of Gujarat v. Gujarat Kishan Mazdoor Panchayat [2003] 4 SCC 712, Indian Handicrafts Emporium v. Union of India [2003] 7 SCC 589 and Deepal Girishbhai Soni v. United India Insurance Co. Ltd. [2004] 5 SCC 385, para 56. 16.11 In Balram Kumawat v. Union of India [2003] 7 SCC 628, this Court held that if special purpose is to be served even by a ....
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....rary 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. 16.16 In Charles Bradlaugh v. Henrv 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." 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 17. DCR 58 has been attempted to be interpreted in more than one manner by the learned counsel appearing for the parties. 17.1 DCR 58 was made to revive and resurrect neighbourhoods, foster development, regenerate lands which had become steri....
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....ys, 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. 17.5 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 ....
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....ther 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-a-vis legislative policy 18. 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....
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.... and extent of judicial review of legislation, it is trite, would vary from case to case. 18.5 Reliance has been placed by the Appellants on Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupesh Kumar Sheth [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. 18.6 In R.K. Garg v. Union of India [1981] 4 SCC 676, 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. 18.7 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 : ". . .Any such change may result in adversely affecting some vested interests. Unles....
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....nly because the executive has construed the statute otherwise. 18.12 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 v. S. Mani [2005] 5 SCC 100, Sonepat Co-operative Sugar Mills Ltd. v. Ajit Singh [2005] 3 SCC 232 and Cholan Roadways Ltd. v. G. Thirugnanasambandam [2005] 3 SCC 241]. 18.13 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 v. Union of India 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....
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....er 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-a-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 19. For the purpose of interpretation of DCR 58, it may be beneficial to notice the changes effected by 2001 Regulations vis-a-vis 1991 Regulations: Old DCR58 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 Commisstion....
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....e 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. 19.2 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 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) als....
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....ry 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. 19.7 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 per cent land was to be set apart, and for MHADA 37 per cent thereof, whereas the owner retained 30 per cent. Under the new DCR 58, admittedly the owner of the mill at least obtains construction rights over 63 per cent 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 per cent. Open land in clause (b) is what is not covered by the built-up area. The balance FSI, indisputably, is not open area. 19.8 The meaning of 'open land' must be construed as land other ....
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.... 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. 19.13 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. 19.14 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/....
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....) 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). 19.18 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 excep....
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.... 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. 19.25 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 ....
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....n "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 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 wa....
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....dustrial user", meaning thereby, user other than cotton textile mill and would include uses for other industries in terms of the industrial location. 19.33 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. 19.34 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. 19.35 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. 19.36 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 ....
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....velopment/redevelopment of the entire open land and/or built-up area of premises. . ." 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. 19.39 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]. 19.40 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 mil....
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....,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.I 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.BALANCE OPEN LAND TO BE SHARED UNDER DCR 58(1)(b) 12,298.99 SQ.M. (i ) SHARE OF MCGM (33%) 4,058.67 SQ.M. (ii ) SHARE OF MHADA (27%) 3,320.73 SQ.M. (iii) SHARE OF OWNER (40%) 4,919.60 SQ.M. OWNER'S HOLDING [2+3(iii)] 40,356.89 SQ.M. Mill No. 4 Existing Development PLOT AREA (EXCL. 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.C. I M.C.G.M. 18,086.12 SQ.M. Computation of Open Land 1.PLOT AREA ....
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....ame 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 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 o....
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.... 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 ca....
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....ick industries contained in sub-regulation (6) of DCR 58 must be considered from that perspective. 21.3 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 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 req- uires 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 22. Sub-regulation (2) of DCR 58 deals with cases requiring modernization. For invoking the said provis....
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....FSI are utilized for additional constructions as per DCR 58(1)(b) but in appropriate cases, evidently it has to share. 22.1 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 per cent 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. 22.2 DCR 58(3) provides for s....
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....dernization 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 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 resp....
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....cope 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. 24.3 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 properly 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 sustainab....
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....ised, 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. 24.7 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 findin....
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....f Article 14 of the Constitution of India, was of the opinion : ". . . . . . .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 : ". . .Broadly, 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. . . . .....
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....hat 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. 24.15 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. 24.16 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. ....
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.... 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. 25.3 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 28-8-2001 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. 25.4 It is interesting to note that in paragraph 23 of the writ ....
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.... 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 built-up areas despite change of user; (vii)Dispensing with prerequisite of BIFR in DCR 58(1). 25.7 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 hereinbefore 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 wa....
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....retation 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 the doctrine of contemporanea expositio. The court itself referred to a decision of the Calcutta High Court inBaleshwar 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 authority for the proposition that the court has no jurisdiction to take a con trary view. 26.2 It is interesting to note that the Bench referred to a judgment of the Constitution Bench of this Court in CCE 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, r....
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....ds are constituted in wards of the Bombay Municipal Corporation, namely, A, E, F (South), F (North), G (South), G (North) and I. 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 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 chan....
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.... "So, 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. . ." (p. 11) 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 : ". . .the 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 subtraction or other changes in what is already there or no doubt any 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. . . " 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..." 27.6 Mr. Chagla strongly relied upon a decision of Division Bench d....
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....served that the word "modification" being somewhat indefinite in its ambit must be distinguished from a radical illustration. 27.11 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. 27.12 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 MRTP Act. Sustainable Development and Planned Development vis-a vis Articele 21 of the Cons....
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.... 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 only to compensate the victims of pollution but also the cost of restoring the environmental degradation. Remediation of the damaged environment is part of process of 'Sustainable Development' and as such the polluter is liable to pay the cost of the individual sufferers as well as the cost of reversing the damaged ecology."(p. 658) This Court, r....
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....ent of the Master Plan. 28.9 In M.C. Mehta v. Kamal Nath [1997] 1 SCC 388, it was stated : "35... The 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 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] (p. 413) 28.10 In Consumer Education & Research Society v. Union of India [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 als....
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....the area over which the Visva-Bharati Unversity had jurisdiction. 28.15 Mr. Chagla relied upon some decisions of this Court in this behalf which we may notice now. 28.16 In Indian Handicrafts Emporium v. Union of India [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. ....." 28.17 In Virender Gaur v. State of Haryana [1995] 2 SCC 577, it was stated: "11. 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 purpos....
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.... 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 ? 28.21 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 modernisaton 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. 28.22 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 Lo....
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.... pose a threat for the ecological balance and environmental safeguards." (p. 586) 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. 29.1 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-à-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 mordernization 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 fr....
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....otification 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 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. 29.5 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 Regula- tions, 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. 29.6 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 u....
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....ed 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). 29.9 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 mills lands occupy only 3.07% of the wards and 0.65% of the entire town of Bombay as is evident from the following chart : Sl.No. Name of Ward No. of mills %of area occupied by mills 1. 2. 3. 4. 5. 6. 7. A E F (South) F (North) G (South) G (North) L 1 12 13 1 25 3 3 31% 6.61% 5% 0.67% 9.95% 1.43% 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. 29.10 Out of the total lands, 87....
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....*** 21. Mumbai Mills (Sakseria Mills) 10631.02** 11919.63*** 22. Apollo Mills & its property i.e., Morarka Bungalow 4714.81** 5286.33*** 23. Swan Mills (Seweree) 4059.00 3321.00 24. Western India Spg. & Wvg. Mill 1436.00 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 Nos. 2 & 3 *** Proposed to be earmarked at New Hind Textile Mill and India United Mill Nos. 2 & 3" The difference can, thus, at once be felt. 29.12 The main features of the 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 Re-duction ....
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.... (1) of section 3 of the said Act had been transferred to and vested in the National Textile Corporation. 30.2 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 proceed....
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....to the said Scheme dated 25-7-2002, National Textile Corporation submitted in 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. 30.6 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. 30.7 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 a....
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.... provides that the surrender of land of 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 of 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 sa....
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....perating 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. 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." 31.1 So far as order of this Court dated 11-5-2005 is c....
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....visions 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 27-9-2002 and 11-5-2005 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 or....
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.... 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 27-9-2002. 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 31.6 The order of the BIFR dated 25-7-2002 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 ....
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....for which the schemes were made. We have noticed hereinbefore the anxiety expressed by the BIFR to have/save more funds for NTC. 31.8 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 11-5-2005 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....
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....t for which SICA was enacted. Furthermore, it was none of the concern of the writ petitioners-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 there 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 32. 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 re....
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.... 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." (p. 672) 32.4 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 endeavour 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 33. Each one of the learned counsel appearing on behalf of the Appellants had advanced lengthy submissions in re....
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....on 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 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. 33.5 On 11-5-2005, 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 judgm....
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....ion for the sake of publicity or for the purposes of serving their private ends". (p. 109) It was further stated : "34. 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 of his rights." (p. 113) 33.9 In State of Maharashtrav. Digambar[1995] 4 SCC 683, this Court held: "14. ...where 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." (p. 690) 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 ....
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....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. 33.12 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 34. The workers are vertically divided. Whereas Rashtriya Mill Mazdoor Sangh (RMMS) sides with the mill owners. Girni Kamgar Sangharsh Committee (GKSS) sides with the writ petitioners. They contradict each other not only from their own stand point vis-a-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. Ac....
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.... 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. 34.2 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. 34.3 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. 34. 4 In ....