IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 64 OF 2006 AND NOTICE OF MOTION NO. 200 OF 2006 AND NOTICE OF MOTION NO. 226 OF 2006 IN WRIT PETITION NO. 1650 OF 2005 1. Indian National Trust for Art & Cultural Heritage & Ors. 2. Tasneem Mehta 3. Darryl D’Monte .. Petitioners (In W.P. No.1650 of 2005) V/s 1. The State of Maharashtra 2. The Municipal Corporation of Greater Mumbai 3. The Heritage Conservation Committee 4. The Mumbai Metropolitan Regional Development Authority 5. Neera Adarkar 6. The Maharashtra Housing & Area Development Authority 7. The National Textile Corporation Ltd. (North Maharashtra) 8. The National Textile Corporation Ltd. (South Maharashtra) - 2 - 9. Morarjee Realties Limited 10. Mafatlal Industries Limited 11. M/s Hindustan Spinning & Weaving Mills Ltd. 12. The Ruby Mills Ltd. 13. Swan Mills Ltd. 14. Bombay Dyeing & Manufacturing Co. Ltd. 15. India Bull Real Estate Co. Pvt. Ltd. 16. Apollo Textile Mills through M/s Macrotech Construction Pvt. Ltd. 17. Mumbai Textile Mills through M/s Jawala Real Estate Pvt. Ltd. 18. Kohinoor Mills No.3 through Kohinoor CTNL Infrastructure Co. Ltd. 19. Dawn Mills 20. Shree Ram Mills Ltd. 21. Piramal Mills 22. Century Textiles & Industries Ltd. 23. Standard Mills No.3 24. Victoria Mills 25. Phoenix Mills 26. Khatau Mills 27. New Great Eastern Spinning & Weaving Mills Ltd. 28. Shreeniwas Mills 29. Swadeshi Mills 30. Mukesh Mills 31. Western India Mills 32. Prakash Mills - 3 - 33. Maharashtra State Textile Corporation .. Respondents (In W.P. No.1650 of 2005) Mr.Shiraz Rustomji with Mr.V.S. Khanavkar and Mr.Kedar Dighe for the Petitioners. Mr.Ravi Kadam, Advocate General, with Mr.R.M. Sawant, Government Pleader, for Respondents No.1 and 6. Mr.Rahul Chitnis i/b Mr.K.S. Dewal for Respondent No.3. Mr.Shekhar Naphade, Senior Advocate with Ms.Meena Doshi for Respondent No.7. Mr.Shekhar Naphade, Senior Advocate with Mr.Manish Desai and Ms.Deepti Mohan i/b Paras Kuhad & Associates for Respondent No.8. Mr.P.N. Mody i/b Federal & Rashmikant for Respondents No.9 and 19. Mr.E.P. Bharucha, Senior Advocate with Mr.Shyam Mehta i/b Federal & Rashmikant for Respondent No.10. Mr.Shyam Mehta i/b Federal & Rashmikant for Respondents No.11, 12 and 14 and i/b Humranwala & Co. for Respondent No.13. Mr.J. Dwarkadas, Senior Advocate with Mr.Zal T. Andhyarujinha with Mr.Mohan Salian i/b Gagrat & Co. for Respondent No.15. Mr.Virag V. Tulzapurkar, Senior Advocate i/b Wadia Gandhy & Co. for Respondents No.17 and 30. Mr.G.S. Godbole for Respondent No.18. Mr.Pankaj Savant i/b Khaitan & Jaykar for Respondent No.20. Ms.Alpana Ghone i/b Kanga & Co. for Respondents No.24 and 32. Mr.G.R. Kinkhabwala i/b V.V. Juris for Respondent No.26. - 4 - Mr.Ajay Fernandes i/b Kanga & Co. for Respondent No.27. CORAM : H.L. GOKHALE & S.R. DONGAONKAR, JJ. DATE : 5TH MAY 2006 ORAL ORDER ORAL ORDER ORAL ORDER: (Per H.L. Gokhale, J.) 1. Notice of Motion No.64 of 2006 is taken out by the Petitioner Trust whereas Notice of Motion No.200 of 2006 is taken out by Respondents No.7 and 8 to the petition. Notice of Motion No.226 of 2006 is taken out by Respondent No.20 to the Petition. 2. Writ Petition No.1650 of 2005 is filed by the 1st Petitioner Charitable Trust (and two others), which Trust is interested in protection, preservation and enhancement of architectural material and natural heritage. The 2nd Petitioner is the Convenor of the Mumbai Chapter of the 1st Petitioner and expert in heritage architecture. The 3rd Petitioner is a renowned journalist who has extensively written on the textile mills in the city of Mumbai. The present petition is filed with a view to protect and preserve structures with heritage value within the textile mills in the city of Mumbai. The Petitioner Trust seeks support from - 5 - Regulation 67 of the Development Control Regulations framed for the city of Mumbai. 3. There are 33 Respondents to this petition. The 1st Respondent to the petition is the State of Maharashtra through the Secretary, Urban Development Department. The 2nd Respondent is the Municipal Corporation of Greater Mumbai. The 3rd Respondent is the Heritage Conservation Committee. From amongst the others, the 7th Respondent is the National Textile Corporation (North Maharashtra) and the 8th Respondent is the National Textile Corporation (South Maharashtra). Hereinafter both together are referred as "NTC". Respondents No.9 to 33 are various private textile mills in the city of Mumbai. Respondent No.20 from amongst them is Sriram Mills. 4. This writ petition was filed on 17th June 2005. At that time, another writ petition bearing No.482 of 2005 filed by Bombay Environmental Action Group was pending in this Court concerning interpretation of Development Control Regulation 58, which makes special provisions regarding redevelopment of the lands of cotton textile mills (i) which are sick and/or closed, and also (ii) those which are not sick or closed but require modernisation. The Petitioners wanted both - 6 - these petitions to be heard together, but it was the view of the Respondents that they be heard separately. The said Writ Petition No.482 of 2005 was subsequently allowed by another Division Bench of this Court on 17th October 2005 holding amongst others that the sale of lands of five mills belonging to the NTC was invalid in view of the interpretation given by the Court to D.C. Regulation 58. (This judgment has been subsequently reversed by the Apex Court in its judgment rendered on 7th March 2006 in the case of Bombay Dyeing and Manufacturing Co. Ltd. v. Bombay Environmental Action Group - (2006) 3 SCC 434). 5. The present writ petition was taken up by the earlier Division Bench on 28th October 2005 and by the order passed on that date, the Division Bench directed the authorities exercising powers under D.C. Regulation 67(3) to take appropriate steps in that behalf. It directed the Mumbai Heritage Conservation Committee (MHCC) - Respondent No.3 herein to make proposals with regard to the sites, buildings, structures in the textile mills in exercise of its powers under D.C. Regulation 67 within 12 weeks and further directed the concerned authorities to take appropriate steps within 2 months thereafter on receiving those recommendations. - 7 - 6. By the aforesaid order, the Court admitted the petition, but observed in para 23 that the issues raised in this matter could be adjudicated after recommendations of MHCC are forwarded to the concerned authorities. In the said para, the Court noted the plea of the learned counsel for the Petitioners that if more time was wasted, then almost all structures located in the cotton textile mills would be brought down or demolished. This was apprehended in view of the NTC (North Maharashtra and South Maharashtra) - Respondents No.7 and 8 herein selling the lands of five textile mills and many other private mills either planning to sell their lands or seeking to demolish or alter the structures therein for modernisation. In the earlier part of the order, the Court had noted that the State Government was to give full cooperation to the MHCC. The NTC and the private mill owners were also to cooperate with MHCC in the matter of access to the mill premises. The Court, therefore, observed in para 23 as follows:- "23. We have noted the plea of Mr.Rustomjee that if more time is wasted, then almost all structures located in the Cotton Textile Mills would be brought down or demolished. However, we hope and expect that as assurances have been - 8 - given, by not only NTC, which is a public body, but, also by private mill owners with regard to access and survey of the structures, status-quo would be maintained till the above exercise is completed by MHCC. At this stage, it is not necessary to consider rival contentions about applicability of Section 46 of MRTP Act, 1966. The contentions on applicability of the same are kept open for being raised at an appropriate stage. Needless to state that copy of proposal/s recommendations of the MHCC should be made available to all parties as also placed on record of this Court." 7. The Petitioners thereafter took out Notice of Motion No.64 of 2006 on 3rd February 2006. This was after MHCC having completed the survey of 25 mills of NTC. MHCC had forwarded the proposal for listing of 85 structures of NTC as heritage structures, but a few out of them had been demolished leaving 77 behind. The survey of the private mills was still in progress at that time. The Petitioners submitted that the hope and expectation expressed by the earlier Bench of this Court in its order dated 28th October 2005 that status quo would be maintained with respect to the structures had been belied. Prayer (a) of this motion sought an order - 9 - of restraint against NTC from demolishing the structures mentioned in the proposal submitted by MHCC. Prayer (b) sought a similar order with respect to the structures on the lands of the private mills. 8. A Division Bench of this Court (of which one of us i.e. Gokhale J. was a member) heard this motion on 7th February 2006 and having heard the counsel for the Petitioners and also for NTC, granted an ad-interim order in terms of prayer (a) restraining demolition of the remaining 77 structures on the NTC mills. Prayer (b) of the motion was with respect to the structures on the private textile mills. The Court was informed that listing of the structures on the private mills was not yet over and it would take further 3 weeks. The consideration of prayer (b) was therefore deferred. 9. This Division Bench thereafter heard the motion on 28th March 2006. By that date, some of the private mill owners were served with the motion, whereas some were not and some 23 structures on the private mill lands had come to be listed. However, considering the apprehension with respect to the heritage structures on the private mills’ lands an ad-interim order was passed in terms of prayer (b) of the motion on that date. We clarify that both these orders passed on 7th February - 10 - 2006 and 28th March 2006 were ad-interim orders in terms of these two prayers of Notice of Motion No.64 of 2006. In the meanwhile, the Apex Court vide its judgment and order rendered on 7th March 2006 had allowed the SLP against the judgment and order of this Court in Writ Petition No.482 of 2005 in the case of Bombay Dyeing (supra). Respondents No.7 and 8 to the petition took out Notice of Motion No.200 of 2006 for vacating the ad-interim order passed on 7th February 2006 on Notice of Motion No.64 of 2006. One of the private textile mills, i.e. Shriram Mills (Respondent No.20 to the Petition), has taken out its own notice of motion bearing No.226 of 2006 to vacate the ad-interim order dated 28th March 2006 passed by this Court insofar as it applied to Respondent No.20. 10. As we have noted above, the earlier Division Bench, which admitted the writ petition on 28th October 2005, had observed in para 23 of the said order that issues raised in the petition could be adjudicated later after recommendations of MHCC are forwarded to the concerned authorities. Counsel for all the parties and particularly those for the Respondents have sought that the three motions be heard and decided earlier. All the three motions are connected motions and therefore they are all being heard and decided together. - 11 - 11. Before we proceed to consider the submissions, we must note that after receiving the list of the heritage structures from MHCC, Mumbai Municipal Corporation has issued a notification inviting suggestions and objections which are to be submitted in writing to the office of the Chief Engineer (Development Plan) of the Municipal Corporation within one month from the date of the publication of the notification. The notification has been published firstly in an English newspaper "Free Press Journal" and later on in a Marathi newspaper "Maharashtra Times" on 22nd April 2006. The last date for filing suggestions or objections is 22nd May 2006. 12. (i). Mr.Rustomjee, learned counsel for the Petitioners, submitted that the heritage structures are important for their historical, aesthetic architectural and cultural values and D.C. Regulation 67 itself calls them as something that posterity would not willingly let die. He points out that section 22(i) of the Maharashtra Regional and Town Planning Act, 1966 (MRTP Act for short) specifically provides that the development plan amongst others is supposed to provide for preservation of heritage buildings and precincts. He submits that once the heritage structures are listed - 12 - and published by means of a notice, the planning authority is expected to have due regard to such proposals under section 46 of the MRTP Act. Section 43 of the MRTP Act does not permit any development of land after the development plan comes into force and, in his submission, this includes a proposal which has been published by means of a notice. The planning authority is not expected to grant permission to any such demolition of these structures until a decision with respect thereto is finally taken. He points out that "development", as defined under section 2(7) of the MRTP Act, includes demolition of any existing building or structure and a "development plan", as defined under section 2(9), includes a proposal also. Therefore, these structures cannot be allowed to be demolished. (ii). He has emphasised provisions of D.C. Regulation 67 which provides for conservation of the listed buildings of heritage value. In his submission, the Commissioner has to act on the advice and in consultation with the Heritage Conservation Committee as provided under the said Regulation. The Regulation provides for grading of buildings from heritage point. In his submission, this Regulation is to be read independent of section 37 of the MRTP Act which section otherwise provides the procedure for modification of a - 13 - final development plan. This is also clear from Regulation 67(3). Mr.Rustomjee has drawn support for his submission with respect to section 46 of the MRTP Act from the judgment of the Apex Court in the case of S.N. Rao v. State of Maharashtra - (1988) 1 SCC 586 S.N. Rao v. State of Maharashtra - (1988) 1 SCC 586 S.N. Rao v. State of Maharashtra - (1988) 1 SCC 586, as also the judgment of a Division Bench of this Court in the case of Anahita Pandole v. State of Maharashtra Anahita Pandole v. State of Maharashtra Anahita Pandole v. State of Maharashtra - 2004 (6) BCR 246 - 2004 (6) BCR 246 - 2004 (6) BCR 246, which was concerning the lawfulness of the hoardings on heritage buildings protected under the very D.C. Regulation 67. 13. (i). Mr.Naphade, learned Senior Advocate appearing for the NTC, on the other hand, submitted that the listing of heritage buildings and structures by the Heritage Conservation Committee and the subsequent finalisation of the list has to be considered a legislative process. That process is yet to be completed and at this stage, no injunction can be granted. He secondly submitted that the proposal made by MHCC could not be considered as a factor to hinder the development permission, which NTC had already received under D.C. Regulation 58. In his submission, once the permission is granted under D.C.Regulation 58, there is no question of applying D.C. Regulation 67 to those structures and buildings. Besides, Regulation 67(2)(iii)(a) itself lays down that Regulation 67 will - 14 - apply only in Grade-I and Grade-II categories of heritage buildings for reconstruction undertaken under Regulations 33(7), 33(8) and 33(9). This was apart from his submission that D.C. Regulation 67(2) provides for restrictions on development and not absolute prohibition as such. According to him, on merits also, the structures could not be considered as of any heritage value and they all consisted of dilapidated structures. (ii). Mr.Naphade pointed out that as far as textile mills of NTC are concerned, their integrated scheme for sale of some of their lands and development of the remaining textile mills was sanctioned by the Board of Industrial and Financial Reconstruction (BIFR) way back on 25th July 2002. The order of the BIFR was upheld by the Apex Court in its order passed on 27th September 2002 in NTC (IDA) employees Association vs. Union of NTC (IDA) employees Association vs. Union of NTC (IDA) employees Association vs. Union of India reported in (2006) 3 SCC 604 India reported in (2006) 3 SCC 604 India reported in (2006) 3 SCC 604. Thereafter, the Municipal Corporation had granted approval to the layout for sub-division submitted by NTC on 27th October 2004, under D.C.Regulation 58. This approval contained conditions 10 and 11 which permitted demolition of structures. Condition No.10 laid down that land occupied by India United Mill Nos.2 and 3 was to be handed over to the Municipal Corporation after removing the structures therein and condition No.11 laid down - 15 - that part of the land from New Hind Mills was to be handed over to MHADA, similarly after removing the structures. This had to be done as a condition precedent before the development permission for the lands of other NTC mills could be processed by the Municipal Corporation. NTC had thereafter sold the lands of 5 textile mills in auction held between February and October 2005. The interpretation placed by NTC on the user of land under D.C. Regulation 58 had been upheld by the Apex Court in its judgment rendered on 7th March 2006. He, therefore, submitted that after all these steps having been taken, it was too late in the day for the petitioners to prevent NTC from demolishing the structures on the concerned mill lands on the basis of Heritage listing and notice issued now in April 2006. He however stated that as of now NTC was concerned only with the demolition of the structures on the lands of India United Mills No.2 and 3 and New Hind Mills and there was no proposal to sell other mill lands or to demolish the structures thereon. 14. Mr.Singhvi, learned Senior Advocate appearing for the Municipal Corporation, supported the interpretation of the Petitioners on section 46 of the MRTP Act. He submitted that in view of the judgment of the Apex Court in the case of S.N. Rao (supra), a - 16 - proposal in the nature of the Heritage list, which had been duly published, had to be given due regard by the planning authority under section 46 of the MRTP Act. In his submission, no development could take place except after development permission in the nature of commencement certificate given under section 45 of the MRTP Act and, while giving that, the pendency of this list could not be ignored. He however fairly accepted that as far as some of the mills of NTC mentioned in condition Nos.10 and 11 above are concerned, the demolition of structures therein had already been cleared by the Municipal Corporation while it sanctioned the layout on 27th October 2004. 15. Mr.Pankaj Savant, learned counsel for Shriram Mills (Respondent No.20), submitted that the layout for development of the land of that mill had also been approved by the Municipal Corporation. The affidavit in support of its Notice of Motion No.226 of 2006 however does not mention that the layout permission in any way included the permission to demolish any of the structures. 16. (i). Mr.Virag Tulzapurkar and Mr.E.P. Bharucha, Senior Advocates, Mr.Mody and Mr.Kinkhabwala appearing for Mukesh Mills, Mumbai Textile Mills, - 17 - Mafatlal Industries Ltd., Dawn Mills, Morarjee Realties Ltd., Prakash Mills and Khatau Mills, adopted the submissions of Mr.Naphade. They submitted that there was hardly anything of heritage value amongst the structures which are sought to be retained on those private textile mills. They also pointed out that the concept of "precincts" was not clear and it would mean the entire textile mill. That cannot be said to be the intention behind making the provision since it would lead to absurd results. Ms.Alpana Ghone pointed out that the Chimney which was sought to be protected in Victoria Mills was demolished some three years before and there was no application of mind on the part of MHCC. Mr.Shyam Mehta appearing for respondent Nos.11 to 14 - mills, however, stated that no heritage structures had been notified in those mills. (ii). Mr.Dwarkadas, Senior Advocate appearing for Respondent No.15, an auction purchaser of the land of Elphinstone Textile Mills, drew our attention to the paragraphs of the judgment of the Apex Court in the case of Bombay Dyeing (supra) and particularly para 299 onwards. He pointed out that at the end of para 315, the Apex Court had held that the validity of sales of seven mills of NTC in pursuance of the BIFR scheme were not open to a further determination by the High Court. - 18 - In para 329, the Apex Court had recognised the rights of the bona fide auction purchasers. He submitted that the demolition under condition Nos.10 and 11 above has to be permitted otherwise it will lead to impossibility under section 65 of the Contract Act and NTC will have to refund the amounts which it had received. It is material to note, as pointed out by Mr.Dwarkadas and Mr.Naphade, that the purchasers of NTC property have acted in pursuance of the interim order dated 1.12.2005 and 31.1.2006 passed by the Supreme Court during the pendency of the SLP filed by the NTC against the High Court judgment in Writ Petition No.482 of 2005. They have demolished the structures in five mill lands and created third party interests. In the auction of the lands of NTC mills, it had received more than Rs.2000 crores, out of which about Rs.643.94 crores have been paid to the employees under Voluntary Retirement Scheme, Rs.84 Crores have been paid to workers towards PF and ESI dues and Rs.72 Crores are paid to banks and financial institutions towards one time settlement. It has to utilise the remaining amount for rehabilitation and modernization of other textile mills. Mr.Naphade and Mr.Dwarkadas submitted that if the petitioners want an interim relief, they must give an undertaking to pay damages by way of compensation as required under Rule 148 of High Court (Original Side) Rules for sustaining - 19 - prejudice to the respondents. 17. We have noted the submissions of the Counsel. To examine them, we will have to refer briefly to the relevant provisions of the MRTP Act and the D.C. Regulations. MRTP Act is an Act which contains provisions for orderly development in regions as well as in the towns. It contains the provisions for regional plans and for development plans with a view to ensure that the town planning schemes are made in a proper manner. Section 2(19) of the Act defines a "planning authority" to mean a local authority and it includes a special planning authority for notified areas. Section 2(9) defines a "development plan" to mean a plan for the development or redevelopment of the area within the jurisdiction of a planning authority and it includes revision of a development plan and proposals of a special planning authority for development of land within its jurisdiction. Section 2(7) defines "development" to mean the carrying out of the buildings, engineering, mining or other operations in or over or under, land or the making of any material change, in any building or land or in the use of any building or land or any material or structural change in any heritage building or its precinct. It further states that it includes demolition of any existing building, structure - 20 - or erection or part of such building, structure of erection and reclamation, redevelopment and lay-out and sub-division of any land. 18. (i). Chapter III of this Act contains provisions for the Development plan. Section 22 lays down as to what should be the contents of a Development plan and it states that it shall generally indicate