{"id":94108,"date":"2004-05-07T00:00:00","date_gmt":"2004-05-06T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/m-c-mehta-vs-union-of-india-ors-on-7-may-2004"},"modified":"2016-12-20T20:32:56","modified_gmt":"2016-12-20T15:02:56","slug":"m-c-mehta-vs-union-of-india-ors-on-7-may-2004","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/m-c-mehta-vs-union-of-india-ors-on-7-may-2004","title":{"rendered":"M.C. Mehta vs Union Of India & Ors on 7 May, 2004"},"content":{"rendered":"
Supreme Court of India<\/div>\n
M.C. Mehta vs Union Of India & Ors on 7 May, 2004<\/div>\n
Bench: Y.K. Sabharwal, B.N. Agrawal<\/div>\n
           CASE NO.:\nWrit Petition (civil)  4677 of 1985\n\nPETITIONER:\nM.C. MEHTA\n\nRESPONDENT:\nUNION OF INDIA & ORS.\n\nDATE OF JUDGMENT: 07\/05\/2004\n\nBENCH:\nY.K. SABHARWAL & B.N. AGRAWAL\n\nJUDGMENT:\n<\/pre>\n
JUDGMENT<\/p>\n
2004 Supp(2) SCR 504<\/p>\n
[With Ia Nos.1206, 1204, 1205, 1224, In Wp (C) No.4677\/85, Ia No.1322 In Ia
\nNo.22 In Wp (C) No.4677\/85, Wp (C) No.98\/2000, Ia No.1367 In Ia No.22 In Wp
\n(C) No.4677\/85 Ia No.1816 In Wp (C) No.4677\/85, Ia No.1527 In Ia No.22 In
\nWp (C) No.4677\/85]<\/p>\n
The Judgment was delivered by : HON’BLE JUSTICEY. K. SABHARWAL<\/p>\n
Hon’ble Justice Y.K. SABHARWAL<\/p>\n
This case about unauthorized industrial activity in Delhi in residential
\narea has a protracted background. The present examination is confined to
\nthe issue of industrial activity in residential\/non-conforming areas to
\ndecide what directions may be issued to put an end to such illegal
\nactivity. As a result of orders passed from time to time, hazardous and
\nnoxious industries and heavy and large industries (‘H’ Category) have been
\nshifted out of Delhi. Some of extensive industries (‘F’ category) have also
\nbeen shifted out of Delhi. As per the State Government, non-polluting ‘F’
\ncategory industries have not been yet shifted. The question is what should
\nbe done about continued unauthorized use contrary to Master Plan and Zonal
\nPlan by remaining ‘F’ category and ‘B’ to ‘E’ category (light and service
\nindustries) and household industries (‘A’ category industries). These
\nindustries are continuing in residential\/non-conforming areas. Such
\nactivity is mostly in residential areas. It is not in dispute that most of
\ncontinued industrial activity under consideration is in contravention of
\nlaw except only few household industries which are continuing in
\nresidential areas. To decide the question, it is necessary to first briefly
\nnotice orders passed by this Court during last about one decade.\n<\/p>\n
In the various orders passed in the year 1995, this Court noticed that a
\nlarge number of industries were located in residential\/non-conforming areas
\nin violation of the Delhi Master Plan formulated under the Delhi
\nDevelopment Act, 1957 (for short, ‘DD Act), Delhi Municipal Corporation
\nAct, 1957 (for short, ‘DMC’ Act) and other statutory provisions. Noticing
\nthat the Master Plan stipulates setting up of industries only in conforming
\nareas, i.e., the industrial areas earmarked for that purpose, it was
\nindicated that the industries in non-conforming areas have to stop
\nfunctioning. The first concern of the Court was to stop the functioning of
\n‘H’ category industries, since most of it were discharging highly toxic
\naffluent. It was noticed that as per the affidavit filed by Mr. D.S. Negi,
\nSecretary (Environment), Government of Delhi, it was estimated that there
\nwere 93, 000 industries which were operating in Delhi and majority of these
\nwere in non-conforming use zones. Public notices by the Government invited
\nall industries operating in non-conforming use zone to give option to shift
\nto available industrial plots in the industrial estates. The response from
\nthe industry was very poor. The industries operating in Delhi were called
\nupon by issue of public notices in newspapers to furnish information in
\nrespect of the product manufactured, activity carried on, area, size,
\nnumber of persons employed, power load, year of commencement etc. Out of
\n93, 000 industries, only 513 industries and 382 persons responded. It was
\nnoticed that MCD was granting licences and registering various industrial
\nunits in non-conforming areas and permitting the industries to be set up in
\nresidential areas. Naturally, a surprise was expressed by this Court that
\non the one hand, the Court was issuing orders to reallocate the existing
\nindustries that were operating in the residential\/non-conforming areas and
\non the other hand MCD was permitting setting up of new industries in
\nresidential areas. According to the MCD, it was done under the directions
\nof the State Government. The MCD was directed not to register or grant
\nlicence to any industry in the non-conforming\/residential area.\n<\/p>\n
We may also make a brief reference to the orders that were passed in the
\nyear 1996. In the order dated 19th April, 1996, noticing the contention of
\nSolicitor General for India that certain household industries can be
\npermitted to operate not only in residential area but in residential
\npremises itself, the Court observed that the provisions of the Master Plan
\nhave to be complied with and in case any non-residential activity is
\npermitted in residential area under the Master Plan that cannot be stopped.
\nA High Powered Committee was constituted to examine which type of
\nindustries can be permitted in the residential area. The State Government
\nwas directed to issue public notices asking the industries which are
\noperating in different residential areas of Delhi to approach the Committee
\nfor necessary permission. It was also made clear that the industries which
\ndo not obtain permission shall have to stop functioning in residential area
\nw.e.f. January 1, 1997. It would be useful to extract the relevant part of
\nthe order dated 19th April, 1996 which reads as under :\n<\/p>\n
“We make it clear and direct that no industry in any residential area of
\nDelhi\/New Delhi shall be permitted unless it has obtained the clearance of
\nthe committee and has obtained the necessary licence and the consent from
\nthe statutory authorities. All those industries which have not obtained
\nnecessary permission from the committee shall stop operating in the
\nresidential area w.e.f January 1, 1997. We direct the NCT Delhi to give
\nwide publicity to this order so that the industries are in a position to
\nnote that they have to obtain the necessary clearance from the committee.
\nNeedless to say that while granting permission to an industry to run in a
\nresidential area, the committee shall keep in view all the conditions laid
\ndown under the Master Plan including evaluation of impact on municipal
\nservices and environment needs of the area…”\n<\/p>\n
The orders were also passed directing the Delhi Government to issue public
\nnotices in newspapers requiring the industries in residential\/non-
\nconforming areas to apply for allotment of plots in the Industrial Estate
\nand also giving undertaking that on such allotment they will shift from the
\nexisting place. The court thinking that the Delhi Government was now
\nseriously processing the project of relocating the industries operating in
\nthe residential\/non-conforming areas of Delhi, left the field for the
\nGovernment to act on its own and relocate the industry in terms of orders
\ndated 18th December, 1996. The Government was, however, directed to file
\nprogress report in this Court every three months.\n<\/p>\n
It is a matter of anguish that subsequent events show that the trust that
\nwas reposed by this Court on the Government was belied in terms of the
\naction to be taken for implementation of law, namely, the continuance of
\nindustrial activity in areas in question in conformity with the user
\nprescribed by the Master Plan. On 8th September, 1999, it was noticed that
\nthe progress report filed indicated that though some steps had been taken
\nbut the same had not been taken in the right earnest as a result of which
\nindustries are continuing to operate in the residential zone. The Court
\ndirected that if industries in the residential area cannot be shifted and
\nrelocated for any reason whatsoever by 31st December, 1999, then those
\nindustries shall be closed down. The Government was directed to give due
\npublicity in the newspapers so as to make the industry aware. On 10th
\nDecember, 1999, the State Government came up with an application (IA
\nNo.1206), inter alia, seeking modification of the order dated 8th
\nSeptember, 1999 and for extension of time upto March 2004 for shifting of
\nindustries which had been found eligible for allotment of alternate
\nindustrial accommodation under the ‘Relocation Scheme’ subject to their
\nfunctioning in conformity with the pollution norms under the existing laws.
\nAs per what the Delhi Government itself says in this application, survey
\nconducted by Delhi Pollution Control Committee in the year 1995-96 showed
\nthat about 1, 26, 000 industrial units were functioning in Delhi out of
\nwhich approximately 1, 01, 000 were in residential\/non-conforming areas and
\nonly about 25, 000 in approved industrial areas. The application also
\nstates that in these 1, 01, 000 illegally operating industrial units, about
\n7, 00, 000 workers would be employed. It was stated that closure of these
\nindustries will result in hardship to approximately 7, 00, 000 families.\n<\/p>\n
The question would be can the Government plead such a justification for
\nviolation of law and throw to winds the norms of environments, health and
\nsafety or is it possible to help the workers even without violating law if
\nthere is a genuine will to do so. We would answer the question after
\nnoticing few further facts.In the application (IA 1206) it has been further
\nstated that out of 52, 000 applications received under the relocation
\nscheme in December, 1996, approximately 23, 000 have been found to be
\neligible. The prayer in the application also is that the industrial units
\nfunctioning in residential areas where concentration of industry is 70%,
\nshould be continued to operate from their existing location. The applicant
\nthus seeks INSITU regularization. According to the Government, about 15,
\n000 industrial units would fall in this category and another approximately
\n6, 000 industrial units may fall in the category of household industries
\n(‘A’ category)<\/p>\n
At the outset, it deserves to be noticed that assuming, for the present,
\nthat facts stated above by the Government are correct and the plea of
\nINSITU regularization is justified then, the immediate question would be as
\nto what steps were taken by it in respect of remaining illegal and
\nunauthorized industrial units, which number over 50, 000. The Government
\nhas no answer, let alone a satisfactory answer even despite lapse of nearly
\nfive years.\n<\/p>\n
Reference may also be made to the progress reports filed in this Court
\npursuant to the orders dated 18th December, 1996. The first report dated
\n31st March, 1997 sought extension of time for closure of those industries
\nwhich had applied for allotment of industrial plots\/flats and had submitted
\nthe requisite undertakings prescribed by this Court. For them extension was
\nasked for till such time the industrial accommodation with power
\nconnections were ready in newly constructed\/developed flatted factory
\ncomplexes\/industrial estates. Thus, the extension sought was for above
\ncategory of industrial units and not others. That being the position,
\nothers could continue the illegal industrial activity only because of
\ninaction by the Government. It is evidently total non-implementation of the
\nstatutory provisions. In yet another Report (for the period ending 31st
\nMarch, 1998), it was stated that survey of industries in all districts has
\nshown that in respect of 50, 704 industrial units, 21, 681 units have not
\napplied under the relocation scheme. The same question would again arise
\nwhy no action has been taken in respect of these industries. The scenario
\nis same in respect of the progress reports filed upto the period of 30th
\nSeptember, 1998 regarding the relocation of industries operating in
\nresidential\/non-conforming areas of Delhi.\n<\/p>\n
Before filing IA No.1206 of 1999 or at least in that application itself,
\nthe Government did not think it advisable to state what action it will take
\nagainst those who were not found eligible or those who did not even apply
\nand were continuing industrial activity in violation of law. Further, it
\ndid not state how many would fall in the category of INSITU regularization
\nand in ‘A’ category industry. In this connection, reference may also be
\nmade to the observations in the order dated 8th February, 2001 that there
\nwas an unexplained figure of more than 32, 000 industries in non-conforming
\nareas which would not be covered by (i) INSITU regularization or (ii) fall
\nwithin the expected expanded definition of ‘household industry’ or (iii)
\ncome under the category of industries which had applied and had been found
\neligible for allotment of land. It was noticed that no explanation was
\ngiven with regard to these industries continuing in the non-conforming
\nareas. The position after lapse of nearly 3 years is no better.\n<\/p>\n
Regarding the total number of industrial units functioning in
\nresidential\/non-conforming areas, different surveys have given different
\nfigures, as per the material placed before this Court by Government. There
\nis also no clarity as to the facts and figures regarding infrastructure
\netc. in respect of the industrial units being considered for INSITU
\nregularization. Although in the affidavit filed on 5th August, 2000 by the
\nPrincipal Secretary and the Commissioner of Industries of the Delhi
\nGovernment, it was stated that the Government had recommended INSITU
\nregularization, it has not been stated as to what is the position of the
\nwater, electricity and other facilities for the industries; what is the
\nplanning for remaining 30% residents as they may be deprived of
\nelectricity, water and other facilities on account of over drawl by the 70%
\nindustrial units. Whether 30% who are using the premises in accordance with
\nthe permissible use in the Master Plan must continue to suffer at the hands
\nof those who are functioning in violation of the Master Plan. This question
\nhas remained unanswered despite elaborate arguments spread over various
\ndates. On the aspect of INSITU regularization, the stand of the Delhi
\nDevelopment Authority, as contained in the affidavit of its Commissioner
\n(Planning) dated 11th September, 2000 was that the DDA was favourably
\nconsidering INSITU regularization with the following conditions :\n<\/p>\n
i) Building norms shall be the same as that for the residential premises.\n<\/p>\n
ii) Non-pollutant\/non-hazardous industries would be allowed to operate.\n<\/p>\n
iii) Augmentation of infrastructure as per requirement would be undertaken
\nto meet the growing demand as a result of conversion of these areas into
\nmanufacturing (light and service) household industries.\n<\/p>\n
Despite lapse of about 3 years, nothing significant, either in respect of
\ninfrastructure or the other conditions, has been done. The second Master
\nPlan of Delhi was enforced w.e.f. 1st August, 1990. In respect of ‘F’
\nCategory industries, it provides that no new industrial unit shall be
\npermitted except in the existing identified extensive industrial areas. In
\nrespect of such ‘F’ category industries which were already existing in non-
\nconforming areas, the Master Plan provides that the said industrial units
\nshall be shifted to the permissible industrial use zone within a maximum
\nperiod of three years after the allotment of plots by various Government
\nagencies. On one hand, the Master Plan stipulates the shifting of existing
\n‘F’ category industrial units within a specified time limit and on the
\nother new industrial units have come up even after enforcement of the
\nMaster Plan and even in respect of such units the Government has not only
\nfailed to take action but has also failed to take a positive stand before
\nthis Court that immediate steps would be taken to stop such blatant
\nviolations. Further, when the Government is asked to give suggestions
\nregarding stoppage of functioning of these industrial units, the suggestion
\nthat comes forth is that the industrial units in residential\/non-conforming
\nareas which were set up after 1996 may be directed to stop the industrial
\nactivity contrary to the Master Plan. Those violators who had commenced
\nindustrial activity in residential\/non-conforming areas after 1st August,
\n1990 are also not being excluded from the proposal of INSITU
\nregularization.\n<\/p>\n
It is also necessary to note as to what stand from time to time the
\nMinistry of Urban Development has taken on the aspect of INSITU
\nregularization. In an affidavit dated 4th December, 2000 filed by its
\nDeputy Secretary, reliance has been placed by the Ministry upon the
\nstatement made by its Minister on the floor of the House on November 24,
\n2000. In that statement, opposing regularization, the Minister said as to
\nwhat Delhi we want to live, what type of legacy do we wish to bequeath to
\nposterity and to our children and grand children; Do we want our city to
\nbecome a junkyard of unauthorized constructions, mirroring civic and moral
\nchaos, or an orderly and disciplined capital of a Resurgent Republic,
\nembodying values of justice and honesty on the basis of which we have often
\nclaimed a pre-eminent position for our culture and civilization. The
\nstatement further gave facts and figures that 50 million gallons per day of
\nindustrial waste is going into the Yamuna and said that what is seen
\nflowing in it today is nothing but sewer and industrial waste. In Okhla
\nalone, for instance, during March-April, 2000, the bio-chemical oxygen
\ndemand (BOD) level in the river was about 70 mg. per litre as against a
\nstandard of 3 mg. per litre, i.e., 25 times more than the permissible
\nlevel. An apprehension was expressed that if the present attitudes and
\npractices persist, Delhi would run the risk of having as many as 30 million
\npeople in the next few years and becoming an ugly, unhealthy, unworkable
\nand unlivable city. In the process, a fatal blow would also be dealt to the
\ndevelopment of National Capital Region which comprises a substantial part
\nof three important neighbouring States of Haryana, Rajasthan and Uttar
\nPradesh. The affidavit states that in case of large number of residential
\ncolonies, with so called 70% concentration of industries of which the
\nentire land use is sought to be changed from residential to industrial,
\nshould the Master Plan be amended to destroy its very soul and structure or
\nsubvert the basic norms of health, habitation and environment or reward the
\nillegal establisher of industries and in the process penalize the law-
\nabiding residents and condemn them to stay for ever in industrial areas or
\nforce them to abandon their houses built with hard earned income? It also
\nstates that no one has made it clear where the residents would be taken,
\nwhat would be cost of resettlement, who will bear it and how the layouts
\nand pattern of services and infrastructure, meant for residential colonies,
\nwould be adjusted to the requirements of industries and consequent traffic
\nand transport that would flow not only in the colonies in question but also
\nin their neighbourhood.(Emphasis supplied is ours)<\/p>\n
In regard to the nature of survey that had been conducted resulting in the
\nproposal of INSITU regularization in areas having 70% concentration of
\nindustries, the affidavit states that demand to secure vital and large
\nscale changes in the Master Plan, which would have the effect of tearing
\nits entire fabric apart, is based upon the preliminary and perceptional
\nsurvey of three officers of the Industries Department of Government of
\nDelhi. The report itself calls the survey ‘preliminary’. The survey is
\nneither scientific, nor precise nor reliable. It does not even contain
\ndetailed particulars of industries – whether they are polluting or non-
\npolluting, licenced or unlicensed. The survey also does not indicate as to
\nhow many industrial units belong to those industrialists who may have
\nalready obtained the benefits of relocation once, either from the Delhi
\nDevelopment Authority or from the Industries Department or have secured
\nspace in flatted factories and have come back again to the non-conforming
\nareas, while keeping the alternative plots allotted to them for shifting,
\nor have set up additional unit or units in the residential areas.\n<\/p>\n
Now, let us see what Ministry says after about three years in its affidavit
\ndated 28th July, 2003. The guidelines for Master Plan for Delhi – 2021
\nissued by the Ministry were filed along with the said affidavit as also a
\nletter dated 28th July, 2003 sent by Secretary of the Ministry to the
\nChairman of DDA. The letter states that the Ministry has made broad
\nguidelines for the Master Plan which highlight some of concerns that need
\nresolution as well as possible policy initiatives so as to deal with the
\nproblem that affect Delhi. The letter further states that this should also
\naddress the issue of concentration of industries to the extent of 70% or
\nmore in some non-industrial areas. The guidelines noticed that a major
\nissue confronting the planned development of Delhi is the apparent and
\nfrequent violation of the planning and development and control norms. It
\nstates that there is a growing variation between the plan for Delhi and
\ncity on the ground and, therefore, it is essential that the Master Plan
\npolicies should be implementable in an effective manner and vigorously
\nenforced. The existing legal framework for enforcement of the Master Plan
\nprovisions including unauthorized construction and encroachment on public
\nland also needs examination so as to initiate proposals for its
\nstrengthening where necessary. In the guidelines, there is no specific
\nreference to regularization as such but evidently there is a slant in that
\ndirection in the stand of the Ministry. It is, however, nobody’s case that
\nany decision about regularization has been taken.\n<\/p>\n
Regularization cannot be done if it results in violation of right of life
\nenshrined in Article 21 of the Constitution. The question will have to be
\nconsidered not only from the angle of those who have set up industrial
\nunits in violation of the Master Plan but also others who are residents and
\nare using their premises as allowed by law. Further, the regularization
\naffects not only the remaining 30% residents of the areas wherein
\nregularization may be in contemplation but has affect on the entire area,
\nparticularly with respect to infrastructure available. In respect of the
\ninfrastructure in housing components, what provisions should be made has
\nbeen incorporated in the Master Plan – 2001 which has to be kept in view.
\nThe existing availability and projected need of water supply, sewerage,
\npower and solid waste has been indicated in the Master Plan. None has
\napplied his mind to any of these aspects.\n<\/p>\n
At first instance, a proposal for INSITU regularization in 15 areas was
\nconsidered. Now 24 areas are sought to be regularized. None of the
\naforesaid aspect regarding infrastructure has been considered before the
\nproposal was sent by the State Government and Delhi Development Authority
\nfor INSITU regularization to the Central Government. How can Government of
\nIndia agree in principle for INSITU regularisation in isolation without
\nanyone having examined the relevant considerations. It is evident that
\nrelevant aspects such as availability of sewerage, drainage, power and
\nwater have not been examined. Further, a perusal of the survey document
\nshows that many industrial activities were polluting in nature. The
\nproposal was considered by Delhi Development Authority on 20th December,
\n2002. The note dated 20th December, 2002 notices that a large number of
\nindustrial clusters are existing in various parts of the National Capital
\nTerritory of Delhi in contravention of land use provisions of the MPD –
\n2001 and thereby facing the problem in their continuance on their existing
\nsite and with a view to resolve this problem a policy needs to be evolved
\nfor regularization\/redevelopment of the said industrial clusters so that it
\nmay eventually be considered to be part of the MPD – 2021. It was decided
\nthat the redevelopment proposal could be formulated and taken up by forming
\ncooperative industrial society by the beneficiaries. Total redevelopment
\nwork will be undertaken by the cooperative society at their own cost.
\nChanges in land use and enhanced FAR facilities were directed to be paid to
\nthe concerned authorities by the society. All these proposals, without
\nexamination of the relevant consideration as noticed hereinbefore, were
\napproved and were forwarded to the Government of India. All this has
\nhappened despite the fact that the Ministry of Urban Development, in terms
\nof its letter dated 8th September, 2000 had informed the Delhi Development
\nAuthority that the change in the Master Plan was not justified. No detailed
\njustification for change of land use from residential to industrial and the
\nparameters on which such change would be based had been given. The matter
\nhas also not been discussed and deliberated with the Central Pollution
\nControl Board, Town and Country Planning Organisation and the Delhi Urban
\nArts Commission. It was not made clear as to what would happen to those who
\nare using their residential premises in accordance with the provisions of
\nthe Master Plan. The changes in the Master Plan or its norms to accommodate
\nillegal activities not only amount to getting reward for illegal activities
\nbut also results in punishing the law abiding citizens. We may refer to
\nanother letter dated 15th November, 2001 sent by the Ministry of Urban
\nDevelopment to Delhi Development Authority on the issue of INSITU
\nregularization stating that the issue of industrial housing, sanitation,
\ninfrastructure and adherence of polluting control norms have to be stressed
\nand detailed in such studies. DDA was also asked to consider whether such
\nareas where non-conforming industries are presently operating are isolated
\nblack spot in otherwise purely residential, semi-urban area or whether they
\nrepresent logical extension of existing industrial neighbourhood. It
\nreiterated that the quality of life, environment and the rights of the
\nresidents have to be highlighted in forefront.\n<\/p>\n
The question cannot be examined only from the angle of the industry or even
\nthose who are employed there in the said industries. It is imperative for
\nthe State Government, Delhi Development Authority as also the Government to
\naddress itself to the larger question of not only legalizing blatant
\nillegalities but as to what Delhi is intended to be left for the children
\nand future generation by permitting industrialisation in residential areas.
\nThe facts demonstrate that the State Government and Delhi Development
\nAuthority have been wholly remiss of all its functions, duties and
\nobligations. The Central Government, for the reasons which are not far to
\nseek, has been shifting its stand. As against a definite and positive stand
\ntaken in the years 2000 and 2001 and affidavits filed in this Court, there
\nis a shift in the stand in the affidavits filed in the years 2002 and 2003.
\nAs against the principled stand taken in the affidavits filed in the year
\n2000, now the stand in nutshell is that question would be considered when
\nMaster Plan for 2021 is finalized. There is no plausible answer to the
\nquestion as to why in the meanwhile the illegality should continue without
\nany action. In any case, as at present there is no regularization. The
\nindustrial activities in residential\/non-conforming zones are wholly
\nillegal.\n<\/p>\n
The Delhi Development Authority has to bear in mind that it has to perform
\nits function in accord with the provisions of the Delhi Development Act,
\n1957 which was enacted to provide for the development of Delhi according to
\nthe plan and for matters ancillary thereto. ‘Amenity’, as provided in
\nSection 2(a), includes road, water supply, street lighting, drainage,
\nsewerage, public works etc. ‘Building’, as provided in Section 2(b),
\nincludes any structure or erection or part of a structure or erection which
\nis intended to be used for residential, industrial, commercial or other
\npurposes, whether in actual use or not. The obligation to prepare a Master
\nPlan is contained in Section 7 of the DD Act. The Master Plan is required
\nto define the various zones into which Delhi may be divided for the
\npurposes of development and indicate the manner in which the land in each
\nzone is proposed to be used. The preparation of the zonal development plans
\nhas been provided for in Section 8. The said plans provide for the proposed
\nland use. The Town Planners are supposed to examine various aspects before
\npreparation of the Master Plan and Zonal Plan and providing the land use.
\nThe Act provides for a detailed procedure for modification of the Master
\nPlan and the Zonal Development Plan (Section 11-A). Section 14 forbids use
\nof land in contravention of the plans. It provides that no person shall use
\nor permit to be used any land or building otherwise than in conformity with
\nplan in a zone. Section 29(2) is a penal provision, inter alia, providing
\nfor the penalty on any person who uses any land or building in
\ncontravention of Section 14. Section 31-A is the power of the authority to
\nseal unauthorized development. The illegal industrialization in
\nresidential\/non-conforming area commenced and has continued and the
\nAuthority, the Governments and its agencies have been totally negligent in
\ndischarge of its functions and obligations under the provisions of the DD
\nAct.\n<\/p>\n
Regarding the non-setting up of Industrial Estates in Delhi what the
\nposition was in 1990, when the second Master Plan was enforced, is apparent
\nfrom the affidavit dated 2nd February, 2001 filed by the Commissioner
\n(Planning), Delhi Development Authority. Dealing with the question of
\nrelocation of non-conforming industries and the setting up of the
\nindustrial estate in Delhi, that affidavit states :\n<\/p>\n
“Master Plan for Delhi 2001 (MPD-2001), came in force on 1.8.1990,
\nstipulates earmarking 6 to 7% of land in urban extension and thus the
\ndevelopment of 16 new light industrial areas (1533 ha.) and another 263 ha.
\nfor extensive industrial area to be mainly utilized for shifting of
\nexisting incompatible industrial units. As per MPD-2001 in 1981 there were
\nabout 46, 000 industrial units out of which 8000 were in non-conforming
\nareas which were to be shifted. It was reassessed that about 24000
\nindustrial units will require shifting and by 2001 the total number of
\nindustrial units will be around 93000. MPD-2001 clearly stipulates that the
\naction for shifting of polluting industries is to be taken by Delhi
\nAdministration, as cited below :’Action shall be taken by Delhi
\nAdministration to prepare a list of individual noxious and hazardous
\nindustrial units to be shifted and depending on the polluting\/hazard,
\nadministration may force these industrial units to shift within a maximum
\nprescribed period of 3 years.’<\/p>\n
It further stipulates the following policy guidelines :\n<\/p>\n
? The hazardous and noxious industrial units are not permitted in Delhi.\n<\/p>\n
? No new heavy and large industrial units shall be permitted in Delhi.\n<\/p>\n
? No new acid, chemical and paints and varnish industrial units to be
\npermitted.\n<\/p>\n
? No new extensive industrial units shall be permitted except in existing
\nidentified extensive industrial areas. Existing non-conforming extensive
\nindustrial units shall be shifted to the extensive industrial use zone
\nwithin a maximum period of 3 years after the allotment of plots by various
\nGovernment Agencies.\n<\/p>\n
? Non-conforming light and service industrial units with 20 or more workers
\nshall be shifted to the industrial use zones within a maximum period of 3
\nyears after the allotment of plots and by providing necessary incentives by
\nthe various Government agencies in conforming use zones.”\n<\/p>\n
3. Delhi Administration vide Chief Secretary’s letter dated 17.9.1991
\naddressed to Vice Chairman, Delhi Development Authority conveyed that ‘it
\nis now the established policy of the Delhi Administration not to develop
\nany new industrial estates in the Union Territory of Delhi. All non-
\nconforming light and extensive industrial units would have to close
\ndown\/shift on their own to areas outside Delhi, as no more industrial areas
\nare to be developed and (b) further, that in the additional 2% area being
\nearmarked for service sectors\/establishments industrial activities
\ncontained in Annexure III-A, III-B and III-C of the revised Master Plan
\nwould be promoted’.”\n<\/p>\n
The affidavit further states that the matter was placed before the
\nAuthority in its meeting dated 7th July, 1992 and the proposal of the Delhi
\nAdministration with certain conditions was approved. The DDA resolved that
\nplanning for industrial activity may continue as envisaged under the Master
\nPlan of Delhi – 2001 at the rate of 6 to 7% of urban extension area. It
\nfurther states that pending the said policy decision, no new industrial
\ndevelopment was taken up and even the industrial area indicated in the
\ndevelopment plan of Dwarka (181 hectare) was reverted to commercial and
\nother land uses.\n<\/p>\n
In the light of the aforesaid, when even industrial area is reverted to
\ncommercial and other land use, we fail to understand :\n<\/p>\n
1. Why no action was taken to enforce the Master Plan and for stoppage of
\nthe functioning of the industries in the residential\/non-conforming areas;\n<\/p>\n
2. How the industries commenced and continued their illegal activity;\n<\/p>\n
3. How can the State Government regularize the illegality even without
\nexistence and consideration of availability of infrastructure and in
\ndisregard to the rights of the residents on the ground of 70% concentration
\nof industry in the concerned area(s).\n<\/p>\n
Further, in the light of the letter of the Chief Secretary dated 17th
\nSeptember, 1991, it is not open to the State Government to argue that for
\nwant of acquisition of the land, the industrial estates could not be
\ndeveloped. They had themselves written to DDA not to develop any new
\nindustrial estate in the Union Territory of Delhi. Even existing industrial
\narea, as above noted, was diverted. The State Government has been
\nrepeatedly taking time from the Court for the shifting of the offending
\nindustrial activity. If it was not the responsibility of the State
\nGovernment to shift the industry, what was the purpose of filing IA 1206\/99
\nseeking extension of time upto March 2004 and for seeking modification of
\nthe order dated 8th September, 1999 whereunder the industries were directed
\nto be closed by 31st December, 1999. Even at the cost of repetition, we may
\nagain note that for the present, we are examining the aspect of shifting of
\nindustries which have come up after 31st December, 1989 in residential\/non-
\nconforming areas. The letter dated 17th September, 1991 also states that
\nthe MCD announced its ad hoc registration policy in 1989 with the prior
\napproval of the Lt. Governor to grant ad hoc registration to units which
\nhad unauthorisedly established themselves in non-conforming areas till 31st
\nDecember, 1989. In this situation, we see no reasons why those units which
\nhave come up after 31st December, 1989 shall not be closed and sternly
\ndealt with. We are unable to find any equity in favour of such violators of
\nlaw.\n<\/p>\n
The regularization would also result in making the concept of NCR non-
\nfunctional and inoperative.\n<\/p>\n
The National Capital Region Planning Board Act, 1985 (for short, the ‘NCR
\nAct’) was enacted to provide for the constitution of a Planning Board for
\nthe preparation of a plan for the development of National Capital Region
\nand for coordinating and monitoring the implementation of such plan and for
\nevolving harmonized policies for the control of land uses and development
\nof infrastructure in the National Capital Region so as to avoid any
\nhaphazard development of that region and for matters connected therewith or
\nincidental thereto. The areas within the National Capital Region are
\nspecified in the Schedule to the NCR Act. National Capital Region comprises
\nthe area of entire Delhi, certain districts of Haryana, Uttar Pradesh and
\nRajasthan as provided in the Schedule. ‘Regional Plan’ as provided in
\nSection 2(j) means the plan prepared under the NCR Act for development of
\nthe National Capital Region and for the control of land-uses and the
\ndevelopment of infrastructure in the National Capital Region. What the
\nRegional Plan shall contain is provided in Section 10. Section 10(2)
\nprovides that the Regional Plan shall indicate the manner in which the land
\nin the National Capital Region shall be used, whether by carrying out
\ndevelopment thereon or by conservation or otherwise, and such other matters
\nas are likely to have any important influence on the development of the
\nNational Capital Region and shall include the following elements needed to
\npromote growth and balanced development of the National Capital Region,
\nnamely :\n<\/p>\n
(a) the policy in relation to land-use and the allocation of land for
\ndifferent uses;\n<\/p>\n
(b) the proposals for major urban settlement pattern;\n<\/p>\n
(c) the proposals for providing suitable economic base for future growth;\n<\/p>\n
(d) the proposals regarding transport and communications including railways
\nand arterial roads serving the National Capital Region;\n<\/p>\n
(e) the proposals for the supply of drinking water and for drainage;\n<\/p>\n
(f) indication of the areas which require immediate development as
\n“priority areas”; and<\/p>\n
(g) such other matters as may be included by the Board with the concurrence
\nof the participating States and the Union territory for the proper planning
\nof the growth and balanced development of the National Capital Region.\n<\/p>\n
Section 27 provides that the provisions of the NCR Act shall have effect
\nnotwithstanding anything inconsistent therewith contained in any other law
\nfor the time being in force or in any instrument having effect by virtue of
\nany law other than the NCR Act; or in any decree or order of any Court,
\ntribunal or other authority.\n<\/p>\n
In exercise of power under Section 10 of the NCR Act, the Government of
\nIndia has prepared a Regional Plan – 2001 for National Capital Region as
\napproved by the National Capital Region Planning Board constituted under
\nSection 3(1) of the NCR Act. Besides others, the Union Minister for Works
\nand Housing as Chairman of the Board, the Chief Minister of Haryana,
\nRajasthan, Uttar Pradesh and Delhi are members of the said Board. Regional
\nPlan – 2001 recognises the unprecedented growth of Delhi and notices that
\nthe planned growth of Delhi is possible only in a regional context. In
\nfact, the need for regional approach was felt as early as 1959 when the
\ndraft Master Plan of 1962 recommended that a statutory National Capital
\nRegion Planning Board should be set up for ensuring balanced and harmonized
\ndevelopment of the Region.\n<\/p>\n
The aforesaid plan took into consideration the host of serious problems by
\nwhich Delhi was besieged and the causes of those problems and the genesis
\nof Delhi’s growth on account of rapid urbanization and ability to offer
\nwide opportunities for large scale employment through specialization and
\nincreased productivity in manufacturing and supporting services. It noticed
\nthat till 1951, Delhi was essentially an administrative center with a
\npopulation of 14.5 lakhs but, the expansion of industry, trade and commerce
\nproviding opportunities for economic development, in turn, began to
\ntransform its character from an administrative city to a multifunctional
\ncity and, exhibited a significant functional shift to industrial character
\nin 1981 when its population size became 57.3 lakhs, recording a growth of
\nabout 300% since 1951. It also notices that as Delhi grows, its problems of
\nland, housing, transportation and management of essential infrastructure
\nlike water supply and sewerage become more acute. The city lacks reliable
\nand adequate sources of water, and, thus, has to depend upon the adjoining
\nStates to meet its water supply requirements. The plan notices the need for
\nthe development policies, programmes and plans aiming to relieve Delhi from
\nadditional pressures and avoid adding new pressures. We may note that in
\nthe affidavit dated 29th September, 2000 filed by the Deputy Secretary of
\nthe Ministry of Urban Development, it was stated that those requiring plots
\nof more than 250 sq. metres would be accommodated in the National Capital
\nRegion where plots of very large size are available with all necessary
\ninfrastructure facilities. Further, the documents filed along with another
\naffidavit of the same officer dated 29th November, 2000 show the progress
\nof certain items of work as noticed in the meeting dated 21st September,
\n2000 of a cell that had been constituted by the Ministry of Urban
\nDevelopment which had been appointed as a nodal agency pursuant to the
\norder of this Court dated 12th September, 2000 in respect of the National
\nCapital Region. It states :\n<\/p>\n
“V. National Capital Region – InterfaceAn Interface amongst the
\nindustrialists of Delhi and those of the three National Capital Region
\nStates has been organized by the Ministry of Urban Development, through the
\nNational Capital Region Planning Board on September 30, 2000 at Vigyan
\nBhawan from 10.00 a.m. onwards. The basic objective of this Interface is to
\nfacilitate exchange of information amongst the industrialists of the
\nNational Capital Region and to acquaint them with the facilities that are
\navailable, including larger size of plots, lower cost of plots and
\navailability of auxiliary infrastructure in the shape of residential plots
\nand commercial plots.The Delhi industrialists would be made aware of the
\nfact that many big industrial houses like Sony, Daewoo Motors etc., are
\nsetting up their industries in the National Capital Region States and this
\nwould give rise to demand for ancillary industries. The representatives of
\nHaryana State Industrial Development Corporation (HSIDC), UP State
\nIndustrial Development Corporation (UPSIDC) and Rajasthan State Industrial
\nDevelopment & Investment Corporation (RIICO) would also be attending the
\nInterface and would indicate the loan facilities that would be made
\navailable.\n<\/p>\n
The National Capital Region Planning Board has facilitated development of
\n1, 14, 000 residential plots, 17, 000 commercial plots\/office space and 10,
\n000 industrial plots\/sheds in the National Capital Region.”\n<\/p>\n
In the affidavit dated 4th December, 2000 of the same officer, it has been
\nstated as under :\n<\/p>\n
“That at the said INTERFACE an exhibition was also organized, where the
\nagencies of three State Governments – Haryana, Rajasthan and Uttar Pradesh\n<\/p>\n
– displayed their information in respect of availability of plots as well
\nas of industrial infrastructure. It was indicated that over 6, 000
\nindustrial plots of various sizes, ranging from 100 to 1 lakh Sq. Mtrs.
\nwere available for immediate allotment. Some of these plots were of very
\nlarge sizes and they could be sub-divided to create a larger number of
\nplots.\n<\/p>\n
That, another meeting of senior officers of the State Governments of three
\nNational Capital Region States and their Resident Commissioners was called
\nby the Union Urban Development Minister on November 30, 2000. In this
\nmeeting, the Government of Haryana indicated that besides vacant plots
\nalready developed in industrial estates it would, if required, develop 14,
\n487 acres of land separately and make available as many as 80, 000 plots of
\naverage size of 500 sq. mtrs. The necessary infrastructure is either
\navailable or can be made available in a short time.”\n<\/p>\n
The material on record shows that the National Capital Regional Planning
\nBoard has been taking initiative to encourage the shifting of the
\nindustries to National Capital Region. It appears that in January 2001,
\nnumber of plots were available in the States of Rajasthan, Haryana and
\nUttar Pradesh for industries to shift. The industry was also informed that
\nlarge plots can be further sub-divided to accommodate more number of small
\nunits. It does not, however, appear that any significant interest was shown
\nby the industry. We are not suggesting that there are no problems but the
\nsame are not insurmountable and can be sorted out. There is no obligation
\nto provide alternative plots to those who illegally commenced industrial
\nactivity. The second Master Plan stipulates to provide alternate plots only
\nto those who had set up industrial units upto 31st December, 1989. As
\nalready observed earlier, presently we are concerned with shifting of the
\nindustries which were set up from the year 1990 onwards contrary to the
\npermissible use in the Master Plan. It is a matter for Government to decide
\nif it wants to provide alternative industrial plots to those who illegally
\ncommenced that activity but that cannot further delay the closing of
\ncontinuing illegal industrial activity. In our view, lack of action and
\ninitiative by the authorities is the main reason for the industry merrily
\ncontinuing illegal activity. There is total lack of enforcement of law by
\nthe concerned authorities.\n<\/p>\n
Regarding the availability of alternate industrial plots, it may be useful
\nto notice the plots that are available in the National Capital Region. The
\naffidavit filed on 8th May, 2003 on behalf of the NCR Planning Board states
\nthat plots on 2433.63 acres of land in the National Capital Region were
\navailable. If there are teething problems, it is for the concerned
\nauthorities to sort out the same.\n<\/p>\n
Laghu Udyog Bharati, an association of small scale industries, has taken
\nthe stand that the Government has been issuing ad hoc licences and
\ncollecting taxes from industrial units which would show that the industries
\nwere working within the knowledge and consent of the Government. The stand
\ntaken is that since the industries were working with the consent of the
\nGovernment, it cannot be said that the use by industries is non-conforming.
\nThe stand is wholly misconceived. An illegality would not become a legality
\non inaction or connivance of the Government authorities. There cannot be
\nany doubt that non-conforming industrial activities could not have
\ncommenced or continued at such a large scale in the capital of the country
\nif the Government and the concerned authorities had performed their
\nfunctions and obligations under various statutes. But such a situation
\ncannot be permitted to continue forever so as to reach a point of no
\nreturn, where the chaotic situation in city has already reached. The law-
\nbreakers, namely, the industries cannot be absolved of the illegalities
\nonly on the ground of inaction by the authorities. It would be useful to
\nnote as to what is stated in the affidavit of the President of the
\naforesaid association. It reads :\n<\/p>\n
“The chaotic situation existing today would not have developed had the
\nauthorities carried out their duties and taken steps to develop industrial
\nareas as provided for in the MPD-62 as well as the MPD-2001. For the
\nreasons best known to the authorities, the planned development of Delhi was
\nnever undertaken. On the other hand, they were busy in granting ad hoc
\nlicenses for non-conforming areas, electricity connections, water
\nconnections, collecting electricity, water, property tax at commercial
\nrates; collection of Sales Tax and Excise from these industries, which were
\ncoming up. Had the concerned authorities discharged their duties casted
\nupon them by the two Master Plans, the legal and statutory document for the
\nplanned development of Delhi to which they were duty bound to perhaps the
\nsituation, which Delhi is in today, would not have arisen.”\n<\/p>\n
(Emphasis has been supplied by us)<\/p>\n
The affidavit further states that “That it is respectfully submitted that
\ntill today not only MCD, but also D.V.B., Water Department, Excise and
\nSales-tax Departments, Factory Departments, Provident Fund and ESI
\nDepartment have been recognizing the existence of the industries in the
\nnon-conforming areas and in total each industry is being visited by 53
\ndepartmental inspectors of the Government.”\n<\/p>\n
From the facts noticed above, it is evident that a casual approach was
\nadopted in recommending INSITU regularization.\n<\/p>\n
A report of group of experts set up for determining polluting industries
\namongst list of 54 ‘F’ category industries under the MPD – 2001 reported
\nthat the industrial processes involving or using electroplating, dyeing,
\npickling, anodizing, coal fired boilers, forging and casting are polluting
\nin nature and recommended a list of 33 activities to be polluting. The
\nreport is filed along with the affidavit dated 5th February, 2001 of
\nCommissioner of Industries of the Delhi Government. The proposal for INSITU
\nregularization, however, does not even exclude the industries carrying the
\nsaid activities from regularization. Further the proposal does not state
\nwhat manufacturing activities are being carried on in 24 areas where the
\nregularization was contemplated. In fact, in respect of the areas where
\nINSITU regularization is under contemplation, many manufacturing activities
\neven going by the report of the group of experts, would be polluting. All
\nthis shows total non-application of mind.\n<\/p>\n
In respect of a large number of unauthorized industrial activities in non-
\nconforming areas, the Municipal Authorities have expressed helplessness in
\ntaking action on the apprehension of breakdown of law and order in areas.
\nThe Municipalities have constitutional responsibilities of town planning.
\nPart IX-A was inserted by Constitution (74th Amendment) Act, 1992 w.e.f.
\n1st June, 1993. Article 243W provides for the powers, authority and
\nresponsibilities of the Municipalities etc. Article 243W reads as under :\n<\/p>\n
“243W. Powers, authority and responsibilities of Municipalities, etc.-
\nSubject to the provisions of this Constitution, the Legislature of a State
\nmay, by law, endow-\n<\/p>\n
(a) the Municipalities with such powers and authority as may be necessary
\nto enable them to function as institutions of self-government and such law
\nmay contain provisions for the devolution of powers and responsibilities
\nupon Municipalities, subject to such conditions as may be specified
\ntherein, with respect to-\n<\/p>\n
(i) the preparation of plans for economic development and social justice;\n<\/p>\n
(ii) the performance of functions and the implementation of schemes as may
\nbe entrusted to them including those in relation to the matters listed in
\nthe Twelfth Schedule;\n<\/p>\n
(b) the Committees with such powers and authority as may be necessary to
\nenable them to carry out the responsibilities conferred upon them including
\nthose in relation to the matters listed in the Twelfth Schedule.”\n<\/p>\n
The Municipal Corporation has the responsibility in respect of matters
\nenumerated in 12th Schedule of the Constitution of India, regulation of
\nland use, public health, sanitation, conservancy, solid waste management
\nbeing some of them. Section 345 of the MCD Act contains the power of the
\nCommissioner to seal. Section 416(1) provides that no person shall, without
\nthe previous permission in writing of the Commissioner, establish in any
\npremises, or materially alter, enlarge or extend, any factory, workshop or
\ntrade premises in which is intended to employ steam, electric, water or
\nother mechanical power. Section 417(1) stipulates that no person shall use
\nor permit to be used premises for any of the following purposes without or
\notherwise than in conformity with the terms of a licence granted by the
\nCommissioner in this behalf, namely :\n<\/p>\n
(a) any of the purposes specified in Part I of the Eleventh Schedule;\n<\/p>\n
(b) any purpose which is, in the opinion of the Commissioner dangerous to
\nlife, health or property or likely to create a nuisance;\n<\/p>\n
(c) keeping horses, cattle or other quardruped animals or birds for
\ntransportation, sale or hire or for sale of the produce hereof; or<\/p>\n
(d) storing any of the article specified in Part II of the Eleventh
\nSchedule except for domestic use of any of those articles.\n<\/p>\n
Section 461 provides for punishment for certain offences. Part I of the
\n11th Schedule of the MCD Act provides the purposes for which the premises
\nmay not be used without a licence. The 12th Schedule provides for various
\npenalties, i.e., fine and imprisonment which may be imposed on
\ncontravention of various provisions of the MCD Act. It does not lie in the
\nmouth of the Corporation to plead helplessness to carry out
\nresponsibilities and obligations under the MCD Act. The sealing of the
\npremises was done in two phases, i.e., on 7th January 2001 and in second
\nphase as on 3rd March, 2001. Out of nearly 35, 522, only 5, 139 units were
\nsealed. It has not been explained whether any sealing was done in the areas
\nnow under the contemplation for regularization on the ground of 70%
\nindustrial concentration. The Delhi Government and DDA have also not
\nexplained that while arriving at figure of 70% industrial concentration,
\nthe industries which were not operating or those premises which were lying
\nvacant or those which were sealed in phase 1 and 2, were taken into
\nconsideration or not. These questions arise since the survey conducted by
\nthe MCD in some of the areas show that large number of premises were lying
\nvacant and\/or no industrial activity was going on. Further, the survey also
\nshows that many industries were carrying on industrial activity which was
\nper se polluting. In Virender Gaur & Ors. v. State of Haryana & Ors. [ 1995
\n(2) SCC 577 ], referring to principle No.1 of Stockholm Declaration of
\nUnited Nations on Human Environment, 1972, this Court observed that right
\nto have living atmosphere congenial to human existence is a right to life.
\nThe State has a duty in that behalf and to shed its extravagant unbridled
\nsovereign power and to forge in its policy to maintain ecological balance
\nand hygienic environment. Where in the Zonal plan, a land is marked out and
\nreserved for park or recreational purpose, it cannot be allotted for
\nbuilding purpose though housing is a public purpose. Further, it was
\nobserved that though the Government has power to give directions, that
\npower should be used only to effectuate and further goals of the approved
\nscheme, Zonal plans etc. and the land vested under the Scheme or reserved
\nunder the plan would not be directed to be used for any other public
\npurposes within the area envisaged thereunder. Dealing with the contention
\nthat two decades had passed, it was held that self-destructive argument to
\nput a premium on inaction cannot be accepted.\n<\/p>\n
In M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu & Ors.<\/a> [ 1999 (6) SCC 464
\n], this Court observed that no consideration should be shown to a builder
\nor any other person where the construction is unauthorized. Judicial
\ndiscretion cannot be guided by expediency. Courts are not free from
\nstatutory fetters. Justice is to be rendered in accordance with law.
\nJudicial discretion wherever it is required to be exercised has to be in
\naccordance with law and set legal principles. Judicial review is
\npermissible if the impugned action is against law or in violation of the
\nprescribed procedure or is unreasonable, irrational or mala fide. In para
\n73, this Court reiterated that in numerous decisions, it has been held that
\nno consideration should be shown to the builder or any other person where
\nconstruction is unauthorized. This dicta is now almost bordering the rule
\nof law. A discretion which encourages illegality or perpetuates an
\nillegality cannot be exercised. In M.I. Builders pvt. Ltd. v. Radhey Shyam
\nSahu & Ors. [ 1999 (6) SCC 532 ], this Court declined to come to the aid of
\na law-violator.\n<\/p>\n
In Administrator, Nagar Palika v. Bharat & Ors. [ 2001 (9) SCC 232 ], this
\nCourt observed that public interest has to be understood and interpreted in
\nthe light of the entire scheme, purpose and object of the enactment. The
\nhazard to health and environment of not only the persons residing in the
\nillegal colonization area but of the entire town as well as the provision
\nand scheme of the Act had to be taken into consideration.\n<\/p>\n
In Faqir Chand & Anr. v. Shri Ram Rattan Bhanot & Anr.<\/a> [ 1973 (1) SCC 572
\n], dealing with use of premises in Delhi by a tenant contrary to the
\npurpose for which it could be used in terms of the lease between the
\nlandlord and the paramount lessor, this Court observed, while dealing with
\na landlord-tenant dispute that the policy of the Legislature seems to be to
\nput an end to unauthorized use of leased land rather than merely to enable
\nthe authorities to get back possession of the leased lands. While dealing
\nwith the provisions of DD Act and clause (k) of proviso to sub-section (1)
\nof section 14 of the Delhi Rent Control Act, 1958, it was noticed that the
\nLegislature has clearly taken note of the fact that the enormous extents of
\nland have been leased by the three authorities mentioned in that clause,
\nand has expressed by means of this clause its anxiety to see that these
\nlands are used for the purpose for which they were leased. It was also
\nobserved that the authority may not be prepared to accept compensation but
\nmight insist upon cessation of the unauthorized use. Since the most of the
\nland used for industrial purpose in residential\/non-conforming areas is
\nleased land, it was even open to the authorities to cancel the lease on
\naccount of the misuser.\n<\/p>\n
In Dr. K. Madan v. Krishnawati (Smt.) & Anr.<\/a> [ 1996 (6) SCC 707 ], it was
\nheld that observations made in Punjab National Bank v. Arjun Dev Arora &
\nOrs.<\/a> [ 1986 (4) SCC 660 ] to the effect that as long as the penalty for
\nwrongful user is continued to be paid, the deviation of user could be
\npermitted, do not appear to be in consonance with the decision of the
\nlarger Bench in Faqir Chand’s case (supra). On one hand, we have the
\ndecisions observing that merely by payment of penalty, continued misuser
\ncannot be permitted and on the other the misuser commenced and continued
\ncontrary to the land use under the nose of the authorities without any
\naction being taken.\n<\/p>\n
In V.M. Kurian v. State of Kerala & Ors.<\/a> [ 2001 (4) SCC 215 ], while
\nquashing the order passed by the State Government exempting the provisions
\nof Kerala Building Rules, 1984 for constructing an eight storeyed building
\ncontrary to the mandatory provisions of the Rules, it was observed that the
\nRules were mandatory in nature and are required to be complied with. The
\nconstruction of high-rise building and observance and compliance thereof is
\nfor public safety and convenience. There cannot be relaxation of the Rules
\nwhich are mandatory in nature and cannot be dispensed with especially in
\nthe use of a high-rise building.In the present case, the land cannot be
\npermitted to be used contrary to the stipulated user except by amendment of
\nthe Master Plan after due observance of the provisions of the Act and the
\nRules. Non taking of action by the Government amounts to indirectly
\npermitting the unauthorized use which amounts to the amendment of the
\nMaster Plan without following due procedure.\n<\/p>\n
In this very matter, dealing with the industries of ‘H’ category which now
\nstand shifted pursuant to the order of this Court, it is pertinent to note
\nwhat a three Judge Bench of which one of us (B.N. Agrawal, J.) was a member
\nsaid in relation to entrepreneurial failure and total apathy non-concern
\nfor social good and benefit by the authorities as under :\n<\/p>\n
“The issues are long pending – the issues are urgent since the entire
\nsociety is impaired – no exception can be taken to the legal battles
\ninvolved in an adversarial litigation – this is not one such instance : it
\nis a true public interest litigation for the protection of the society and
\nto avoid a deliberate peril arising out of entrepreneurial failure and
\ntotal apathy and non-concern for social good and benefit. The Delhi
\nDevelopment Act of 1957 envisaged preparation of a Master Plan for Delhi
\nwith a definite statutory direction to define various zones into which
\nDelhi may be divided for the purposes of development and the manner in
\nwhich the land in each zone is proposed to be used and the stages by which
\nsuch development shall be carried out. As a matter of fact the Master Plan
\ncame into existence in 1962 and ‘H’ category industries ought to have
\nshifted out of the area specified therein by 1962 itself. Then came the
\nMaster Plan of 1990 to combat the existing situation with a specified
\nperiod of shifting within three years i.e. there was an obligation on the
\n‘H’ category industries to shift and relocate in terms of the Master Plan
\nby the year 1993 and the social activist by reason of the failure of the
\nentrepreneurs, moved this Court in 1995 whereupon, after allowing all
\npossible opportunities to all entrepreneurs and upon assessment of the
\nsituation through the appointments of commissions and obtaining various
\nreports on these aspects, passed the order on 10-5-1996 {M. C. Mehta v.
\nUnion of India<\/a> [(1996) 4 SCC 351]} which has till date not been complied
\nwith – indeed a sorry state of affairs and a total neglect and apathy
\ntowards the society, new and novel submissions are advanced as in any
\nadversarial litigation but unfortunately as noticed above it is too late in
\nthe day to contend otherwise, apart from what the order contains as of
\n10-5-1996 {M. C. Mehta v. Union of India<\/a> [(1996) 4 SCC 351)]}.”\n<\/p>\n
In Indian Council for Enviro-Legal Action & Ors. v. Union of India & Ors.<\/a> [
\n1996 (3) SCC 212 ], this Court was concerned with a public interest writ
\npetition filed by an environmentalist association alleging environmental
\npollution caused by private industrial units. It was held that the writ
\npetition is not really for issuance of appropriate writ, order or
\ndirections against the units\/factories which were running polluting
\nindustries and had not even installed any equipment for treatment of highly
\ntoxic effluents by them, but is directed against Union of India, Government
\nof Rajasthan and Rajasthan Pollution Control Board to compel them to
\nperform their statutory duties which they had failed to carry out and
\nthereby seriously undermined the right of life of the residents of Bichhri
\nand the affected area guaranteed by Article 21 of the Constitution. If this
\nCourt finds that the authorities had not taken action required of them by
\nlaw and that their inaction is jeopardising the right to life of the
\ncitizens of this country or any section thereof, it is the duty of this
\nCourt to intervene. If it is found that the respondents are flouting the
\nprovisions of law and the directions and orders issued by the lawful
\nauthorities, this Court can certainly make appropriate directions to ensure
\ncompliance with law and lawful directions made thereunder. If an industry
\nis established without obtaining the requisite permission and clearances
\nand if the industry is continued to be run in blatant disregard of law to
\nthe detriment of life and liberty of the citizens living in the vicinity,
\ncan it be suggested with any modicum of reasonableness that this Court has
\nno power to intervene and protect the fundamental right to life and liberty
\nof the citizens of this country.\n<\/p>\n
We may also recall what the Constitution Bench said in Oleum Gas Leak case
\n{M.C. Mehta v. Union of India<\/a> [ 1987 (1) SCC 395 ]} in relation to
\nhazardous or inherently dangerous industry, and we quote :\n<\/p>\n
“We are of the view that an enterprise which is engaged in a hazardous or
\ninherently dangerous industry which poses a potential threat to the health
\nand safety of the persons working in the factory and residing in the
\nsurrounding areas owes an absolute and non-delegable duty to the community
\nto ensure that no harm results to anyone on account of hazardous or
\ninherently dangerous nature of the activity which it has undertaken. The
\nenterprise must be held to be under an obligation to provide that the
\nhazardous or inherently dangerous activity in which it is engaged must be
\nconducted with the highest standards of safety and if any harm results on
\naccount of such activity, the enterprise must be absolutely liable to
\ncompensate for such harm and it should be no answer to the enterprise to
\nsay that it had taken all reasonable care and that the harm occurred
\nwithout any negligence on its part. Since the persons harmed on account of
\nthe hazardous or inherently dangerous activity carried on by the enterprise
\nwould not be in a position to isolate the process of operation from the
\nhazardous preparation of substance or any other related element that caused
\nthe harm the enterprise must be held strictly liable for causing such harm
\nas a part of the social cost of carrying on the hazardous or inherently
\ndangerous activity. If the enterprise is permitted to carry on an hazardous
\nor inherently dangerous activity for its profit, the law must presume that
\nsuch permission is conditional on the enterprise absorbing the cost of any
\naccident arising on account of such hazardous or inherently dangerous
\nactivity as an appropriate item of its overheads. Such hazardous or
\ninherently dangerous activity for private profit can be tolerated only on
\ncondition that the enterprise engaged in such hazardous or inherently
\ndangerous activity indemnifies all those who suffer on account of the
\ncarrying on of such hazardous or inherently dangerous activity regardless
\nof whether it is carried on carefully or not.\n<\/p>\n
… We would therefore hold that where an enterprise is engaged in a
\nhazardous or inherently dangerous activity and harm results to anyone on
\naccount of an accident in the operation of such hazardous or inherently
\ndangerous activity resulting, for example, in escape of toxic gas the
\nenterprise is strictly and absolutely liable to compensate all those who
\nare affected by the accident and such liability is not subject to any of
\nthe exceptions which operate vis-a-vis the tortious principle of strict
\nliability under the rule in Rylands v. Fletcher [(1868) LR 3 HL 330].We
\nwould also like to point out that the measure of compensation in the kind
\nof cases referred to in the preceding paragraph must be correlated to the
\nmagnitude and capacity of the enterprise because such compensation must
\nhave a deterrent effect. The larger and more prosperous the enterprise, the
\ngreater must be the amount of compensation payable by it for the harm
\ncaused on account of an accident in the carrying on of the hazardous or
\ninherently dangerous activity by the enterprise.”\n<\/p>\n
We may note that some of the industrial activities like the plastic
\nindustry are inherently dangerous and is being carried on in
\nresidential\/non-conforming areas. Such industrial activity is also carried
\non in areas in respect whereof regularization is under contemplation
\nallegedly on account of 70% concentration of industrial activity in the
\nresidential area. These facts are evident from the material placed by the
\nrespondents themselves before this Court.The growth of illegal
\nmanufacturing activity in residential areas has been without any check and
\nhindrance from the authorities. The manner in which such large scale
\nviolations have commenced and continued leaves no manner of doubt that it
\nwas not possible without the connivance of those who are required to ensure
\ncompliance of law and reasons are obvious. Such activities result in
\nputting on extra load on infrastructures. The entire planning has gone
\ntotally haywire. The law abiders are sufferers. All this has happened at
\nthe cost of health and decent living of the residents of the city violating
\ntheir constitutional rights enshrined under Article 21 of the Constitution
\nof India . Further, it is necessary to bear in mind that the lawmakers
\nrepose confidence in the authorities that they will ensure implementation
\nof the laws made by them. If the authorities breach that confidence and act
\nin dereliction of their duties, then the plea that the observance of law
\nwill now have an adverse effect on the industry or the workers cannot be
\nallowed. Within the framework of law, keeping in view the norms of
\nenvironment, health and safety, the Government and its agencies, if there
\nwas genuine will, could help the industry and workers by relocating
\nindustries by taking appropriate steps in last about 15 years. On the other
\nhand, it encouraged illegal activities.\n<\/p>\n
It may be noticed that the proposal of INSITU regularization has also been
\nopposed by the National Regional Board which has pointed out that the very
\npurpose of the Act would be defeated by such regularization. It would lead
\nto further congestion of Delhi instead of decongestion which was the very
\npurpose for which the Act was enacted. Mr. Mukul Rohtagi, learned
\nAdditional Solicitor General appearing for Municipal Corporation of Delhi,
\nMrs. Sheela Sethi, learned counsel appearing for National Regional Board
\nand Shri Panjwani, learned counsel appearing for Central Pollution Control
\nBoard have opposed the continued unauthorized use for industrial activity
\nof residential\/non-conforming areas as also the proposal of INSITU
\nregularization. It has been contended that such industries should be
\nimmediately closed down\/shifted. Mrs. Sethi contended that INSITU
\nregularization would defeat the very purpose of the Act under which NCR was
\nestablished. The contemplated action of regularization would run counter to
\nthe object of the Act which is to decongest the city of Delhi from the
\nindustrial activity. The Act of regularization would result in further
\ncongesting already highly congested city. Mr. Panjwani contended that the
\nregularization would further result in air and water pollution and would
\nalso affect the underground water. Learned counsel further submitted that
\nfrom material on record, it does not appear that anyone examined as to what
\neffect the regularization will have on the aspect of pollution. It has been
\npointed out on behalf of CPCB that such regularization would result in
\nfurther pollution of air ambient, water pollution besides causing other
\nenvironmental hazardous. For reasons already stated, we find substance in
\nthese contentions.\n<\/p>\n
Residents of Poorvi Viswas Nagar Samaj Kalyan Samiti have filed Writ
\nPetition No.98 of 2000 opposing INSITU regularization and pointing out that
\nthe Viswas Nagar is an approved residential area where residential
\nbuildings have been constructed by the residents and no industrial activity
\nis allowed as per law. Many of the plots in which the people are residing
\nwere purchased by them from the custodian of Evacuees property. It is
\nfurther pointed out that recently industrial units were established in
\ncontravention of rules and by adopting unfair means. They have, thus,
\nobjected to the INSITU regularization.\n<\/p>\n
From the aforesaid, it is evident that the industry belonging to ‘F’
\ncategory in residential\/non-conforming areas could not come up after 1st
\nAugust, 1990 since even the existing ‘F’ category industry in non-
\nconforming areas was required to be shifted to the permissible zone within
\na maximum period of three years after allotment of plot. The same is the
\nposition in respect of light and service industry belonging to ‘B’ to ‘E’
\ncategory except that depending upon number of workers employed, the Master
\nPlan stipulates different time schedule for these industries to shift.\n<\/p>\n
Despite the time span mentioned in 1990 Master Plan having expired and
\nvarious opportunities having been given during 1995, 1996 and 1997 and
\nnotices issued, and 13 years having passed, the non-conforming use by the
\nindustry has continued. A time has come that such non-conforming use must
\nstop at least by those who commenced it from and after 1st August, 1990.\n<\/p>\n
The position in respect of household industries which are permissible, the
\nquestion of the same not being carried on in residential\/non-conforming
\narea would not arise. The difficulty arises in carrying on of such activity
\nof household industry which is not permissible. The State Government sought
\nexpansion of ‘A’ category industries. The Government of India has approved
\nonly 6 out of list of 41 industries. In case, the remaining are not
\napproved, impermissible ‘A’ category industrial units shall also have to
\nstop functioning. It is imperative for the Central Government to
\nexpeditiously decide this issue one way or the other. In short, permissible
\nhousehold industry activity can go on and impermissible activity has to
\nstop.\n<\/p>\n
The plea of INSITU regularization and mild resistance to shifting has been
\npropounded only by Mr. Govardhan, learned counsel appearing for Delhi
\nGovernment. In same fashion it was substantially supported by Mr. Kailash
\nVasdev, senior advocate appearing for Union of India and Mr. Saharya,
\nlearned counsel appearing for Delhi Development Authority though without
\ntaking a definite stand. DDA merely adopted the stand of Union of India.
\nInsofar as Union of India is concerned having already taken a contrary
\nstand as above noticed, it adopted a middle path without clearly supporting
\nor opposing the Delhi Government on the issue of INSITU regularization by
\ntaking a stand that it has issued guidelines and would consider the
\nquestion of INSITU regularisation at the time of finalisation of Master
\nPlan – 2021. The said Master Plan is not likely to be finalized for another
\n2 years. In this view, the suggestion of Delhi Government is that pending
\napproval of proposal of INSITU regularization, the industrial units falling
\nin that category may not be ordered to be closed\/shifted from
\nresidential\/non-conforming areas. In other words, it means that the
\nillegality should be further permitted to be continued till the new Master
\nPlan is finalized – whether it takes two years or more. In regard to other
\nillegal industrial units, the suggestion put forth on behalf of the Delhi
\nGovernment is that immediate directions for closure\/shifting of only those
\nindustrial units shall be made which were set up after 31st December, 1996
\nas under the Order dated 19th April, 1996, the industrial activity in
\nresidential\/non-conforming areas was directed to be closed after 31st
\nDecember, 1996. We, however, see no justification for continuance of the
\nillegal and unauthorized industrial activity in residential\/non-conforming
\nareas which commenced after 1st August, 1990. It would also apply to
\nindustries in categories ‘B’ to ‘F’. In respect of household industry
\nbelonging to ‘A’ category, it was contended on behalf of the Delhi
\nGovernment that the number of industries falling in that category is being
\nexpanded and proposal for additional 41 items for being placed in category
\n‘A’ has been approved by DDA and the matter is pending with the Government
\nof India and, therefore, the industrial units carrying any activity falling
\nin the proposed expanded category should also not be shifted for the
\npresent. It appears that out of 41 items, the Government of India has
\ngranted approval in respect of 6 items and, no decision has been taken, one
\nway or the other, in respect of remaining 35 items. We again reiterate that
\nthe question is only of stopping unauthorized and illegal activity and not
\nthat activity which is permissible.\n<\/p>\n
We may note another argument put forth on behalf of Delhi Government that
\nit is not the function and responsibility of the Delhi Government to
\nenforce the Master Plan, it has no powers to enforce it. We are not only
\nsurprised but shocked at such a frivolous stand being taken, despite what
\nis stated in the order passed by this Court on 18th December, 1996. That
\norder noticed the reason as to why the court thought it appropriate to step
\naside. It was noticed that seemingly the State Government was seriously
\nenforcing the law. At that stage, no argument about absence of power was
\nput forth. If it was not the function and responsibility of State
\nGovernment and the Government had no power, we wonder the reason why the
\nGovernment filed IA No.1206 seeking extension of time upto March 2004 to
\nrelocate the industries. We summarily reject this wholly frivolously
\nsubmission.\n<\/p>\n
Neither on behalf of the Government of India nor on behalf of the Delhi
\nGovernment nor on behalf of any statutory authority, it could be disputed
\nthat the unauthorized and illegal industrial activity has commenced and
\ncontinued in Delhi in blatant breach of the provisions of Master Plan and
\nno action has been taken by any authority. The responsibility to take
\naction was sought to be shifted. Each blaming the other. While on behalf of
\nDelhi Government, as above noticed, it sought to avoid its obligation on
\nthe ground that it is not the function of the State Government to implement
\nthe Master Plan. The Government of India avoided its responsibility on the
\nground that the Central Government is not the implementing agency though
\nthe manner in which the Central Government has taken a summersault in its
\nstand already stands noticed. Similarly, the other statutory authorities
\nhave also avoided to shoulder the responsibility for inaction for the
\nblatant breach of the legal provisions. Respondents have been taking a
\nconvenient stand from time to time without any regard for statutory
\nprovisions and have at least turned their face on the other side knowing
\nthat blatant breach is being committed, even if we assume that there was no
\nconnivance with the industry for extraneous considerations. The Master
\nPlan, 2001 stipulates the shifting of extensive industries (‘F’ category)
\nto conforming zone within a period of three years after allotment of plots
\nby authorized Government agencies. In respect of light and service
\nindustries (‘B’ to ‘E” category), it provides shifting to the industrial
\nuse zone within a maximum period of three years after allotment of plots
\nand by providing necessary incentive by various Government Agencies in
\nconforming use zone. This is in respect of all the industrial units with 20
\nor more workers. In respect of industrial units with 10 to 19 workers, it
\nstipulates review after five years giving them chance during this period
\nfor reallocation in conforming zones. Similarly, industrial units with
\nworker strength upto nine, it provides for review after 10 years after
\ngiving them chance during the said period for reallocation in the
\nconforming zones. The suggestion of Delhi Government is that such all
\nindustrial units which have come up after 1st January, 1997 shall be
\ndirected to be closed in the first instance by giving them some time. In
\nrespect of industrial units which have come up between 1st August, 1990 to
\n31st December, 1996, it was suggested that the bigger units having more
\nthan 20 workers may first be directed to be closed, later the units having
\nworkers between 10 to 19 and last of all those units which have less than
\n10 workers be directed to be closed. The suggestion is that the shifting
\nmay be directed in a phased manner.\n<\/p>\n
Mr. Govardhan also points out that after the advertisement for reallocation
\nwas issued in terms of the orders of this Court, about 51, 000 applications
\nwere received out of which approximately 24, 000 applicants were held to be
\neligible. In Bawana Industrial Estate, 18, 347 industrial plots are ready
\nand allotment and possession has been given to 10, 059 industrial units and
\nremaining have still to take possession. It was further pointed out that
\nnearly 6, 000 who are found eligible for allotment of industrial plot for
\nrelocation are on the waiting list awaiting the allotment of the industrial
\nplot. In respect of these units, it was pointed out that development of
\nindustrial plot will take about two and a half years.\n<\/p>\n
In respect of those not found eligible by the Government for reallocation
\nand also those who did not apply pursuant to the advertisement, it was
\nsuggested that they be also given a chance to find out alternate industrial
\nplot. In respect of the industrial units (‘A’ Category) which may fall in
\nextended category of 41 items if the extension is not ultimately approved
\nby the Government of India, they may also have to be phased out. According
\nto the Delhi Government, about 20, 000 units fall in this category and as
\nthe matter is pending with the Government of India, directions may be
\nissued for early decision by Government and in the meanwhile, these
\nactivities may not be directed to be closed.\n<\/p>\n
In short, it was not seriously questioned that for the present except those
\nindustrial units falling in category ‘A’, 15, 000 industrial units which
\nfall in the category of INSITU regularization and 6, 000 who are in the
\nwaiting list, the rest of the industrial units have to close down.\n<\/p>\n
In respect of industrial activity in rural area\/Lal Dora, learned counsel
\nappearing for the Governments and various authorities did not dispute the
\nsubmission of learned Amicus Curiae that except industry falling in Group
\n‘A’ and ‘A-1’ of category ‘A’, no other industrial activity was
\npermissible. None made contra submission or brought to our notice any
\nprovision permitting other industrial activity in the rural area\/Lal Dora.\n<\/p>\n
At this juncture, we may also deal with, in brief, the submission urged on
\nbehalf of Government of India that it is not the implementing agency. One
\nhas only to refer to Section 41 of the DD Act which empowers the Central
\nGovernment to issue directions to DDA for the efficient administration of
\nthe DD Act. Who no such direction was issued, there could be no answer.
\nThere is also no answer as to what steps were taken to consider the
\nextension of category ‘A’ list after adding to that category six more
\nhousehold industries in terms of notification dated 10th April, 2001,
\ndespite lapse of three years. No answer came forth that when the matter of
\nshifting of remaining ‘F’ category units was deferred by the Delhi
\nGovernment in January 2001 on the purported ground of the Police Force
\nbeing pre-occupied in making Republic Day arrangements and was dealing with
\nthe security angle, what made the Central Government not to take up the
\nissue again with the Lt. Governor of Delhi after the Republic Day functions
\nwere over. In this regard, we may refer to a letter dated 8th January, 2001
\nsent by Lt. Governor of Delhi to the Minister of Urban Development,
\nGovernment of India, stating that the operation for the closure of more
\npolluting ‘F’ category industrial units in non-conforming areas has been
\ncompleted and for launching of fresh operation to close down the remaining
\n‘F’ category units, the Police Force being pre-occupied with making
\nsecurity arrangements for Republic Day function, the fresh operation for
\nclosure of industrial units would be reviewed later. The later review has
\nnot seen the light of the day despite expiry of more than three years. It
\nis evident that, in the meanwhile, the Government of India, as already
\nnoticed above, has changed its stance and under the garb of issuing
\nguidelines for the Master Plan for Delhi – 2021, action against violators
\nof law has come to a standstill for an indefinite period.\n<\/p>\n
Insofar as the Municipal Corporation of Delhi is concerned, we have already
\nnoticed its stand that non-conforming industrial units falling in category
\n‘B’ to ‘F’ whether polluting or not polluting which have come up in
\ncontravention of the Master Plan should not be permitted to operate and
\nshould be closed down. In this connection, reference can be made to a
\npublic notice issued by MCD informing the general public and
\nowners\/occupiers\/operators of industrial units situated in non-
\nconforming\/residential areas that in compliance with the directions of this
\nCourt, the industrial activity in violation of the Master Plan of Delhi –
\n2001 be closed down immediately failing which the Municipal Corporation of
\nDelhi shall forcibly close such units. All ad hoc licences granted, if any,
\nshall stand revoked\/cancelled. In respect of the industrial activity in Lal
\nDora, in the affidavit filed in October, 2002 by Chief Town Planner of
\nMunicipal Corporation of Delhi it has been stated that the proposal for the
\nwithdrawal of exemption notification would be placed before the
\nCorporation. Nothing seems to have been done in that direction. It is not
\ndisputed that under the garb of exemption notification dated 24th August,
\n1963, all kinds of buildings have come up in the Lal Dora.\n<\/p>\n
Insofar as IA 1527 is concerned, it seems evident that the applicant,
\nNational Cable Industry, had undertaken to shift to the conforming area and
\non that ground obtained an order for removal of the seal from its premises
\nso as to remove the machinery. The industrial unit was carrying on the
\nactivity which falls in category ‘F’. The premises are in rural area. The
\nquestion whether the activity that was being carried on was polluting or
\nnot need not be examined since the application deserves to be dismissed
\nfirstly on the ground of suppression of material facts inasmuch as it has
\nnot been mentioned therein that the applicant had given an undertaking that
\nhe would be shifting his unit to the NOIDA area and secondly on the ground
\nthat the applicant cannot be permitted to resile from the undertaking. The
\napplicant has already taken advantage of the undertaking and has removed
\nthe machinery. In this view, we need not go into the larger question as to
\nwhich provisions of Municipal Laws will be applicable and which not to the
\nrural areas or areas in the Lal Dora. The aspect of industrial activity in
\nthese areas has already been dealt with. Under no circumstances, the
\napplicant can be permitted to commence manufacturing activity from the
\npremises in question. The result of the aforesaid discussion is that except
\nhousehold industry, all other industrial units which have come up in
\nresidential\/non-conforming areas in Delhi after 1st August, 1990 have to
\nstop functioning. Unfortunately, the Governmental authorities have not
\nlived up to the confidence that was reposed in them when the Court had
\nstepped aside and left the matter to Government in the year 1996, as
\nnoticed hereinbefore. On the other hand, in the year 2002 while these
\nmatters were pending, commercial use of industrial area was sought to be
\nregularized by DDA on payment of some amounts. On an application filed by
\nlearned Amicus Curiae public notice to the above effect was stayed. Later
\nit was withdrawn by the authority. The action not only was utterly illegal
\nbut also shows total non-application of mind. Thus, going by the past
\nexperience, it would also be necessary to not only monitor but also to fix
\nresponsibility so that illegal activity does not continue any further and
\nstops within the time schedule for its cessation fixed in this order. We
\nalso wish to make it clear that those who have set up industrial units
\nafter 1st August, 1990 have no right for allotment of a plot in an
\nindustrial area. This would, however, not debar the Government\/authorities
\nto allot to such oustees plots in industrial area but that under no
\ncircumstances should delay the closure process. Before we part, a word
\ndeserves to be said about Mr. Ranjit Kumar, learned senior counsel who has
\nassisted this Court as Amicus Curiae. Learned Senior counsel has very
\neffectively and ably assisted this Court both on facts and law. We place on
\nrecord our deep appreciation for the able assistance rendered by Mr. Ranjit
\nKumar.\n<\/p>\n
In conclusion, having regard to the aforesaid, we issue the following
\ndirections :\n<\/p>\n
1. All Industrial Units that have come up in Residential\/non-conforming
\nareas in Delhi on or after 1st August, 1990 shall close down and stop
\noperating as per the following schedule:\n<\/p>\n
(a) Industrial Units pertaining to extensive industries (‘F’ category)
\nwithin a period of four months.\n<\/p>\n
(b) Industrial Units pertaining to light and service industries (category
\n‘B’ to ‘F’) within five months.\n<\/p>\n
(c) Impermissible household industries (category ‘A’) within six months.\n<\/p>\n
(d) 6, 000 industrial units on waiting list for allotment of industrial
\nplots within 18 months.\n<\/p>\n
2. The Central Government is directed to finalise the list of permissible
\nhousehold industries falling in category ‘A’ within a period of three
\nmonths.\n<\/p>\n
3. 6, 000 industrial units on waiting list shall be allotted industrial
\nplots within one year.\n<\/p>\n
4. The Delhi Government may announce a policy within six weeks giving such
\nincentives as it may deem fit and proper to those industrial units which
\ncame to be established after 1st August, 1990 and may close down on their
\nown before the expiry of the time fixed in this order. The non-announcement
\nof incentives by the Government shall not, however, delay the closure
\nprocess.\n<\/p>\n
5. The water and electricity connection of the industrial units found
\noperating after the due date of closure shall be disconnected forthwith and
\nin any case not later than a month of the date fixed for closure in
\nDirection No.1 above. If the industrial activity still continues, the
\npremises shall be sealed within a period of not later than another one
\nmonth.\n<\/p>\n
The seal shall be removed and water and electricity connection restored
\nonly after filing of an undertaking by the industrial unit not to
\nrecommence any sort of industrial activity before an officer nominated for
\nthe purpose by the Delhi State.\n<\/p>\n
6. The Central Government is directed to finalise within six months
\nappropriate steps to be taken for making NCR region a success for
\nindustrial activity by removing the hurdles pointed out by the industry.
\nThe Governments of the adjoining States of UP, Rajasthan and Haryana are
\ndirected to extend full cooperation.\n<\/p>\n
7. The Municipal Corporation of Delhi shall consider within three months
\nthe aspect of withdrawal of exemption notification as suggested in the
\naffidavit of its Town Planner filed on 28th October, 2002.\n<\/p>\n
8. We appoint a Monitoring Committee comprising (i) Chief Secretary of
\nDelhi (ii) Commissioner of Police, Delhi (iii) Commissioner, Municipal
\nCorporation of Delhi and, (iv) Vice-Chairman of Delhi Development
\nAuthority. This Committee would be responsible for stoppage of illegal
\nindustrial activity. It would, however, be open to the aforesaid members of
\nthe Monitoring Committee to appoint responsible officers subordinate to
\nthem to oversee and ensure compliance of the directions contained in the
\njudgment.\n<\/p>\n
9. The first Progress Report by the Committee shall be filed by 31st
\nAugust, 2004 and thereafter it shall be filed at least once in a period of
\nevery two months.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India M.C. Mehta vs Union Of India & Ors on 7 May, 2004 Bench: Y.K. Sabharwal, B.N. Agrawal 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-94108","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nM.C. 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