2005 (10) TMI 593 - HC - Indian Laws

Summary

Issues Involved:
1. Interpretation and applicability of DCR 58(1) and its sub-clauses.
2. Validity of the clarification dated 28th March 2003.
3. Compliance with the EIA Notification dated 27th January 1994 (as amended on 7th July 2004).
4. Legality of sales of mill lands by NTC in light of Supreme Court orders and BIFR schemes.

Detailed Analysis:

1. Interpretation and Applicability of DCR 58(1) and Its Sub-Clauses:

DCR 58(1):
The condition precedent to the applicability of DCR 58(1)(a) and 58(1)(b) is the previous approval of the Municipal Commissioner to a layout and as part of a package of measures recommended by BIFR for the revival/rehabilitation of a potentially viable sick and/or closed mill. It is not open to any mill owner to seek the approval of the Commissioner to a layout under DCR 58(1) on his own but the same can be done only as part of a scheme of BIFR.

DCR 58(1)(a):
This provision applies only to the existing structures, and not to any newly built-up area (whether after demolition or otherwise). The change of user under DCR 58(1)(a) is permissible only as part of a package of measures recommended by BIFR. The Commissioner may allow the existing structure to be utilized for the users specified in clauses (i) to (iii) thereof.

DCR 58(1)(b):
This provision specifies the user permissible, as part of a package of measures recommended by BIFR, in respect of "open lands and balance FSI" on condition that the same is shared in the manner envisaged thereunder. The term "open lands" is to be given its natural, unrestricted meaning i.e., lands which are presently vacant and/or lands which become vacant at any time upon demolition of the structures thereon.

DCR 58(2):
Textile mills requiring modernization may develop or redevelop lands for the purpose of modernization subject to two conditions: (1) approval by the competent authorities and (2) in accordance with a scheme approved by the Government. When these are satisfied, the Commissioner is empowered to approve a layout which may permit a change of user both in respect of the user of built-up area and/or development of open lands and balance FSI.

DCR 58(3):
A cotton textile mill may be shifted outside Greater Bombay but within the State subject to two conditions: (1) approval of the competent authorities and (2) in accordance with a scheme approved by the Government. In such a scheme, the development or re-development of the land after shifting may be in accordance with sub-clause (a) and (b) of sub-regulation (1).

DCR 58(4):
This clarifies that the recommendation of BIFR is not mandatory in the case of sub-regulations (2) and (3).

DCR 58(5):
The Commissioner is expressly empowered to allow additional development to the extent of balance FSI on open lands or otherwise for the same cotton textile or related user.

DCR 58(6):
This provision contemplates demolition of existing structures and reconstruction to the extent of the built-up area of such structures, as also aggregation of the built-up areas of different mills for such demolition and reconstruction. It does not permit or contemplate any change of user and hence requires a separate layout approval by the Commissioner.

2. Validity of the Clarification Dated 28th March 2003:
The clarification dated 28th March 2003, which purported to exclude lands becoming open upon demolition of existing structures from the requirement of sharing, amounts to an amendment of DCR 58 and is ultra vires DCR 62(3). It was issued without following the necessary procedures under Section 37 of the MRTP Act and is therefore invalid. The clarification is also prejudicial to the environment and ultra vires Articles 21 and 48A of the Constitution.

3. Compliance with the EIA Notification:
None of the Respondents who have started construction of residential/commercial premises have obtained the mandatory clearance from the Ministry of Environment and Forests (MoEF) prior to starting any development, as required under the EIA Notification dated 27th January 1994 (as amended on 7th July 2004). This non-compliance is contrary to public interest and amounts to an illegality and a violation of the Petitioners' rights under Article 21 of the Constitution.

4. Legality of Sales of Mill Lands by NTC:
The sales of lands by NTC from five mills are contrary to the sanctioned BIFR schemes and the Supreme Court orders dated 11th May 2005 and 27th September 2002. The sanctioned scheme of BIFR clearly provides that the surrender of land to MCGM and MHADA in respect of each mill shall be out of the land of such mill itself and not out of the land of some other mill. The integrated development scheme approved by MCGM is contrary to the sanctioned scheme, which does not contemplate any such integration.

Conclusion:
The interpretation of DCR 58(1)(b) as including lands after demolition of structures is upheld. The clarification dated 28th March 2003 is invalid. Compliance with the EIA Notification is mandatory, and the sales of mill lands by NTC are contrary to the Supreme Court orders and BIFR schemes.