IN THE SUPREME COURT OF INDIA
Civil Appeal Nos. 1519 of 2006
[Special Leave Petition (Civil) No. 23040 of 2005], 1528 of 2006 [Arising out
of SLP (C) No. 24415 of 2005], 1546 of 2006, [Arising out of SLP (C) No. 23317
of 2005], 1541 of 2006 [Arising out of SLP (C) No. 23500 of 2005], 1532 of 2006
[Arising out of SLP (C) No. 24418 of 2005], 1540 of 2006 [Arising out of SLP
(C) No. 23607 of 2005] 1550 of 2006 [Arising out of SLP (C) No. 23609 of 2005],
1520 of 2006 [Arising out of SLP (C) No. 23616 of 2005], 1536 of 2006 [Arising
out of SLP (C) No. 23632 of 2005], 1521 of 2006 [Arising out of SLP (C) No.
23700 of 2005], 1515 of 2006 [Arising out of SLP (C) No. 23718 of 2005], 1538
of 2006 [Arising out of SLP (C) No. 23765 of 2005], 1518 of 2006 [Arising out of
SLP (C) No. 24419 of 2005], 1523 of 2006 [Arising out of SLP (C) No. 23794 of
2005], 1543 of 2006 [Arising out of SLP (C) No. 23810 of 2005], 1517 of 2006
[Arising out of SLP (C) No. 23815 of 2005], 1522 of 2006 [Arising out of SLP
(C) No. 26193 of 2005], 1530 of 2006, [Arising out of SLP (C) No. 26088 of
2005], 1534 of 2006 [Arising out of SLP (C) No. 26089 of 2005], 1526 of 2006
[Arising out of SLP (C) No. 25048 of 2005] and 1516 of 2006 [Arising out of SLP
(C) No. 26090 of 2005]
Appellants: Bombay
Dyeing and Mfg. Co. Ltd. Vs.
Respondent: Bombay
Environmental Action Group and Ors.: Decided On: 07.03.2006
Hon'ble Judges:
S.B. Sinha and P.P. Naolekar, JJ.
Counsels:
For Appearing parties: Ravi M. Kadam, Adv. Gen., Soli J. Sorabjee, Ram
Jethmalani, Arun Jaitley, F.S. Nariman, Uday U. Lalit, Girish Godbole, Mukul
Rohtagi, Rajiv Dhawan, Abhishek Manu Singhvi, T.R. Andhyarujina, R.F. Nariman,
K.K. Venugopal, V.V. Tulzapurkar, V.A. Mohta, K.K. Singhvi, Harish N. Salve,
Iqbal Chagla, M.L. Verma, Colin Gonsalves, Dinesh Dwivedi, Janak Dwarkadas,
J.J. Bhat, Sr. Advs., Percy Ghandy, Shahrukh Kathawala, Salesh, C. Rashikant,
R.N. Karanjawala, Ruby Singh Ahuja, Kanika Agnihotri, Debmalya Banerjee, Manik
Karanjawala, Ravinder Narain, Pallav Sishodia, Pravin Bahadur, Meghalee
Barthakur, Nupur Singh, Rajan Narain, Shivaji M. Jadhav, Himanshu Gupta, Brij
Kishor Sah, Parimal K. Shroff, Bina Gupta, Rakhi Ray, Inklee Barooah, C.
Rashikant, Shailesh, Gopal Jain, Venkatesh Dhond, P.H. Parekh, Lalit Chauhan,
Sumit Goel, Shyam Mehta, Meena H. Doshi, B. Sunita Rao, Amit Bhandari, Sushi
Kr. Pathak, U.A. Rana, Sadeep Kharel, Ravi Gandhi, Dhaval Vussonji, Pratap
Venugopal, E. Venu Kumar, Anil Menon, S.U.K. Sagar, Bina Madhavan, Dhaval
Mehta, Rekha Palli, Venkatesh Dhand, Shailesh Kalambi, Pritesh Kapoor, Purnima
Bhat Kak, Gopal Jain, C. Reshmikant, S.K. Srivastav, Santosh Paul, 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 Pereira, Sharan Jagtiani, Devansh Mohta, Reena Bagga, Meenakshi Ogra,
Meenakshi, Satya Mitra, M.N. Shroff, Anuradha Singh, Aparna Bhat, Ravindra K.
Adsure, Sambhajii 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, Sumeet Sharma, Vikas Mehta, Mahesh
Agarwal, Manu Krishnan and E.C. Agrawala, Advs., Bhavesh Panjwani, Adv. for
P.H. Parekh & Co., Srabonee Roy, Adv. for Gagrat & Co., Hurshad V.
Hameed, Adv. for K.J. John & Co. and Ambuj Agrawal, Adv. for Lawyer's Knit
& Co.
Subject: SICA
Subject: Environment
Catch Words
Acts/Rules/Orders:
Sick Industrial Companies (Special Provisions) Act, 1985 - Sections 16 and
32(1); Sick Industrial Companies (Special Provisions) Act, 1974; Sick
Industrial Companies (Special Provisions) (Amendment) Act, 1994; Industrial
Disputes Act, 1947; Maharashtra Regional and Town Planning Act, 1966 - Sections
2(27), 14, 17, 22, 26(2), 28(2), 37, 37(1AA), 44, 45, 159 and 159(2);
Environment Protection Act; Bombay Town Planning Act, 1954; Bombay Town
Planning Act, 1915; Visva-Bharati Act, 1951; Sick Textile Undertakings
(Nationalisation) Act, 1974 - Section 3(1); Sick Textile Undertakings
(Nationalisation) (Amendment) Act, 1995; Bombay Industrial Relations Act;
Development Control Rules (DCR), 1967 - Section 58(1); Civil Procedure Code
(CPC) - Order 21, Rules 89, 90, 91 and 92; Income Tax Rules, 1962 - Rule 19A;
Constitution of India - Articles 14, 21, 39, 48A, 51A, 226 and 243W;
Development Control Regulations, 1991 - Regulations 2(28), 2(42), 3(1), 9, 21,
35, 51, 51(2), 52, 53, 54(1), 56 to 58, 58(1), 58(6), 58(8), 58(9) and 63(2)
Cases Referred:
Lohia Machines v. Union of India MANU/SC/0153/1985;
Bombay Dyeing & Manufacturing Co. Ltd. v. Bombay
Environmental Action Group and Ors. MANU/SC/0388/2005; Raunaq
International Ltd. v. I.V.R. Constructions Ltd. and Ors. MANU/SC/0770/1998; Ashok
Lanka v. Rishi Dixit MANU/SC/0389/2005;
Guruvayoor Devaswom Managing Committee v. C.K. Rajan MANU/SC/0582/2003; Shivajirao Nilangekar
Patil v. Dr. Mahesh Madhav Gosavi MANU/SC/0120/1986; Chairman & MD, BPL Ltd. v. S.P. Gururaja
and Ors. MANU/SC/0804/2003;
K.K. Bhalla v. State of M.P. and Ors. 2006 (1) SCALE 238; Dr. B. Singh
v. Union of India and Ors. MANU/SC/0211/2004; Ashok Kumar Thakur v. State of Bihar and Ors.
MANU/SC/0011/1996;
T.N. Godavarman Thirumulpad v. Union of India and Ors. MANU/SC/0596/2005;
Compack (P) Ltd. v. CCE MANU/SC/1155/2005;
Gurudevdatta VKSSS Maryadit v. State of Maharashtra MANU/SC/0191/2001; Dayal Singh v. Union of
India MANU/SC/0058/2003;
Swedish Match AB v. Securities and Exchange Board, India MANU/SC/0693/2004; K.L.
Gupta and Ors. v. The Bombay Municipal Corporation and Ors. MANU/SC/0353/1967; Maruti
Udyog Ltd. v. Ram Lal and Ors. MANU/SC/0056/2005; Reserve Bank of India v. Peerless General
Finance and Investment Co. Ltd. MANU/SC/0073/1987;
Punjab Land Development and Reclamation Corporation Ltd. v. Presiding Officer,
Labour Court, Chandigarh MANU/SC/0479/1990;
Gujarat v. Gujarat Kishan Mazdoor Panchayat (2003) 4 SCC 712; Indian
Handicrafts Emporium and Ors. v. Union of India
and Ors. MANU/SC/0640/2003;
Deepal Girishbhai Soni and Ors. v. United India Insurance Co. Ltd., Baroda
MANU/SC/0246/2004;
Balram Kumawat v. Union of India
and Ors. MANU/SC/0628/2003;
Pratap Singh v. State of Jharkhand and Anr. MANU/SC/0075/2005; P.S. Sathappan (Dead) By LRS.
v. Andhra Bank Ltd. and Ors. MANU/SC/0873/2004; Venkata
Subamma and Anr. v. Ramayya and Ors. AIR 1932 PC 92;
Commr. of Income-tax/Excess Profits Tax, Bombay City v. Messrs. Bhogilal
Laherchand including Batliboi and Co., Bombay MANU/SC/0059/1953; The Mangalore Electric Supply
Co. Ltd. v. The Commissioner of Income Tax, West Bengal MANU/SC/0232/1978; His
Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala and Anr.
MANU/SC/0445/1973;
Onkarlal Nandlal v. State of Rajasthan and Anr. MANU/SC/0321/1985; Charles Bradlaugh v. Henry Lewis
Clarke (1883) 8 AC 354; T.N. Godavarman Thirumalpad v. Union of India
and Ors. MANU/SC/1317/2002; N.D. Jayal and Anr. v. Union
of India and Ors.
MANU/SC/0649/2003;
Vellore Citizens' Welfare Forum v. Union of India and Ors. MANU/SC/0686/1996; P.J. Irani v. The State of Madras MANU/SC/0080/1961;
Punjab Tin Supply Co., Chandigarh and Ors. v. Central Government and Ors. MANU/SC/0296/1983;
Secretary, Ministry of Chemicals & Fertilizers, Government of India
v. Cipla Ltd. and Ors. MANU/SC/0514/2003;
Maharashtra State
Board of Secondary and Higher Secondary Education and Anr. v.
Paritosh Bhupesh Kuamr Sheth and Ors. MANU/SC/0055/1984; R.K. Garg v. Union of India
and Ors. MANU/SC/0074/1981; Balco Employees Union v. Union of India MANU/SC/0779/2001; State of
Rajasthan and Ors. v. Basant Nahata MANU/SC/0547/2005; Manager, Reserve Bank of India,
Bangalore v. S. Mani and Ors. MANU/SC/0204/2005; Sonepat
Cooperative Sugar Mills Ltd. v. Ajit Singh MANU/SC/0105/2005; Cholan Roadways Ltd. v. G.
Thirugnanasambandam MANU/SC/1080/2004;
Anil Kumar Jha v. Union of India (2005) 3 SCC 150; Rameswar Prasad and Ors. v. Union
of India and
Anr. 2006 (1) SCALE 385; Vineet Narain and Ors. v. Union
of India and
Anr. MANU/SC/0926/1996;
Union
of India and Anr. v. C. Dinakar, IPS and
Ors. MANU/SC/0368/2004;
Kapila Hingorani v. State of Bihar MANU/SC/0403/2003;
Trustees of the Port of Madras v. Aminchand Pyarelal and Ors. MANU/SC/0235/1975; Huang
and Ors. v. Secretary of State for the Home Department (2005) 3 All. ER
435; R. v. Secretary of State of the Home Department, ex. P Daly (2001) 3 All
ER 433; Motor General Traders and Anr. v. State of Andhra
Pradesh and Ors. MANU/SC/0293/1983; John
Vallamattom v. Union of India MANU/SC/0480/2003;
Smt. Nandini Satpathy v. P.L. Dani and Anr. MANU/SC/0139/1978; Lennon
v. Gibson, (1919) AC 709; State of Rajasthan and
Anr. v. Mohammed Ayub Naz (2006) 1 SCALE 79; A.K. Gopalan v. State of
Madras 1950 SCR 88; Sharma Transport v. Government of Andhra Pradesh MANU/SC/0759/2001; Khoday
Distillery v. State of Karnataka MANU/SC/0242/1996; Otis
Elevator Employees' Union S. Reg. and Ors. v. Union of India
and Ors. MANU/SC/0906/2003; Om Prakash and Ors. v. State of U.P.
and Ors. MANU/SC/0202/2004; S.N. Chandrashekar and Anr. v. State
of Karnataka and Ors. JT 2006 (2) SC 202; Forward Construction Co. and Ors. v.
Prabhat Mandal (Regd), Andheri and Ors. (1986) 1 SCC 100; Union of India
and Anr. v. Azadi Bachao Andolan and Anr. MANU/SC/0784/2003; Baleshwar Bagarti v. Bhagirathi Dass ILR 1908 (35) Cal. 701;
Collector of Central Excise, Vadodara v. Dhiren Chemical Industries MANU/SC/0787/2001; Kalyani
Packaging Industry v. Union of India and Anr. MANU/SC/0527/2004; Gullick
v. West Norfolk Area Health Authority 1986 AC 112; Municipal Corporation for
City of Pune v. Bharat Forge Co. Ltd. (1995) 3 SCC 434; Ajay Gandhi v. B. Singh
MANU/SC/0012/2004; Jamshed
N. Guzdar v. State of Maharashtra MANU/SC/0026/2005;
Bangalore Medical Trust v. B.S. Muddappa and Ors. MANU/SC/0426/1991; Legg v. Ilea 1972 (3) All ER 177; Puran Lal v. President of India MANU/SC/0217/1961; M.A.
Panshikar v. State of Maharashtra through its Urban Development Department and Anr. 2002 (5) BCR 318; Pune Municipal Corporation and Anr. v.
Promoters and Builders Association and Anr. MANU/SC/0487/2004; Balakrishna H. Sawant and Ors. v. Sangli,
Miraj & Kupwad City Municipal Corporation and Ors. MANU/SC/0164/2005; Indian
Council for Enviro-Legal Action v. Union of India; Intellectual Forum, Tirupathi v. State of A.P. and Ors.
JT 2006 (2) SC 568; A.P. Pollution Control Board v. Prof.
M.V. Nayudu (Retd.) and Ors. MANU/SC/0032/1999; Narmada Bachao Andolan v. Union of India
and Ors. MANU/SC/0640/2000; M.C. Mehta v. Union of India
and Ors. MANU/SC/1153/1996; M.C. Mehta v. Kamal Nath and Ors. MANU/SC/1007/1997;
Consumer Education & Research Society v. Union of India
and Ors. MANU/SC/0101/2000; Sushanta Tagore and Ors. v. Union
of India and
Ors. MANU/SC/0176/2005;
Virender Gaur and Ors. v. State of Haryana
and Ors. MANU/SC/0629/1995;
Friends Colony Development Committee v. State of Orissa and Ors.
MANU/SC/0933/2004;
South Bucks District Council v. Porter Chichester District Council v. Searle
and Ors. (2003) 3 All ER 1; Padma v. Hiralal Motilal
Desarda and Ors. MANU/SC/0765/2002; NTC (IDA) Employees Association
v. Union of India and Ors. SLP No. 16732 of 1997; Sarat
Chandra Mishra and Ors. v. State of Orissa
and Ors. 2006 (1) SCC 638; State of Karnataka and
Ors. v. C. Lalitha 2006 (1) SCALE 73; Zain- ul-Abdin Khan v. Muhammad
Asghar Ali Khan 15 IA 12; Gurjoginder Singh v. Jaswant Kaur (Smt.) and Anr. MANU/SC/0634/1994;
Janak Raj v. Gurdial Singh and Anr. MANU/SC/0033/1966; Padanathil Ruqmini Amma v. P.K.
Abdulla MANU/SC/0321/1996;
R. & M. Trust v. Koramangala Residents Vigilance Group MANU/SC/0049/2005; State of
Maharashtra v. Digambar MANU/SC/0740/1995;
Proprietary Articles Trade Association v. AG of Canada (1931) AC 310; Attorney
General of the Commonwealth of Australia v. Queen 95 CLR 529
Prior History:
From the Final Judgment and Order dated 17.10.2005 of the Bombay High Court in
PIL Writ Petition No. 482/2005 (MANU/MH/0707/2005)
Mentioned IN
Disposition:
Appeal allowed
Citing Reference:
*** Discussed
***** Referred
A.K. Gopalan v. State of Madras ***
A.P. Pollution Control Board v. Prof. M.V. Nayudu (Retd.) and Ors. ***
Ajay Gandhi v. B. Singh *****
Anil Kumar Jha v. Union of India ***
Ashok Kumar Thakur v. State of Bihar and Ors. *****
Ashok Lanka v. Rishi Dixit *****
Attorney General of the Commonwealth of Australia v. Queen *****
Balakrishna H. Sawant and Ors. v. Sangli, Miraj & Kupwad City Municipal Corporation and Ors. *****
Balco Employees Union v. Union of India *****
Baleshwar Bagarti v. Bhagirathi Dass *****
Balram Kumawat v. Union of India and Ors. *****
Bangalore Medical Trust v. B.S. Muddappa and Ors. *****
Bombay Dyeing & Manufacturing Co. Ltd. v. Bombay Environmental Action Group and Ors. *****
Chairman & MD, BPL Ltd. v. S.P. Gururaja and Ors. *****
Charles Bradlaugh v. Henry Lewis Clarke *****
Cholan Roadways Ltd. v. G. Thirugnanasambandam *****
Collector of Central Excise, Vadodara v. Dhiren Chemical Industries ***
Commissioner of Income-tax/Excess Profits Tax, Bombay City v.
Messrs. Bhogilal Laherchand including Batliboi and Co., Bombay *****
Compack (P) Ltd. v. CCE *****
Consumer Education & Research Society v. Union of India and Ors. *****
Dayal Singh v. Union of India *****
Deepal Girishbhai Soni and Ors. v. United India Insurance Co. Ltd., Baroda *****
Dr. B. Singh v. Union of India and Ors. *****
Enviro Legal Action v. Union of India *****
Forward Construction Co. and Ors. v. Prabhat Mandal (Regd), Andheri and Ors. *****
Friends Colony Development Committee v. State of Orissa and Ors. ***
Gullick v. West Norfolk Area Health Authority *****
Gurjoginder Singh v. Jaswant Kaur (Smt.) and Anr. ****
Gurudevdatta VKSSS Maryadit v. State of Maharashtra *****
Guruvayoor Devaswom Managing Committee v. C.K. Rajan *****
High Court of Gujarat v. Gujarat Kishan Mazdoor Panchayat *****
His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala and Anr. *****
Huang and Ors. v. Secretary of State for the Home Department *****
Indian Handicrafts Emporium and Ors. v. Union of India and Ors. ***
Intellectual Forum, Tirupathi v. State of A.P. and Ors. ***
Jamshed N. Guzdar v. State of Maharashtra *****
Janak Raj v. Gurdial Singh and Anr. *****
John Vallamattom v. Union of India *****
K.K. Bhalla v. State of M.P. and Ors. ***
K.L. Gupta and Ors. v. The Bombay Municipal Corporation and Ors. ***
Kalyani Packaging Industry v. Union of India and Anr. *****
Kapila Hingorani v. State of Bihar *****
Khoday Distillery v. State of Karnataka *****
Legg v. Ilea ***
Lennon v. Gibson *****
M.A. Panshikar v. State of Maharashtra through its Urban Development Department and Anr. *****
M.C. Mehta v. Kamal Nath and Ors. *****
M.C. Mehta v. Union of India and Ors. ***
M.C. Mehta v. Union of India and Ors. ***
M.C. Mehta v. Union of India and Ors. ***
M/s. Lohia Machines v. Union of India ***
M/s. Onkarlal Nandlal v. State of Rajasthan and Anr. *****
Maharashtra State Board of Secondary and Higher Secondary Education and Anr. v.
Paritosh Bhupesh Kuamr Sheth and Ors. *****
Manager, Reserve Bank of India, Bangalore v. S. Mani and Ors. *****
Maruti Udyog Ltd. v. Ram Lal and Ors. *****
Motor General Traders and Anr. v. State of Andhra Pradesh and Ors. *****
Municipal Corporation for City of Pune v. Bharat Forge Co. Ltd. ***
N.D. Jayal and Anr. v. Union of India and Ors. *****
Narmada Bachao Andolan v. Union of India and Ors. ***
NTC (IDA) Employees Association v. Union of India and Ors. *****
Om Prakash and Ors. v. State of U.P. and Ors. ***
Otis Elevator Employees Union S. Reg. and Ors. v. Union of India and Ors. *****
P.J. Irani v. The State of Madras ***
P.S. Sathappan (Dead) By LRS. v. Andhra Bank Ltd. and Ors. *****
Padanathil Ruqmini Amma v. P.K. Abdulla *****
Padma v. Hiralal Motilal Desarda and Ors. *****
Pratap Singh v. State of Jharkhand and Anr. ***
Proprietary Articles Trade Association v. AG of Canada ***
Pune Municipal Corporation and Anr. v. Promoters and Builders Association and Anr. ***
Punjab Land Development and Reclamation Corporation Ltd. v. Presiding Officer, Labour Court, Chandigarh *****
Punjab Tin Supply Co., Chandigarh and Ors. v. Central Government and Ors. *****
Puran Lal v. President of India *****
R. & M. Trust v. Koramangala Residents Vigilance Group ***
R. v. Secretary of State of the Home Department, ex. P Daly *****
R.K. Garg v. Union of India and Ors. *****
Rameswar Prasad and Ors. v. Union of India and Anr. *****
Raunaq International Ltd. v. I.V.R. Constructions Ltd. and Ors. *****
Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd. ***
S.N. Chandrashekar and Anr. v. State of Karnataka and Ors. *****
Sarat Chandra Mishra and Ors. v. State of Orissa and Ors. *****
Secretary, Ministry of Chemicals & Fertilizers, Government of India v. Cipla Ltd. and Ors. ***
Sharma Transport v. Government of Andhra Pradesh *****
Shivajirao Nilangekar Patil v. Dr. Mahesh Madhav Gosavi *****
Smt. Nandini Satpathy v. P.L. Dani and Anr. *****
Sonepat Cooperative Sugar Mills Ltd. v. Ajit Singh *****
South Bucks District Council v. Porter Chichester District Council v. Searle and Ors. ***
State of Karnataka and Ors. v. C. Lalitha *****
State of Maharashtra v. Digambar ***
State of Rajasthan and Anr. v. Mohammed Ayub Naz *****
State of Rajasthan and Ors. v. Basant Nahata *****
Sushanta Tagore and Ors. v. Union of India and Ors. *****
Swedish Match AB v. Securities and Exchange Board, India *****
T.N. Godavarman Thirumalpad v. Union of India and Ors. *****
T.N. Godavarman Thirumulpad v. Union of India and Ors. *****
The Mangalore Electric Supply Co. Ltd. v. The Commissioner of Income Tax, West Bengal *****
The Trustees of the Port of Madras v. M/s Aminchand Pyarelal and Ors. *****
Union of India and Anr. v. Azadi Bachao Andolan and Anr. ***
Union of India and Anr. v. C. Dinakar, IPS and Ors. *****
Vellore Citizens Welfare Forum v. Union of India and Ors. *****
Venkata Subamma and Anr. v. Ramayya and Ors. *****
Vineet Narain and Ors. v. Union of India and Anr. *****
Virender Gaur and Ors. v. State of Haryana and Ors. *****
Zain-ul-Abdin Khan v. Muhammad Asghar Ali Khan *****
Case Note:
Constitution Development Control Regulation Validity of Public
interest litigation was filed by the defendants questioning the validity of
Development Control Regulation No. 58 (DCR 58) framed by the State and sale of
surplus land occupied by cotton mills High Court allowed the petition and
held that sale of surplus lands was contrary to the BIFR scheme and previous
Apex Courts order Hence, present appeal Held, DCR 58 was framed with a
view to deal with the situation arising out of closure and unviability of
various cotton textile mills and was valid in law DCR 58 applied to closed
mills but sub-regulation of DCR 58 did not apply to sick industries which had
not been referred to BIFR Proposed development plan was in conformity with
BIFR scheme and Apex Courts order Changes made in DCR for development of
mill lands were Constitutionally valid Sale of National Textile Corporation
(NTC) mills was not contrary to the BIFR Scheme as also the orders passed by
Apex Court Purchasers of cotton textile mills could not be made to suffer for
no fault on their part and the High court committed manifest error in that
behalf
Constitution Development Plan Validity of Section 37 of the Maharashtra
Regional and Town Planning Act 1966 (MRTP Act) Whether regulations and
clarification ultra vires Section 37 of the MRTP Act Writ petitioners
contended that DCR 58 changed the character of development plan which included
all regulations framed under MRTP Act Held, certain plots were reserved and
were designated for specified purposes in development plan Section 37 of the
MRTP Act itself suggested that changes would be of such nature that would not
change character of such development plan which would be otherwise permissible
in terms of Section 37 of the MRTP Act In present case changes made did not
bring about any significant change so as to come to a conclusion that its basic
feature was altered Hence, regulations and clarification issued by the State
were not violative of Section 37 of the MRTP Act
Constitution Legislative Background DCR 58 Held, DCR 58 provided for
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, 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
Firstly, 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 Maharashtra Housing and Area Development Authority (MHADA)
as well as for public greens Second option entailed retaining the outer shell
of the mill structures and building commercial structures within the mill
structure Third option entailed two steps First step was raising of
construction within the old structure and the second step was to construct on
the part of open spaces Fourth option ensured demolition of the entire old
structures and sharing the entire mill lands in approximately three equal
proportions First part would remain with the mill owner which he would be
entitled to redevelop Second part would go to MHADA and the third part would
go to public greens
Constitution Principles of Intepretation Held, 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 For correct interpretation of DCR 58, the principles of purposive
interpretation should be applied Words or expression used in a statute before
and after amendment should be given the same meaning Effect of deletion of
words must receive serious consideration while interpreting a statute
Constitution Scope of Judicial Review Held, by reason of any legislation
whether enacted by legislature or by way of subordinate legislation, State
gives effect to its legislative policy Such legislation, however, must not be
ultra vires the Constitution Subordinate legislation apart from being intra
vires the Constitution, should not also be ultra vires the parent Act under
which it had been made Subordinate legislation, must be 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 cases where
Constitutionality 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 Distinction must be made between
an executive decision laying down a policy and executive decision in exercise
of its legislative making power
Public Interest Litigation Principles of Held, while entertaining a public
interest litigation several aspects of public interest are involved
Therefore, Court should find out as to how greater public interest should be
subserved For the said purpose a balance should be struck and harmony should
be maintained between several interests Firstly, consideration of ecology
Secondly, interest of workers Thirdly, interest of public sector institution,
other financial institutions, priority claimed due to workers Fourthly,
advancement of public interest in general and not only a particular aspect of
public interest Fifthly, interest and rights of owners Sixthly, the
interest of a sick and closed industry Seventhly, schemes framed by BIFR for
revival of the company In doing so courts 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
JUDGMENT
S.B. Sinha, J.
Page 1212
Leave granted in all SLPs.
INTRODUCTION
1. Whether any synthesis between environmental aspects and building
regulation vis-ΰ-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
2. 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.
3. 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.
4. 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
5. 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.
6. 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 Page 1213in 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.
7. 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 in reply. 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
HIGH COURT JUDGMENT
8. 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 48A 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 Page 1214should 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 Lohia
Machines v. Union of India MANU/SC/0153/1985.
(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.
9. 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.
Page 1215
(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.
10. 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.
11. 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.'
12. 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 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 Page 1216mill
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
13. 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 Page
1217asked 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 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. MANU/SC/0388/2005 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 - 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.
Page 1218
(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
14. 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.
15. 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 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.: -
Total covered area of all floors
Floor Space Index = ________________________________
Plot area
16. 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 Page
1219plan, 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.
17.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.
18. 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.
19. 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 notice on all persons affected by the
proposed modifications and the Planning Authority.
[emphasis
supplied]
20. Section 38 provides for periodic revisions of the development plan
making it mandatory to revise the same at least once in every 20 years.
Page 1220
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.
21. 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.
22. 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.
23. 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.
24. 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 "_all 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".
25. 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.
26. 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,Page 1221 schools, shopping and other
public places along with their percentage with reference to the total area of
the site_"
27. 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 4. In Table 4 inter alia the following uses have been
mentioned:
(a) Residential
(b) Commercial
(c) Industrial
(d) Transportation
(e) Public and semi-public
28. 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 3 of Table 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.
29. 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 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.
30. 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.
31. 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,Page
1222 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.
32. 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 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.
33. 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
34. 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 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:
Page 1223
(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 entitled
to redevelop. The second part would go to MHADA and the third part would go to
public greens.
35. 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.
36. In 2001, DCR 5