PETITIONER: M.C. MEHTA Vs. RESPONDENT: UNION OF INDIA & ORS. DATE OF JUDGMENT: 10/05/1996 BENCH: KULDIP SINGH (J) BENCH: KULDIP SINGH (J) VENKATASWAMI K. (J) CITATION: 1996 AIR 1977 JT 1996 (5) 372 1996 SCALE (4)422 ACT: HEADNOTE: JUDGMENT:
O R D E R
The Master Plan for Delhi – perspective 2001 (the
Master Plan) as approved by the Central Government under
Section IIA(2) of the Delhi Development Act, 1957 (the Act)
was published in the Gazette of India on August 1, 1990. The
Master Plan specifically provides that the hazardous/
noxious/heavy/large industries are not permitted to operate
in the city of Delhi and the existing industrial units
falling in these categories are to be shifted/relocated. One
of the questions for consideration in this interlocutory
application is how and in what manner the land made
Available as a result of the shifting/relocating of these
industries is permitted to by used by the owners/occuriers
of the said land.
This Court on November 24, 1995 passed the following
order:
“The industries to be relocated are
to be assisted in every possible
manner. The question of utilisation
of the land available as a result
of shifting of these industries has
also to be examined. It is,
therefore, necessary to have
interaction with various
Departments/Governments. We are
informed that primary assistance
has to come from the National
Capital Region Planning Board. We
direct the Member Secretary of the
Board to be present in this Court
on 30th November, 1995 at 2 PM to
assist us in this matter. We
further direct the Urban Affairs
Ministry, DDA, NCT-Delhi and MCD to
depute a responsible officer each
to be present in this Court on 30th
November, 1995 at 2 PM.”
Pursuant to the order quoted above, Mr. Omesh Saigal, Member
Secretary, National Capital Region Planning Board (the
Board) and Mr. K.J. Alphons, Commissioner, Land management,
Delhi Development Authority (DDA) personally assisted this
Court on November 30, 1995. The assistance rendered by these
officers was noticed in the following words:
“Mr. Sehgal states that the
Planning Committee of the Board has
already – framed a scheme (the
scheme) regarding the re-use of the
land which is likely to be made
available as a result of the
shifting of the industries from
Delhi. The scheme is at present
with the DDA for consideration. We
have requested Mr. Sehgal to
prepare a short note of what he has
stated before us and place the same
on the record for our assistance.
He may do so within 2 days from
today. On behalf of the DDA,
Mr.K.J.Alphonse, Commissioner Land
Management is present. He states
that the Scheme sent by the Board
is at present under consideration
of the DDA. He further states that
after the Scheme is finalised it
would be sent to Urban Development
Ministry, Government of India for
finalization. We have requested
Mr.Alphonse to place the Scheme
before this Court along with a
note. He may do so within 2 days.”
On December 13, 1995 this Court passed the following
order:
“Pursuant to this Court order dated
November 30, 1995 Mr K.J.Alphons
has placed on record the proposed
scheme regarding utilisation of
land which would be available in
the event of re-location of the
hazardous/noxious/large scale
industries from Delhi. The scheme
has been discussed with learned
counsel appearing for various
industries. We are of the view that
it would be useful for the
representatives of the industries
to have discussion with the
Committee which is to finally
examine the proposed scheme. Mr. P
C Jain, Additional Commissioner,
DDA who is present in the Court has
explained to us various aspects of
the scheme. He is agreeable to the
proposal that 5/10 representatives
of the Industries may place the
suggestions/objections of the
industries to the proposed scheme
before the Committee. The
representatives of the industries
may the their written suggestions
before Mr. Jain within one week
from today Thereafter, Mr. Jain
will inform them about the date
when the Committee is likely to
meet. It would be desirable that
the Committee meets before the end
of this wear. In any case the
meeting must take place before 10th
January, 1996 because all these
matters have been listed for final
nearing on that date. In any case,
Mr. Jain will inform the
representatives about the date of
the meeting before 25th December,
1995.”
Mr. K.J. Alphons was the chairman of the committee in the
DDA which examined the question regarding utilisation of
land made available as a result of relocation/shifting of
the industries. The proposal of Alphons-Committee was
approved by the technical committee of the DDA on November
21, 1995. The operative part of the said proposal is as
under:
“SL. EXTENT Percentage to be Percentage of Percentage
NO. earmarked for Re- land to be to be ear
creation Ground used for marked and
playground or any providing to be
other open uses as Housing developed
specified by the facilities for resi-
Authority by the owner dential or
at norms to commercial
be determined -user to
by DDA/GNCT be develo-
Delhi. ped by the
owner.
————————————————————
1 2 3 4 5
————————————————————
1. Upto 2000 - - 100t to be Sq.mtr. developed (including the by the first 2000 Sq. owner in mts. of the accordance larger plot) with the zoning regulations of the Master Plan. 2. 0.2 to 5 ha. 33 27 40 3. 5 ha. to 10 ha.33 34 33 4. Over 10 ha. 33 37 30"
————————————————————
The Alphons-Committee almost agreed with the reuse of
vacated land as suggested by the Board.
Mr. V.K. Bugga, Town Planner, Municipal Corporation
Delhi (MCD), by way of a note placed on record, suggested
that “considering the increasing level of pollution in the
city, the most vibrant need of the community today is a
breath of fresh air which is only possible if more and more
green spaces within the city could be created besides
preserving existing ones.” According to Mr. Bugga “green
open areas upto an extent of 50 to 60 per cent or a less
intensive land use are the probable answer to the question
of the utilisation of the land made available on account of
shifting of industries under reference.”
Pursuant to this Court’s order dated December 13, 1995
(quoted above) several industrial units/organisations
submitted their objections/suggestions before Mr. P.C. Jain,
Additional Commissioner (Planning) DDA. The units/
organisations were also heard by a sub-group under the
chairmanship of Mr. Jain. The operative part of the
affidavit dated January 10, 1996, filed by Mr.P.C.Jain in
this respect, is as under:
“Based on the
observations/suggestions made by
all the industrial
units/organisations, Special
Technical Committee in its meeting
held on 8.1.1996 modified/clarified
its earlier decision of 21.11.1995
as under: (Item No.95/95 TC. File
No.F.20(16)/93/MP under the subject
regarding utilisation of land of
existing hazardous and noxious
units/large scale industry on their
closure/shifting).
(a) The policy would be applicable
only to the hazardous/ noxious (as
classified in Annexure H (a) and
heavy and large industry (as
classified in Annexure H(b) in the
MPD 2001.
(b) The percentage breakup of the
area is to remain unchanged between
the open area, housing facility
i.e. facilities required for
housing, commercial/residential.
The tern ‘Housing Facility’ in the
decision of the Technical Committee
refers to Community Facility
required for the population and as
detailed out on page 150 of the
Gazette (MPD 2001).
(c) The shifting industry shall
also be permitted to redevelop the
land for light and service industry
as per the provisions of MPD 2001.
(d) The ownership of the pockets
under open space and community
facility would also remain with the
shifting industry who will
develop/maintain these two.
(e) The shifting industry would be
given the benefit of FAR on the
entire plot of land, thus, vacated
for utilisation as per the
specified land uses in MPD 2001.
This is generally with the
understanding that the permissible
FAR would be 60 as in case of
extensive industrial use zone. No
construction of any nature shall be
permitted on the area identified as
open spaces tc be left as mandatory
green area. A nanum of 104 of the
total floor space shall have to be
used for community facility.
(f) For necessary modifications in
the text of MPD 2001, these pockets
would be designated as SPECIAL
AREAS with the controls as
specified in the scheme.”
This Court on January 24, 1996 passed the following order:-
“While we are hearing, Mr. D N
Goburdhan, learned counsel
appearing for the NCT, Government
(Department of Land & Building)
states that the Lt. Governor Delhi
has constituted a committee headed
by Mr. D R Khanna, judge, Delhi
High Court (retired) to consider as
to how and in what manner the land
eventually made available by
relocation of the industries is to
be utilised. Needless to say that
we are hearing the matter for the
last about 6 months and we are
almost at the final stages. We,
however, welcome any assistance
from any quarters. We direct the
Registry to send the draft scheme
placed by Mr. Alphonse and the
suggestions made by Mr. P C Jain to
Justice D R Khanna through Mr. D N
Goburdhan, adv. within two days
from today. Justice Khanna may have
deliberations with his committee
and place his
suggestions/recommendations before
this Court within 10 days
thereafter.”
Justice D.R. Khanna (retired) Chairperson, Land Use Advisory
Committee appointed by the National Capital Territory, Delhi
Administration submitted a note pursuant to the above quoted
order of this Court. It is stated in the note that the time
available with the Committee was short and as such the
deliberations of the Committee could not be finalised.
Keeping in view the urgency of The matter, Justice Khanna
states, the note contains an ex-facie view which he gathered
from various deliberations of the Committee. Regarding heavy
and large industries Justice Khanna stated that “these
industries have to be shifted under the master Plan. Their
number is not large but the lands occupied by them are
substantial. One such occupies about 184 acres, another 112
acres, still another 37 acres and so on”. Paras 15, 16, 18
to 21 & 29 of Justice Khanna’s report are as under:
“15. The land prices in Delhi have
phenomenally sky-rocketted. In
fact, their values may be many
times more than the yields which
are presently being enjoyed by the
operation of these industries and
even what they might have totally
enjoyed from the time of the start
of these industries. The
protestations of the industries
that they are going to suffer
because of the shifting may appear
misplaced and may be more to draw
as much of compensatory relief from
the government as may be possible.
Left to their choice, most of these
industries would themselves shift
and then develop/dispose off their
sites and structures, as there is
least doubt that they see gold
mines in them.
16. At the same time, it must be
acknowledged here that none should
grudge in the high profits that the
owners are likely to get by
development/sale of sites of
factories. They have been their
owners and did play needed roles
during relevant times in the
industrialisation of NCT. Any spurt
in the prices of real estate enures
for their benefits. The same can
only be circumscribed as the need
may dictate of social or
environmental good and uplifting
the face of capital city.
18. : am informed that some
hearings were provided to the
representatives of the industries
before formulation of these
schemes, and then the percentages
in column 3 to 5 on the user of
land were arrived at. I have no
occasion to fully grasp the
justification of these percentages
but treating them as they are, I
proceed to make my comments.
19. Firstly, so far as percentages
mentioned in column 5 of categories
2, 3 & 4 industries, some
grievances is made in the written
representations received by me that
they are too low. Be that as it
may, still the percentages of
column 5 would leave very big areas
of lands with these industries
which would still be gold mines
with them. A three bed rooms
residential flat in Delhi would
fetch anything between 20 to 50
lacs, and in commercial area, much
smaller would fetch much more.
20. It must be essentially taken
note of that those industries which
are located in residential areas,
the development may have to be
residential in nature. Similarly
lands located in commercial areas
should receive development of
commercial nature. Lands located in
industrial areas should retain
their user. This would ensure
development in accordance with the
zoning regulations of the Master
Plan.
21. The first category of the draft
scheme concerns land up to 2000 sq.
mts. Their 100% development is left
to the owners in accordance with
the Master Plan. More than 95% of
the industries in Delhi would fall
in this category and would thus be
substantially benefited. There is
almost a unanimity on this.
29. Adverting to the FAR, normally
it has to be confined to the areas
that are being built up on and
developed. There should therefore
be no reason why it should not be
confined to FAR of the lands in
col. 5 only. To extend that for the
benefit of col.5 so as to include
areas of col. 3 and 4 would deprive
areas of col. 3 & 4 of the FAR for
all time to come and would thus be
greatly determinantal to them
(especially when col. 4 has to be
independently built upon), while
giving overwhelming benefit to Col.
5 lands. It has to be kept in view
here that 2000 sq. mts. of larger
plots have still been reserved for
col. 5 while dealing with category
1 industries.”
Justice Khanna submitted a supplementary note dated February
26, 1996. On March 27, 1996 we heard learned counsel for the
parties. We also examined and discussed Alphons Committee
report, Jain Committee report and the two notes placed on
record by Justice Khanna. We were informed that Khanna
Committee was to submit its final report by April 10, 1996.
We, therefore, adjourned the hearing of the case to April
12, 1996. The matter was, however, taken up for
consideration on April 30, 1996. We finally heard the matter
on that day and passed the following order:
“Mr. P.V. Jai Krishnan, Chief
Secretary, NCT Delhi has filed an
affidavit dated April 29, 1996. We
have heard learned counsel on the
question of land-use, which may be
made available as a result of
relocation/shifting of the
industries from Delhi. We have
before us Alphone’s Committee
Report. We have also before us the
Report submitted by Jain Committee
in this respect. The Khanna
Committee appointed by NCT
Government Delhi has not as yet
completed its work. We have been
adjourning hearing of these matters
10 from time to time to await the
Khanna Committee Report. In the
affidavit it is stated by the Chief
Secretary that the tenure of Khanna
Committee has expired. It is stated
that the NCT Delhi Administration
is taking steps to renew the tenure
of the Committee for further
period.
We are of the view that no
useful purpose will be served to
look for any assistance in this
respect from the NCT Delhi
Administration.
We have finally heard the
matter today. Needless to say that
the Master Plan is the Charter for
this purpose and we have to lay
down the land-use keeping in view
the provisions of the Master Plan.
In this view of the matter, we
direct the NCT Delhi Administration
not to proceed with this matter any
further. It shall not constitute or
extend the tenure of any committee.
We shall finally decide the issue
and the said decision shall be
binding on all concerned.”
We have given our thoughtful consideration to the point
at issue before us. We have had elaborate discussion with
the learned counsel representing various industries which
are to be relocated/shifted. The basic charter for the land-
use in the city of Delhi is the Master Plan. The provisions
of the Master Plan are statutory and binding. The relevant
provisions regarding hazardous/noxious/heavy/large
industries under the Master Plan are as under:
“HAZARDOUS AND NOXIOUS INDUSTRIES
Refer Annexure III H(a).
a) The hazardous and noxious
industrial units are not permitted
in Delhi.
b) The existing industrial units of
this type shall be shifted on
priority within a maximum time
period of three years. Project
report to effectuate shifting shall
be prepared by the concerned units
and submitted to the Authority
within a maximum period of one
year.
c) The land which would become
available on account of shifting as
administered in (b) above, would be
used for making up the deficiency,
as per the needs of the community;
based on norms given in Master
Plan; if any land or part of land,
so vacated is not needed for the
deficiency of the community
services, it will be used as per
prescribed land use; however the
land shall be used for light and
service industries, even if the
land use according to the master
Plan/Zonal Development Plan is
extensive industry.
d)……………….
HEAVY AND LARGE INDUSTRIES
Refer Annexure III H(b)
a) No new heavy and large
industrial units shall be permitted
in Delhi.
b) The existing heavy and large
scale industrial units shall shift
to Delhi Metropolitan Area and the
National Capital Region keeping in
view the National Capital Region
plan and National Industrial Policy
of the Govt. of India.
c) The land which would become
available on account of shifting as
administered in (b) above, would be
used for making up the deficiency,
as per the needs of the community;
based on norms given in the Master
Plan; if any land or part of land
so vacated is not needed for the
deficiency of the community
services, it will be used as per
prescribed land use; however the
land shall be used for light and
service industries, even if the
land use according to the Master
Plan/Zonal Development Plan is
extensive industry.
d)……………..
i)……………..
ii)……………..”
It is thus obvious that the land which would become
available on account of shifting/relocation of the
industries can only be used for making up the deficiency, as
per the needs of the community, based on the norms given in
the Master Plan. If any land or part of the land, so vacated
is not needed for community services it can be used as per
the prescribed land use. To appreciate the concept “need of
the community” under the Master Plan it would be useful to
have a look at the following provisions of the Master Plan:
“In general it would be desirable
to take up all the existing
developed residential areas one by
one for environmental improvements
through (i) plantation and
landscaping (ii) provision of
infrastructure-physical and social
and proper access where lacking
(iii) possibility of infrastructure
management of the last tier through
the local residents.
Conservation and
revitalisation is required in case
of traditional areas and
environmental upgradation and
improvement is needed in other old
build-up areas.
LUNG SPACES
The Master Plan for Delhi in
1962 had indicated 9101 ha. of
recreational area at the Master
Plan level, Within this area the
city has 18 major district parks
from different periods of history
i.e. Roshanara and Qudsia gardens
of Mughal period. Talkatora garden
of British period and Budha Jayanti
park of post independence era. Out
of this area 6012 ha. of district
park and regional park area is now
available. During the
implementation of the plan
approximately 34 percent of
recreational area has been last to
other uses. On the basis of the
land use surveys conducted in 1981
about 2710 ha. of additional
recreational area at the Master
Plan level has been earmarked in
the land use plan in the DUA-81 and
the urban extension indicated in
the plan. Thus in the urban areas
shown in the land use plan the
total recreational area indicated
is 8722 ha. for a population of
about 9 million by 2001 @ 9.7 sqm.
per person. Part of this area is
required to be developed for sports
activities as per policy.
Further conversion of
recreational areas to other uses
should be permitted only under
extraordinary circumstances. Areas
in lieu of such conversion may be
provided elsewhere in order to
maintain the over all average for
the city.
Within DUA-81, the following
special activity area for
recreation are proposed for
development.
(a) Additional special children
parks of 4 ha. each (of the type of
India Gate children park) 7 nos.
Location of Special Children
Park in DUA-81 to be in the
district parks of Dhaula Kuan,
Pitam Pura, Keshopur, Sanjay Van
Trilok Puri, Gulabi Bagh, Feroz
Shah Kotla and Coronation Memorial.
(b) Children traffic training parks
of 5 ha. each, 6 nos.
Location of children Traffic
Training Park in DUA-81 to be in
the district parks at Punjabi Bagh,
Baba Kharak Singh Marg, Pragati
Maidan, Dilshad Garden, Wazirpur
and Loni Road.
(c) Picnic huts 5 nos.
About 30% of the district park
areas should be developed as wood
lands, where picnic hut could also
be located.
Location of Picnic Huts in
DUA-81 to be in the district parks
at Paschimpuri, Pitam Pura,
Bidiwala Bagh, Kalkaji and
Mehrauli.
Preferred species of the trees
to be planted in parks, gardens,
wood lands and roadside etc. to
suit local conditions are given in
Annexure II.
In the Urban Extension
wherever possible Water bodies
(lakes) should be developed to act
as major lung spaces and to attract
migratory birds and for improving
the micro-climate. A special
recreational area on the pattern of
Disneyland/amusement park could be
developed in the land becoming
available for the channelisation of
river Yamuna.
The district parks in the
Urban Extension would be @ 9 sqm
per person which would also include
special parks given as under:
Special Children Park 4 Nos.
(4ha. each
Children Traffic
Training Parks 4 Nos.
(3ha. each)
Picnic Huts 4 nos.
In new developments the
neighbourhood park of at least 1.5
ha. for 15,000 population should be
planned with flowering trees and
shrubs so as to achieve colourful
pleasant environment throughout the
15 year.”
Delhi is one of the most polluted cities in the world.
The quality of ambient air is so hazardous that lung and
respiratory diseases are on the increase. The city has
become a vast and unmanageable conglomeration of commercial,
industrial, unauthorised colonies, resettlement colonies and
unplanned housing. There is total lack of open spaces and
green areas. Once a beautiful city Delhi now presents a
chaotic picture. The most vital “community need” as at
present is the conservation of the environment and reversal
of the environmental degradation. There are virtually no
“lung spaces” in the city. The Master Plan indicates that
“approximately 34 percent of recreational areas have been
lost to other uses”. We are aware that the housing, the
sports activity and the recreational areas are also part of
the “community need” but the most important community-need
which is wholly deficient and needed urgently is to provide
for the “lung spaces” in the city of Delhi in the shape of
greenbelts and open spaces. We are, therefore, of the view
that totality of the land which is surrendered and dedicated
to the community by the owners/occupiers of the relocated/
shifted industries should be used for the development of
greenbelts and open spaces.
The core question for consideration, however, is how
much of the total land which would become available from
each of the industrialists is to be taken away by the
community for its use and how much is to be left in the
hands of the industrialists for the community use. The
suggestions given by Alphons Committee in this respect have
been noted by us in the earlier part of the order. Mr. Omesh
Sehgal, Mr. P.C. Jain and Justice Khanna by and large agree
with the suggestions of the Alphons Committee. We are of the
view that no useful purpose would be served by maintaining
two categories as suggested by Alphons Committee in Col.3
and 4. After leaving the part of the land with the owner for
developing the same in accordance with the permissible land-
use under the Master Plan the remaining land should be
surrendered to the Delhi Development Authority (DDA) for
developing the same to meet the community needs. When the
Master Plan permits the use of the land only to meet the
community-needs, it obviously means that the land has to be
surrendered and dedicated to the community. While meeting
the community needs it is necessary to make suitable
provision for the owner to enable him to meet the expenses
of relocating/shifting the industry. It would, therefore, be
in conformity with the broader concept of “community need”
under the Master Plan, to permit the owner to develop part
of the land for his own benefit and surrender the remaining
land to the use of the community at large.
We, therefore, order and direct that the land which
would become available on account of shifting/relocation of
hazardous/noxious/heavy and large industries from the city
of Delhi shall be used in the following manner:
“SL. EXTENT Percentage to be Percentage to be
NO. surrender and developed by the
dedicated to the owner for his
DDA for develop- own benefit in
ment of greenbelts accordance with the
and other spaces user permitted under
the Master Plan
————————————————————
1 2 3 4
————————————————————
1. Upto 200& – 100% to be
Sq.mtr. developed
(including the by the
first 2000 Sq. owner in
mts. of the accordance
larger plot) with the
zoning
regulations
of the
Master
Plan.
2. 0.2 to 5 ha. 57 43
3. 5 ha. to 10 ha. 65 35
4. Over 10 ha. 68 32″
————————————————————
We do not agree with the learned counsel for the
industrialists that Floor Area Ratio (FAR) be permitted to
them on the total area of the plot. We however, direct that
on the percentage of land as shown in Col.4 the owners at
serial No.2,3 and 4 shall be entitled to one and half time
of the permissible FAR under the Master Plan.
The DDA has suggested that it may be necessary to amend
the Master Plan for regularising the land use as directed by
us. We do not agree with the suggestion. The totality of the
land made available as a result of the relocation/shifting
of the industries is to be used for the community needs. The
land surrendered by the owner has to be used for the
development of greenbelt and open spaces. The land left with
the owner is to be developed in accordance with the user
permitted under the Master Plan. In either way the
development is to meet the community needs which is in
conformity with the provisions of the Master Plan.
We are, therefore, of the view that it is not necessary
to amend the Master Plan.