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TMI Blog2006 (3) TMI 326X X X X Extracts X X X X X X X X Extracts X X X X ..... sh, Gopal Jain, Venkatesh Dhond, P.H. Parekh, Lalit Chauhan, Sumit Goel, Shyam, Mehta, Bhavesh Panjwani, Ms. Menna H. Doshi, Ms. B. Sunita Rao, Amit Bhandari, Sushi Kr. Pathak, U.A. Rana, Sadeep Kharel, Ms. Srabonee Roy, Ravi Gandhi, Dhaval Vussonji, Pratap Venugopal, E. Venu Kumar, Hurshad V. Hameed, Anil Menon, S.U.K. Sagar, Ms. Bina Madhavan, Ambuj Agrawal, Dhaval Mehta, Rekha Palli, Venkatesh Dhand, Shailesh Kalambi, Pritesh Kapoor, Ms. Purnima Bhat Kak, Gopal Jain, C. Reshmikant, S.K. Srivastav, Santosh Paul, Ms. Sheweta Gupta, A.K. Rao, M.J. Paul, Ashok Kumar Gupta, M.K. Dava, Farrukh Rasheed, Ujjainwala S.H., Rakesh Katana, D.N. Mishra, Jay Savla, Gautam Patel, Parag Kabadi, Lynn Periera, Sharan Jagtiani, Devansh Mohta, Ms. Reena Bagga, Ms. Meenakshi Ogra, Ms. Meenakshi, Satya Mitra, M.N. Shroff, Ms. Anuradha Singh, Ms. Aparna Bhat, Ravindra K. Adsure, Sambhaji S. Shinde, V.N. Raghupathy, Anirudha P. Mayee, Mukesh Verma, Ashok B. Jain, D.T. Devale, Manish Shanker, Pankaj K. Singh, Ashish Mohan, Yash Pal Dhingra, N.M. Ganguly, Vinay Navare, Naresh Kumar, C.S. Ashri, Prashant Bhushan, Vishal Gupta, Rohit Kumar Singh, Ms. Sumeet Sharma, Vikas Mehta, Mahesh Agarwal, Manu Krishna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ashtra Housing and Area Development Authority (MHADA), the National Textile Corporation (NTC) North Maharashtra and South Maharashtra were impleaded as respondents. Before the High Court a large number of mill owners and others who allegedly have invested a huge sum on the lands of the mill owners or otherwise interested in implementation of DCR 58 of 2001 filed applications for their impleadment as parties therein which were opposed by the writ petitioner-respondents. The said applicants were, however, allowed to intervene in the matter. It is, however, not in dispute that the purchasers from National Textile Corporation were not impleaded as parties therein who are now before us. On or about 2-6-2005, the writ petitioner-Respondents took out a Chamber Summons seeking to amend the writ petition. The proposed amendments inter alia related to : "(i )a challenge to the clarification dated 28-3-2003 issued by Respondent No. 3 on the ground that the same seeks to permit residential user and is therefore an amendment of DCR 58 of 2001; and (ii)the alleged requirement of Environmental impact Assessment (EIA) in pursuance of notification dated 27-1-1994 as amended by notification dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould include lands after demolition of structures. (b)Clarification dated 28-3-2003 is clearly violative of section 37 of MRTP Act and Article 21 of the Constitution of India. (c )The issue whether the amended DCR 58 is contrary to section 37 of MRTP Act or Article 21 of the Constitution of India, is kept open. (d)All the constructions carried out by various Developers are clearly in violation of EIA Notification as amended on 7-7-2004, as admittedly none of them have obtained clearance from Ministry of Environment and Forests. (e )All sales of Mill lands carried out by NTC are clearly contrary to the Supreme Court orders dated 11-5-2005 and 27-9-2002 and contrary to the sanctioned BIFR schemes." 5.1 Upon taking into consideration the provisions of the 1994 Amendment Act and SICA, it was held : (i)State also has a stake in the mills because they meet the requirements of cheap and quality cloth and furthermore provide work and livelihood to many. (ii)An ecological imbalance would be created by proliferation of high-rise structures in Girangaon area, which was essentially planned for commercial and industrial activities. (iii)DCR 58 facilitates the implementation of measures ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the mills obtained clearance as per the EIA Notification in spite of High Court's directions to do so and had been carrying on construction activities. MCGM as also the State of Maharashtra did not take any effective step to ensure compliance of the EIA notification. Even the public hearings conducted by the Maharashtra Pollution Control Board were not done satisfactorily. It directed that the public hearings be conducted by the Ministry of Environment and Forests itself, keeping in view the enormity of ecological imbalance and environmental degradation and also keeping in mind 'Precautionary Principle' and the principle of 'sustainable development.' In its judgment, the High Court furthermore opined: (i)MCGM has not ensured at all, while sanctioning the building plans, compliance of the provisions relating to public amenities, (ii)No step for compliance with EIA Notification had been taken over by MCGM. (iii)MCGM did not ensure furthermore that all the Mill owners provide free housing of 225 square feet to the occupants. Despite mandatory nature of DCR 58(7) none of the sanctioned plans provide for any housing for the mill workers/occupants. (iv)MCGM has not ensured surrend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to take into consideration the fact that the equity was in favour of the appellants herein as they having already demolished the building as having created third party interests, should not have been asked to go back to the same position as was obtaining in the year 1991. (L)If the impugned judgment is upheld, several provisions of DCR 58, as for example, clause (6) thereof would become otiose and redundant and, thus, interpretation of the High Court in respect of DCR 58 is unsustainable. (M)No foundational fact having been laid in the writ petition to show as to how the clarification amounts to amendment of DCR 58, the High Court committed a manifest error in arriving at a finding that the said Regulations are ultra vires section 37 of the Act and/or Article 21 of the Constitution of India. (N)The Respondent-writ petitioners were guilty of serious delay and laches in filing of the writ petition and thus it was liable to be not dismissed in limine. 8. Re : Validity of sales of 5 mills by NTC (a)The High Court in granting relief in favour of the writ petitioners failed to take into consideration relevant factors and based its decision on irrelevant factors and, thus, misdirect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f land in regions established for that purpose and for constitution of Regional Planning Boards therefor and for other purposes mentioned in the preamble thereto enacted the MRTP Act repealing and replacing the Bombay Town Planning Act, 1954. It came into force with effect from 11-1-1967. 10.2 MRTP Act provides for formulation of regional plans and development plans. Definitions of some of the expressions which are relevant for our purpose are as under : "2(7) 'Development' with its grammatical variations means the carrying out of 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 precincts and includes demolition of any existing building structure or erection or part of such building, structure of erection; and reclamation, redevelopment and layout and sub-division of any land; and "to develop" shall be construed accordingly; 2(9) 'Development plan' means a plan for the development or re-development of the area within the jurisdiction of a planning Authority and includes revision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and amenities; (f)Reservation of land for community facilities and services. 10.7 Section 37 permits modification of a Development Plan by the Planning Authority or in cases of urgency by the State Government in exercise of its power under sub-section 1AA of section 37 which reads as under : "(1AA)(a) Notwithstanding anything contained in sub-sections (1), (1A) and (2), where the State Government is satisfied that in the public interest it is necessary to carry out urgently a modification of any part of, or any proposal made in, a final Development Plan of such a nature that it will not change the character of such Development Plan, the State Government may, on its own, publish a notice in the Official Gazette, and in such other manner as may be determined by it, inviting objections and suggestions from any person with respect to the proposed modification not later than one month from the date of such notice, and shall also serve notice on all persons affected by the proposed modifications and the Planning Authority. [Emphasis supplied] 10.8 Section 38 provides for periodic revisions of the developmentplan making it mandatory to revise the same at least once in every 20 years. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red or reconstructed/removed, except where otherwise specifically stipulated, these regulations apply only to the extent of the work involved." 10.16 In terms of Regulation 21 whenever more than one building is proposed on any land or where the land development measures more than 1,000 sq. m. in a residential, commercial or industrial zone, it is mandatory to prepare a layout plan. A layout plan would also be necessary where sub-divisions are required to be made. Such plan inter alia has to include "a table indicating the size, area and use of all the plots in the sub-division/layout plan". It should also contain "a statement indicating the total area of the site area utilized under roads, open spaces for parks, playgrounds, recreation spaces and development plan designations, reservations and allocations, schools, shopping and other public places along with their percentage with reference to the total area of the site. . ." 10.17 Land uses have been provided for in Regulation 9 stating that uses of all lands should be regulated in regard to type and manner of development/redevelopment as specified in Table 4. In Table 4 inter alia the following uses have been mentioned : (a) Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... buildings and premises to be used for industrial and accessory uses except one category under sub-regulation (2) of Regulation 56 new textile mills cannot be constructed in the said areas. Sub-regulation (3) of Regulation 56 contains a non obstanate clause providing that service industries and service industrial estates shall be permitted in the General Industries Zone. Sub-regulations 3(b), 3(c) and 3(d) of Regulation 56 read as under : "(b)With the previous approval of Commissioner and on such conditions as deemed appropriate by him, the existing or newly built-up area of unit, in the General Industrial Zone (Zone I-2), (including industrial estates) excluding that of cotton textile mills, may be permitted to be utilized for an office or commercial purposes as a part of a package of measures recommended by the Board of Industrial and Financial Reconstruction (BIFR), Financial Institutions and Commissionerate of Industries for the revival/rehabilitation of potentially viable sick industrial units. (c )With the previous approval of the Commissioner, any open land or lands or industrial lands, in the General Industrial Zone (I-2 Zone) be permitted to be utilized for any of the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... op. The second part would go to MHADA and the third part would go to public greens. In terms of the said offer, only two mills exercised the second option and three opted for the third. Nobody had opted for the fourth option presumably because pursuant thereto about 2/3rd of the land possessed by the owner of the mill was required to be surrendered. 11.1 DCR 58 provides for a complete code. A distinction, therein has been made between cotton textile mills on the one hand and non-cotton textile mills, on the other. 12. In 2001, DCR 58 was amended/modified. DCR 58 as amended in the year 2001 reads as under : "58. Development or redevelopment of lands of cotton textile mills; (1) Lands of sick and/or closed cotton textile mills. - With the previous approval of the Commissioner to a layout prepared for development or redevelopment of the entire open land built-up area of the premises of a sick and/or closed cotton textile mill, and on such conditions deemed appropriate and specified by him, and as a part of a package of measures recommended by the Financial Institutions and Commissionerate of Industries for the revival/rehabilitation of a potentially viable sick and/or closed mill ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e FSI is in balance but open land is not available, for the purposes of columns (3) and (4) of the above Table, land will be made open by demolishing the existing structures to the extent necessary and made available accordingly. (v)Where the lands accruing as per columns (3) and (4) are, in the opinion of the Commissioner of such small sizes that they do not admit of separate specific uses provided for in the said columns, he may, with the prior approval of Government, earmark the said lands for the use as provided in column (3). (vi)It shall be permissible for the owners of the land to submit a composite scheme for the development or redevelopment of lands of different cotton textile mills, whether under common ownership or otherwise upon which the lands comprised in the scheme shall be considered by the Commissioner in an integrated manner. (2) Lands of cotton textile mills for purpose of modernisation: - With the previous approval of the Commissioner to a layout prepared for development or redevelopment of the entire open land and/or built-up area of the premises of a cotton textile mill which is not sick or closed, but requiring modernisation on the same land as approved by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ures; (b)Multi-mills aggregation of the built-up areas of existing structures where an integrated scheme for demolition and reconstruction of the existing structures of more than one mill, whether under common ownership or otherwise, is duly submitted, provided that FSI is in balance in the receiving mill land. (7) Notwithstanding anything contained above - (a ) if and when the built-up areas of a cotton textile mill occupied for residential purposes as on the 1st of January, 2000 developed or Page 359 redeveloped, it shall be obligatory on the part of the land owner to provide to the occupants in lieu of each tenement covered by the development or redevelopment scheme, free of cost, an alternative tenement of the size of 225 sq. ft. carpet area; (b)if and when a cotton textile mill is shifted or the mill owner establishes a diversified industry, he shall offer on priority in the relocated mill or the diversified industry, as the case may be, employment to the worker or at least one member of the family of the worker in the employ of the mill on the 1st January, 2000 who possesses the requisite qualification or skills for the job; (c )for the purpose of clause (b) above, the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tee shall,- (i )lay down guidelines for the transparent disposal by sale otherwise of built-up space, open lands and balance FSI by the cotton textile mills; (ii)lay down guidelines for the opening operation and closure of escrow accounts; (iii)approve proposals for the withdrawal and application of funds from the escrow accounts; (iv)monitor the implementation of the provisions of this Regulation as regards housing, alternative employment and related training of cotton textile mill workers. (d)The Monitoring Committee shall have the powers issuing and enforcing notices and attendance in the manner of a Civil Court. (e )Every direction or decision of the Monitoring Committee shall be final and conclusive and binding on all concerned. (f )The Monitoring Committee shall determine for itself the procedures and modalities of its functioning." Reasons for Amendment 13. We may, at this juncture, take notice of the stand taken by the State before the High Court. The State of Maharashtra filed several affidavits before the Bombay High Court stating the backdrop of events leading to amendment in 2001. It is accepted that the State appointed several committees to make an in depth st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kh Committee Report. In any event, the State has no objection to furnishing a copy of the report of the Ranjit Deshmukh Committee if the Petitioners so desire." 13.3 The deponent of the said affidavit further denied and disputed the contention raised on behalf of the petitioner that the Government in- tended to side with the private developers at the cost of the city as a whole and had not made any amendment in furtherance of the Charles Correa Committee Report. It was stated : ". . .I say that as stated in my earlier affidavit dated 22-3-2005, the State Government has culled out certain recommendations of the Correa Committee as also certain recommendations of the Ranjit Deshmukh Committee whilst coming to a conclusion the need for, and thereafter incorporating suitable amendments to the said DCR 58." 13.4 The said stand of the State, however, underwent some change when the same deponent in his third affidavit dated 17th August, 2005 in purported clarification of the earlier stand of the State stated : "I am making this further affidavit in order to explain the position with regard to the change made with regard to Regulation 58(1)(b) and the clarification issued on March 28, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... port, urban form, open spaces and employment generation. As regard open spaces, it stated : "The Public Open Spaces proposed ( see fig. 23) vary in size from large Maidans to small Neighbourhood Parks, so that a variety of different open-air activities can take place. In front of the Railway Stations, large Pedestrian plazas have been proposed, surrounded by shopping arcades (so that the people can pick up their vegetables and other purchases on their way home a classic pattern found all over Mumbai). Then again, the principal roads can be widened and lined with trees, so that they are converted into leafy boulevards." 14.2 A second committee was constituted but it did not submit any report. 14.3 Another Committee was constituted under the Chairmanship of Shri Ranjit Deshmukh, the then Minister for Textiles and included a representative of all the Ministries and Departments concerned including the Urban Development Department. The Committee appointed a sub-committee. The sub-committee inter alia took into consideration the recommendations of the Charles Correa Study Group, prevailing provisions belonging to textile mills, prevailing state of affairs with respect thereto, demands ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it appears that the said Committee suggested use of different language, namely, "lands after demolition of structure". We find from the said report that the Committee suggested a draft in respect of DCR 58(1)(b) of the Regulations. It is in that context, we may have to consider the second affidavit affirmed by Shri Ramanand Tiwari when he stated that the Cabinet had approved the report albeit not in its entirety. 14.6 The draft regulations thereafter were notified for considering the objections thereto, if any. Several objections were filed, they were considered by the appropriate authority including the planning authority. 14.7 Evidently, the said two reports were considered by the Cabinet but it intended to give more to the mill owners than what was recommended inter alia by introducing sub-regulation (6) of DCR 58. The intent and purport of the State is apparent from DCR 58. It accepted a major part of the recommendations of the Deshmukh Committee but thought that the mill owners should be given something more. Public Interest Litigation : Scope of 15. While entertaining a public interest litigation of this nature several aspects of public interest being involved, the Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay treat it necessary to enquire into the state of affairs of the subject of litigation in the interest of justice." 15.5 This was also the view taken in Guruvayur Devaswom Managing Committee v. C.K. Rajan [2003] 7 SCC 546 at para 50, Shivaji Rao Nilangekar Patil v. Mahesh Madhav Gosavi [1987] 1 SCC 227 and Chairman & MD, BPL Ltd. v. S.P. Gururaja [2003] 8 SCC 567. 15.6 In K.K. Bhalla v. State of M.P. [2006] (1) SCALE 238, it was stated : "The Appellant has brought to the notice of the High Court that a malady has been prevailing in the department of the State of Madhya Pradesh and the JDA. It may be true that the Appellant did not file any application questioning similar allotments but it is well-settled if an illegality is brought to the notice of the court, it can in certain situations exercise its power of judicial review suo motu. . ." 15.7 This Court times without number, however, has laid down the law as regard limited scope of public interest litigation. It sounded note of caution for entertaining public interest litigation in service matters [See B. Singh v. Union of India [2004] 3 SCC 363, in questioning the validity or otherwise of a statute or when a statute is enac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainable development and various other principles. In the aforementioned situation, it is not possible for us to take recourse to the golden rule. 16.4 As would appear from the discussions made hereinafter, we are, however, of the opinion that for correct interpretation of DCR 58, the principles of purposive interpretation should be applied. 16.5 In Francis Bennion's Statutory Interpretation, purposive construction has been described in the following manner : 'A purposive construction of an enactment is one which gives effect to the legislative purpose by - (a )following the literal meaning of the enactment where that meaning is in accordance with the legislative purpose (in this Code called a purposive-and-literal construction), or (b) applying a strained meaning where the literal meaning is not in accordance with the legislative purpose (in the Code called a purposive-and-strained construction).' 16.6 In K.L. Gupta v. Bombay Municipal Corpn. [1968] (1) SCR 274, it was stated : ". . .Before examining the contentions on the points of law raised in this case, it is necessary to appreciate what the Act sought to achieve and why it was brought on the statute book. In order to do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es only a frame within which several applications are possible, whereby every act is legal that stays within the frame." (p. 720) [See also High Court of Gujarat v. Gujarat Kishan Mazdoor Panchayat [2003] 4 SCC 712, Indian Handicrafts Emporium v. Union of India [2003] 7 SCC 589 and Deepal Girishbhai Soni v. United India Insurance Co. Ltd. [2004] 5 SCC 385, para 56. 16.11 In Balram Kumawat v. Union of India [2003] 7 SCC 628, this Court held that if special purpose is to be served even by a special statute, the same may not always be given any narrow and pedantic, literal and lexical construction or doctrine of strict construction should always be adhered to. 16.12 In Pratap Singh v. State of Jharkhand [2005] 3 SCC 551, this Court emphasized assignment of contextual meaning to a statute having regard to the constitutional as well as international law operating in the field. Strict adherence to the procedure, subject to just exceptions, was highlighted therein. However, in P.S. Sathappan v. Andhra Bank Ltd. [2004] 11 SCC 672, it was observed that in the guise of purposive construction one cannot interpret a section in a manner which would lead to a conflict between two sub-section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en recourse to in certain cases as has been adumbrated in Halsbury's Laws of England (Fourth Edition) Volume 44(1) (Reissue). We would refer to the said principle in some details later. Interpretation of Act and Regulations 17. DCR 58 has been attempted to be interpreted in more than one manner by the learned counsel appearing for the parties. 17.1 DCR 58 was made to revive and resurrect neighbourhoods, foster development, regenerate lands which had become sterile, encourage the shifting of textile mills (thereby reducing the attendant strain and industrial activity places on civil amenities) and pay off chronic arrears and dues of workers, banks institutions, statutory dues, etc. In its operation and implementation new DCR 58 would also unlock large real estate and make it available to residents. 17.2 A statute, it is well-known, is to be read a whole. Subordinate legislation indisputably has to be read in the light of the provisions of the Act whereunder it has been made. It however, must be read having regard to the purpose and object for which the statute is made. 17.3 The MRTP Act provides for formulation of regional plans and development plan. The planning authority, bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e other. Ordinarily, it would not be for the court to substitute its decision to that of the planning authority unless an appropriate case is made out therefor. When, however, question of public interest comes up, the court indisputably would try to delicately balance the different factors, if possible. Both open space as also the other factors relevant for making the regulation would be in public interest. The question would, however, be as to which is of greater public interest. Public interest, thus, would be a relevant factor also for interpretation of the statute. Public interest so far as maintenance of ecology is concerned pertains to a constitutional scheme comprising of Articles 14, 21, 48A and 51A(g) of the Constitution of India, the other factors are no less significant. [See also T.N. Godavarman Thirumulpad v. Union of India [2002] 10 SCC 606. N.D. Jayal v. Union of India [2004] 9 SCC 362 and Vellore Citizens' Welfare Forum v. Union of India [1996] 5 SCC 647]. All concerned namely, operating agencies, the State Government, the National Textile Mills as also BIFR interpreting the said regulation opined that sharing of land is imperative, but the question remains, to wha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith but it is difficult to accept the submissions made on behalf of the learned counsel appearing on behalf of the Appellants that the courts cannot exercise their power of judicial review at all. By reason of any legislation whether enacted by the Legislature or by way of subordinate legislation, the State gives effect to its legislative policy. Such legislation, however, must not be ultra vires the Constitution. A subordinate legislation apart from being intra vires the Constitution, should not also be ultra vires the parent Act under which it has been made. A subordinate legislation, it is trite, must be reasonable and in consonance with the legislative policy as also give effect to the purport and object of the Act and in good faith. 18.1 In P.J. Irani v. State of Madras [1962] 2 SCR 169, this Court has clearly held that a subordinate legislation can be challenged not only on the ground that it is contrary to the provisions of the Act or other statutes; but also if it is violative of the legislative object. The provisions of the subordinate legislation can also be challenged if the reasons assigned therefor are not germane or otherwise mala fide. The said decision has been fol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the Legislature is presumed to understand and correctly appreciate the needs of its own people, but the same again would not mean that judicial review of legislation is impermissible. 18.7 In Balco Employees Union v. Union of India [2002] 2 SCC 333, this Court while dealing with new economic policies of the elected Government held : ". . .Any such change may result in adversely affecting some vested interests. Unless any illegality is committed in the execution of the policy or the same is contrary to law or mala fide, a decision bringing about change cannot per se be interfered with by the court. Wisdom and advisability of economic policies are ordinarily not amenable to judicial review unless it can be demonstrated that the policy is contrary to any statutory provision or the Constitution. In other words, it is not for the courts to consider relative merits of different economic policies and consider whether a wiser or better one can be evolved. For testing the correctness of a policy, the appropriate forum is Parliament and not the courts. . . ." [Emphasis supplied] (p. 381) The embargo as regard exercise of power of judicial review may not be beyond the aforemention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 (1) SCALE 385]. Furthermore, there are innumerable cases where this Court has even issued directions despite the fact that the field is covered by some statute or subordinate legislation. Such directions issued are clear pointers to show that when a question involving greater public interest or public good including enforcement of fundamental right arises, this Court bestowed enormous consideration to public interest. [See Vineet Narain v. Union of India [1996] 2 SCC 199, Union of India v. C. Dinakar, IPS [2004] 6 SCC 118 and Kapila Hingorani v. State of Bihar [2003] 6 SCC 1]. 18.14 Such directions have more often than not been issued even where the question involved relates to enforcement of a human right or environmental aspects. Interpretation and application of constitutional and human rights had never been limited by this Court only to the black letter of law. Expansive meaning of such rights had all along been given by the Courts by taking recourse to creative interpretation which lead to creation of new rights. By way of example, we may point out that by interpreting Article 21, this Court has created new rights including right to environmental protection. 18.15 The Wed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Commissioner to a layout prepared for development or redevelopment of the entire open land built-up area of the premises of a sick and/or closed cotton textile mill, and on such conditions deemed appropriate and specified by him, and as a part of a package of measures recommended by the Board of Industrial and Financial Reconstruction (BIFR), Financial institutions and Commisstionerate of Industries for the revival/rehabilitation of a potentially viable sick mill, the Commissioner may allow; (a)The existing or newly built-up areas to be utilised - (i)for the same cotton textile or related user subject to 58. Development or redevelopment of lands of cotton textile mills; (1) Lands of sick and/or closed cotton textile mills. - With the previous approval of the Commissioner to a layout prepared for development or redevelopment of the entire open land built-up area of the premises of a sick and/or closed cotton textile mill, and on such conditions deemed appropriate and specified by him, and as a part of a package of measures recommended by the Board of Industrial and Financial Reconstruction (BIFR), Financial institutions and Commisstionerate of Industries for the revival/re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to be a part of the measure of the package recommended by BIFR for the revival/rehabilitation of a potentially viable sick mill. Only if such conditions are specified, clause (a) shall apply which provides for change of user relating to existing built-up area. We have noticed hereinbefore that Regulation 56(3)(b) and Regulation 57(4)(c) also makes specific provisions for grant of change of user in respect of sick mills as a part of a package of measures recommended by BIFR. 19.3 The drastic changes have, however, been made in clause (b) of sub-regulation (1) of DCR 58. It refers to a case of redevelopment. In clause (b) the words "after demolition of existing structures in case of a redevelopment scheme" have been deleted. 19.4 DCR 58 as made in 1991consisted of four different concepts : (1)Existing built-up areas; (2)Newly built-up areas in DCR 58(1)(a); (3)Open land; and (4)Lands after demolition of existing structures in the case of a redevelopment scheme in DCR 58(1)(b). It is not in dispute that the scheme framed thereunder did not work or in any event did not work to the satisfaction of all the mill owners and other players including the State. 19.5 In view of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rms of Column 3 gets loaded in Column 5. The mill owner furthermore even according to the writ petitioners gets TDR of 37 per cent. Open land in clause (b) is what is not covered by the built-up area. The balance FSI, indisputably, is not open area. 19.8 The meaning of 'open land' must be construed as land other than land required to sustain the built-up area. We may now attempt to understand the effect of FSI having regard to a concrete example. If the area of a plot is 1,000 sq. m., applying the FSI of 1.33, a person will be entitled to construct a built-up area of 1,330 sq. m. If he intends to build a two-storeyed building, he will utilize 665 sq. m. of land whereas in a case of ground plus four storeyed building, he will be using 266 sq. m. of land and in case of nine storeyed structure, he will be using only 133 sq. m. 19.9 The greater the height of the building, more lands will be available either by way of public green or private green as also for MHADA. However, in such a case, the plinth area will vary significantly. Whereas in the first case, it would be 665 sq. m., in the third case, it would only be 133 sq.m. although the built-up area remains the same. 19.10 Taking ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the said provisions, the rule of purposive construction is required to be taken recourse to. Sub-regulation (1) speaks of entire open land as well as built-up area. It speaks of the necessity of having the recommendation of BIFR as a package of measures. Such recommendations must be for the revival/rehabilitation of a potentially viable sick mill. The provisions, therefore, may not apply to a mill which is neither sick nor otherwise not potentially viable, subject, of course, to the explanation contained in Note (vi) appended thereto as also sub-regulation (6) thereof. For the aforementioned purpose, let us at this juncture also notice the tables appended to clause (b) of sub-regulation (1) of DCR 58. 19.15 Column (2) of the Table refers to the extent of land. Column (3) provides for percentage to be earmarked for recreation ground/garden, playground or any other open user as specified by the Commissioner. Column (4) refers to percentage to be earmarked and handed over for development by MHADA for public housing/for mill worker's housing as per guidelines approved by the Government to be shared equally. Column (5) provides for percentage to be earmarked and to be developed for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... velopment or redevelopment, being covered by clause (b) would be for the entire plot except the built-up area which was existing, FSI having regard to its statutory definition would, thus, have to be calculated having regard to the ratio of the total construction to the area of the plot except the land component of the existing built-up area. 19.19 There is no dispute as regard grant of better facility to the mill owners through TDR. The only dispute is what meaning should be attributed to the expression 'balance FSI'. 19.20 In order to determine whether vital changes have been effected by way of the amendment of 2001, both the sub-clauses of sub-regulation (1) would be necessary to be taken into consideration for construing the words "balance FSI". 19.21 The expression "balance" would mean "apart from" which in turn would mean apart from the area for which protection has already been given. 19.22 Balance FSI would, thus, mean FSI which is available for construction after excluding the FSI relatable to an already consumed by the existing built-up structure. 19.23 Both the phrases "open lands" as also "balance FSI" contained in DCR 58(1)(b) play, significant role. The word "bal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contrasted with a built-up area additionally but separate and distinct from the old existing built-up area. The existing built-up area, thus, was sought to be protected which would mean that they were sought to be protected from non-shareable land component thereof. It is thus possible to come to the conclusion that the obligation to share was intended to be absent only so long as no additional built-up area was created. 19.26 In a case where the existing structure is demolished in part, the balance FSI would be available but in relation to the entire open lands, FSI has to be calculated taking into account the area of open land appurtenant to the existing structures. Thus, no basic change had been effected in drafting the regulation to segregate newly built-up areas from existing built-up areas. It cannot be denied that the State intended to give more benefits to the mill owners by reason of 2001 Regulations and, thus, if after demolition of the entire structure the whole plot is treated to be open land and FSI is calculated on the basis thereof the purport and object of the amendment will be defeated. The fact that the State intended to consider the matter relating to amendment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) or 58(1) (b) or 58(6). Some of the NTC mills also may come within one or more categories. It is possible and in fact some of the mill owners had opted for one or more of the multiple options of development/redevelopment activity in terms of the said regulation. By way of example, Ruby Mill opted for both modernization and shifting and permission had been granted therefor. The fact that DCR 58 is a self-contained code is evident from sub-regulation (8) which provides that funds accruing to a sick, closed or mill requiring modernization or shifting shall be credited to an escrowaccount, which shall be utilized only for revival/rehabilitation, modernization or shifting of the industry. Sub-regulation (9) provides a mechanism for putting this into place. The State, not only endeavoured to take care of needs of various categories of cotton textile mills but also made attempts to find out a solution having regard to the fact that the 1991 Regulations did not work. By framing DCR 58, therefore, a mechanism was sought to be provided for achieving the purpose of providing some relief to all players in the field. The said Regulations were framed under section 22(m) of the MRTP Act for con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atory in nature, having regard to the fact that prior thereto the land owners could carry on demolition without prior intimation and/or obtaining permission from the corporation. The High Court therefore, in its judgment wrongly laid undue emphasis thereupon. Furthermore, in DCR 58 the word 'redevelopment' had all along been used. By reason of the said amendment, no different meaning which would not be in consonance with the object should be attributed. Whatever that may mean, redevelopment contemplates in its ordinary parlance a renewal or substitution of development and involves pulling down of the structures. Development by way of demolition cannot mean that DCR 58(1) would permit not just the retention of the structure (shell) but also demolition of structure (shell). The purpose for introducing the said amendment, therefore, was for a different purpose and could not have been used for the purpose of construction of DCR 58. 19.37 In has not been disputed that keeping in view of the fact that the structures of the mills had been built long long time back, they had sprawling existing structures. Ranjit Deshmukh Committee Report does not categorically state that the balance FSI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... demolition. The statute contemplates retention of the built-up area that means the same area which the owner could retain had the building been not demolished. The area which the structure had occupied is intended to be left with the mill owner. However, how much area would be allowed to be retained, would inevitably differ from mill to mill. Sub-regulation (6) merely provides for a guiding principle that the owners of the mill would be permitted to retain the existing structure and built-up area; precisely that is the concept of sub-regulation (6). In other words, rebuilding to the same effect or aggregation between different plots is permitted so long the existing built-up area is demolished and the same would not require sharing of any land thereunder, provided of course that existing built-up area is not enhanced. DCR 58(6) is carved out of DCR 58(1)(b). In terms of it only the construction is permitted for the same area for the purpose of reconstruction. It is also worth noticing that both old and new regulation speak of retention of same structure. DCR 58(6), thus, confers an additional benefit in respect of cases falling within DCR 58(1)(a) allowing inter alia : (a)demoliti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 662.61 SQ.M. R.C. I M.C.G.M. 18,086.12 SQ.M. Computation of Open Land 1.PLOT AREA (EXCL. SET BACK AREA) 58,458.36 SQ.M. 2.LAND COMPONENT OF EXISTING B.U. AREA UNDER DCR 58(6)i.e., EXISTING BU ARE APERMISSIBLE FSI 75,079.11 SQ. M. 1.33 56,450.46 SQ.M. 3.BALANCE OPEN LAND TO BE SHARED UNDER DCR 58(1)(b) (i)SHARE OF MCGM (33%) (ii) 542.13 SQ.M. (iii) SHARE OF OWNER (40%) 2,007.90 SQ.M. 662.61 SQ.M. 542.13 SQM 803.16 SQ.M. OWNER'S HOLDING [2+3(iii)] 57,253.62 SQ.M. For computing the extent of the land required to be shared, the plinth area will have no relevance. So far as Mill No. 4 is concerned, having regard to the existing built-up area, the share of MCGM and MHADA would be on a low side, but it is evident that so far as Mill No. 1 is concerned, whereas the plot area was only 47,730.28 sq. m., having regard to the built-up area, the share of MCGM and MHADA would come to 4,058.67 sq. m. and 3,320.73 sq. m. respectively. These are indicative of the fact that the extent of open land to be shared by the owners with MCGM and MHADA would depend upon the built-up area of the structure which existed on site. The share of MCGM and MHADA, therefore, would vary fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the facts of the instant case, which of the opposing constructions of an enactment corresponds to its legal meaning, should find against a construction which produces an absurd result, since this is unlikely to have been intended by Parliament. Here 'absurd' means contrary to sense and reason, so in this context the term 'absurd' is used to include a result which is unworkable or impracticable, inconvenient, anomalous or illogical, futile or pointless, artificial or productive of a disproportionate counter-mischief. 1480. Presumption against anomalous or illogical result. It is presumed that Parliament intends that the Court, when considering, in relation to the facts of the instant case, which of the opposing constructions of an enactment corresponds to its legal meaning, should find against a construction that creates an anomaly or otherwise produces an irrational or illogical result. The presumption may be applicable where on one construction a benefit is not available in like cases, or a detriment is not imposed in like cases, or the decision would turn on an immaterial distinction or an anomaly would be created in legal doctrine. Where each of the constructions contended for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of such closure. In such a case, even in terms of the provisions of the Industrial Disputes Act having regard to the purport and object for which the same had been enacted, the authorities there under as also for the State a duty is cast to restore back the industrial peace. [See State of Rajasthan v. Mohammed Ayub Naz [2006] 1 SCALE 79]. Sick Mills 21. SICA is a special statute. It is an Act made by the Parliament. It was enacted in the public interest so as to make special provisions with a view to securing the timely detection of sick and potentially sick companies owning industrial undertakings, the speedy determination by a Board of experts of the preventive, ameliorative, remedial and other measures which need to be taken with respect to such companies, the expeditious enforcement of the measures so determined and for matters connected therewith or incidental thereto. SICA was enacted for giving effect to the policy of the State towards securing the principles specified in clauses (b) and (c) of Article 39 of the Constitution of India, it would prevail over other statutes including MRTP and the Regulations framed thereunder. 21.1 Section 3(e) of SICA defines "industrial c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the said provision, certain steps are required to be taken which are as under : (i)Application for Scheme of Modernization to Government (Competent Authority i.e., Corporation and Textile Department, Government of Maharashtra) as per DCR 58(2) read with 58(6)(a)( b) as the case may be. (ii)Scrutiny by the Department of Textiles. (iii)Approval to Scheme by Government (with direction to approach MCGM for further approval as per Regulation 58(2) read with 58(6)(a)(b ). (iv)Application by Owner to Municipal Commissioner for a layout prepared for development or redevelopment of the entire open land and/or built-up areas of the premises of mill. With regard to the utilization of built-up area (if reconstruction, aggregation is proposed then it has to be read with 58(6)(a)( b) as the case may be), the provisions of clause (a) of sub-regulation 1 of these regulations shall apply and if the development of open lands and balance FSI exceeds 30 per cent of the open land and balance FSI, the provision of clause (b) sub-regulation (1) of this regulation shall apply. As per Notes (ii) in case of more than one cotton textile mills owned by the same company, the exemption of 30 per cent, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng. Shifting of industries outside the town is encouraged. 22.3 Ruby Mills Limited, which is one of the Appellants in civil appeal arising out of SLP (C) No. 23634 of 2005, is one of the companies which had opted for shifting. It had, however, made a scheme for shifting-cum-modernization under the said provisions as also commercial development of a portion of its textile mill land. Other regulations 23. Sub-regulation (5) provides for additional development to the extent of balance FSI on open lands or otherwise by the cotton textile mill itself not only for the same cotton textile but also for related user. The calculation of FSI indisputably would be in terms of the Appendix VII. 23.1 Sub-regulation (6) provides for multi-mill aggregation. This provision in certain respects is to be considered with Note (vi) of sub-regulation (1) of DCR 58. The aforementioned clause cannot be read in isolation. It has to be read in conjunction with the other regulations. It would apply to a case which might have otherwise been covered by sub-regulations (1), (2), (3) and (5). But the same would not mean that a part of sub-regulation (1) and a part of sub-regulation (2) cannot be applied in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... structures, a'fortiori it may not be possible to give effect thereto as there would be no power to user of change of land under existing structures. 23.3 So far as NTC mills are concerned, development had taken place as a package of measure recommended by BIFR. Indisputably, the same would come within the purview of sub-regulation (1) of DCR 58 but in certain cases sub-regulation (6) also may be attracted. Each of the relevant sub-regulations of DCR 58 confers regulatory power upon the Commissioner of the State. Development or redevelopment in terms of sub-regulations (1), (2), (3) and (5) are required to be made in terms of a layout plan as approved by the Commissioner and in case of modernization as per the scheme approved by the State. As the said provisions, contain a safeguard, namely, prior approval of the Commissioner, all the mill owners irrespective of the fact that they fall in different categories in terms of the regulations would, thus, be entitled to take benefit of clause (6) subject to strict compliance of other provisions. Constitutionality of DCR 58 24. The constitutionality of DCR 58 had been questioned principally on three grounds, namely, it is violative of; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of our constitutional law have been taken into consideration; and (vi)Whether in arriving at such a decision, both substantive due process and procedural due process had been complied with. It would, however, unless an appropriate case is made out, be difficult to apply the aforementioned principles in the case of a legislative act. It is no doubt true that Articles 14, 21, 48-A of the Constitution of India must be applied both in relation to an executive action as also in relation to a legislation, however, although the facet of reasonableness is a constitutional principle and adherence thereto being a constitutional duty may apply, the degree and the extent to which such application would be made indisputably would be different. Judicial review of administrative action and judicial review of legislation stand on a different footing. What is permissible for the court in case of judicial review of administrative action may not be permissible while exercising the power of judicial review of legislation. 24.4 It may, however, be a different thing to contend that the legislation had been enacted without constitutional principles in mind. The real question is whether the constituti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ignored. To what extent, DCR 58 would be commensurate with the ideal ecological condition as is suggested by the experts is one thing but it is another thing to say that no consideration at all in this behalf had been made by it. The State in its affidavit categorically stated that the said reports had fallen for consideration and had been accepted by it but in the third affidavit it has merely been stated that the State intended to give more than what was suggested in the said report. It has been accepted by the parties that certain suggestions have been accepted in toto and the provisions have been amended pursuant thereto or in furtherance thereof. 24.8 The Ranjit Deshmukh Committee, not only visited some mills but also took recourse to the consultative process. Even the Charles Correa Committee visited all the public sector textile mills. While taking the said reports into consideration, the State acquainted itself with the existing ground realities as they then existed. 24.9 For the purpose of striking down a legislation on the ground of infraction of the Constitutional provisions, the court would not exercise its jurisdiction only because the recommendations of the committ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... original DCR 58 was introduced. Before doing so, due consultative process as laid down in section 37 of the MRTP which involves suggestions and objections from public and the concerned statutory authorities was taken recourse to. Consideration of the same by Dy. Director of Town Planning and thereafter promulgation of the same in the form of direct regulation establishes that the same is not ex facie arbitrary in nature, particularly when most of the suggestions of the said Committees were accepted. 24.13 So far as the argument based on violation of Article 48-A of the Constitution is concerned, the provisions thereof are required to be construed as a part of the principle contained in Article 14 of the Constitution of India. A statute may not be ultra vires Article 48-A itself if it is not otherwise offensive of Articles 14 and 21 of the Constitution of India. What however, cannot be done for striking down legislation can certainly be done for striking down executive action. [See K.K. Bhalla v. State of M.P. 2006 (1) SCALE 238 and S.N. Chandrashekarv. State of Karnataka JT 2006 (2) SC 202]. 24.14 Ecological factors indisputably are very relevant considerations in construing a t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ieve the desired objective forcing the State to take a conscious policy decision, which according to it, would satisfy everybody's need. All players may not feel happy as evidently a group of workers and the writ petitioners are not. Even the Bombay Municipal Corporation and MHADA had shown its reservation but the same by itself would not resist us in any manner in arriving at a correct interpretation. In Forward Construction Co. v. Prabhat Mandal[1986] 1 SCC 100, it was clearly recognized that in a given case there can be more than one public interest and these interests can be in conflict with each other. The law maker has to make his choice and preferring one to the other is inevitable. 24.18 A substantive law as also delegated legislation raises a presumption of constitutionality. Attempt is, thus, required to be made for upholding the same. 24.19 Sale of lands belonging to mills which are absolutely unviable and/or those which are lying closed for one reason or the other as also those who intend to modernize their mills and/or shifting the same and/or part of it must be kept for consideration in the matter of interpretation of DCR 58. 24.20 Applying the principles which can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s amended in 2001 and not because of any purported change brought about by clarification made in 2003. Furthermore, it is one thing to say that the clarification is beyond the statutory power of the State or plainly contrary to the regulations, the effect whereof is required to be determined, but it is another thing to say that while doing so the State gives out its mind as to what it meant thereby as an author of the regulations. The grievance of the writ petitioner- respondents primarily in that behalf is that in terms of the said clarification, reconstruction on land made available after demolition of the existing structure is to be in terms of sub-regulation (6) of DCR 58 and the user thereof is proposed to be changed from industrial to commercial or residential under sub-regulation (1)(a)( iii). We have interpreted the aforementioned provision independently and we agree that such construction of DCR 58 was possible. But, we also do not agree therewith in its entirety as has been indicated hereinbefore. 25.5 The writ petitioners intend to construe sub-regulation (6) of DCR 58, as a stand alone clause, with which for the reasons stated hereinbefore, we do not agree. If some m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State must be held to be correct. Reading of sub-regulation (6) with other parts of DCR 58 is not only for the purpose of change of user but also as regard the restrictions and limitations imposed thereby. It is, therefore, not correct to contend that the approach of the State was to somehow find an interpretation that furthered the purpose of not requiring sharing of land by the land owners and by reason of the clarification that end was attained substantially. (iv) & (v) These submissions are not dependent upon 2003 clarification. The meaning of the words "entire land" and "built-up area" vis-à-vis permissibility of residential user arose from 2001 Regulations which had merely been reiterated in 2003 clarification. (vi)DCR 58(6) itself contemplates absence of sharing obligation so long as there was no increase in the built-up area of the existing structure. The 2003 clarification of the State is in tune therewith. (vii)The expression 'sick' used in sub-regulation (6) must necessarily be those industries which were are referred to BIFR and not any other sick mills, as the State or any other statutory authority under regulations are not authorized to determine as to whet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cise and Customs which place a different interpretation upon the said phrase, that interpretation will be binding upon the Revenue." (p. 130) However, in Kalyani Packaging Industry v. Union of India [2004] 6 SCC 719, Variava, J. explained the said decision and clarified that in a case of conflict between circulars of the Board and the judgment of the court, the latter will prevail. 26.3 It is also of some interest to note that House of Lords in Gullick v. West Norfolk Area Health Authority [1986 AC 112] opined that an incorrect statement of the law appearing in a circular can be struck down. 26.4 In Muncipal Corpn. for the City of Pune v. Bharat Forge Co. Ltd. [1995] 3 SCC 434, it was stated : "What has been stated relating to 'executive construction' or 'practical construction' which has been relied on by the learned Advocate General, would not persuade us to agree with him in this submission, though it may be permissible to take note of post-enactment history to find out as to how an enactment was understood on the principle of 'contemporanea expositio'. . . " (p. 444.) See also Ajay Gandhi v. S.B.Singh [2004] 2 SCC 120. 26.5 In Jamshed N. Guzdar v. State of Maharashtra [20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anges. 27.2 It is also to be borne in mind that whereas the heading of section 37, prior to amendment, provided for minor modification, the word "minor"has been deleted and in that view of the matter emphasis should be laid on the fact or as to whether such modification alters the basic character of the development of Greater Bombay or not. It would give rise to a further question, namely, as to whether by reason thereof a radical transformation has taken place as regards its basic features, including its identity, which a fortiori would mean as to whether the modified development plan stands unrecognized from the original one. Such a conclusion could have been arrived at if a green area has been eliminated or a green area has been allotted to be used for commercial purposes as was the case in Bangalore Medical Trust v. B.S. Muddappa[1991] 4 SCC 54. In that case, this Court, while construing the Town Planning Act, opined that reservation of open spaces for parks and playgrounds is universally recognized as a legitimate exercise of statutory power rationally related to the protection of the residents of the locality from the ill-effects of urbanization stating : "27. The statutes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Department [2002] 5 BCR 318 wherein the Bench observed that section 37(1AA) empowers the State to effect changes both minor and even major so long it does not change the character of the plan. In that case itself the Bench held that the modification in question did not bring about a change in the character of development plan on account of the increased FSI specified therein. 27.7 Reliance has also been placed by Mr. Chagla on Pune Municipal Corpn. v. Promoters and Builders Association [2004] 10 SCC 796 wherein while representing section 37 of the Act a passing reference was made that such changes should be minor in nature. This Court therein did not consider the amendment carried out in the marginal note thereof. In that case, the State Government while allowing a proposal for modification submitted by Pune Municipal Corporation added some words which were challenged on the ground that the same was beyond the powers of the State Government under section 37. Such a contention was upheld by the High Court. This Court, however, reversed the said decision. In the said decision, the meaning and scope of the phrase "character of plan" did not directly or indirectly fall for considerati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... natural resources, the entrophication of water systems and biodiversity and global warming, the need to protect the environment has become a priority. At the same time, it is also necessary to promote development. The harmonization of the two needs has led to the concept of sustainable development, so much so that it has become the most significant and focal point of environmental legislation and judicial decisions relating to the same. Sustainable development, simply put, is a process in which development can be sustained over generations. Brundtland Report defines 'sustainable development' as development that meets the needs of the present generations without compromising the ability of the future generations to meet their own needs. Making the concept of sustainable development operational for public policies raises important challenges that involve complex synergies and trade offs. 28.1 The Indian judiciary has time and again recognised this principle as being a fundamental concept of Indian law. 28.2 In Vellore Citizens' Welfare Forum v. Union of India[1996] 5 SCC 647, this Court laid down the salient principles of sustainable development consisting of the Precautionary Prin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stated : "In light of the above discussions, it seems fit to hold that merely asserting an intention for development will not be enough to sanction the destruction of local ecological resources. What this Court should follow is a principle of sustainable development and find a balance between the developmental needs which the respondents assert, and the environmental degradation, that the appellants allege." 28.4 The MRTP Act does not exclude these principles. Unless they are so excluded, they are to be read in the statute both in the substantive legislation as also delegated legislation. 28.5 In A.P. Pollution Control Board v. Prof. M.V. Nayudu (Retd.) [1999] 2 SCC 718, this Court reiterated the necessity of institutionalizing scientific knowledge in policy-making or using it as a basis for decision-making by agencies and courts. 28.6 In Narmada Bachao Andolan v. Union of India [2000] 10 SCC 664, this Court emphasized the exercise which is required to be undertaken by the committees before policy decisions are taken. 28.7 In M.C. Mehta v. Union of India [1996] 4 SCC 351, this Court directed shifting of industries which are not in conformity with the provisions of the Master ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eport having been submitted, this Court in [(2005) 10 SCC 185] issued some directions to the State : "Considering all the aspects, we are of the view that the recommendation of the expert body to the effect that the mining operations should not be allowed within 2.5 km. beyond the boundaries of Narayan Sarovar Wildlife Sanctuary which obviously means the notified boundary in force, is prima facie acceptable and could serve as a guideline in the matter of grant or renewal of mining leases by the State Government. Final orders in this regard will be passed after the details mentioned in the next paragraph are furnished." 28.12 This Court, therefore, in appropriate cases may monitor implementation of the constitutional policy of sustainable development upon directing the State to appoint expert committees. 28.13 In Sushanta Tagore v. Union of India [2005] 3 SCC 16, this Court was concerned with interpretation of the provisions of Visva-Bharati Act, 1951 which was enacted to preserve and protect the uniqueness, tradition and special features of Visva-Bharati University. Therein, this Court opined : "33. It may be true that the development of a town is the job of the Town Planning A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... veloping countries there is emphasis on planned development of cities which is sought to be achieved by zoning, planning and regulating building construction activity. Such planning, though highly complex is a matter based on scientific research, study and experience leading to rationalisation of law by way of legislative enactments and rules and regulations framed thereunder. Zoning and planning do result in hardship to individual property owners as their freedom to use their property in the way they like, is subjected to regulation and control. The private owners are to some extent prevented from making the most profitable use of their property. But for this reason alone the controlling regulations cannot be termed as arbitrary or unreasonable.The private interest stands subordinated to the public good. It can be stated in a way that power to plan development of city and to regulate the building activity therein flows from the police power of the State. The exercise of such governmental power is justified on account of it being reasonably necessary for the public health, safety, morals or general welfare and ecological considerations; though an unnecessary or unreasonable interme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and protect the environment. This is, inevitably, a sensitive process, since it constrains the freedom of private owners to use their own land as they wish. But it is a very important process, since control, appropriately and firmly exercised enures to the benefit of the whole community." 28.23 The statement of law propounded by us do not lay anything contrary to the said dicta. Herein, an attempt has been made to interpret DCR 58 in such a manner so that it not only enures to the benefit of the whole community but also give effect to the purport and object thereof. Reduction In Green Areas vis-a-vis Environmental Impact Assessment. 29. While considering the environmental aspect, we must not forget that before constructions are allowed to be commenced and completed, the exercise for environmental impact assessment is mandatorily required to be done by the competent authority. An expert body albeit within the four corners of the regulatory provisions would be entitled to consider the entire question from the environmental aspect of the matter which would undoubtedly take into consideration all relevant factors including the question as to whether the same is likely to have advers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner and sanction of the State in relation to the scheme would be imperative and while doing the exercise of scrutiny as regard environmental impact assessment would be required to be gone into. Furthermore, such a step would also be in consonance with the present economic policy of the State viz., the policy of disinvestment and privatization. Such a policy is not alien to the scheme of MRTP Act. 29.2We, however, fail to understand that if raising of construction by the mill owners had been questioned on ecological considerations why the Appellants failed and/or neglected to raise such a contention as regard the constructions to be raised by MHADA. Construction of buildings, if results in an impact on ecology; it was expected that the writ petitioners-Respondents would question the validity thereof. They might have not done so having regard to the fact that the same would invite adverse comments from the workers. Even the mill owners did not question the constitutionality of such a provision presumably because they considered the provisions of DCR 58 as part of a package deal. Presumably, they also thought that if change of user is granted, even sale of portion of land would c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o say as to what actual area would be available for public greens but it is another thing to say that by reason thereof a change in the character of plan itself has taken place as a result whereof the green areas would be reduced. The Appellants have contended that in terms of the 2001 Scheme, the extent of actual surrender has substantially gone up in comparison to the offer of surrender made during the period 1991-2001. They have contended that the lands available to MCGM and MHADA would also be higher. It is also the contention of the Appellants that larger volumes of private greens which would be available although the same may not be a substitute for public greens, but would certainly enhance the ecological balance. It is also contended that the land area available towards the owner's component would be higher and the private green areas emerging therefrom would also be correspondingly higher. Dr. Singhvi has further submitted that by reason of implementation of the Zonal Regulations, three more Shivaji Parks would be added. 29.7 The contentions raised by the Appellants may or may not be correct. However, only because the ideal situation could not be brought about by the Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r to utilize the existing built-up area for commercial purposes, etc. However, out of the area which would have been available for sharing lands with MCGM/MHADA under DCR 58 of 1991 in the cases of the proposals which were approved for total/partial redevelopment would have been as under : Sl. No. Name of the Mill Land for MHADA in sq.m. Land for MCGM in sq. m. Others (for public housing) in sq. m. 1. Matulya Mill 5641.40 4616.46 Nil 2. Swadeshi Mill 24482.00 12612.13 12612.13 3. Modern Mill 8626.56 7058.12 Nil However, the area available for MCGM & MHADA for the proposals approved under modified DCR 58 of 2001 for total/ partial redevelopment are as under : Sl. No. Name of the Mill Proposed as per the provisions of Modified DCR 58(1)(b) MCGM in sq. m. MHADA in sq. m. 1. Standard Mill (China Mill) 1525.14 1247.84 2. Standard Mill Prabhadevi 1247.80 1020.93 3. Morarjee Goculdas Unit No. 1 4. Morarjee Goculdas Unit No. 2 4479.37 1276.96 Located at Kandivli Unit 5. Piramal Mill 1533.46 1254.65 6. Mafatlal Mill Unit No. 3 588.41 481.43 7. Matulya Mill 474.68 388.37 8. Modern Mill 1163.31 Nil 9. Shreeram Mil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2,430,000 sq. m., the lands which would be available to MCGM as public green is 11.53% and the private greens works out to be 20.87%, thus, totalling 32.43%. It is also contended that the purported reduction ward-wise will vary from 0.06% to 2.14% and in most cases it would be 1.1% or less. From what has been noticed hereinbefore, it is evident that the purported reduction in green area compared to pre-1991 situation, would not create much difference so far as maintenance of the ecological balance is concerned by giving effect to 2001 Regulations vis-à-vis the 1991 Regulations. Sale of Lands of NTC Mills 30. A large number of cotton and other textile mills were situate in the town of Bombay. The workmen of the said cotton textile mills resorted to a strike as a result whereof a large number of textile mills were closed. The mills occupied lands measuring about 600 acres. 30.1 The Parliament of India enacted the Sick Textile Undertakings (Nationalisation) Act, 1974 (For short "the 1974 Act") for acquisition and transfer of the sick textile undertakings , and the right, title and interest of the owners thereof specified in the First Schedule appended thereto. The said Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt feature of the said scheme are as under : (a) one time settlement qua banking institutions; (b)Identification of closed unviable mills: (c)Sale of surplus assets including land; (d)Rehabilitation/revival of unviable mills; (e)An Asset Sale Committee (ASC) under section 32(1) of the SICA Act for the sale of the assets was to be constituted. A nominee of BIFR was one of the members thereof. It was constituted to ensure transparency in the sale of assets of the mills. 30.4 Guidelines for the said ASC had also been set out. Pursuant to or in furtherance of the said schemes. National Textile Corporation closed down unviable mills and mobilized a large sum towards implementation thereof. Some of the steps taken in this behalf are as under : (a)An amount of Rs. 643.94 crores were spent by the National Textile Corporation for payment of Modified Voluntary Retirement Scheme to workers. The said amount was disbursed before April, 2003. (b)National Textile Corporation issued bonds (series No. IX) whereby a sum of Rs. 2,028 crores was raised. The said bonds carried interest ranging from 6.10% to 10% per annum. (c)Expenses have been incurred towards wage bills amounting to Rs. 1,839 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atter is pending before this Court. However, considering the urgency which counsel make out any further as NTC has 25 mills the request for confirming the sale can be agreed to, subject to the following conditions : (i )NTC will file an undertaking in this Court, that on the Court passing an order on interim relief they will comply with the order of the Court including if a situation arises of reserving the land in the other mills for which development is sought in terms of the order that may be passed by the Court. On such undertaking being filed, it is open to NTC to confirm the sale of Jupiter Mills." It was further directed : "(ii)Considering that the matter has now been adjourned to 20-4-2005 Respondent 2 Municipal Corporation directed not to approve any further layouts, issue IOD, or CC without the permission of this Court or till further orders." 30.8 As regard, sale of lands from NTC mills, the High Court in its judgment opined that the sale of its mills by NTC was contrary to this Court's orders dated 11-5-2005 and 27-9-2002 as also contrary to the BIFR scheme in the following terms : "273. It is very clear from the order of the Supreme Court dated 11th May, 2005, tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e special leave petition wherein the said order dated 27-9-2002 was passed, the parties therein were not concerned with the sale of any mill lands or for enforcement and/or interpretation of any regulation framed under the MRTP Act. The said observations were made while entertaining an application filed on behalf of the workmen and not for any other purpose. The observations were not made for the purpose of determination of any of the issues involved in the matter. It could not, thus, be treated to be a direction on the part of this Court. The question of the sale of mill lands by NTC could be held to be invalid if the same had been effected contrary to the direction of this Court and not otherwise. Order of this court dated 11-5-2005 31. The order of this Court dated 11-5-2005 reads as under : "So far as transactions relating to seven mills belonging to the National Textile Corporation are concerned, including sale of Jupiter Mills, it is not in dispute that transactions have reached a final stage. The purchasers of Jupiter Mills have already paid Rs. 16 crores and a sum of Rs. 376 crores would pass hands if the transaction is completed. If the transactions in respect of the mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f context. 31.2 While passing the order dated 11-5-2005, this Court merely noted the terms of the BIFR scheme. It did not issue any direction to the effect that the sale of the mill land should be effected strictly in terms thereof or in a particular manner. The BIFR scheme evidently was referred to as this Court noticed that even statutory authorities constituted under a Parliamentary Act found it necessary to direct sale of the mill lands in public interest. While considering a writ petition on an environmental issue, the focus of the Court should have been confined thereto. It was in our considered opinion impermissible for the High Court to examine the BIFR scheme as if the environmental issues were considered therein. 31.3 The BIFR exercises its jurisdiction under a statute; the objects whereof are distinct and different from a town planning scheme. The BIFR is not a town planner. It is not a development authority. It has nothing to do with the town planning or development scheme or maintenance of ecological balance. The BIFR was concerned only with the manner in which sick industrial undertaking should be made to revive. Before passing the said order, it was required to hea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... referred to therein was not in respect of the five NTC mills, including Jupiter Textile Mill proposed to be sold but was as regards shifting of the activities of Finlay Mills to Digvijay Textile Mills and that of Gold Mohur Mills to Sitaram Mills. The proposed modification by the IDBI had nothing to do with sale of five mill lands and, thus, no attempt was made by NTC to get the order of the BIFR modified in regard thereto as opined by the High Court. In any view of the matter, the BIFR scheme did not postulate that the surrender of lands to MCGM and MHADA should be out of the lands of each individual mill itself and not out of the lands of some other mills. The BIFR had no occasion to say so nor could it do so having regard to the provisions contained in DCR 58. The writ petitioner-respondents have nowhere denied or disputed that the seven mills which were put up for sale were unviable ones. The lands pertaining to the mills were found to be surplus. For the purpose of giving effect to the scheme framed by the BIFR, indisputably an Asset Sale Committee was constituted to discharge the functions of overseeing the sale of surplus assets of the said mills. It is furthermore not in d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of Monitoring Committee to oversee implementation of the package would not only run contrary to the provisions of SICA but would also result in duplication of authority and control. BIFR may direct State Government to exclude NTC package from the purview of such a committee." It directed constitution of another committee, namely, Assets Sale Committee (ASC) for bringing in transparency in the sale of assets. Para 21 of the said order runs thus : "21. Since the GOM had indicated in regard to sale of land that the necessary permission in this regard would be given by competent authority strictly as per the provisions of Regulation 58 of the Development Control Regulation (DCR) the promoters (GOI-MOT) should ensure that in the event of any shortfall of funds, which would be utilized for rehabilitation of other NTC units, would be brought in by them for rehabilitation of NTCMNL." It is, therefore, evident that the Board had all along in its mind the modified regulations only. Yet again it is evident that for the purpose of valuation only they had referred to DCR 58 which also goes to show that they had only in mind the 2001 Regulations and not the 1991 Regulations. 31.7 From w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o, at least some of the NTC mills indisputably would be revived. SICA, we have noticed hereinbefore, is a special statute. It was enacted by the Parliament only with a view to meet the contingencies contemplated therein. The validity or otherwise of the reference made by NTC to BIFR is not in question. The writ petitioners did not question the validity of the statutory schemes. No material has been brought before us to show even the workmen were in any way aggrieved thereby. Had they been so, they could have preferred an appeal before the BIFR. Even there does not exist any material to show that at any point of time they had approached the High Court in judicial review. The workmen were parties in the proceedings before BIFR. Presumably BIFR made the said schemes after hearing of parties concerned including the workmen. 31.11 It is not in dispute that the writ petitioners merely filed an affidavit on 12-7-2005 before the High Court alleging that the sale of surplus land by NTC was in violation of this Court's order and/or the scheme framed by the BIFR. If the prayer in the writ petition had not been amended, we fail to understand as to on what premise the High Court proceeded to c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d [See Zain-ul-Abdin Khan v. Muhammad Asghar Ali Khan - 15 IA 12]. The said decision has been affirmed by this Court in Gurjoginder Singh v. Smt. Jaswant Kaur [1994] 2 SCC 368. 32.2 In Janak Raj v. Gurdial Singh [1967] (2) SCR 77, this Court confirmed a sale in favour of the Appellant therein who was a stranger to the suit being the auction purchaser of the judgment-debtor's immovable property in execution of an ex parte money decree in terms of Order XXI Rule 92 of the Code of Civil Procedure. Despite the fact that ordinarily a sale can be set aside only in terms of Rules 89, 90 and 91 of Order XXI of Code of Civil Procedure, it was opined that the court is bound to confirm the sale and direct grant of a certificate vesting the title in the purchaser as from the date of sale when no application in term of Rule 92 was made or when such application was made and disallowed. 32.3 In Padanathil Ruqmini Amma v. P.K. Abdulla [1996] 7 SCC 668, this Court upon making a distinction between the decree-holder auction purchaser himself and a third party bona fide purchaser in an auction sale, observed : ". . .The ratio behind this distinction between a sale to a decree-holder and a sale to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in furtherance whereof some of the Appellants had not only entered into development agreements with third parties:, in some cases they demolished the structures, carried on excavations, raised constructions; in some cases construction activities are complete and flats had been sold, the purchasers whereof in turn incurred huge financial liabilities. In almost all the cases, the workers had been paid a large sum of money which may not be possible to be recovered. Loans and other financial assistances had been obtained from banks and other financial institutions by the auction purchasers-appellants for the said purpose. In some cases, the development agreements have been fully acted upon. 33.3 Some of the mills, as noticed hereinbefore, were closed but not referred to BIFR. One mill, viz., Bombay Dyeing and Manufacturing Company Limited wanted to modernize its plants and machines. Ruby Mills Limited had a scheme of shifting-cum-modernization. Schemes were submitted by them in terms of the extant regulations. The same had been approved by the State. 33.4 Although the State issued the clarificatory notification as far back on 28-3-2003, no step had been taken by the writ petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... created, public interest litigations may be summarily dismissed. Delay although may not be the sole ground for dismissing a public interest litigation in some cases and, thus, each case must be considered having regard to the facts and circumstances obtaining therein, the underlying equitable principles cannot be ignored. As regards applicability of the said principles, public interest litigations are no exceptions. We have heretobefore noticed the scope and object of public interest litigation. Delay of such a nature in some cases is considered to be of vital importance. [See Chairman & MD, BPL Ltd.'s case (supra). 33.7 In Narmada Bachao Andolan's case (supra ), this Court held : ". . .Any delay in the execution of the project means overrun in costs and the decision to undertake a project, if challenged after its execution has commenced should be thrown out at the very threshold on the ground of laches if the petitioner had the knowledge of such a decision and could have approached the court at that time. Just because a petition is termed as a PIL does not mean that ordinary principles applicable to litigation will not apply. Laches is one of them." 33.8 In R. & M. Trust v. Kor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion this Court observed that if a rule made by a rule-making authority is found to be outside the scope of its power, it is void and it is not at all relevant that its validity has not been questioned for a long period of time, if a rule is void it remains void whether it has been acquiesced in or not. The High Court in this case did not declare DCR 58 to be ultra vires the Constitution or the provisions of the MRTP Act. 33.11 In Proprietary Articles Trade Association v. AG of Canada [1931 AC 310], the validity of the rule was in question. The decision of the Privy Council in Attorney General of the Commonwealth of Australia v. Queen [95 CLR 529] is to the same effect. In this case, the delay is enormous. Most of the Appellants and, particularly, those who are purchasers have been suffered considerable financial loss and embarrassment. It has calamitous consequence to the entrepreneurs who are required to pay lakhs and lakhs of rupees by way of interest to the banks and other financial institutions per day. The bona fide of the purchasers of NTC Mill lands had never been in question in the sense that as the writ petitioners at no point of time questioned the validity or otherwis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 398.76 crores payable to these workers. (iv)The Maharashtra State Textile Corporation has also cleared the outstanding dues of its workers to the extent of Rs. 22 crores. As regards the private mills, out of the total amount due to the workers under VRS Schemes amounting to 808.75 crores, approximately a sum of 631.05 crores has been paid. (v)However, approximately Rs. 373 crores remain outstanding to be paid to approximately 20,000 workers which payments are directly linked to the development of the lands by the mill owners. It further argues that if the judgment of the High Court is implemented, it would cause irretrievable injury and extreme prejudice to the workers. 34.1 Mr. Colin Gonsalves, learned counsel appearing on behalf of GKSS, on the other hand, not only laid emphasis on the so-called defaults of the mill owners but had gone to the extent of urging that the workers' dues have not been paid substantively. He further contended that revival scheme has not been given effect to and the amount required to be spent therefor had in fact not been spent. It has further been contended that no guidelines had at all been framed for the Monitoring Committee by the State for ov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 58 is valid in law. DCR 58(1) applies also to closed mills but sub-regulation (6) of DCR 58 does not apply to sick industries which have not been referred to BIFR. (iii)The clarification made by the State is neither ultra vires section 37 of the MRTP Act nor is violative of the constitutional provisions. (iv)DCR 58, as inserted in 2001 and as clarified in 2003, is not contrary to the principles governing environmental aspects including the principles of sustainable and planned development vis-a-vis Article 21 of the Constitution of India. (v)Judicial review of DCR 58 was permissible in law. (vi)Sale of NTC mills was not contrary to the BIFR Scheme as also the orders passed by this Court. (vii)Although, delay and laches play an important role, as we have considered the merit of the matter, the writ petition filed by the Respondent Nos. 1 and 2 is not being dismissed on that ground alone. (viii)It is not necessary for us to go into the question as to whether worker's dues have been paid and also as to whether the committee had been applying the fund in terms of DCR 58 or not. However, all such contentions shall remain open. 35.1 For the reasons aforementioned, these appeals ar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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