M.C.MEHTA

UNION OF INDIA AND ORS. RE: MIS. DELHI DEVELOPMENT

AUTHORITY

MARCH I, 2001

[G.B. PATTANAIK, UMESH C. BANERJEE AND B.N. AGRAWAL, JJ.]

Constitution of India : A11icle 32 :

Public Interest Litigation-Pollution-Hazardous and noxious industrial units-Direction for their closure & relocation and surrender of plots by order dated 10.5.96 passed by Supreme Coun-Non surrender of-Interlocutory application by DDA for clarification of the said order with reganl to queries raised by the industries-Plea of industries thatfactum of surrender would not arise since they were prepared to restan and relocate the industries within the ambits of the Master Plan and l.onal Development Plan-96 applications for review in this regard have already been dismissed by Supreme Coun from time to time-Held, industries cannot be allowed at this stage to contend and take recourse to the rules to avoid surrender of land-Surrender of land-Directions Issued-Delhi Development Act, I 957.

Land belonging to an industry bifurcated by a road for factory use and for residential purposes respectively-Supreme Court directing only the factory area to be surrendered-The onler being in the peculiar facts of the case, cannot have universal application-Held, the said onler does not in any way dilute the mandate of the onler dated I0.5.96 directing surrender of the entire land.

Land-Surrender of-Held, must be surrendered with approach road- However,_ if the approach road is not owned by the owner, then surrender shall take effect on 'as is where is basis'-Surrendered land directed to be 1leased from encumbrance-If such land not made free from encumbrance within five years, then the land which the owner was otherwise entitled to retain would stand vested with DDAfor the use and need of the society.

Minimum plot area-Surrender of. by an industrial unit-Held, those required to surrender up 100 sq. meter of land, need not surrender since such H a tiny bit of land cannot be utilised for any need of the society. 234

M.C. MEHTA v. U.0.1. & ORS. RE' M?S DELHI DEVELOPMENT AUTHORITY 235

Industrial units having restm1ed their industries after removing/modify- A ing the objectionable use process and having obtained clearances from various departments-Held,, if the Mast" Plan permits establishment of such industries, it would not be necessary for such units to surrender the land-However, those having not started such industries with appropriate clearance or those which have not relocated the hazardous indust1ies, are bound by the direction requiring them to surrendei:

Certain industries having closed prior to the order dated 10.5.96-Their names still appearing in the list of industries to be closed down as mentioned in various orders of the Supi-eme Court-Held, it would not be permissible for such industries as have not appeared in cou11 or put any objection, to put up the plea that they were closed down p1ior to order dated 10.5.96 and claim an equitable right of not surrende1ing.

Industrial units running in rerited premises~-Closure of such industries as per orders of Supreme Cou1t-Tenant handing over the rented premises to the original owner-Held, oivner in such case bound by the order of surrender of land.

Supreme Court by its order dated 10-5-96 on a petition filed as a public interest litigation Jirected surrender of plots upon relocation of 'H' categories industries. However, even after a lapse of more than four years, the said order was not complied with. The present Interlocutory Application was filed by the DDA for clarification of the order dated 10-5-96 with regard to the queries raised by the industries and for issuance of appropriate directions thereof.

On behalf of the DDA, it was contended that the present application had been moved for certain clarification since there had been large scale unscrupulous withholding of delivery of possession; that there was a necessity for clarification by reason of proposed transfer of land locked areas which could not possibly be utilised by reason of non-availability of an entry thereto; that since a large number of proposed surrender were "ith encumbrances, question of obtaining possession thereof upon clearance of the encumbrances by the DDA would not arise since that would foist an additional financial burden or liability beyond the capacity of the DDA to , meet.

On behalf of the entrepreneurs, it was contended that factum of surrender would not arise since the industries were prepared to restart H

A and relocate the industries within the ambits of the Master Plan and Zonal

Development Plans; that light and service industries and household industrial units were permitted in terms of the Master Plan and the Zonal f- Development Plan did not contain any bar for their continuance in the event the same were within the ambit of the Master Plan.

Disposing of the Interlocutory Applications, the Court

M.C. Mehta v. Union of India, [1996] 4 SCC 351, clarified.

People United for Better Jjving in Calcutta - Public and Another v. State c!f \Vest Bmgal and Oihers, AIR (1993) Cal 215 and M.C. Mehta v. Union qf C India, [1996] 4 SCC 750, referred to.

Brundtland Repon; Stockholm declaration of 1972; Paper on Legal A, pect of Sustainable Development and Protection qf Environment by Prof.

Nico Schrijver of the Institute of Social Studies, Hague, referred to.

HELD : 1. By order dated 10-5-96, "H" category industries were directed to close down and to surrender the land so as to make available some green belt and open space popularly ascribed to be lung space for the city. Five years have passed by and not one industry has surrendered.

There were altogether, in the records of the Court, 96 applications for review which had the fate of dismissal by this Court from time to time - it is thus probably a hit too late in the day to contend and take recourse to the rules to avoid surrender of land. The entrepreneurs should have some regard and sanctity for the orders of this Court rather than pleading anew before the Court for further clarification. DDA is expected to act in terms of the order expeditiously rather than with the delayed whip in its hands.[245-G-H; 246-A; C; 248-D; 251-G-H; 252-B]

2. Land surrendered by the Industries as per order dated 10.5-96 has to he on the total plot area in possession. By a subsequent order, the Supreme Court directed a company to hand over the land only on which the factory premises stood. As a matter of fact the land stands bifurcated by the road - one for the factory use and the other for the residential purposes and it is by reason of the peculiar factual elements, that this Court passed an order directing only the factory area to he surrendered. Thus, the said order was in the peculiar facts of that case and is not of universal application, nor docs it in any way dilute the mandate of the order of this Court dated 10-5-96 directing surrender of entire land. [246-D-FJ

M.C. MEHTA, .. U.O.L & ORS. RE' MIS DELHI DEVELOPMENT AUTHORITY 237

3. If the owner has the land which is approachable from the road, A then he must surrender "ith the approach, so that the surrendered land can be utilised for the community. If, however, he is himself not the owner of the approach road, then question of his providing an approach road does not arise and as such surrender shall take effect on "as is where-is basis". If the land is encumbered, then the owner cannot utilise the land available to him by virtue of order dated 10-5-96, until he releases the surrendered land from encumbrance. Further if it is not made free from emcumbrance "ithin five years, then the land which the owner was otherwise entitled to retain would stand vested with DDA for the use and the need of the society. (252-E-H)

4. Those who are required to surrender upto 100 sq. meter after that extent of land becomes available to them under the order of this Court dated l 0.5.96 they need not surrender, since such a tiny bit of land cannot be utilised for any need of the society. (253-A-B]

5. It would not be necessary for those units who have started new industries after obtaining clearances from various departments, provided that the Master Plan permits establishment of such industries, to surrender the land. But those who have not started such industries with appropriate clearance from the competent authority, they cannot be permitted to take the stand that they intend to start such industry nor such a plea will entitle them to retain the land. They must be bound by the earlier direction of the Court requiring them to surrender. [253-E-GJ

M.C. Mehta v. Union of India, [1997) ll SCC 327 and M.C. Mehta v.

Union of India, [2000) 4 SCALE 367, referred to.

6. If the names of the industries appear in the list of 'H' categories in F various orders of the Court, and they have not appeared or put any objection, then it would not be permissible for them to put up the plea that industries were closed down prior to order dated 10.5.96 and claim an equitable right of not surrendering. (254-A-B]

7. Order of the closure was on the industries which were found injurious, irrespective of the fact whether it was being carried on by the owner of the land or the tenant. Consequently, it is irrelevant where tenant after closing down the industries, handed over the premises to the owner.

The owner in such case would he hound by the order for surrender, and

will have to surrender. (254-C-D] H

. '

A CIVIL APPllLLATE JURISDICTION: I.A. No. 1254 IN IA No. 22 !N

WP. (C) No. 4677 of 1985.

WITH

I.A. Nos. 153, 455, 1181, 451 and 441 in WP. (C) No. 4677/1985

AND

I.A. No. 1328 IN I.A. No. 1254 in IA No. 129 in WP (C) No. 4677/85,

AND

I.A. No. 1329 in IA No. 1254 in LA. No. 129 in WP (C) No. 4677/85.

K.N. Rawal, Additional Solicitor General, K.K. Venugopal, Gopal Subramanium, P.P. Tripathi, P.S. Mishra, C.S. Vaidyanathan, Shanti Bhushan, V.B. Saharya, for Saharya & Co., Manmohan, O.P. Khaitan, S. Sukumaran, A.T Patra, B.K. Khurana, Vimal Jad, for J.B.D. & Co,, Rakesh K. Khanna, Vislurn Shanna, Surya Kant, M.S. Mishra, M.L. Lahoty, Paban K. Shatma, Himanshu Shckhar, Bimal Roy, Jad, Pankaj K. Singh, Ashok Kr. Gupta, Ranukh Rasheed, Ms. Seema Mi<lha, Krishan Mahajan, K.C. Kaushik, S, N, Terdol, Ml

s. C.V. SubbaRao, RN, Venna, Ajay Sha1ma, C. Radhakrishnan, B.V. Balramdas, RC. Verma, Vivek Vishnoi, Ms. Kiran Kapoor, Shakil Ahmed Syed, Ramesh Babu M.R., B.S. Banthia, MC Mehta, Petitioner-in-Person, D.N. Gobur<lh11ll, Ms. Pinky Anand, Ms. Geeta Lutlua, Ms. Sheil Sethi, Vijay Panjwani, RC.

Verma, Ranjit Kumar and Mukul Rohtagi, Additional Solicitor General, (N.P.) for the appearing parties.

The Judgment of the Court was delivered by

BANERJEE, J. On 10th May, 1996, this Court on a petition filed as a public interest litigation directed sunender of plots upon relocation of 'H' categories industries - More than four years have passed since the date of the order - but regrettably the purpose of tl1e order, to wit, to provide some open G space and green verge for tl1e benefit of the people of the capital city, stands m1fulfilled and thus resultantly deprivation of '111llg space' in the city. Laws delay in this snbcontinent is not 11llknown in the adversarial litigation, but the situation should not and ought not to be similar in a public interest litigation more so when the saine concerns environmental degradation: A rather sad state

H of affairs. It is on this perspective, however, that the present Interlocutory

t.1.C. MEHfA v. U.0.1. & ORS. RE: t.1/S DELHI DEVELOPrvIBNT AUTHORITY [BANERJEE . .T.] 239

Application taken out by the DDA for direction on six key questions as A mentioned in the petition shall have to be consideic.d.

Incidentally, some entrepreneurs also moved certairi other Interlocut01y Applications, we do deem it lit however, to record that the entrepreneurs' application or any other matter or petition pending shall await the judgment and order in DDA' s application.

Before, however, proceeding with the matter further, a briefbackgrow1der seems to be rather indispensable having regard to the concept of sustainable development for the capital city.

Needless to say while ti1e Bnmdtland Report called out for adaptation C globally of a strategy of sustainable development defining it as development

that rneets the need of the present without cornpromising the ability of future generations to meet their own needs, the initial linkage between the natural and man made environment and the critical relevance of both envirorunent and development is generally attributed to the Stockholm declaration of 1972 D which stands restated and reaffirmed by the UN General Assembly in December, 1986 specifying therein sustained and rapid development for developing nations.

Prof. Nico Schrijver of the Institute of Social Studies at Hague, in his paper on Legal Aspect of Sustainable Development and Protection of Environment has high-lighted this 1ight to development or sustainable development and indicated that the same includes a healthy environment.

The controversy as regards Developmt::nt or Enyiroruncnt v1s-a-v1s the society however persists and it is in this context a judgment of th0 Calcutta High Court, of which one of us (Bane1jee, J.) was a party, in regard to Calcutta's Wellands in the Eastern fringe of the.city of Calcutta (see AIR (1993) Cal 215) may be noted: Relevant extracts whereof are noted hereinbelow:-

"While it is trne that in a developing count1y there shall have to be developments, but that development shall have to be in closest possible haimony with the environment, as otherwise there would be development but no environment, which would result in total devastation, though however, may not be felt in presenti but at some futwe point of time, but then, it would be too late in the day, however, to control

and improve l11e envtl-onment. Nature will not tolerate us after a certain H

degree of its destruction and it will, in any event, have its toll on the lives of the people. Can the present-day society afford to have such a state and allow the nature to have its toll in future - the answer shall have to be in the negative. The present-day society has a responsibility towards the posterity for their proper growth and development so as to allow the poste1ity to breathe normally and live in a cleaner environment and have a consequent fuller development. Time has now come therefore to check and control the degradation of the environment and since the Law Courts also have a duty towards the society for its proper growth and further development, it is a plain exercise of the judicial power to see that there is no such degradation of the society and tl1ere ought not to be any hesitation in regard thereto ..... "

The Calcutta Wetland Judgment was pronounced on the apprehended danger of a severe bio-divcrsity c1isis but the situation in the capital city of Delhi is rather pathetic: Nonavailability of even the lung space has resulted in a very high degree of pollution - as a matter of fact, this Court (vide: 1996

(4) SCC 351) while dealing with the issue at the instance of Mr. Mehta, the lawyer and social-activist had the following to state:

"7. Delhi is one of the most polluted cities in the world. The quality of ambient air is so hazardous that lung and respiratory diseases are on the increase. The city has become a vast and unmanageable conglomeration of co1nn1ercial, industrial, unauthorised colonies, resettlement colonies and unplanned housing . There is total lack of open spaces and green areas. Once a beautiful city Delhi now presents a chaotic picture. The most vital "community need" as at present is the conservation of the environment and reversal of the environmen~ ta! degradation. TI1cre are virtually no "lung spaces" in the city. The Master Plan indicates the "approximately 34 per cent of recreational areas have been lost to other uses". We are aware that the housing, the sports activity and the recreational areas are also part of the "community need" but the most in1portant community need which is wholly deficient and needed urgently is to provide for the "lung spaces" in the city of Delhi in the shape of green belts and open spaces. We are therefore, of the view that totality of the land which is surrendered and dedicated to tl1e community by the owners/occupiers of the relocated/shifted industries should be used for the development of green belts and open spaces."

.....

~J.C. MEITTA v. U.O.L & ORS. RE MIS DELHI DEVELOPMrI\'T AUTHORITY [BANERJEE. J.] 241

The Court in discharge of its social duty and obligation as the guardian A angel of the soL:iety further directed in the same decision as helow:

"SI.

No.

"9. We, therefore, order and direct that the land which would become available on account of shifting/relocation of hazardous/noxious/heavy and large industries from the city of Delhi shall be used in the following manner:-

Extent

Up to 2000 sq. mts. (including the frrst 2000 sq.mis. of the larger plot)

0.2 ha to 5 ha

5hatol0ha

over 10 ha

Percentage to be sunendered and Dedicated to the ODA for Development of Green belts and other spaces

Percentage to he developed by the owner for his own benefit in accordance with the user pennitted under the Master Plan

I 00% to be developed by the owner in accordance with the zoning regulations of the Master Plan

32"

The earlier paragraphs have been .introduced in this judgment as a backgrounder and to emphasize the sensitivity of the issue since environmental degradation will have its toll and there cannot be any doubt or dispute therein, though may not be felt in presenti.

The directions as above in tenns of the order dated 10th May, 1996 has however, led to some confusion at the time of execution of this Court's order before the District Judge, Delhi since none of the industrial units which were closed down by the order of this Court, took any step whatsoever for surten- H

A dering !he land on the pretended pretext of the order of this Court dated 4.12.1996.

Significantly, however, the order dated 4th December, 1996 of this Court came to be passed in an Interlocutory Application for directions filed by the Cenual Government wherein this Court was pleased to observe in paragraph 3 of the order as below (vide 1997 (11) sec 327):

"3. We see considerable force in !he contention of the learned Additional Solicitor General on the second point also. TI1e existing hazardous indusuies having been closed, what remains is the plot, superstrncture and the workmen. The occnpants of tl1e plots and !he owners of the indust1ies which have been closed down shall have IO undertake fresh procedure for setting up of a new industty. Needless to say !hat no industry can be set up which is not pe1mitted under !he Master Plan. The procedure required for setting up of a new industry shall have to be followed in every case. We make it clear tliat Government pe1mission and the consent from !he Pollution Control Board/Committee, if required under law, shall have to be obtained .

Even fresh electric connection and water connection shall have to be applied for and obtained in !he changed circumstances. We have no doubt when approached for necessary pe1mission/licence/water/electric connections !he authorities shall expedite in dealing wilh !he applications."

The order of 4tl1 December, 1996 lhough mainly pe1tain however, to the compensation aspect to the workers of those industries which are not relocating and which have been closed down but some variations were ordered having regard to the setting up of industries in accordance with Master Plan of Delhi. The order however was clear enough to indicate !he intent of !he order. In !his Interlocutory Application, however, Delhi Development Autl1ority said to have been confronted wilh various queries raised by !he industries and upon consideration !hereof prayed for iss_uauce of appropriate directions in regard to the issues mentioned hereinbelo\V'.

(i) Land surrendered by !he Indusuies as perorder dated 10.5.1996 has to be on !he total plot area in possession.

(ii) Land offered for surrender should be directly approachable from the road, vacant and free from all encumbrances.

... -

.M.C. r.1EI-ffA v. IJ.O.l. &ORS. RE: !'vl/S DELHI DEVELOPivJENT AlffHORJTY [BANERTEE, J.] 243

(iii) From the land sunender cases in respect of plots leased by Delhi A Development Authority, it is seen that out of 14 Industrial Units requiring to su1Tendcr the land. 7 have a plot area ranging between 8 sq.m to 100 sq.m. Hon'ble Supreme Com1 is requested to give directions for minimmn plot area to be sunendered by an Industrial Unit.

(iv) Ce11ain units have restarted tl1eir industries removing/modifying the objectionable use process and obtained clearances from various deparnnents. Are such industries also liable to smrender land to Delhi Development Authority as per orders dated 10.5.1996, 8.7.1996 and 4.12.1996? c

(v) There are certain industries \vhich \\'ere c:]osed prior to the orders of Hon'ble Supreme Court dated 10.5.1996 but their names appear in the list of 'H' category industries to be closed as mentioned in tl1e various orders of Hon'ble Supreme Court. Are such industries liable to surrender land? There are other indus- D trial units which closed pursuant to the Hon'ble Supreme Com1's orders dated 10.5.1996 and restarted the activities as per orders dated 4.12.1996 of Hon'ble Supreme Com1. Suitable directions 1nay be given whether land SUITender from such industries has to be effected.

(vi) There are certain lmits which were 1unning in rented premises from witl1in plot located in an approved industrial area/non conf01ming area and whose nmne is got included in the list of 1328 industries released by Hon'ble Supreme Com1 from time to time. After the orders of Hon'ble Supreme Court dated F 10.5.1996, the tenant has closed down the indusny and has handed over tl1e rented premises to the 01iginal owner. In such eases is the original owner required to suriender land if the total plot area is more than 2000 sq.m.?

Adverting to the records at this juncture, be .it noted tliat after the G judgment of this Court on !Otl1 May, 1996 as above, three Interlocutory Applications, having more or less similar prayers were dismissed: Delhi Development Authority also filed the IA No.139 for clarification of order dated 10.5.1996, 8.7.1996 and 4.12.1996 with a prayer that tl1e units required to sunender land are now closed down as being a hazardous large scale industry H

A and do not wish lo relocate but lo star! units which are pe1mitted in the Master Plan and in compliance with the pollution control nonns. 111.is Court however dismissed the Interlocutory Application on !st October, 1997.

Sig11ifican1ly, the interlocutory application No.139 was filed on behalf of Dellli Development Authority and the prayer therein not only bears a similarity B with the prayer in tl1is application but more or less the same has been couched in tl1e exactly similar language and for convenience sake the same is set out hereinbelow:-

"(a) Whether the order dated 10.5.1996 passed by the Hon'ble Court in so far as it require the units to surrender land would apply to such units which after having closed the hazardous large scale industries do no! wish to relocate but to start units which are pe1mitted under the Master Plan and wllich also comply with Pollution Control Rules."

It is on tl1is prayer tl1is Court passed an order of dismissal though D however, without recording any reason.

Mr. Ranjit Kumar, the learned amicus curiae appearing in !he matter contended that by reason of rejection of such a prayer, resulting in the dismissal of tl1e application, question of further consideration of the issue as is proposed in question No.IV hereinbefore would not arise. Undoubtedly, there is some substance in such a contention but the factum of non-availability of reasons in the order has rendered the situation slightly more llexible so as to afford a further opportunity to this court having regard to tl1e concept of justice to consider in some detail the order dated 4th December, I 996 in I.A.

No.36 accepting tl1e contention of the learned Additional Solicitor General.

The clarificatory order of 4tl1 December, 1996 did in fact grant a liberty which would be dealt with in detail while answering the issues raised in t11e application.

Another redeeming feature which ought also to be noticed pertains to the desire of the Delhi Development Autl1ority to move the Court once again G after having failed in such an attempt earlier. We are at a loss to find a further attempt on the part of the Delhi Development Authority. The reasons obviously there would be some: but apparently nothing was forthcoming.

Subsequently, Swatantra Bharat Mill and DCM Silk Mills also moved l.A.No.425 with a prayer to direct DDA to acquire the land required to be H surrendered under the DDA Act or the Land Acquisition Act and to restrain

r' -

--~ -

M.C. MEHfA v. U.0.1. & ORS. RE: MIS DELHI DEVELOPi\IENT AUTHORITY [BAI\."'ERJEE, J.J 245

DOA for trying to expropriate the land of the petitioner : This prayer also was A turned down by this Court and hence the application was dismissed as withdrawn.

Be it noted that the learned amicus curie with his usual eloquence contended that review applications against the order passed on !Otl1 May, 1996 numbered 36 in the year 1996, 55 in the year 1997, 3 in the year 1999 and 2 petitions in the year 2000, as the records depict, were all dismissed and on the wake of the same, Mr. Ranjit Knmar addressed us in detail that the present petition said to be for clarification cannot but be attributed to be a further attempt to review of the order dated 10.5.1996 which, in fact, does not call for any review nor does it call for any further order substituting the earlier order dated 10th May, 1996.

Mr. Raw al, the learned Additional Solicitor General however, contended that while subniission of Mr. Ranjit Kumar may have some substance pertaining to some of issues as raised herein but that cam10t said to be applicable in regard to all the issues. Mr. Additional Solicitor General made it quite categori- D cal that the application as filed by DDA is not for circumvention of compliance of the order of this Court but only to act in terms therewith. 111e instant petition, Mr. Rawal contended has been initiated as a necessity and DDA had to move this Court for certain clarification since there have been large scale unscrupulous withholding of delivery of possession. The necessity also said to be by E reason of proposed transfer to land-locked areas which caunot possibly be utilised even as a lung-space by reason of nonavailability of an entry thereto.

It has been contended further that since a large number of proposed sunender, if not in its entirety, are with encumbrances, question of obtaining possession thereofupon clearance of the encumbrances by the DDA would not arise since that would foist an additional financial burden or liability beyond the capacity F ,.._ of the DOA to meet.

Mr. Rawal contended that transfer also should be effected without any superstructure on the land as otherwise, it would be a near impossibility for DDA to take possession thereof.

Be it noted that tl1e order dated 10th May, 1996 specifically directed that "H" category industries are required to suffender the land to the ODA.

We may note here that this order of surrender was passed by reason of the

fact that the pollution level has reached its optimum in the city of Delhi affecting the entire society - "H" category indus!Jies were directed to close H

down and to sunender the land so as to make available some green belt and open space popularly ascribed to be lung space for the city. Industries might have closed in terms of the order of this Court and the compliance to the order was to this limited extent only. Su11ctmes are still lying there and no sunender has yet taken place. Majesty of law demanded compliance in observance rather than in its breach - it is for the society only that this Court thought it fit to pass order to the extent as indicated above - the capital city of the country ought not to be termed as the most polluted city in the world: It is with this spirit that the public interest litigation was filed and this Court also maintained the same by directing the shifting of "H" category industries - Five years have passed by and not one industry has smTendered though of course, C by reason therefore, show-cause notice to these industries were issued by the order dated 21st September, 1999 and the public notice was directed to be issued by an order dated 12th October, 1999. The matters are pending in Court but !here has not been any change of situation. Significantly by rea, on of a specific situation this c.omt in the case of Hindustan Vegetables' passed an D order on7th December, 1999 directing the Hindustan Vegetables Oil Cmporation to hand over 2 acres of the land only on which the factory premises stood and not the land measuring about 1.20 acres belonging to the fact01y and situated just abutting the other side of the road: As a matter of fact the land stands bifurcated by the road - one for the facto1y use and the other for

the residential purposes and it is by reason of the peculiar factual elements, that this Comt passed an order directing only the factory area to be smrendered - Tuns the order as passed on 7th December, 1999 in Hindustan Vegetables' case cannot be te1med to be of general application for smrender of all factory lands - Any inteqiretation which mns counter of the above would also be opposed to the tme spirit of the order and there would be a total failure of the avowed objects of social welfare and social benefit which has prompted tliis Court to pass the order dated 10th May, 1996.

Mr. Venugopal and Mr. Shanti Bhushan, learned Senior Counsels appearing for the entrepreneurs however, complained of violation of fundamental rights under Article 14. Mr. Shanti Bhushan contended that factnm of G smrender would not arise since the industries which he represents are prepared to restart and relocate the industries within the ambits of the Master Plan and Zonal Development Plans and this Court ought in the fiu1ess of things grant necessary clarification in regard thereto. In the similar vein Mr. Yenugopal also submitted that light and service industries and household industrial units H stands permitted in terms of the Master Plan for Delhi and the Zonal

M.C. f\..1EIITA I'. U.O.I. & ORS. RE: MIS DELID DEVELOPr..ffil'.T AUTHORITY [BANERJEE, J.) 247

Development Plan does not contain any bar for their continuance in the event the same falls within the ambit of the Master Plan. Mr. Venugopal contended that though hazardous and noxious indusu-ial units are not pennitted in Delhi and existing heavy and large scale industrial units both in tenns of this Court's order and in terms of the Master Plan are required to be relocated and shifted but the land which would become available on account of such shifting ought to be used for making up the deficiency as per the needs of the conununity based on 1101ms given in the Master Plan. Mr. Venugopal contended that as

a matter of fact in the event any land or part of the land so vacated is not needed for the deficiency of the community service the Master Plan for Delhi itself records that the same would be used as per prescribed land use. Strong emphasis has been laid on Master Plan for Delhi Perspective, 2001 in C particular the chapter on Work Centres industry. Relevant extracts of which are set out herein below for ready reference:-

"Heavy and Large Industries

Refer Anncxure Ill H(b)

a ......................... .

b ... ····· ... " ..... "" ""'.""

(c) The land which would become available on account of shifting as administered in (b) above, would be used for making up the deficiency, as per the needs of the community; based on norms given in the Master Plan; if any land or part of land so vacated is not needed for the deficiency of the conununity services, it will be used as per prescribed land use; ho1veve1; the land shall be used for light and service indusuies, even if the land use according to the Master Plan/Zonal Development Plan is extensive industry (emphasis supplied).

(d) Modernisation of heavy and large scale industrial units shall be

permitted subject to the following conditions: G

(i) it will reduce pollution and tratlic congestion.

(ii) Whenever the unit is asked to shift according to the policies of the plan, no compensation shall be paid for assets attained because of mode1nisation.

A Much emphasis has been laid on the word "however" (as emphasised

above) and relying thereon it has been contended that user ofland, in the event the same is not needed for deficiency of community services, can thus be had for light and service industties even if the Master Plan or Zonal Development Plan depicts its user as extensive industty. Further reliance was also placed on paragraph ( d) of the Master Plan that even modernisation of heavy and large scale industrial units is pe1mitted though subject to the conditions specified in (i) and (ii) above. It is in this context also our attention has been drawn to the Zonal Development Plan in particular tl1e existing land use and the proposed land use in sub-zone "G". In reference to the same Mr. Venugopal contended that existing land use totals 5456.32 hectare whereas the proposed land use is identical in area - No doubt the submission at the first blush seems to be rather attractive but when read in tl1e light of the decision of this Comt as recorded in tl1e judgment dated I 0th May, 1996 we are afraid tliat tl1e same pales into its insignificance since the .submission cannot be countenanced a~ this juncture and after the expiry of five years. There were altogether in the D records of this Court 96 Applications for Review which had the fate of dismissal by this Court from time to lime as detailed hereinbefore in this judgment - it is thus probably a bit too late in the day to contend and take recourse to the mies to avoid sunender of land. This Court's order has been categmical and it is only expected that the enttepreneurs would act in te1ms tl1erewith and not de hors the same. Needless to dilate that in tlie case of E Swatantra Bharat Mills and DCM Silk Mills, the learned District and Sessions Judge, Delhi recorded in the order dated 25th July, 2000 about tl1e factUlll of filing of objections to the execution petitions pertaining to the surrender of land. The order of the learned Judge records that the land in question has not been offered as yet and as such directed the industry to remove all tl1e F

superstmctures from the land and also file an undertaking that it is free from all encumbrances. The land should further be accessible from the public road; Be it recorded t11at the two industries named above in \Vhich the leained District and Sessions Judge passed the directions as above in no uncertain terms submitted that the land to be offered, stands free from all encumbrances and there is existing no cloud ou tl1e title of the industry over the land which is to be surrendered.

Mr. Gopal Subramaniam, learned senior counsel appearing for the entrepreneurs also contended in the same vein that as a matter of fact, the Master Plan and the Zonal Development Plans having statutory recognition H in terms of the Delhi Development Act, 1957, paragraphs (c) and (d) as

- 1lv1.C.11EITTA v. u.o.r. & ORS. RE: ~1/S DELlll DEVELOP1IENT AUTHORITY [BAh'ERJEE, J.j 249

noticed above under the title Work centres industry ought to be given its full A -· Ji play and the order of this Court, thus should be modified to incorporate the same.

Incidentally, it has been contended rather strongly tliat the Master Plan being the golden tlnead in the orders passed by this c.ourt from time to time, and since there is available under tlie Master Plan some relief the same ought to be made available to the entrepreneurs. In this context paragraph 11 of the judgment dated 10th May, 1996 (supra) may be noticed and which reads as below:-

"The DDA has suggested that it may be necessary to amend the Master Plan for regularising the land use as directed by us. We do not agree with the suggestion. The totality of the land made available as a result of the relocation/shifting of tlie industries is to be used for the community needs. The land surrendered by tl1e owner has to be used for the development of green belt and open spaces. The land left

with the owner is lo he developed in accordance with the user D pennitted under the Master Plan. In either way the development is to meet the community needs which is in confo1mity with tl1e provisions of the Master Plan."

We would also deem it fit to quote paragraph 12 as below for consideration of this aspect of the matter:

"We are, therefore, of the view that it is not necessary to amend the Master Plan.

While it is trne that this Cot11t has directed user of land left with the

owner to be developed in accordance with the userpennitted under the Master F Plan but the whole aim, object and spirit of the order was to meet the community need and it is in this context also that Mr. Gopal Suhramaniam drew our attention to the Appendix to the Zonal Development Plan pertaining to area "G". We are however, unable to accede to such a submission since time has not come as yet in any event to assess the situation in its entirety. The Zonal Development Plans roduced before the Court has not been finalised as yet since it is presently in the draft stage and as such no reliance can be placed by this Court on the data and the materials available thereon. A proposal cannot he said to be a final declaration of the community need. We are tlms unable to record our concmrence tlierewith for the reasons noticed above. The order

of tliis Comt dated 4th December, 1996 in the matter in issue ( 1997 (11) SCC H

327) was passed in an interlocutory application for directions filed by the ,,___

Union of India wherein in paragraphs 2 and 3 this Court observed as below: ,_ _

"2. So far as the first contention is concerned, learned Additional Solicitor General has taken us through the order of this Court in M. C.

Mehta v. Union of India, [1996] 4 SCC 351, regarding land-use along with the order dated 8.7.1996 (M.C. Mehta v. Union of India, [1996] 4 SCC 750, regarding relocation of 168 industries. The intention of this Cowt is clear that the 01tler regarding land re-use was both for relocating industries as well as those which decide to close down and not to relocate. (Emphasis supplied) The learned counsel for the industries have not disputed this inte1pretation. We, therefore, accept the contention of learned Additional Solicitor General. Nothing more need be said on this point.

3. We see considerable force in the contention of tl1e learned Additional Solicitor General on the second point also. The existing hazardous industries having been closed, ivhat ren1ains is the plot, superstructure and the workmen. The occupants of the plots and the owners of the industries which have been closed down shall have to undertake fresh procedure f~- setting up of a new industry. Needless to say that no indusu-y can be set up which is not pennitted under the Master Plan. The procedure required for setting up of a new indusu-y shall have to be followed in every case. We make it clear tl1at Government permission and the consent from the Pollution Control Board/Committee, if required under law, shall have to be obtained.

Even fresh electric connection and water connection shall have to be applied for and obtained in the changed circumstances. We have no doubt when approached for necessary permission/licence/ water/ electric connections the authorities shall expedite in dealing witl1 the applications.

The order as above tlms unmistakably depicts tl1e intention of this Court to rely on its order dated 10th May, 1996 though with certain variations as noticed herein before in this judgment. Setting up of industries was expressly authorised, upon compliance with all regulato1y requirements, unfortunately however, though certain advantages has been made available, but not one of the learned Advocates could respond in the affirmative even on a specific enquiry from tl1e Court.

'"'

M.C. MEHTA v. u.o.I. & ORS. RF: MIS DELHI DEVELOPMENT AUTHORITY [BANERJEE, J.] 251

The issues are long pendingthe issues are urgent since the entire A society is impaired - no exception can be taken to the legal battles involved in an adversarial litigation -this is not one such instance: It is a tme public interest litigation for the protection of the society and to avoid a deliberate peril arising out of entrepreneurial failure and total apathy and non-concern for social good and benefit. The Delhi Development Act of 1957 envisaged preparation of B Master Plan for Delhi with a definite statutory direction to define various zones into which Delhi may be divided for the purposes of development and the manner in which the land in each zone is proposed to be used and the stages by which such development shall be carried out. As a matter of fact the Master Plan came into existence in 1962 and 'H' category industries ought to have shifted out of the area specified therein by 1962 itself. Then came the Master Plan of 1990 to combat the existing situation with a specified period of shifting v.ithin three years i.e. ther~ was an obligation to the 'H' category industries to shift and relocate in terms of the Master Plan by the year 1993

and the social activist by reason of the failure of the entrepreneurs, moved this Court in 1995 whereupon after allowing all possible opportunities to all D entrepreneurs and upon assessment of the situation through the appointments of Commissions and obtaining various reports on these aspects, passed the order on 10th May, 1996 which has till date not been complied with - an indeed a sorry state of affairs and a total neglect and apathy towards the society, new and novel submissions are advanced as in any adversarial litigation but unforhlnately as noticed above it is too late in the day to contend otherwise apart from what t!1e order contains as of 10th May, 1996.

Needless to record that as late as April last year (28th Ap1il, 2000) this Court issued a direction to the effect that within one month all the industries which are required to surrender lanJ in te1ms of this Court's order dated 10th May, 1996 should voluntarily surrender the same to the Delhi Development Autlmrity and if the same has not been done the DDA will be duty bound to file au application for execution of this Comt' s order before tl1e District Judge, Delhi and the District Judge shall thereupon execute this Court's order and report compliance within four weeks of tl1e filing of tl1e execution application.

Be it noted that by the order last referred, this Court further directed that the execution application to be filed by DDA not later than 8 weeks from tl1e date of the order - the entrepreneurs should have some regard and sanctity for tl1e orders of this Court rather than pleading anew before the Court for further clarification [if assuming we ascribe the same to be clarification rather than review] - can tl1is be termed to be in consonance with the law or is it a

deliberate attempt to ridicule the Court's order? We will not be very wrong if we answer the same that probably the second alternative is the answer. nie DDA also has raised certain inquiries before this Court again after the specific direction of this Court in 28th April, 2000' s order. We are at a loss as to why after the specific order of the learned District Judge instead of relying thereon, a further application has been filed before this Court in July, 2000. DDA is expected to act in teims of tlie order expeditiously rather than with the delayed whip in its hands. ln any event we answer the inquiries raised in the manner following:-

Re (i) ............. .

Re (ii) ............ .

So far as the first issue is concerned, we make it clear that the order dated 7.12.1999, in tlie case of vegetable oil \Vas in the peculiar facts of that case and is not of universal application, nor does it in any way dilute the mandate of the order of this Court dated 10.5.1996 directing sunender of entire land subject lo the extent of availability to the owner as per order dated 10.5.1996 rep01ted in 1996 (4) Supreme Court Cases - 351.

So far as the second issue is concerned, if the owner has the land which is approachable from the road, then he must sunenJer with the approach, so that the suffendered land can be utilised for the coffilnunity. If, however, he is himself not the owner of the approach road, then question of his providing an approach road does not arise and as such su1Tender shall take effect on "as is where is basis".

On the question as to the land to be sunendered should be free from encumbrance, we are of the vie\v, if the land is already encumbered, then a direction to release it from encumbrance and surrender will be a great burden. At the same time, such land will be of no use to tlie society unless released from encumbrance. In the circumstances we direct that the owner cannot utilise the land available to him by virtue of order of this Court dated 10.5 .96, until he releases the sunendered land from encumbrance. Further if it is not made free from encumbrance within five years, then he will not get the benefit of the order dated

J0.5.96 and after five years even tlie land which the owner was otherwise entitled to retain would stand vested with

M.C. ~ITTA v. U.O.I. & ORS. RE: 1'1/S DELHI DEVELOPMENf AUTIIORITY [BANERJEE, J.] 253

Re(iii) ........... .

Re(iv) ........... .

DDA for the use and the need of the society.

So far as the third issue is concerned, those who are required to surrender upto 100 sq. meter after that extent of land becomes available to them under the order of this Court dated 10.5.96 they need not surrender, since such B a tiny bit of land cannot be utilised for any need of the society.

So far as the fourth issue is concerned, it is to be noted that on the application of the Union of India, this Court by order dated 4.12.96 in IA No.36 in Writ Petition No.4677 of 1985, accepting the 2nd contention of the learned Additional Solicitor General, held that the occupants of the plots and the owners of the industries which have been closed down shall have to undertake fresh

procedure for setting up of a new industry and such D industry can be established if permissible under the Master Plan. The Comt also observed that when approached for

necessary pennission/license/water/electJ.ic connections, the authorities shall expedite in dealing the applications. (See 1997 (11) sec. 327). In view of the aforesaid clarificatory order of the Comt on the application of the Union Government, i~ \i..roul<l not be necessary for those units who have started new industries after obtaining clearances from various departments, provided that the Master Plan permits establislnnent of such industrie's, to sunender tl1e

land. But those \\Iha have not started such industries with appropriate clearance from the competent authority, they cannot be pennitted to take the stand that they intend to

start such industry nor such a plea will entitle them to retain the land. They must be bound by the earlier direction of the Court requiring them to surrender. This G will apply to those industries which have not relocated the hazardous industdes elsewhere. But if they have relocated, they cannot get the benefit, as has been held by the Court in the order dated 28.4.2000, reported in 2000 (4)

SCALE - 267, H

A Re(v) ........... ..

So far as the fifth issue is concerned, if the names of the industries appear in the list of 'H' categories in various orders of the Court, and they have not appeared or put any objection, tl1en it would not be pe1missible for tl1em to put up the plea that industries were closed down prior to order dated 10.5.96 and claim an equitable right of not surrendering.

Re(vi) .......... ..

So far as tl1e sixth _issue is concerned, it is apparent that the order of the closure was on the industries which were found .:(- injurious, il1"cspective of the fact whether it was being canied on by tl1e ownerof the land or the tenant. This being the position, the subsequent direction of su!1"ender also is in relation to the land on which such industries \Vere being ca1ricd on and were ordered to be closed down. Consequently, it is il1"eievant where tenant after closing down the industries, handed over the premises to the owner. The owner in such case would be bound by the order for surrender, and will have to surrender.

Interlocutory application filed by the DDA thus stands disposed of as

above.

The other !As. shall be dealt with separately.

M.P.

I.As. disposed of.