CASE NO.: Writ Petition (civil) 4677 of 1985 PETITIONER: M.C. MEHTA RESPONDENT: UNION OF INDIA & ORS. DATE OF JUDGMENT: 07/05/2004 BENCH: Y.K. SABHARWAL & B.N. AGRAWAL JUDGMENT:
JUDGMENT
2004 Supp(2) SCR 504
[With Ia Nos.1206, 1204, 1205, 1224, In Wp (C) No.4677/85, Ia No.1322 In Ia
No.22 In Wp (C) No.4677/85, Wp (C) No.98/2000, Ia No.1367 In Ia No.22 In Wp
(C) No.4677/85 Ia No.1816 In Wp (C) No.4677/85, Ia No.1527 In Ia No.22 In
Wp (C) No.4677/85]
The Judgment was delivered by : HON’BLE JUSTICEY. K. SABHARWAL
Hon’ble Justice Y.K. SABHARWAL
This case about unauthorized industrial activity in Delhi in residential
area has a protracted background. The present examination is confined to
the issue of industrial activity in residential/non-conforming areas to
decide what directions may be issued to put an end to such illegal
activity. As a result of orders passed from time to time, hazardous and
noxious industries and heavy and large industries (‘H’ Category) have been
shifted out of Delhi. Some of extensive industries (‘F’ category) have also
been shifted out of Delhi. As per the State Government, non-polluting ‘F’
category industries have not been yet shifted. The question is what should
be done about continued unauthorized use contrary to Master Plan and Zonal
Plan by remaining ‘F’ category and ‘B’ to ‘E’ category (light and service
industries) and household industries (‘A’ category industries). These
industries are continuing in residential/non-conforming areas. Such
activity is mostly in residential areas. It is not in dispute that most of
continued industrial activity under consideration is in contravention of
law except only few household industries which are continuing in
residential areas. To decide the question, it is necessary to first briefly
notice orders passed by this Court during last about one decade.
In the various orders passed in the year 1995, this Court noticed that a
large number of industries were located in residential/non-conforming areas
in violation of the Delhi Master Plan formulated under the Delhi
Development Act, 1957 (for short, ‘DD Act), Delhi Municipal Corporation
Act, 1957 (for short, ‘DMC’ Act) and other statutory provisions. Noticing
that the Master Plan stipulates setting up of industries only in conforming
areas, i.e., the industrial areas earmarked for that purpose, it was
indicated that the industries in non-conforming areas have to stop
functioning. The first concern of the Court was to stop the functioning of
‘H’ category industries, since most of it were discharging highly toxic
affluent. It was noticed that as per the affidavit filed by Mr. D.S. Negi,
Secretary (Environment), Government of Delhi, it was estimated that there
were 93, 000 industries which were operating in Delhi and majority of these
were in non-conforming use zones. Public notices by the Government invited
all industries operating in non-conforming use zone to give option to shift
to available industrial plots in the industrial estates. The response from
the industry was very poor. The industries operating in Delhi were called
upon by issue of public notices in newspapers to furnish information in
respect of the product manufactured, activity carried on, area, size,
number of persons employed, power load, year of commencement etc. Out of
93, 000 industries, only 513 industries and 382 persons responded. It was
noticed that MCD was granting licences and registering various industrial
units in non-conforming areas and permitting the industries to be set up in
residential areas. Naturally, a surprise was expressed by this Court that
on the one hand, the Court was issuing orders to reallocate the existing
industries that were operating in the residential/non-conforming areas and
on the other hand MCD was permitting setting up of new industries in
residential areas. According to the MCD, it was done under the directions
of the State Government. The MCD was directed not to register or grant
licence to any industry in the non-conforming/residential area.
We may also make a brief reference to the orders that were passed in the
year 1996. In the order dated 19th April, 1996, noticing the contention of
Solicitor General for India that certain household industries can be
permitted to operate not only in residential area but in residential
premises itself, the Court observed that the provisions of the Master Plan
have to be complied with and in case any non-residential activity is
permitted in residential area under the Master Plan that cannot be stopped.
A High Powered Committee was constituted to examine which type of
industries can be permitted in the residential area. The State Government
was directed to issue public notices asking the industries which are
operating in different residential areas of Delhi to approach the Committee
for necessary permission. It was also made clear that the industries which
do not obtain permission shall have to stop functioning in residential area
w.e.f. January 1, 1997. It would be useful to extract the relevant part of
the order dated 19th April, 1996 which reads as under :
“We make it clear and direct that no industry in any residential area of
Delhi/New Delhi shall be permitted unless it has obtained the clearance of
the committee and has obtained the necessary licence and the consent from
the statutory authorities. All those industries which have not obtained
necessary permission from the committee shall stop operating in the
residential area w.e.f January 1, 1997. We direct the NCT Delhi to give
wide publicity to this order so that the industries are in a position to
note that they have to obtain the necessary clearance from the committee.
Needless to say that while granting permission to an industry to run in a
residential area, the committee shall keep in view all the conditions laid
down under the Master Plan including evaluation of impact on municipal
services and environment needs of the area…”
The orders were also passed directing the Delhi Government to issue public
notices in newspapers requiring the industries in residential/non-
conforming areas to apply for allotment of plots in the Industrial Estate
and also giving undertaking that on such allotment they will shift from the
existing place. The court thinking that the Delhi Government was now
seriously processing the project of relocating the industries operating in
the residential/non-conforming areas of Delhi, left the field for the
Government to act on its own and relocate the industry in terms of orders
dated 18th December, 1996. The Government was, however, directed to file
progress report in this Court every three months.
It is a matter of anguish that subsequent events show that the trust that
was reposed by this Court on the Government was belied in terms of the
action to be taken for implementation of law, namely, the continuance of
industrial activity in areas in question in conformity with the user
prescribed by the Master Plan. On 8th September, 1999, it was noticed that
the progress report filed indicated that though some steps had been taken
but the same had not been taken in the right earnest as a result of which
industries are continuing to operate in the residential zone. The Court
directed that if industries in the residential area cannot be shifted and
relocated for any reason whatsoever by 31st December, 1999, then those
industries shall be closed down. The Government was directed to give due
publicity in the newspapers so as to make the industry aware. On 10th
December, 1999, the State Government came up with an application (IA
No.1206), inter alia, seeking modification of the order dated 8th
September, 1999 and for extension of time upto March 2004 for shifting of
industries which had been found eligible for allotment of alternate
industrial accommodation under the ‘Relocation Scheme’ subject to their
functioning in conformity with the pollution norms under the existing laws.
As per what the Delhi Government itself says in this application, survey
conducted by Delhi Pollution Control Committee in the year 1995-96 showed
that about 1, 26, 000 industrial units were functioning in Delhi out of
which approximately 1, 01, 000 were in residential/non-conforming areas and
only about 25, 000 in approved industrial areas. The application also
states that in these 1, 01, 000 illegally operating industrial units, about
7, 00, 000 workers would be employed. It was stated that closure of these
industries will result in hardship to approximately 7, 00, 000 families.
The question would be can the Government plead such a justification for
violation of law and throw to winds the norms of environments, health and
safety or is it possible to help the workers even without violating law if
there is a genuine will to do so. We would answer the question after
noticing few further facts.In the application (IA 1206) it has been further
stated that out of 52, 000 applications received under the relocation
scheme in December, 1996, approximately 23, 000 have been found to be
eligible. The prayer in the application also is that the industrial units
functioning in residential areas where concentration of industry is 70%,
should be continued to operate from their existing location. The applicant
thus seeks INSITU regularization. According to the Government, about 15,
000 industrial units would fall in this category and another approximately
6, 000 industrial units may fall in the category of household industries
(‘A’ category)
At the outset, it deserves to be noticed that assuming, for the present,
that facts stated above by the Government are correct and the plea of
INSITU regularization is justified then, the immediate question would be as
to what steps were taken by it in respect of remaining illegal and
unauthorized industrial units, which number over 50, 000. The Government
has no answer, let alone a satisfactory answer even despite lapse of nearly
five years.
Reference may also be made to the progress reports filed in this Court
pursuant to the orders dated 18th December, 1996. The first report dated
31st March, 1997 sought extension of time for closure of those industries
which had applied for allotment of industrial plots/flats and had submitted
the requisite undertakings prescribed by this Court. For them extension was
asked for till such time the industrial accommodation with power
connections were ready in newly constructed/developed flatted factory
complexes/industrial estates. Thus, the extension sought was for above
category of industrial units and not others. That being the position,
others could continue the illegal industrial activity only because of
inaction by the Government. It is evidently total non-implementation of the
statutory provisions. In yet another Report (for the period ending 31st
March, 1998), it was stated that survey of industries in all districts has
shown that in respect of 50, 704 industrial units, 21, 681 units have not
applied under the relocation scheme. The same question would again arise
why no action has been taken in respect of these industries. The scenario
is same in respect of the progress reports filed upto the period of 30th
September, 1998 regarding the relocation of industries operating in
residential/non-conforming areas of Delhi.
Before filing IA No.1206 of 1999 or at least in that application itself,
the Government did not think it advisable to state what action it will take
against those who were not found eligible or those who did not even apply
and were continuing industrial activity in violation of law. Further, it
did not state how many would fall in the category of INSITU regularization
and in ‘A’ category industry. In this connection, reference may also be
made to the observations in the order dated 8th February, 2001 that there
was an unexplained figure of more than 32, 000 industries in non-conforming
areas which would not be covered by (i) INSITU regularization or (ii) fall
within the expected expanded definition of ‘household industry’ or (iii)
come under the category of industries which had applied and had been found
eligible for allotment of land. It was noticed that no explanation was
given with regard to these industries continuing in the non-conforming
areas. The position after lapse of nearly 3 years is no better.
Regarding the total number of industrial units functioning in
residential/non-conforming areas, different surveys have given different
figures, as per the material placed before this Court by Government. There
is also no clarity as to the facts and figures regarding infrastructure
etc. in respect of the industrial units being considered for INSITU
regularization. Although in the affidavit filed on 5th August, 2000 by the
Principal Secretary and the Commissioner of Industries of the Delhi
Government, it was stated that the Government had recommended INSITU
regularization, it has not been stated as to what is the position of the
water, electricity and other facilities for the industries; what is the
planning for remaining 30% residents as they may be deprived of
electricity, water and other facilities on account of over drawl by the 70%
industrial units. Whether 30% who are using the premises in accordance with
the permissible use in the Master Plan must continue to suffer at the hands
of those who are functioning in violation of the Master Plan. This question
has remained unanswered despite elaborate arguments spread over various
dates. On the aspect of INSITU regularization, the stand of the Delhi
Development Authority, as contained in the affidavit of its Commissioner
(Planning) dated 11th September, 2000 was that the DDA was favourably
considering INSITU regularization with the following conditions :
i) Building norms shall be the same as that for the residential premises.
ii) Non-pollutant/non-hazardous industries would be allowed to operate.
iii) Augmentation of infrastructure as per requirement would be undertaken
to meet the growing demand as a result of conversion of these areas into
manufacturing (light and service) household industries.
Despite lapse of about 3 years, nothing significant, either in respect of
infrastructure or the other conditions, has been done. The second Master
Plan of Delhi was enforced w.e.f. 1st August, 1990. In respect of ‘F’
Category industries, it provides that no new industrial unit shall be
permitted except in the existing identified extensive industrial areas. In
respect of such ‘F’ category industries which were already existing in non-
conforming areas, the Master Plan provides that the said industrial units
shall be shifted to the permissible industrial use zone within a maximum
period of three years after the allotment of plots by various Government
agencies. On one hand, the Master Plan stipulates the shifting of existing
‘F’ category industrial units within a specified time limit and on the
other new industrial units have come up even after enforcement of the
Master Plan and even in respect of such units the Government has not only
failed to take action but has also failed to take a positive stand before
this Court that immediate steps would be taken to stop such blatant
violations. Further, when the Government is asked to give suggestions
regarding stoppage of functioning of these industrial units, the suggestion
that comes forth is that the industrial units in residential/non-conforming
areas which were set up after 1996 may be directed to stop the industrial
activity contrary to the Master Plan. Those violators who had commenced
industrial activity in residential/non-conforming areas after 1st August,
1990 are also not being excluded from the proposal of INSITU
regularization.
It is also necessary to note as to what stand from time to time the
Ministry of Urban Development has taken on the aspect of INSITU
regularization. In an affidavit dated 4th December, 2000 filed by its
Deputy Secretary, reliance has been placed by the Ministry upon the
statement made by its Minister on the floor of the House on November 24,
2000. In that statement, opposing regularization, the Minister said as to
what Delhi we want to live, what type of legacy do we wish to bequeath to
posterity and to our children and grand children; Do we want our city to
become a junkyard of unauthorized constructions, mirroring civic and moral
chaos, or an orderly and disciplined capital of a Resurgent Republic,
embodying values of justice and honesty on the basis of which we have often
claimed a pre-eminent position for our culture and civilization. The
statement further gave facts and figures that 50 million gallons per day of
industrial waste is going into the Yamuna and said that what is seen
flowing in it today is nothing but sewer and industrial waste. In Okhla
alone, for instance, during March-April, 2000, the bio-chemical oxygen
demand (BOD) level in the river was about 70 mg. per litre as against a
standard of 3 mg. per litre, i.e., 25 times more than the permissible
level. An apprehension was expressed that if the present attitudes and
practices persist, Delhi would run the risk of having as many as 30 million
people in the next few years and becoming an ugly, unhealthy, unworkable
and unlivable city. In the process, a fatal blow would also be dealt to the
development of National Capital Region which comprises a substantial part
of three important neighbouring States of Haryana, Rajasthan and Uttar
Pradesh. The affidavit states that in case of large number of residential
colonies, with so called 70% concentration of industries of which the
entire land use is sought to be changed from residential to industrial,
should the Master Plan be amended to destroy its very soul and structure or
subvert the basic norms of health, habitation and environment or reward the
illegal establisher of industries and in the process penalize the law-
abiding residents and condemn them to stay for ever in industrial areas or
force them to abandon their houses built with hard earned income? It also
states that no one has made it clear where the residents would be taken,
what would be cost of resettlement, who will bear it and how the layouts
and pattern of services and infrastructure, meant for residential colonies,
would be adjusted to the requirements of industries and consequent traffic
and transport that would flow not only in the colonies in question but also
in their neighbourhood.(Emphasis supplied is ours)
In regard to the nature of survey that had been conducted resulting in the
proposal of INSITU regularization in areas having 70% concentration of
industries, the affidavit states that demand to secure vital and large
scale changes in the Master Plan, which would have the effect of tearing
its entire fabric apart, is based upon the preliminary and perceptional
survey of three officers of the Industries Department of Government of
Delhi. The report itself calls the survey ‘preliminary’. The survey is
neither scientific, nor precise nor reliable. It does not even contain
detailed particulars of industries – whether they are polluting or non-
polluting, licenced or unlicensed. The survey also does not indicate as to
how many industrial units belong to those industrialists who may have
already obtained the benefits of relocation once, either from the Delhi
Development Authority or from the Industries Department or have secured
space in flatted factories and have come back again to the non-conforming
areas, while keeping the alternative plots allotted to them for shifting,
or have set up additional unit or units in the residential areas.
Now, let us see what Ministry says after about three years in its affidavit
dated 28th July, 2003. The guidelines for Master Plan for Delhi – 2021
issued by the Ministry were filed along with the said affidavit as also a
letter dated 28th July, 2003 sent by Secretary of the Ministry to the
Chairman of DDA. The letter states that the Ministry has made broad
guidelines for the Master Plan which highlight some of concerns that need
resolution as well as possible policy initiatives so as to deal with the
problem that affect Delhi. The letter further states that this should also
address the issue of concentration of industries to the extent of 70% or
more in some non-industrial areas. The guidelines noticed that a major
issue confronting the planned development of Delhi is the apparent and
frequent violation of the planning and development and control norms. It
states that there is a growing variation between the plan for Delhi and
city on the ground and, therefore, it is essential that the Master Plan
policies should be implementable in an effective manner and vigorously
enforced. The existing legal framework for enforcement of the Master Plan
provisions including unauthorized construction and encroachment on public
land also needs examination so as to initiate proposals for its
strengthening where necessary. In the guidelines, there is no specific
reference to regularization as such but evidently there is a slant in that
direction in the stand of the Ministry. It is, however, nobody’s case that
any decision about regularization has been taken.
Regularization cannot be done if it results in violation of right of life
enshrined in Article 21 of the Constitution. The question will have to be
considered not only from the angle of those who have set up industrial
units in violation of the Master Plan but also others who are residents and
are using their premises as allowed by law. Further, the regularization
affects not only the remaining 30% residents of the areas wherein
regularization may be in contemplation but has affect on the entire area,
particularly with respect to infrastructure available. In respect of the
infrastructure in housing components, what provisions should be made has
been incorporated in the Master Plan – 2001 which has to be kept in view.
The existing availability and projected need of water supply, sewerage,
power and solid waste has been indicated in the Master Plan. None has
applied his mind to any of these aspects.
At first instance, a proposal for INSITU regularization in 15 areas was
considered. Now 24 areas are sought to be regularized. None of the
aforesaid aspect regarding infrastructure has been considered before the
proposal was sent by the State Government and Delhi Development Authority
for INSITU regularization to the Central Government. How can Government of
India agree in principle for INSITU regularisation in isolation without
anyone having examined the relevant considerations. It is evident that
relevant aspects such as availability of sewerage, drainage, power and
water have not been examined. Further, a perusal of the survey document
shows that many industrial activities were polluting in nature. The
proposal was considered by Delhi Development Authority on 20th December,
2002. The note dated 20th December, 2002 notices that a large number of
industrial clusters are existing in various parts of the National Capital
Territory of Delhi in contravention of land use provisions of the MPD –
2001 and thereby facing the problem in their continuance on their existing
site and with a view to resolve this problem a policy needs to be evolved
for regularization/redevelopment of the said industrial clusters so that it
may eventually be considered to be part of the MPD – 2021. It was decided
that the redevelopment proposal could be formulated and taken up by forming
cooperative industrial society by the beneficiaries. Total redevelopment
work will be undertaken by the cooperative society at their own cost.
Changes in land use and enhanced FAR facilities were directed to be paid to
the concerned authorities by the society. All these proposals, without
examination of the relevant consideration as noticed hereinbefore, were
approved and were forwarded to the Government of India. All this has
happened despite the fact that the Ministry of Urban Development, in terms
of its letter dated 8th September, 2000 had informed the Delhi Development
Authority that the change in the Master Plan was not justified. No detailed
justification for change of land use from residential to industrial and the
parameters on which such change would be based had been given. The matter
has also not been discussed and deliberated with the Central Pollution
Control Board, Town and Country Planning Organisation and the Delhi Urban
Arts Commission. It was not made clear as to what would happen to those who
are using their residential premises in accordance with the provisions of
the Master Plan. The changes in the Master Plan or its norms to accommodate
illegal activities not only amount to getting reward for illegal activities
but also results in punishing the law abiding citizens. We may refer to
another letter dated 15th November, 2001 sent by the Ministry of Urban
Development to Delhi Development Authority on the issue of INSITU
regularization stating that the issue of industrial housing, sanitation,
infrastructure and adherence of polluting control norms have to be stressed
and detailed in such studies. DDA was also asked to consider whether such
areas where non-conforming industries are presently operating are isolated
black spot in otherwise purely residential, semi-urban area or whether they
represent logical extension of existing industrial neighbourhood. It
reiterated that the quality of life, environment and the rights of the
residents have to be highlighted in forefront.
The question cannot be examined only from the angle of the industry or even
those who are employed there in the said industries. It is imperative for
the State Government, Delhi Development Authority as also the Government to
address itself to the larger question of not only legalizing blatant
illegalities but as to what Delhi is intended to be left for the children
and future generation by permitting industrialisation in residential areas.
The facts demonstrate that the State Government and Delhi Development
Authority have been wholly remiss of all its functions, duties and
obligations. The Central Government, for the reasons which are not far to
seek, has been shifting its stand. As against a definite and positive stand
taken in the years 2000 and 2001 and affidavits filed in this Court, there
is a shift in the stand in the affidavits filed in the years 2002 and 2003.
As against the principled stand taken in the affidavits filed in the year
2000, now the stand in nutshell is that question would be considered when
Master Plan for 2021 is finalized. There is no plausible answer to the
question as to why in the meanwhile the illegality should continue without
any action. In any case, as at present there is no regularization. The
industrial activities in residential/non-conforming zones are wholly
illegal.
The Delhi Development Authority has to bear in mind that it has to perform
its function in accord with the provisions of the Delhi Development Act,
1957 which was enacted to provide for the development of Delhi according to
the plan and for matters ancillary thereto. ‘Amenity’, as provided in
Section 2(a), includes road, water supply, street lighting, drainage,
sewerage, public works etc. ‘Building’, as provided in Section 2(b),
includes any structure or erection or part of a structure or erection which
is intended to be used for residential, industrial, commercial or other
purposes, whether in actual use or not. The obligation to prepare a Master
Plan is contained in Section 7 of the DD Act. The Master Plan is required
to define the various zones into which Delhi may be divided for the
purposes of development and indicate the manner in which the land in each
zone is proposed to be used. The preparation of the zonal development plans
has been provided for in Section 8. The said plans provide for the proposed
land use. The Town Planners are supposed to examine various aspects before
preparation of the Master Plan and Zonal Plan and providing the land use.
The Act provides for a detailed procedure for modification of the Master
Plan and the Zonal Development Plan (Section 11-A). Section 14 forbids use
of land in contravention of the plans. It provides that no person shall use
or permit to be used any land or building otherwise than in conformity with
plan in a zone. Section 29(2) is a penal provision, inter alia, providing
for the penalty on any person who uses any land or building in
contravention of Section 14. Section 31-A is the power of the authority to
seal unauthorized development. The illegal industrialization in
residential/non-conforming area commenced and has continued and the
Authority, the Governments and its agencies have been totally negligent in
discharge of its functions and obligations under the provisions of the DD
Act.
Regarding the non-setting up of Industrial Estates in Delhi what the
position was in 1990, when the second Master Plan was enforced, is apparent
from the affidavit dated 2nd February, 2001 filed by the Commissioner
(Planning), Delhi Development Authority. Dealing with the question of
relocation of non-conforming industries and the setting up of the
industrial estate in Delhi, that affidavit states :
“Master Plan for Delhi 2001 (MPD-2001), came in force on 1.8.1990,
stipulates earmarking 6 to 7% of land in urban extension and thus the
development of 16 new light industrial areas (1533 ha.) and another 263 ha.
for extensive industrial area to be mainly utilized for shifting of
existing incompatible industrial units. As per MPD-2001 in 1981 there were
about 46, 000 industrial units out of which 8000 were in non-conforming
areas which were to be shifted. It was reassessed that about 24000
industrial units will require shifting and by 2001 the total number of
industrial units will be around 93000. MPD-2001 clearly stipulates that the
action for shifting of polluting industries is to be taken by Delhi
Administration, as cited below :’Action shall be taken by Delhi
Administration to prepare a list of individual noxious and hazardous
industrial units to be shifted and depending on the polluting/hazard,
administration may force these industrial units to shift within a maximum
prescribed period of 3 years.’
It further stipulates the following policy guidelines :
? The hazardous and noxious industrial units are not permitted in Delhi.
? No new heavy and large industrial units shall be permitted in Delhi.
? No new acid, chemical and paints and varnish industrial units to be
permitted.
? No new extensive industrial units shall be permitted except in existing
identified extensive industrial areas. Existing non-conforming extensive
industrial units shall be shifted to the extensive industrial use zone
within a maximum period of 3 years after the allotment of plots by various
Government Agencies.
? Non-conforming light and service industrial units with 20 or more workers
shall be shifted to the industrial use zones within a maximum period of 3
years after the allotment of plots and by providing necessary incentives by
the various Government agencies in conforming use zones.”
3. Delhi Administration vide Chief Secretary’s letter dated 17.9.1991
addressed to Vice Chairman, Delhi Development Authority conveyed that ‘it
is now the established policy of the Delhi Administration not to develop
any new industrial estates in the Union Territory of Delhi. All non-
conforming light and extensive industrial units would have to close
down/shift on their own to areas outside Delhi, as no more industrial areas
are to be developed and (b) further, that in the additional 2% area being
earmarked for service sectors/establishments industrial activities
contained in Annexure III-A, III-B and III-C of the revised Master Plan
would be promoted’.”
The affidavit further states that the matter was placed before the
Authority in its meeting dated 7th July, 1992 and the proposal of the Delhi
Administration with certain conditions was approved. The DDA resolved that
planning for industrial activity may continue as envisaged under the Master
Plan of Delhi – 2001 at the rate of 6 to 7% of urban extension area. It
further states that pending the said policy decision, no new industrial
development was taken up and even the industrial area indicated in the
development plan of Dwarka (181 hectare) was reverted to commercial and
other land uses.
In the light of the aforesaid, when even industrial area is reverted to
commercial and other land use, we fail to understand :
1. Why no action was taken to enforce the Master Plan and for stoppage of
the functioning of the industries in the residential/non-conforming areas;
2. How the industries commenced and continued their illegal activity;
3. How can the State Government regularize the illegality even without
existence and consideration of availability of infrastructure and in
disregard to the rights of the residents on the ground of 70% concentration
of industry in the concerned area(s).
Further, in the light of the letter of the Chief Secretary dated 17th
September, 1991, it is not open to the State Government to argue that for
want of acquisition of the land, the industrial estates could not be
developed. They had themselves written to DDA not to develop any new
industrial estate in the Union Territory of Delhi. Even existing industrial
area, as above noted, was diverted. The State Government has been
repeatedly taking time from the Court for the shifting of the offending
industrial activity. If it was not the responsibility of the State
Government to shift the industry, what was the purpose of filing IA 1206/99
seeking extension of time upto March 2004 and for seeking modification of
the order dated 8th September, 1999 whereunder the industries were directed
to be closed by 31st December, 1999. Even at the cost of repetition, we may
again note that for the present, we are examining the aspect of shifting of
industries which have come up after 31st December, 1989 in residential/non-
conforming areas. The letter dated 17th September, 1991 also states that
the MCD announced its ad hoc registration policy in 1989 with the prior
approval of the Lt. Governor to grant ad hoc registration to units which
had unauthorisedly established themselves in non-conforming areas till 31st
December, 1989. In this situation, we see no reasons why those units which
have come up after 31st December, 1989 shall not be closed and sternly
dealt with. We are unable to find any equity in favour of such violators of
law.
The regularization would also result in making the concept of NCR non-
functional and inoperative.
The National Capital Region Planning Board Act, 1985 (for short, the ‘NCR
Act’) was enacted to provide for the constitution of a Planning Board for
the preparation of a plan for the development of National Capital Region
and for coordinating and monitoring the implementation of such plan and for
evolving harmonized policies for the control of land uses and development
of infrastructure in the National Capital Region so as to avoid any
haphazard development of that region and for matters connected therewith or
incidental thereto. The areas within the National Capital Region are
specified in the Schedule to the NCR Act. National Capital Region comprises
the area of entire Delhi, certain districts of Haryana, Uttar Pradesh and
Rajasthan as provided in the Schedule. ‘Regional Plan’ as provided in
Section 2(j) means the plan prepared under the NCR Act for development of
the National Capital Region and for the control of land-uses and the
development of infrastructure in the National Capital Region. What the
Regional Plan shall contain is provided in Section 10. Section 10(2)
provides that the Regional Plan shall indicate the manner in which the land
in the National Capital Region shall be used, whether by carrying out
development thereon or by conservation or otherwise, and such other matters
as are likely to have any important influence on the development of the
National Capital Region and shall include the following elements needed to
promote growth and balanced development of the National Capital Region,
namely :
(a) the policy in relation to land-use and the allocation of land for
different uses;
(b) the proposals for major urban settlement pattern;
(c) the proposals for providing suitable economic base for future growth;
(d) the proposals regarding transport and communications including railways
and arterial roads serving the National Capital Region;
(e) the proposals for the supply of drinking water and for drainage;
(f) indication of the areas which require immediate development as
“priority areas”; and
(g) such other matters as may be included by the Board with the concurrence
of the participating States and the Union territory for the proper planning
of the growth and balanced development of the National Capital Region.
Section 27 provides that the provisions of the NCR Act shall have effect
notwithstanding anything inconsistent therewith contained in any other law
for the time being in force or in any instrument having effect by virtue of
any law other than the NCR Act; or in any decree or order of any Court,
tribunal or other authority.
In exercise of power under Section 10 of the NCR Act, the Government of
India has prepared a Regional Plan – 2001 for National Capital Region as
approved by the National Capital Region Planning Board constituted under
Section 3(1) of the NCR Act. Besides others, the Union Minister for Works
and Housing as Chairman of the Board, the Chief Minister of Haryana,
Rajasthan, Uttar Pradesh and Delhi are members of the said Board. Regional
Plan – 2001 recognises the unprecedented growth of Delhi and notices that
the planned growth of Delhi is possible only in a regional context. In
fact, the need for regional approach was felt as early as 1959 when the
draft Master Plan of 1962 recommended that a statutory National Capital
Region Planning Board should be set up for ensuring balanced and harmonized
development of the Region.
The aforesaid plan took into consideration the host of serious problems by
which Delhi was besieged and the causes of those problems and the genesis
of Delhi’s growth on account of rapid urbanization and ability to offer
wide opportunities for large scale employment through specialization and
increased productivity in manufacturing and supporting services. It noticed
that till 1951, Delhi was essentially an administrative center with a
population of 14.5 lakhs but, the expansion of industry, trade and commerce
providing opportunities for economic development, in turn, began to
transform its character from an administrative city to a multifunctional
city and, exhibited a significant functional shift to industrial character
in 1981 when its population size became 57.3 lakhs, recording a growth of
about 300% since 1951. It also notices that as Delhi grows, its problems of
land, housing, transportation and management of essential infrastructure
like water supply and sewerage become more acute. The city lacks reliable
and adequate sources of water, and, thus, has to depend upon the adjoining
States to meet its water supply requirements. The plan notices the need for
the development policies, programmes and plans aiming to relieve Delhi from
additional pressures and avoid adding new pressures. We may note that in
the affidavit dated 29th September, 2000 filed by the Deputy Secretary of
the Ministry of Urban Development, it was stated that those requiring plots
of more than 250 sq. metres would be accommodated in the National Capital
Region where plots of very large size are available with all necessary
infrastructure facilities. Further, the documents filed along with another
affidavit of the same officer dated 29th November, 2000 show the progress
of certain items of work as noticed in the meeting dated 21st September,
2000 of a cell that had been constituted by the Ministry of Urban
Development which had been appointed as a nodal agency pursuant to the
order of this Court dated 12th September, 2000 in respect of the National
Capital Region. It states :
“V. National Capital Region – InterfaceAn Interface amongst the
industrialists of Delhi and those of the three National Capital Region
States has been organized by the Ministry of Urban Development, through the
National Capital Region Planning Board on September 30, 2000 at Vigyan
Bhawan from 10.00 a.m. onwards. The basic objective of this Interface is to
facilitate exchange of information amongst the industrialists of the
National Capital Region and to acquaint them with the facilities that are
available, including larger size of plots, lower cost of plots and
availability of auxiliary infrastructure in the shape of residential plots
and commercial plots.The Delhi industrialists would be made aware of the
fact that many big industrial houses like Sony, Daewoo Motors etc., are
setting up their industries in the National Capital Region States and this
would give rise to demand for ancillary industries. The representatives of
Haryana State Industrial Development Corporation (HSIDC), UP State
Industrial Development Corporation (UPSIDC) and Rajasthan State Industrial
Development & Investment Corporation (RIICO) would also be attending the
Interface and would indicate the loan facilities that would be made
available.
The National Capital Region Planning Board has facilitated development of
1, 14, 000 residential plots, 17, 000 commercial plots/office space and 10,
000 industrial plots/sheds in the National Capital Region.”
In the affidavit dated 4th December, 2000 of the same officer, it has been
stated as under :
“That at the said INTERFACE an exhibition was also organized, where the
agencies of three State Governments – Haryana, Rajasthan and Uttar Pradesh
– displayed their information in respect of availability of plots as well
as of industrial infrastructure. It was indicated that over 6, 000
industrial plots of various sizes, ranging from 100 to 1 lakh Sq. Mtrs.
were available for immediate allotment. Some of these plots were of very
large sizes and they could be sub-divided to create a larger number of
plots.
That, another meeting of senior officers of the State Governments of three
National Capital Region States and their Resident Commissioners was called
by the Union Urban Development Minister on November 30, 2000. In this
meeting, the Government of Haryana indicated that besides vacant plots
already developed in industrial estates it would, if required, develop 14,
487 acres of land separately and make available as many as 80, 000 plots of
average size of 500 sq. mtrs. The necessary infrastructure is either
available or can be made available in a short time.”
The material on record shows that the National Capital Regional Planning
Board has been taking initiative to encourage the shifting of the
industries to National Capital Region. It appears that in January 2001,
number of plots were available in the States of Rajasthan, Haryana and
Uttar Pradesh for industries to shift. The industry was also informed that
large plots can be further sub-divided to accommodate more number of small
units. It does not, however, appear that any significant interest was shown
by the industry. We are not suggesting that there are no problems but the
same are not insurmountable and can be sorted out. There is no obligation
to provide alternative plots to those who illegally commenced industrial
activity. The second Master Plan stipulates to provide alternate plots only
to those who had set up industrial units upto 31st December, 1989. As
already observed earlier, presently we are concerned with shifting of the
industries which were set up from the year 1990 onwards contrary to the
permissible use in the Master Plan. It is a matter for Government to decide
if it wants to provide alternative industrial plots to those who illegally
commenced that activity but that cannot further delay the closing of
continuing illegal industrial activity. In our view, lack of action and
initiative by the authorities is the main reason for the industry merrily
continuing illegal activity. There is total lack of enforcement of law by
the concerned authorities.
Regarding the availability of alternate industrial plots, it may be useful
to notice the plots that are available in the National Capital Region. The
affidavit filed on 8th May, 2003 on behalf of the NCR Planning Board states
that plots on 2433.63 acres of land in the National Capital Region were
available. If there are teething problems, it is for the concerned
authorities to sort out the same.
Laghu Udyog Bharati, an association of small scale industries, has taken
the stand that the Government has been issuing ad hoc licences and
collecting taxes from industrial units which would show that the industries
were working within the knowledge and consent of the Government. The stand
taken is that since the industries were working with the consent of the
Government, it cannot be said that the use by industries is non-conforming.
The stand is wholly misconceived. An illegality would not become a legality
on inaction or connivance of the Government authorities. There cannot be
any doubt that non-conforming industrial activities could not have
commenced or continued at such a large scale in the capital of the country
if the Government and the concerned authorities had performed their
functions and obligations under various statutes. But such a situation
cannot be permitted to continue forever so as to reach a point of no
return, where the chaotic situation in city has already reached. The law-
breakers, namely, the industries cannot be absolved of the illegalities
only on the ground of inaction by the authorities. It would be useful to
note as to what is stated in the affidavit of the President of the
aforesaid association. It reads :
“The chaotic situation existing today would not have developed had the
authorities carried out their duties and taken steps to develop industrial
areas as provided for in the MPD-62 as well as the MPD-2001. For the
reasons best known to the authorities, the planned development of Delhi was
never undertaken. On the other hand, they were busy in granting ad hoc
licenses for non-conforming areas, electricity connections, water
connections, collecting electricity, water, property tax at commercial
rates; collection of Sales Tax and Excise from these industries, which were
coming up. Had the concerned authorities discharged their duties casted
upon them by the two Master Plans, the legal and statutory document for the
planned development of Delhi to which they were duty bound to perhaps the
situation, which Delhi is in today, would not have arisen.”
(Emphasis has been supplied by us)
The affidavit further states that “That it is respectfully submitted that
till today not only MCD, but also D.V.B., Water Department, Excise and
Sales-tax Departments, Factory Departments, Provident Fund and ESI
Department have been recognizing the existence of the industries in the
non-conforming areas and in total each industry is being visited by 53
departmental inspectors of the Government.”
From the facts noticed above, it is evident that a casual approach was
adopted in recommending INSITU regularization.
A report of group of experts set up for determining polluting industries
amongst list of 54 ‘F’ category industries under the MPD – 2001 reported
that the industrial processes involving or using electroplating, dyeing,
pickling, anodizing, coal fired boilers, forging and casting are polluting
in nature and recommended a list of 33 activities to be polluting. The
report is filed along with the affidavit dated 5th February, 2001 of
Commissioner of Industries of the Delhi Government. The proposal for INSITU
regularization, however, does not even exclude the industries carrying the
said activities from regularization. Further the proposal does not state
what manufacturing activities are being carried on in 24 areas where the
regularization was contemplated. In fact, in respect of the areas where
INSITU regularization is under contemplation, many manufacturing activities
even going by the report of the group of experts, would be polluting. All
this shows total non-application of mind.
In respect of a large number of unauthorized industrial activities in non-
conforming areas, the Municipal Authorities have expressed helplessness in
taking action on the apprehension of breakdown of law and order in areas.
The Municipalities have constitutional responsibilities of town planning.
Part IX-A was inserted by Constitution (74th Amendment) Act, 1992 w.e.f.
1st June, 1993. Article 243W provides for the powers, authority and
responsibilities of the Municipalities etc. Article 243W reads as under :
“243W. Powers, authority and responsibilities of Municipalities, etc.-
Subject to the provisions of this Constitution, the Legislature of a State
may, by law, endow-
(a) the Municipalities with such powers and authority as may be necessary
to enable them to function as institutions of self-government and such law
may contain provisions for the devolution of powers and responsibilities
upon Municipalities, subject to such conditions as may be specified
therein, with respect to-
(i) the preparation of plans for economic development and social justice;
(ii) the performance of functions and the implementation of schemes as may
be entrusted to them including those in relation to the matters listed in
the Twelfth Schedule;
(b) the Committees with such powers and authority as may be necessary to
enable them to carry out the responsibilities conferred upon them including
those in relation to the matters listed in the Twelfth Schedule.”
The Municipal Corporation has the responsibility in respect of matters
enumerated in 12th Schedule of the Constitution of India, regulation of
land use, public health, sanitation, conservancy, solid waste management
being some of them. Section 345 of the MCD Act contains the power of the
Commissioner to seal. Section 416(1) provides that no person shall, without
the previous permission in writing of the Commissioner, establish in any
premises, or materially alter, enlarge or extend, any factory, workshop or
trade premises in which is intended to employ steam, electric, water or
other mechanical power. Section 417(1) stipulates that no person shall use
or permit to be used premises for any of the following purposes without or
otherwise than in conformity with the terms of a licence granted by the
Commissioner in this behalf, namely :
(a) any of the purposes specified in Part I of the Eleventh Schedule;
(b) any purpose which is, in the opinion of the Commissioner dangerous to
life, health or property or likely to create a nuisance;
(c) keeping horses, cattle or other quardruped animals or birds for
transportation, sale or hire or for sale of the produce hereof; or
(d) storing any of the article specified in Part II of the Eleventh
Schedule except for domestic use of any of those articles.
Section 461 provides for punishment for certain offences. Part I of the
11th Schedule of the MCD Act provides the purposes for which the premises
may not be used without a licence. The 12th Schedule provides for various
penalties, i.e., fine and imprisonment which may be imposed on
contravention of various provisions of the MCD Act. It does not lie in the
mouth of the Corporation to plead helplessness to carry out
responsibilities and obligations under the MCD Act. The sealing of the
premises was done in two phases, i.e., on 7th January 2001 and in second
phase as on 3rd March, 2001. Out of nearly 35, 522, only 5, 139 units were
sealed. It has not been explained whether any sealing was done in the areas
now under the contemplation for regularization on the ground of 70%
industrial concentration. The Delhi Government and DDA have also not
explained that while arriving at figure of 70% industrial concentration,
the industries which were not operating or those premises which were lying
vacant or those which were sealed in phase 1 and 2, were taken into
consideration or not. These questions arise since the survey conducted by
the MCD in some of the areas show that large number of premises were lying
vacant and/or no industrial activity was going on. Further, the survey also
shows that many industries were carrying on industrial activity which was
per se polluting. In Virender Gaur & Ors. v. State of Haryana & Ors. [ 1995
(2) SCC 577 ], referring to principle No.1 of Stockholm Declaration of
United Nations on Human Environment, 1972, this Court observed that right
to have living atmosphere congenial to human existence is a right to life.
The State has a duty in that behalf and to shed its extravagant unbridled
sovereign power and to forge in its policy to maintain ecological balance
and hygienic environment. Where in the Zonal plan, a land is marked out and
reserved for park or recreational purpose, it cannot be allotted for
building purpose though housing is a public purpose. Further, it was
observed that though the Government has power to give directions, that
power should be used only to effectuate and further goals of the approved
scheme, Zonal plans etc. and the land vested under the Scheme or reserved
under the plan would not be directed to be used for any other public
purposes within the area envisaged thereunder. Dealing with the contention
that two decades had passed, it was held that self-destructive argument to
put a premium on inaction cannot be accepted.
In M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu & Ors. [ 1999 (6) SCC 464
], this Court observed that no consideration should be shown to a builder
or any other person where the construction is unauthorized. Judicial
discretion cannot be guided by expediency. Courts are not free from
statutory fetters. Justice is to be rendered in accordance with law.
Judicial discretion wherever it is required to be exercised has to be in
accordance with law and set legal principles. Judicial review is
permissible if the impugned action is against law or in violation of the
prescribed procedure or is unreasonable, irrational or mala fide. In para
73, this Court reiterated that in numerous decisions, it has been held that
no consideration should be shown to the builder or any other person where
construction is unauthorized. This dicta is now almost bordering the rule
of law. A discretion which encourages illegality or perpetuates an
illegality cannot be exercised. In M.I. Builders pvt. Ltd. v. Radhey Shyam
Sahu & Ors. [ 1999 (6) SCC 532 ], this Court declined to come to the aid of
a law-violator.
In Administrator, Nagar Palika v. Bharat & Ors. [ 2001 (9) SCC 232 ], this
Court observed that public interest has to be understood and interpreted in
the light of the entire scheme, purpose and object of the enactment. The
hazard to health and environment of not only the persons residing in the
illegal colonization area but of the entire town as well as the provision
and scheme of the Act had to be taken into consideration.
In Faqir Chand & Anr. v. Shri Ram Rattan Bhanot & Anr. [ 1973 (1) SCC 572
], dealing with use of premises in Delhi by a tenant contrary to the
purpose for which it could be used in terms of the lease between the
landlord and the paramount lessor, this Court observed, while dealing with
a landlord-tenant dispute that the policy of the Legislature seems to be to
put an end to unauthorized use of leased land rather than merely to enable
the authorities to get back possession of the leased lands. While dealing
with the provisions of DD Act and clause (k) of proviso to sub-section (1)
of section 14 of the Delhi Rent Control Act, 1958, it was noticed that the
Legislature has clearly taken note of the fact that the enormous extents of
land have been leased by the three authorities mentioned in that clause,
and has expressed by means of this clause its anxiety to see that these
lands are used for the purpose for which they were leased. It was also
observed that the authority may not be prepared to accept compensation but
might insist upon cessation of the unauthorized use. Since the most of the
land used for industrial purpose in residential/non-conforming areas is
leased land, it was even open to the authorities to cancel the lease on
account of the misuser.
In Dr. K. Madan v. Krishnawati (Smt.) & Anr. [ 1996 (6) SCC 707 ], it was
held that observations made in Punjab National Bank v. Arjun Dev Arora &
Ors. [ 1986 (4) SCC 660 ] to the effect that as long as the penalty for
wrongful user is continued to be paid, the deviation of user could be
permitted, do not appear to be in consonance with the decision of the
larger Bench in Faqir Chand’s case (supra). On one hand, we have the
decisions observing that merely by payment of penalty, continued misuser
cannot be permitted and on the other the misuser commenced and continued
contrary to the land use under the nose of the authorities without any
action being taken.
In V.M. Kurian v. State of Kerala & Ors. [ 2001 (4) SCC 215 ], while
quashing the order passed by the State Government exempting the provisions
of Kerala Building Rules, 1984 for constructing an eight storeyed building
contrary to the mandatory provisions of the Rules, it was observed that the
Rules were mandatory in nature and are required to be complied with. The
construction of high-rise building and observance and compliance thereof is
for public safety and convenience. There cannot be relaxation of the Rules
which are mandatory in nature and cannot be dispensed with especially in
the use of a high-rise building.In the present case, the land cannot be
permitted to be used contrary to the stipulated user except by amendment of
the Master Plan after due observance of the provisions of the Act and the
Rules. Non taking of action by the Government amounts to indirectly
permitting the unauthorized use which amounts to the amendment of the
Master Plan without following due procedure.
In this very matter, dealing with the industries of ‘H’ category which now
stand shifted pursuant to the order of this Court, it is pertinent to note
what a three Judge Bench of which one of us (B.N. Agrawal, J.) was a member
said in relation to entrepreneurial failure and total apathy non-concern
for social good and benefit by the authorities as under :
“The issues are long pending – the issues are urgent since the entire
society is impaired – no exception can be taken to the legal battles
involved in an adversarial litigation – this is not one such instance : it
is a true public interest litigation for the protection of the society and
to avoid a deliberate peril arising out of entrepreneurial failure and
total apathy and non-concern for social good and benefit. The Delhi
Development Act of 1957 envisaged preparation of a Master Plan for Delhi
with a definite statutory direction to define various zones into which
Delhi may be divided for the purposes of development and the manner in
which the land in each zone is proposed to be used and the stages by which
such development shall be carried out. As a matter of fact the Master Plan
came into existence in 1962 and ‘H’ category industries ought to have
shifted out of the area specified therein by 1962 itself. Then came the
Master Plan of 1990 to combat the existing situation with a specified
period of shifting within three years i.e. there was an obligation on the
‘H’ category industries to shift and relocate in terms of the Master Plan
by the year 1993 and the social activist by reason of the failure of the
entrepreneurs, moved this Court in 1995 whereupon, after allowing all
possible opportunities to all entrepreneurs and upon assessment of the
situation through the appointments of commissions and obtaining various
reports on these aspects, passed the order on 10-5-1996 {M. C. Mehta v.
Union of India [(1996) 4 SCC 351]} which has till date not been complied
with – indeed a sorry state of affairs and a total neglect and apathy
towards the society, new and novel submissions are advanced as in any
adversarial litigation but unfortunately as noticed above it is too late in
the day to contend otherwise, apart from what the order contains as of
10-5-1996 {M. C. Mehta v. Union of India [(1996) 4 SCC 351)]}.”
In Indian Council for Enviro-Legal Action & Ors. v. Union of India & Ors. [
1996 (3) SCC 212 ], this Court was concerned with a public interest writ
petition filed by an environmentalist association alleging environmental
pollution caused by private industrial units. It was held that the writ
petition is not really for issuance of appropriate writ, order or
directions against the units/factories which were running polluting
industries and had not even installed any equipment for treatment of highly
toxic effluents by them, but is directed against Union of India, Government
of Rajasthan and Rajasthan Pollution Control Board to compel them to
perform their statutory duties which they had failed to carry out and
thereby seriously undermined the right of life of the residents of Bichhri
and the affected area guaranteed by Article 21 of the Constitution. If this
Court finds that the authorities had not taken action required of them by
law and that their inaction is jeopardising the right to life of the
citizens of this country or any section thereof, it is the duty of this
Court to intervene. If it is found that the respondents are flouting the
provisions of law and the directions and orders issued by the lawful
authorities, this Court can certainly make appropriate directions to ensure
compliance with law and lawful directions made thereunder. If an industry
is established without obtaining the requisite permission and clearances
and if the industry is continued to be run in blatant disregard of law to
the detriment of life and liberty of the citizens living in the vicinity,
can it be suggested with any modicum of reasonableness that this Court has
no power to intervene and protect the fundamental right to life and liberty
of the citizens of this country.
We may also recall what the Constitution Bench said in Oleum Gas Leak case
{M.C. Mehta v. Union of India [ 1987 (1) SCC 395 ]} in relation to
hazardous or inherently dangerous industry, and we quote :
“We are of the view that an enterprise which is engaged in a hazardous or
inherently dangerous industry which poses a potential threat to the health
and safety of the persons working in the factory and residing in the
surrounding areas owes an absolute and non-delegable duty to the community
to ensure that no harm results to anyone on account of hazardous or
inherently dangerous nature of the activity which it has undertaken. The
enterprise must be held to be under an obligation to provide that the
hazardous or inherently dangerous activity in which it is engaged must be
conducted with the highest standards of safety and if any harm results on
account of such activity, the enterprise must be absolutely liable to
compensate for such harm and it should be no answer to the enterprise to
say that it had taken all reasonable care and that the harm occurred
without any negligence on its part. Since the persons harmed on account of
the hazardous or inherently dangerous activity carried on by the enterprise
would not be in a position to isolate the process of operation from the
hazardous preparation of substance or any other related element that caused
the harm the enterprise must be held strictly liable for causing such harm
as a part of the social cost of carrying on the hazardous or inherently
dangerous activity. If the enterprise is permitted to carry on an hazardous
or inherently dangerous activity for its profit, the law must presume that
such permission is conditional on the enterprise absorbing the cost of any
accident arising on account of such hazardous or inherently dangerous
activity as an appropriate item of its overheads. Such hazardous or
inherently dangerous activity for private profit can be tolerated only on
condition that the enterprise engaged in such hazardous or inherently
dangerous activity indemnifies all those who suffer on account of the
carrying on of such hazardous or inherently dangerous activity regardless
of whether it is carried on carefully or not.
… We would therefore hold that where an enterprise is engaged in a
hazardous or inherently dangerous activity and harm results to anyone on
account of an accident in the operation of such hazardous or inherently
dangerous activity resulting, for example, in escape of toxic gas the
enterprise is strictly and absolutely liable to compensate all those who
are affected by the accident and such liability is not subject to any of
the exceptions which operate vis-a-vis the tortious principle of strict
liability under the rule in Rylands v. Fletcher [(1868) LR 3 HL 330].We
would also like to point out that the measure of compensation in the kind
of cases referred to in the preceding paragraph must be correlated to the
magnitude and capacity of the enterprise because such compensation must
have a deterrent effect. The larger and more prosperous the enterprise, the
greater must be the amount of compensation payable by it for the harm
caused on account of an accident in the carrying on of the hazardous or
inherently dangerous activity by the enterprise.”
We may note that some of the industrial activities like the plastic
industry are inherently dangerous and is being carried on in
residential/non-conforming areas. Such industrial activity is also carried
on in areas in respect whereof regularization is under contemplation
allegedly on account of 70% concentration of industrial activity in the
residential area. These facts are evident from the material placed by the
respondents themselves before this Court.The growth of illegal
manufacturing activity in residential areas has been without any check and
hindrance from the authorities. The manner in which such large scale
violations have commenced and continued leaves no manner of doubt that it
was not possible without the connivance of those who are required to ensure
compliance of law and reasons are obvious. Such activities result in
putting on extra load on infrastructures. The entire planning has gone
totally haywire. The law abiders are sufferers. All this has happened at
the cost of health and decent living of the residents of the city violating
their constitutional rights enshrined under Article 21 of the Constitution
of India . Further, it is necessary to bear in mind that the lawmakers
repose confidence in the authorities that they will ensure implementation
of the laws made by them. If the authorities breach that confidence and act
in dereliction of their duties, then the plea that the observance of law
will now have an adverse effect on the industry or the workers cannot be
allowed. Within the framework of law, keeping in view the norms of
environment, health and safety, the Government and its agencies, if there
was genuine will, could help the industry and workers by relocating
industries by taking appropriate steps in last about 15 years. On the other
hand, it encouraged illegal activities.
It may be noticed that the proposal of INSITU regularization has also been
opposed by the National Regional Board which has pointed out that the very
purpose of the Act would be defeated by such regularization. It would lead
to further congestion of Delhi instead of decongestion which was the very
purpose for which the Act was enacted. Mr. Mukul Rohtagi, learned
Additional Solicitor General appearing for Municipal Corporation of Delhi,
Mrs. Sheela Sethi, learned counsel appearing for National Regional Board
and Shri Panjwani, learned counsel appearing for Central Pollution Control
Board have opposed the continued unauthorized use for industrial activity
of residential/non-conforming areas as also the proposal of INSITU
regularization. It has been contended that such industries should be
immediately closed down/shifted. Mrs. Sethi contended that INSITU
regularization would defeat the very purpose of the Act under which NCR was
established. The contemplated action of regularization would run counter to
the object of the Act which is to decongest the city of Delhi from the
industrial activity. The Act of regularization would result in further
congesting already highly congested city. Mr. Panjwani contended that the
regularization would further result in air and water pollution and would
also affect the underground water. Learned counsel further submitted that
from material on record, it does not appear that anyone examined as to what
effect the regularization will have on the aspect of pollution. It has been
pointed out on behalf of CPCB that such regularization would result in
further pollution of air ambient, water pollution besides causing other
environmental hazardous. For reasons already stated, we find substance in
these contentions.
Residents of Poorvi Viswas Nagar Samaj Kalyan Samiti have filed Writ
Petition No.98 of 2000 opposing INSITU regularization and pointing out that
the Viswas Nagar is an approved residential area where residential
buildings have been constructed by the residents and no industrial activity
is allowed as per law. Many of the plots in which the people are residing
were purchased by them from the custodian of Evacuees property. It is
further pointed out that recently industrial units were established in
contravention of rules and by adopting unfair means. They have, thus,
objected to the INSITU regularization.
From the aforesaid, it is evident that the industry belonging to ‘F’
category in residential/non-conforming areas could not come up after 1st
August, 1990 since even the existing ‘F’ category industry in non-
conforming areas was required to be shifted to the permissible zone within
a maximum period of three years after allotment of plot. The same is the
position in respect of light and service industry belonging to ‘B’ to ‘E’
category except that depending upon number of workers employed, the Master
Plan stipulates different time schedule for these industries to shift.
Despite the time span mentioned in 1990 Master Plan having expired and
various opportunities having been given during 1995, 1996 and 1997 and
notices issued, and 13 years having passed, the non-conforming use by the
industry has continued. A time has come that such non-conforming use must
stop at least by those who commenced it from and after 1st August, 1990.
The position in respect of household industries which are permissible, the
question of the same not being carried on in residential/non-conforming
area would not arise. The difficulty arises in carrying on of such activity
of household industry which is not permissible. The State Government sought
expansion of ‘A’ category industries. The Government of India has approved
only 6 out of list of 41 industries. In case, the remaining are not
approved, impermissible ‘A’ category industrial units shall also have to
stop functioning. It is imperative for the Central Government to
expeditiously decide this issue one way or the other. In short, permissible
household industry activity can go on and impermissible activity has to
stop.
The plea of INSITU regularization and mild resistance to shifting has been
propounded only by Mr. Govardhan, learned counsel appearing for Delhi
Government. In same fashion it was substantially supported by Mr. Kailash
Vasdev, senior advocate appearing for Union of India and Mr. Saharya,
learned counsel appearing for Delhi Development Authority though without
taking a definite stand. DDA merely adopted the stand of Union of India.
Insofar as Union of India is concerned having already taken a contrary
stand as above noticed, it adopted a middle path without clearly supporting
or opposing the Delhi Government on the issue of INSITU regularization by
taking a stand that it has issued guidelines and would consider the
question of INSITU regularisation at the time of finalisation of Master
Plan – 2021. The said Master Plan is not likely to be finalized for another
2 years. In this view, the suggestion of Delhi Government is that pending
approval of proposal of INSITU regularization, the industrial units falling
in that category may not be ordered to be closed/shifted from
residential/non-conforming areas. In other words, it means that the
illegality should be further permitted to be continued till the new Master
Plan is finalized – whether it takes two years or more. In regard to other
illegal industrial units, the suggestion put forth on behalf of the Delhi
Government is that immediate directions for closure/shifting of only those
industrial units shall be made which were set up after 31st December, 1996
as under the Order dated 19th April, 1996, the industrial activity in
residential/non-conforming areas was directed to be closed after 31st
December, 1996. We, however, see no justification for continuance of the
illegal and unauthorized industrial activity in residential/non-conforming
areas which commenced after 1st August, 1990. It would also apply to
industries in categories ‘B’ to ‘F’. In respect of household industry
belonging to ‘A’ category, it was contended on behalf of the Delhi
Government that the number of industries falling in that category is being
expanded and proposal for additional 41 items for being placed in category
‘A’ has been approved by DDA and the matter is pending with the Government
of India and, therefore, the industrial units carrying any activity falling
in the proposed expanded category should also not be shifted for the
present. It appears that out of 41 items, the Government of India has
granted approval in respect of 6 items and, no decision has been taken, one
way or the other, in respect of remaining 35 items. We again reiterate that
the question is only of stopping unauthorized and illegal activity and not
that activity which is permissible.
We may note another argument put forth on behalf of Delhi Government that
it is not the function and responsibility of the Delhi Government to
enforce the Master Plan, it has no powers to enforce it. We are not only
surprised but shocked at such a frivolous stand being taken, despite what
is stated in the order passed by this Court on 18th December, 1996. That
order noticed the reason as to why the court thought it appropriate to step
aside. It was noticed that seemingly the State Government was seriously
enforcing the law. At that stage, no argument about absence of power was
put forth. If it was not the function and responsibility of State
Government and the Government had no power, we wonder the reason why the
Government filed IA No.1206 seeking extension of time upto March 2004 to
relocate the industries. We summarily reject this wholly frivolously
submission.
Neither on behalf of the Government of India nor on behalf of the Delhi
Government nor on behalf of any statutory authority, it could be disputed
that the unauthorized and illegal industrial activity has commenced and
continued in Delhi in blatant breach of the provisions of Master Plan and
no action has been taken by any authority. The responsibility to take
action was sought to be shifted. Each blaming the other. While on behalf of
Delhi Government, as above noticed, it sought to avoid its obligation on
the ground that it is not the function of the State Government to implement
the Master Plan. The Government of India avoided its responsibility on the
ground that the Central Government is not the implementing agency though
the manner in which the Central Government has taken a summersault in its
stand already stands noticed. Similarly, the other statutory authorities
have also avoided to shoulder the responsibility for inaction for the
blatant breach of the legal provisions. Respondents have been taking a
convenient stand from time to time without any regard for statutory
provisions and have at least turned their face on the other side knowing
that blatant breach is being committed, even if we assume that there was no
connivance with the industry for extraneous considerations. The Master
Plan, 2001 stipulates the shifting of extensive industries (‘F’ category)
to conforming zone within a period of three years after allotment of plots
by authorized Government agencies. In respect of light and service
industries (‘B’ to ‘E” category), it provides shifting to the industrial
use zone within a maximum period of three years after allotment of plots
and by providing necessary incentive by various Government Agencies in
conforming use zone. This is in respect of all the industrial units with 20
or more workers. In respect of industrial units with 10 to 19 workers, it
stipulates review after five years giving them chance during this period
for reallocation in conforming zones. Similarly, industrial units with
worker strength upto nine, it provides for review after 10 years after
giving them chance during the said period for reallocation in the
conforming zones. The suggestion of Delhi Government is that such all
industrial units which have come up after 1st January, 1997 shall be
directed to be closed in the first instance by giving them some time. In
respect of industrial units which have come up between 1st August, 1990 to
31st December, 1996, it was suggested that the bigger units having more
than 20 workers may first be directed to be closed, later the units having
workers between 10 to 19 and last of all those units which have less than
10 workers be directed to be closed. The suggestion is that the shifting
may be directed in a phased manner.
Mr. Govardhan also points out that after the advertisement for reallocation
was issued in terms of the orders of this Court, about 51, 000 applications
were received out of which approximately 24, 000 applicants were held to be
eligible. In Bawana Industrial Estate, 18, 347 industrial plots are ready
and allotment and possession has been given to 10, 059 industrial units and
remaining have still to take possession. It was further pointed out that
nearly 6, 000 who are found eligible for allotment of industrial plot for
relocation are on the waiting list awaiting the allotment of the industrial
plot. In respect of these units, it was pointed out that development of
industrial plot will take about two and a half years.
In respect of those not found eligible by the Government for reallocation
and also those who did not apply pursuant to the advertisement, it was
suggested that they be also given a chance to find out alternate industrial
plot. In respect of the industrial units (‘A’ Category) which may fall in
extended category of 41 items if the extension is not ultimately approved
by the Government of India, they may also have to be phased out. According
to the Delhi Government, about 20, 000 units fall in this category and as
the matter is pending with the Government of India, directions may be
issued for early decision by Government and in the meanwhile, these
activities may not be directed to be closed.
In short, it was not seriously questioned that for the present except those
industrial units falling in category ‘A’, 15, 000 industrial units which
fall in the category of INSITU regularization and 6, 000 who are in the
waiting list, the rest of the industrial units have to close down.
In respect of industrial activity in rural area/Lal Dora, learned counsel
appearing for the Governments and various authorities did not dispute the
submission of learned Amicus Curiae that except industry falling in Group
‘A’ and ‘A-1’ of category ‘A’, no other industrial activity was
permissible. None made contra submission or brought to our notice any
provision permitting other industrial activity in the rural area/Lal Dora.
At this juncture, we may also deal with, in brief, the submission urged on
behalf of Government of India that it is not the implementing agency. One
has only to refer to Section 41 of the DD Act which empowers the Central
Government to issue directions to DDA for the efficient administration of
the DD Act. Who no such direction was issued, there could be no answer.
There is also no answer as to what steps were taken to consider the
extension of category ‘A’ list after adding to that category six more
household industries in terms of notification dated 10th April, 2001,
despite lapse of three years. No answer came forth that when the matter of
shifting of remaining ‘F’ category units was deferred by the Delhi
Government in January 2001 on the purported ground of the Police Force
being pre-occupied in making Republic Day arrangements and was dealing with
the security angle, what made the Central Government not to take up the
issue again with the Lt. Governor of Delhi after the Republic Day functions
were over. In this regard, we may refer to a letter dated 8th January, 2001
sent by Lt. Governor of Delhi to the Minister of Urban Development,
Government of India, stating that the operation for the closure of more
polluting ‘F’ category industrial units in non-conforming areas has been
completed and for launching of fresh operation to close down the remaining
‘F’ category units, the Police Force being pre-occupied with making
security arrangements for Republic Day function, the fresh operation for
closure of industrial units would be reviewed later. The later review has
not seen the light of the day despite expiry of more than three years. It
is evident that, in the meanwhile, the Government of India, as already
noticed above, has changed its stance and under the garb of issuing
guidelines for the Master Plan for Delhi – 2021, action against violators
of law has come to a standstill for an indefinite period.
Insofar as the Municipal Corporation of Delhi is concerned, we have already
noticed its stand that non-conforming industrial units falling in category
‘B’ to ‘F’ whether polluting or not polluting which have come up in
contravention of the Master Plan should not be permitted to operate and
should be closed down. In this connection, reference can be made to a
public notice issued by MCD informing the general public and
owners/occupiers/operators of industrial units situated in non-
conforming/residential areas that in compliance with the directions of this
Court, the industrial activity in violation of the Master Plan of Delhi –
2001 be closed down immediately failing which the Municipal Corporation of
Delhi shall forcibly close such units. All ad hoc licences granted, if any,
shall stand revoked/cancelled. In respect of the industrial activity in Lal
Dora, in the affidavit filed in October, 2002 by Chief Town Planner of
Municipal Corporation of Delhi it has been stated that the proposal for the
withdrawal of exemption notification would be placed before the
Corporation. Nothing seems to have been done in that direction. It is not
disputed that under the garb of exemption notification dated 24th August,
1963, all kinds of buildings have come up in the Lal Dora.
Insofar as IA 1527 is concerned, it seems evident that the applicant,
National Cable Industry, had undertaken to shift to the conforming area and
on that ground obtained an order for removal of the seal from its premises
so as to remove the machinery. The industrial unit was carrying on the
activity which falls in category ‘F’. The premises are in rural area. The
question whether the activity that was being carried on was polluting or
not need not be examined since the application deserves to be dismissed
firstly on the ground of suppression of material facts inasmuch as it has
not been mentioned therein that the applicant had given an undertaking that
he would be shifting his unit to the NOIDA area and secondly on the ground
that the applicant cannot be permitted to resile from the undertaking. The
applicant has already taken advantage of the undertaking and has removed
the machinery. In this view, we need not go into the larger question as to
which provisions of Municipal Laws will be applicable and which not to the
rural areas or areas in the Lal Dora. The aspect of industrial activity in
these areas has already been dealt with. Under no circumstances, the
applicant can be permitted to commence manufacturing activity from the
premises in question. The result of the aforesaid discussion is that except
household industry, all other industrial units which have come up in
residential/non-conforming areas in Delhi after 1st August, 1990 have to
stop functioning. Unfortunately, the Governmental authorities have not
lived up to the confidence that was reposed in them when the Court had
stepped aside and left the matter to Government in the year 1996, as
noticed hereinbefore. On the other hand, in the year 2002 while these
matters were pending, commercial use of industrial area was sought to be
regularized by DDA on payment of some amounts. On an application filed by
learned Amicus Curiae public notice to the above effect was stayed. Later
it was withdrawn by the authority. The action not only was utterly illegal
but also shows total non-application of mind. Thus, going by the past
experience, it would also be necessary to not only monitor but also to fix
responsibility so that illegal activity does not continue any further and
stops within the time schedule for its cessation fixed in this order. We
also wish to make it clear that those who have set up industrial units
after 1st August, 1990 have no right for allotment of a plot in an
industrial area. This would, however, not debar the Government/authorities
to allot to such oustees plots in industrial area but that under no
circumstances should delay the closure process. Before we part, a word
deserves to be said about Mr. Ranjit Kumar, learned senior counsel who has
assisted this Court as Amicus Curiae. Learned Senior counsel has very
effectively and ably assisted this Court both on facts and law. We place on
record our deep appreciation for the able assistance rendered by Mr. Ranjit
Kumar.
In conclusion, having regard to the aforesaid, we issue the following
directions :
1. All Industrial Units that have come up in Residential/non-conforming
areas in Delhi on or after 1st August, 1990 shall close down and stop
operating as per the following schedule:
(a) Industrial Units pertaining to extensive industries (‘F’ category)
within a period of four months.
(b) Industrial Units pertaining to light and service industries (category
‘B’ to ‘F’) within five months.
(c) Impermissible household industries (category ‘A’) within six months.
(d) 6, 000 industrial units on waiting list for allotment of industrial
plots within 18 months.
2. The Central Government is directed to finalise the list of permissible
household industries falling in category ‘A’ within a period of three
months.
3. 6, 000 industrial units on waiting list shall be allotted industrial
plots within one year.
4. The Delhi Government may announce a policy within six weeks giving such
incentives as it may deem fit and proper to those industrial units which
came to be established after 1st August, 1990 and may close down on their
own before the expiry of the time fixed in this order. The non-announcement
of incentives by the Government shall not, however, delay the closure
process.
5. The water and electricity connection of the industrial units found
operating after the due date of closure shall be disconnected forthwith and
in any case not later than a month of the date fixed for closure in
Direction No.1 above. If the industrial activity still continues, the
premises shall be sealed within a period of not later than another one
month.
The seal shall be removed and water and electricity connection restored
only after filing of an undertaking by the industrial unit not to
recommence any sort of industrial activity before an officer nominated for
the purpose by the Delhi State.
6. The Central Government is directed to finalise within six months
appropriate steps to be taken for making NCR region a success for
industrial activity by removing the hurdles pointed out by the industry.
The Governments of the adjoining States of UP, Rajasthan and Haryana are
directed to extend full cooperation.
7. The Municipal Corporation of Delhi shall consider within three months
the aspect of withdrawal of exemption notification as suggested in the
affidavit of its Town Planner filed on 28th October, 2002.
8. We appoint a Monitoring Committee comprising (i) Chief Secretary of
Delhi (ii) Commissioner of Police, Delhi (iii) Commissioner, Municipal
Corporation of Delhi and, (iv) Vice-Chairman of Delhi Development
Authority. This Committee would be responsible for stoppage of illegal
industrial activity. It would, however, be open to the aforesaid members of
the Monitoring Committee to appoint responsible officers subordinate to
them to oversee and ensure compliance of the directions contained in the
judgment.
9. The first Progress Report by the Committee shall be filed by 31st
August, 2004 and thereafter it shall be filed at least once in a period of
every two months.