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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 ..... , 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. 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. - CIVIL APPEAL NO. 1519 OF 2006 AND OTHERS SPECIAL LEAVE PETITION (CIVIL) NO. 23040 OF 2005 - - - Dated:- 7-3-2006 - S.B. SINHA AND P.P. NAOLEKAR, JJ. Kadam, Soli J. Sorabjee, Ram Jethmalani, Arun Nariman, Uday U. Lalit, Girish Godbole, Mukul Rohtagi, Dr. Rajiv Dhawan, Dr. Abhishek Manu Singhvi, T.R. Andhyarujina, R.F. Nariman, K.K. Venugopal, Dr. V.V. Tulzapurkar, V.A. Mohta, K.K. Singhvi, Harish N. Salve, Iqbal Chagla, M.L. Verma, Colin Gonsalves, Dinesh Dwivedi, Janak Dwarkadas, J.J. Bhat, Percy Ghandy, Ms. Shahrukh Kathawala, Salesh, C. Rashikant, R.N. Karanjawala, Ms. Ruby Singh Ahuja, Ms. Kanika Agnihotri, Debmalya Banerjee, Ms. Manik Karanjawala, Ravinder Narain, Pallav Sishodia, Pravin Bahadur, Ms. Meghalee Barthakur, Ms. Nupur Singh, Rajan Nar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mbay High Court. 3.1 The said respondents filed a writ petition questioning the validity of Development Control Regulation No. 58 (DCR 58) framed by the State of Maharashtra in terms of the Maharashtra Regional and Town Planning Act, 1966 [for short "the MRTP Act"]. The Respondents in the writ application, some of whom are Appellants herein, were/are owners of various cotton textile mills. 3.2 DCR 58 admittedly was made by the State of Maharashtra with a view to deal with the situation arising out of closure and/or unviability of various cotton textile mills occasioned inter alia by reason of a strike resorted to by the workers thereof. Writ Proceedings 4. The writ petition questioning the validity of DCR 58 by the First and Second Respondents was filed allegedly to protest the interests of the residents of Mumbai and to improve the quality of life in the town of Mumbai which is said to have drastically been deteriorated during the last fifteen years as also for preventing further serious damage to the town planning and ecology so as to avoid an irretrievable breakdown of the city. The main thrust of the writ petitioners was to ensure "open spaces" for the city an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out therein must be construed having regard to the expression development which included demolition of structures ; ( iii )DCR 58 as amended must be harmoniously construed so as to uphold the constitutionality thereof. The expression open space would take within its ambit the same space as was obtaining after demolition; ( iv )DCR 58, if not construed in the manner as contended by the writ petitioners would render it ultra vires Articles 14, 21 and 48-A of the Constitution of India; ( v )Sales carried out by the National Textile Corporation were contrary to the scheme framed by BIFR as also the orders of this Court dated 5-5-2005 ( vi )NTC as a State should have taken steps to modernize its mills or start other textile mills. It could not act like a private mill owner. Its high profits should not be expended towards anything which would be contrary to the objectives for which the Acts of 1974 and 1994 were enacted, as also the scheme of the BIFR and the orders of this Court. ( vii )Doctrine of prospective overruling has no application in the instant case. ( viii )The High Court refused to dismiss the public interest litigation on the ground of delay in view of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... development is permitted provided FSI is in balance. ( x )If the textile mill has shifted or the owner establishes a diversified industry then further obligation is cast to offer on priority in the relocated mill or diversified industry, as the case may be, employment to the workers. ( xi )Fruits and benefits of development and re-development cannot be retained by owners but they have to be passed on to those who are legitimately entitled thereto. ( xii )Monies are required to be put in Escrow Account. ( xiii )It is a complete and comprehensive code so far as development and re-development of lands of cotton textile mills is concerned. Mill owners must not be allowed to trade in the properties owned by it. ( xiv )The scheme is very much workable as the regulation allows enough free play to meet the obligations towards workers and financial institutions. ( xv )The intent is to control the development and re-development by making comprehensive regulatory measures, the portions becoming vacant after demolition of existing built-up areas have to be included in the concept "open lands". As regards, the clarification made by the State dated 28-3-2003, it was opined that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... various conflicting objectives while carrying out the amendment in DCR 58. (C)The High Court, in exercise of its jurisdiction of judicial review, could not have interfered with a policy decision of the State. (D) The High Court committed a manifest error in holding that the amended version of DCR 58 vis-a-vis the term open space would have the same meaning as was contemplated under DCR 58 of 1991. (E)The High Court failed to appreciate that reading down of DCR 58 was impermissible in law. (F)The High Court ought to have taken into consideration the past experience of the State necessitating amendment of DCR. (G)The High Court furthermore failed to take note of the fact that the committees appointed by the State also made recommendations that the mill owners would be allowed to develop their lands. (H)Two different interpretations of DCR 58 having been found by the High Court to be possible, it could not have arrived at a conclusion that clarificatory notification dated 28-3-2003 amounted to an amendment of the Regulation and, thus, void. (I)The impugned judgment is wholly unsustainable as several irrelevant factors, e.g., deluge in the city of Bombay in 2005, we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 01, it has rightly been held by the High Court that the intention of the State evidently was to give only double FSI and not to diminish the stake of MCGM and MHADA in the mill land. (4)Interpretation of DCR 58 by the State has defeated the purport and object of the Act. (5) For the purpose of upholding the constitutionality of DCR 58, the same was required to be read down, failing which it is rendered unconstitutional. (6)The effect and purpose of DCR 58 as clarified by the State only having come to the notice of the writ petitioners in 2005 and as the writ petition was filed by them immediately thereafter, the same was not liable to be dismissed on the ground of delay and laches on their part. (7)In view of the subsequent events, this Court may lay down the principles for the purpose of moulding the reliefs and remit the matter to the High Court for consideration of the matter afresh. (8)MHADA and the MCGM having taken different stands before the High Court, that they should not be permitted to support the State before this Court. (9)All applications for grant of permission for development/redevelopment was required to be considered having regard to the nature of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regional plan, development plan or town planning scheme. The land-use maps and the development control rules/regulations together comprise the development plan under section 22. The land-use map indicates the zone in which a piece of land falls, in regard whereto the permissible uses are specified in the rules/regulations. In each of such zonal plan, although the industrial areas have been delineated separately but existence of each of the cotton textile mills therein has specifically been shown which evidently shows that cotton textile mills had been given a special status. 10.4 The regional plan is drawn up by the State Government in terms of section 14 read with section 17 of the MRTP Act. Section 14 inter alia mandates specification of land uses, i.e., residential, industrial, agricultural, etc., reservation for open spaces, gardens, etc., reservation and conservation of areas of natural scenery as also infrastructure such as transport, water supply, drainage, sewerage, etc. 10.5 Section 21 mandates drafting of a Development Plan by every Planning Authority for the area within its jurisdiction. 10.6 Section 22 lays out the contents of such development plan indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s consistent therewith and the rules made thereunder to carry out the purpose of executing a Special Township Project and such regulations may be a part of Development Control Regulations or Development Plan or Regional Plan, as the case may be. 10.12 In terms of the MRTP Act, Development Control Rules (DCR), 1967 were framed. The State Government took a policy decision to frame new DCR in 1990 wherefor suggestions/opinions from the public were invited. 10.13 The State of Maharashtra in exercise of its power conferred on it under section 159(2) of the MRTP Act framed the Development Control Regulations, 1991 (for short "the 1991 Regulations"). The Development Plan had been notified in the year 1981 and the Development Control Regulations formed a part thereof. The said regulations, indisputably, were framed upon carrying out the requisite formalities. 10.14 The expression "existing building" is defined in Regulation 2(28) to mean "a building or structure existing authorisedly before the commencement of these regulations. The expression Floor Space Index (FSI) is defined under Regulation 2(42) to mean "the quotient of the ratio of the combined gross floor area of all flo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ile activity is to be continued, the FSI shall not exceed 1.33 in the Island City and 1.00 in the Suburbs and Extended Suburbs." 10.18 Regulation 34 provides for available Transferable Development Rights (TDR) if the development potential of a plot is separated from the land. TDR so granted can be alienated in the manner prescribed by the regulation. Regulation 35, in the matter of calculating the floor space index built-up area in respect of a plot, requires exclusion of certain areas for large plots in residential and commercial zones, i.e., plots exceeding 2,500 sq. m. approx., i.e., 15% of the area has to be excluded for recreational amenity, open space, etc. 10.19 Regulation 51(1) speaks of ancillary uses. Regulation 52 provides that what could be done in terms of Regulation 51 can be done also in terms of Regulation 52; whereas Regulation 53 provides that what could be done in terms of Regulations 51 and 52 could be done also in terms of Regulation 53. Regulation 54(1)( i ) provides for industries in C-2 zone wherein also commercial uses as specified therein are permissible. 10.20 Regulations 56 to 58 provide for user of land for industrial zones. 10.21 Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndustrial Zone. 10.24 Regulation 57 of the 1991 Regulations provides for Special Industrial Zone known as I-3 Zone. Manufacture of textile goods do not come within the purview thereof. In terms of the said Regulation, similar restrictions on land user have been provided except service industries and service industrial estates. Change of user is allowed for lands other than lands of cotton textile mills. Regulation 57(4)( c ) is in pari materia with Regulation 56(3)( c ). Legal history of DCR 58 11. DCR 58 of 1991 provided for development or redevelopment of lands of cotton textile mills; in terms whereof, modernization of mills and development of surplus lands in the manner specified therein was to be promoted. It, furthermore, provided for development of mill lands as a part of package of BIFR approved rehabilitation schemes and also for modernization and shifting thereof. Pursuant to the said Regulation, the cotton textile mill owners could give one of the options out of the following: ( i )The mill owners could continue to operate their mills even though it was running into losses. This was the status quo option which entailed no land being surrendered to MHAD ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be earmar- ked for recr- ation Ground/ Garden, Play ground or any other open user as spec- ified by the Commissioner Percentage to be earmarked and handed over for devel-opment by MHADA for public housing/ (for mill worker s hous-ing as per guidelines approved by Government to be shared equally) Percentage to be earmarked marked to be developed for residential or commercial user to be developed (including users permis- sibie in res- idential or commercial zone as per these Regula- tions) or diversified industrial Location Policy) to be developed by the owner (1) (2) (3) (4) (5) 1. Up to and inclusive of 5 11a. 33 27 40 2. Between 5 11a. and up to 10 11a. 33 34 33 3. Over 10 11a. 33 37 30 Notes : ( i )In addition to the land to be earmarked for recreation ground/garden/play ground or any other open user as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Clause ( a ) of sub-regulation (1) of this Regulation shall apply and, if the development of open lands and balance FSI exceeds 30 per cent of the open land and balance FSI, the provisions of Clause ( b ) of sub-regulation (1) of this Regulation shall apply. Notes: ( i )The exemption of 30 per cent as specified above may be availed of in phases, provided that, taking into account all phases, it is not exceeded in aggregate. ( ii )In the case of more than one cotton textile mill owned by the same company, the exemption of 30 per cent as specified above may be permitted to be consolidated and implemented on any of the said cotton textile mill lands within Mumbai provided, and to the extent, FSI is in balance in the receiving mill land. (3) Lands of cotton textile mills after shifting: - If a cotton textile mill is to be shifted out side Greater Bombay but within the State, with due permission of the competent authorities, and in accordance with a scheme approved by Government, the provisions of sub-clauses ( a ) and ( b ) of sub-regulation (1) of its Regulation shall also apply in regard to the development or redevelopment of its land after shifting. (4) The condition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k and/or closed cotton textile mill or a cotton textile mill requiring modernisation or a cotton textile mill to be shifted, from the utilisation of built-up areas as per Clause ( a ) of sub-regulation (1) and as per Clauses ( a ) and ( b ) of sub-regulation (6) or from the sale of Transferable Development Rights in respect of the land as per columns (3) and (4) of the Table contained in Clause ( b ) of sub-regulation (1) or from the development by the owner of the land as per column (5), together with FSI on account of the land as per column (3), shall be credited to an escrow account to be operated as hereinafter provided. ( b ) The funds credited to the escrow account shall be utilised only for the revival/rehabilitation or modernisation or shifting of the cotton textile mill, as the case may be, provided that the said funds may also be utilised for payment of worker s dues, payments under Voluntary Retirement Schemes (VRS), repayment of loans of banks and financial institution taken for the revival/rehabilitation or modernisation of the cotton textile mill or for its shifting outside Greater Mumbai but within the State. (9)( a ) In order to oversee the due implementation of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted : "I say that the deteriorating condition of the textile units and need to have sites for public purpose and public housing, prompted Government to have a policy which threw open these lands for development or redevelopment to facilitate revival and modernization of mills. Thus, in the year I991, when the Revised Development Control Regulations were sanctioned, Regulation 58 for development of mill land and premises for cotton textile mills was introduced for the first time." 13.1 In the said affidavit, it was categorically stated that a committee under the Chairmanship of the then Minister for Textiles, Shri Ranjit Deshmukh was constituted on or about 27th March, 2000. The report by the said Committee was submitted on 6-7-2000. It was stated that the Government duly considered the report of the said Committee and the Cabinet approved its recommendations on 11-10-2000. 13.2 DCR 58 was modified upon following the procedure under section 37(1AA) of the MRTP Act and in terms of the decision of the Cabinet. However, in a second affidavit affirmed by Shri Ramanand Tiwari on 10th August, 2005, some clarification as regard the stand of the State was given. While meeting the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epartment, the Labour Department, the Textile Department and the Industries Department. A detailed Cabinet note was prepared for consideration by the Cabinet which not only included the recommendations of the Ranjit Deshmukh Committee report but also specifically the views of the various departments. On this aspect, the views of the Urban Development Department were that in view of the prevailing regulation 58 which required sharing of lands after demolition under Regulation 58(1)( b ) the Mill Owners were not willing to come forward with proposals since the same would not be viable for them. It was the view of the Department that in order to make revival feasible and possible the area available after demolition of existing structure should be excluded from computation of the land to be shared. After the Cabinet decision, the then Secretary whilst formulating the amendments and the proposed modification to regulation 58 specifically included the deletion of the words beginning with "lands after demolition" up to "scheme to" and substitution thereof by the words "balance FSI shall". This was the subject-matter of Item (A-6) of Schedule I to the Public Notice which was issued on Nove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so MPs and MLAs of the town of Mumbai. It, however, carried out actual site inspection of some textile mills only. The Committee recommended : "Since rule 58(1)( a ) contains the term "newly built-up", it is presumed that it permits new construction. But, carrying out such new construction means using the balance Floor Space Index and consequently using the adjoining open space. Thus, using open space in this manner under the provisions of rule 58(1)( a ) means indirectly to override the provisions of rule 58(1)( b ). Hence, in order to more clearly distinguish the boundary line between rule 58(1)( a ) and rule 58(1)( b ) following amendments are required to be carried out in this rule under section 37 : ( a )The words "or newly" in rule 58(1)( a ) should be excluded. ( b )The words "permissible FSI and" in rule 58(1)( a )( i ) should be excluded. ( c )The words "FSI of 1.00 and" in rule 58(1)( a )( ii ) should be excluded. Upon making aforesaid changes the rule 58(1)( a ) shall be limited to the extent of new use of the existing buildings of the mills only and exercise of rule 58(1)( b ) shall be regarding development of the available open lands and land becoming v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and for the said purpose a balance should be struck and harmony should be maintained between several interests such as ( a ) consideration of ecology; ( b ) interest of workers; ( c ) interest of public sector institution, other financial institutions, priority claimed due to workers; ( d ) advancement of public interest in general and not only a particular aspect of public interest; ( e ) interest and rights of owners; ( f ) the interest of a sick and closed industry; and ( g ) schemes framed by BIFR for revival of the company. 15.1 The courts in doing so would have to take into consideration a large number of factors, some of which may be found to be competing with each other. It may not be proper to give undue importance to one at the cost of the other which may ultimately be found to be vital and give effect to the intent and purport for which the legislation was made. 15.2 Scope of Public Interest Litigations in view of several decisions of this Court has its own limitations. We would hereinafter notice a few of them. 15.3 In Raunaq International Ltd. v. I.V.R. Constructions Ltd. [1999] 1 SCC 492, this Court highlighted that the public interest litigation shoul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in violation of the direction of a Superior Court [ See Ashok Kumar Thakur v. State of Bihar [1995] 5 SCC 403. But, we cannot also shut our eyes to the fact that this Court has entertained a large number of public interest litigations for protection of environmental and/or ecology. [ See M.C. Mehta group of cases and T.N. Godavarman Thirumul Pad v. Union of India [2006] 1 SCC 1. 15.8 Public interest litigations, thus, have been entertained more frequently where a question of violation of the provisions of the statutes governing the environmental or ecology of the country has been brought to its notice in the matter of depletion of forest areas and/or when the executive while exercising its administrative functions or making subordinate legislations has interfered with the ecological balance with impunity. The High Court of Bombay, therefore, cannot be faulted with for entertaining the writ petition as a public interest litigation. Principles of interpretation 16. Before us, the learned counsel appearing for the parties have relied on several principles of interpretation of statute. 16.1 The golden rule of interpretation is that unless literal meaning give ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hieve and why it was brought on the statute book. In order to do this, it is necessary to take stock of the position at the time of its enactment so that attention may be focused on the situation calling for a remedy and how the Legislature sought to tackle it. . ." However, the pith of this statement has now found form in the doctrine of purposive construction, as accepted by this Court in several cases. 16.7 In Maruti Udyog Ltd. v. Ram Lal [2005] 2 SCC 638, while interpreting the provisions of Industrial Disputes Act, 1947, the rule of purposive construction was followed. 16.8 In Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd. [1987] 1 SCC 424 this Court stated : ". . .If a statute is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the guise of purposive construction one cannot interpret a section in a manner which would lead to a conflict between two sub-sections of the same section. Having noticed the principles of purposive construction, we may take note of certain other principles which are necessary to be considered for proper interpretation of DCR 58. 16.13 It is well-settled principle of law that in the absence of any context indicating a contrary intention, the same meaning would be attached to the word used in the latter as is given to them in the earlier statute. It is trite that the words or expression used in a statute before and after amendment should be given the same meaning. When the Legislature uses the same words in a similar connection, it is to be presumed that in the absence of any context indicating a contrary intention, the same meaning should attach to the words. 16.14 In Venkata Subamma v. Ramayya [AIR 1932 PC 92], it is stated that an Act should be interpreted having regard to its history and the meaning given to a word cannot be read in a different way than what was interpreted in the earlier repealed section. 16.15 It is also a fundamental proposition of constr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st 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, before a plan is finalized, is required to see that the provisions thereof have been fully complied with. The MRTP Act provides for appointment of a town planning officer who possesses requisite qualification. The MRTP Act lays down the matters which are mandatorily required to be considered by the planning autho-rity in all the stages, namely, survey, preparation, submission and sanction of development plan. While doing so, it is bound to take into consideration a large number of factors as specified therein. The State has been conferred with a special power to frame development control regulations in terms of section 159(2) of the MRTP Act. Development Control Regulations have been framed in terms of the said provisions. The State has furthermore been given a power to supervise and maintain control over the planning authorities. Such control may be exercised in more than one manner. The planning authority is not only required to obtain statutory sanction and approval wherever applicable, bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CC 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 what extent? Whether radical changes were made in the year 2003, when the State made the aforementioned clarification would again be a question which is required to be posed and answered. Was such a clarification in consonance with the reports of Charles Correa Committee and the Ranjit Deshmukh Committee? Did 2000 acres of vacant land which would have been otherwise available come down to 50 acres? Had any balance been struck between the original concept of sharing of lands by Bombay Municipal Corporation, MHADA and the mill owners? It is in the aforementioned backdrop, the nature of change must be considered. The amendment in 2001, therefore, must be interpreted having regard to the provisions of the MRTP Act which professed increase in the ecological interest by providing more open space and not decreasing the same, but again the question would be "was there any reduction"? The amendments in the regulation must be construed in furtherance of the legislative policy a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct 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 followed in a large number of cases by this Court. [ see also Punjab Tin Supply Co. v. Central Government [1984]1 SCC 206]. 18.2 It is interesting to note that in Secretary, Ministry of Chemicals Fertilizers, Government of India v. Cipla Ltd. [2003] 7 SCC 1, this Court opined : "4.1 It is axiomatic that the contents of a policy document cannot be read and interpreted as statutory provisions. Too much of legalism cannot be imported in understanding the scope and meaning of the clauses contained in policy formulations. At the same time, the Central Government which combines the dual role of policy-maker and the delegate of legislative power, cannot at its sweet will and pleasure give a go-by to the policy guidelines evolved by itself in the matter of selection of drugs for price control . The Government itself stressed on the need to evolve and adopt transparent criteria to be applied across the board so as to minimize the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conomic 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 aforementioned dicta. 18.8 Here, however, we are not at all dealing with an economic policy of the State, but a special planning statute of which economic factor is only one of the components. Even then, it has no bearing with the economic policy affecting the State or general public. DCR 58 deals with only a class of people who owned and possessed cotton textile mills and want revival/rehabilitation of their sick or closed textile mills or intend to modernize or shift their mills. 18.9 We may notice that in State of Rajasthan v. Basant Nahata AIR 2005 SC 3401, it was pointed out : "68 The contention raised to the effect that this Court would not interfere with the policy decision is again devoid of any merit. A legislative policy must conform to the provisions of the constitutional mandates. Even otherwise a policy decision can be subjected to judicial review. . ." (p. 3415) Fur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ited 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 Wednesbury principles to which reference has been made in Trustees of the Port of Madras v. Aminchand Pyarelal [1976] 3 SCC 167 in some jurisdiction are being held to be not applicable in view of the development in constitutional law in this behalf. [ See e.g., Huang v. Secretary of State for the Home Department [2005] 3 All ER 435, wherein referring to R. v. Secretary of State of the Home Department ex. P Daly [2001] 3 All ER 433, it was held that in certain cases, the adjudicator may require to conduct a judicial exercise which is not merely more intrusive than Wednesbury, but involves a full-blown merits judgment, which is yet more than Ex p. Daly requires on a judicial review where the court has to decide a proportionality issue. Law is never static; it changes with the change of time. [ See Motor Ge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith 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/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 permissible FSI and observance of all other Regulations; Old DCR58 New DCR 58 permissible FSI and observance of all other Regulations; ( ii )for diversified industrial users in accordance with the industrial location policy, with office space only ancillary to and required for such users, subject to FSI of 1.00 and observance of all other Regulations; ( iii )for commercial purposes, as permitted under these Regulations : Provided that in the Island City, the area used for office pur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emolition 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 limited options contained therein and the consequences flowing therefrom in terms of the Old Regulations a mill owner could ( i )continue to use the existing cotton textile mill; ( ii )redevelop the existing structure, without changing its shell and without touching the open land in which event, no sharing of land or structure was necessary; ( iii )retain existing structure and develop the open land in which event the mill owners were required to share 2/3rd of the open land used; ( iv )demolish the existing structures and develop the entire land, meaning thereby, the open land as also the land available after demolitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld 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 the illustration as mentioned hereinbefore, the open land in each case shall vary. Thus, open land would not mean land occupied by the plinth but would mean land other than that is necessary to sustain the built-up area. 19.11 We do not accept the contention of Mr. Salve that clause ( b ) applies to open land as also lands after demolition of existing structure in case of a redevelopment scheme and only because the words "and lands after demolition of existing structures" had been deleted, the same may not be of much significance inasmuch as clause ( b ) of the new regulations will have to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 residential or commercial user (including users permissible in residential or commercial zone as per these regulations or diversified industrial users as per Industrial Location Policy) to be developed by the owner. 19.16 There is no change in Note ( i ) or Note ( ii ). Changes have been made in Note ( iii ) and Notes ( iv ), ( v ) and ( vi ) have been added. Interestingly, from Note ( iii ), after the words "Transferable Development Rights as in Appendix VII" and before the words "in respect of the lands earmarked for open spaces in column (3)", the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 "balance" is crucial which would naturally mean FSI which is available to be utilized upon open land. Such balance FSI must be apart from the existing FSI. Indisputably, the built-up area had consumed some FSI and, thus, when the expression "balance FSI" is used, the same would mean additional built-up area. It contemplates that where the entire plot has been used by existing built-up areas and some open land has been left out on the remaining non-built-up area of the plot additionally unconsumed FSI coul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 having regard to the fact that there had hardly been any takers for the 1991 Scheme as it failed to provide sufficient incentives, cannot be ignored. 19.27 Indisputably, though, the Regulations made by the State which is a piece of subordinate legislation should be read in the light of the statutory scheme made under the legislative act as also having regard to the constitutional scheme as contained in Articles 14, 24, 48-A and 51-A( g ) of the Constitution of India, but whil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 controlling and regulating the use and development of land. They are not, and cannot be, treated to be provisions for compulsory acquisition of land. It also does not provide for reservation and/or designation in a development plan. 19.31 In sub-regulation (1) of DCR 58, the phrase "lands of sick and/or closed cotton textile mills" has been used. The same phrase has been used in Regulations 58(6), 58(8)( a ) and 58(9)( a ). DCR 58(1) read with DCR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 has to be calculated only from the open land which was available before demolition and not from the land which became open by reason of demolition of structures existing thereon. 19.38 It is true that the lands of different mills had different built-up areas. Balance FSI was required to be calculated on the basis thereof. The extent of vacant land available for the purpose of distribution would ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es 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 )demolition which it could not do under DCR 58(1)( a ); ( b )it does not require any sharing for which benefit was also available under DCR 58(1)( a ); ( c )built-up area remaining the same, the shape, size and nature of the existing structure could be changed which could not be done under DCR58(1)( a ); ( d )The second part of sub-regulation (6) permits aggregation on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 17,423.51 M.C.G.M. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... construing the enactment. 1477. Nature of presumption against absurdity. It is presumed that Parliament intend 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cases, which entail closure of an industry, would be within the knowledge of the State. The State through its machinery can furthermore verify the genuineness or otherwise 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot also be gone into by the State or for that matter by any other authority apart from BIFR. Modernization/Shifting 22. Sub-regulation (2) of DCR 58 deals with cases requiring modernization. For invoking 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the development or redevelopment of its land after shifting. Sub-regulation (4) provides that in case of modernization and shifting, recommendation by BIFR would not be mandatory which implies that such recommendation shall be mandatory. 22.2 DCR 58(3) provides for shifting. 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts a change of user to industrial lands other than lands of cotton textile mills. Sub-regulation (6) of DCR 58 although contains no power to change of user but the same had been provided in other clauses. If it is not held that sub-regulation (6) contains the power to change user in respect of existing 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the provisions of the Act; ( iii )Whether while taking such action, the executive Government had taken into consideration the purport and object of the Act; ( iv )Whether the same subserved other relevant factors which would affect the public in large; ( v )Whether the principles of sustainable development which have become part 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been taken into consideration by the State, may albeit be only in part. The State might not have agreed with the entirety of the report. The State might have taken into consideration other factors which would subserve the purport and object of the regulation. But, it will be difficult for us to arrive at a finding that the environmental aspects had totally been 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 pub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the purposes of the enabling legislation and even lays down specific criteria to promote the policy, the criteria so evolved become the guideposts for its legislative action. In that sense, its freedom of classification will be regulated by the self-evolved criteria and there should be demonstrable justification for deviating therefrom. . . . . . ." The amendment to DCR 58 was carried out 10 years after the 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 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o solve a longstanding problem wherewith it was beset. The State while framing the aforementioned regulation had to deal with various objectives in mind. It might have taken recourse to trial and error method. It started with an experiment in the year 1991 but having failed therein it introduced a new policy. The State considered the same to be fair on its part. 24.17 We must take notice of the fact that the 1991 Regulations failed to achieve 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 legis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d DCR 58 of 2001 which was confirmed by the Urban Development Department. Thus, although at one point of time they interpreted DCR in the same manner as that of the State; only much later they raised a doubt which was bona fide. Only with a view to clear the air of doubt, the clarification was issued by the State. 25.4 It is interesting to note that in paragraph 23 of the writ petition, the writ petitioners treated the purported reduction in area attributable to DCR 58 as 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 Regulations themselves. We have hereinbefore held that DCR 58 as interpreted by the State was valid to a large extent. ( ii )As permissions as regard the layout plans had been given, sanctioning building plans by the statutory authorities and/or approval of scheme by the State Government in 2001 and 2002, i.e., after DCR 58 came into force and much prior to the 2003 clarification, no change as such was brought about thereby. ( iii )If sub-regulation (6) of DCR 58 is to be read along with other regulations, the stand of the 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- -vis permissibility of residential user arose from 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght to the interpretation. The said decision therefore, is not authority for the proposition that the court has no jurisdiction to take a con trary view. 26.2 It is interesting to note that the Bench referred to a judgment of the Constitution Bench of this Court in CCE v. Dhiren Chemical Industries [2002] 2 SCC 127, wherein S.N. Variava, J. was a party. Therein, it was laid down: "11. We need to make it clear that, regardless of the interpretation that we have placed on the said phrase, if there are circulars which have been issued by the Central Board of Excise 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the change of user, designation of uses for specified purposes would change. The identified reservation for open spaces in the development plan did not include mill lands. In spite of modification, the mill lands are not to be included in any such reservation. To the said extent, there would not be any change at all. Another question which has been raised is as to whether major modification has been effected although section 37 contemplates only minor changes. 27.1 It is axiomatic that for the said purpose section 37 of the MRTP Act must be read in the context of section 22A thereof which provides for substantial changes. 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ink, be the continued existence of what in substance is the original entity. Once one reaches a stage of wholesale rejection and replacement, the process must cease to be one of modification. . . " Yet again in Puran Lal v. President of India [1962] 1 SCR 688, it was stated: "The word modification means the action of making changes in an object without altering its essential nature or character " 27.6 Mr. Chagla strongly relied upon a decision of Division Bench decision [Coram Justice B.P. Singh, CJ. (as his Lordship then was) and Justice Ranjana Desai] of the Bombay High Court in M.A. Panshikar v. State of Maharashtra through its Urban Development 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 wherei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e change in the basic feature thereof and the entire plan as a whole wherefor the same must be read in totality. In this case, the changes made do not brought about any significant changes so as to come to a conclusion that its basic features are altered. 27.12 For the reasons aforementioned, we are of the considered view that the clarification issued by the State is not violative of section 37 of the MRTP Act. Sustainable Development and Planned Development vis-a vis Articele 21 of the Constitution of India 28. It is often felt that in the process of encouraging development the environment gets sidelined. However, with major threats to the environment, such as climate change, depletion of 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 proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing in the affected areas." The Polluter Pays Principle as interpreted by this Court means that the absolute liability for harm to the environment extends not only to compensate the victims of pollution but also the cost of restoring the environmental degradation. Remediation of the damaged environment is part of process of Sustainable Development and as such the polluter is liable to pay the cost of the individual sufferers as well as the cost of reversing the damaged ecology."(p. 658) This Court, referring to Articles 48-A and 51-A(g) of the Constitution of India, observed that the aforementioned principles are part of the constitutional law. 28.3 In Intellectual Forum, Tirupathi v. State of A.P. JT [2006] 2 SC 568, it was 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 exclud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tural resources, the environment and the ecosystems of our country cannot be permitted to be eroded for private, commercial or any other use unless the courts find it necessary, in good faith, for the public good and in public interest to encroach upon the said resources." [Emphasis supplied] (p. 413) 28.10 In Consumer Education Research Society v. Union of India [2000] 2 SCC 599, this Court issued certain directions directing the State to constitute a committee consisting of experts for study of the relevant environmental aspects as also for study of the effects of the present limited mining operation permitted by this Court. The State Government was further directed to take steps to monitor air and water pollution in that area. 28.11 Such a Committee having been constituted and the report 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. State of Haryana [1995] 2 SCC 577, it was stated: "11. It is seen that the open lands, vested in the Municipality, were meant for the public amenity to the residents of the locality to maintain ecology, sanitation, recreation, playground and ventilation purposes. The buildings directed to be constructed necessarily affect the health and the environment adversely, sanitation and other effects on the residents in the locality. Therefore, the order passed by the Government and the action taken pursuant thereto by the Municipality would clearly defeat the purpose of the scheme. . ." (p. 583). 28.18 Lahoti, J. (as the learned Chief Justice then was) speaking for a Division Bench of this Court in Friends Colony Development Committee v. State of Orisa [2004] 8 SCC 733 stated the law in the following terms : "22. In all developed and developing 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 rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen the discretionary power under a statute is arbitrarily exercised, evidently the court will not tolerate the same and strike it down. DCR 58, however, ex facie does not impair sustainable development of the town of Bombay. 28.22 Mr. Salve has placed before us several decisions of American Courts to suggest that environmental considerations into town planning laws have got the upper hand in the matter of interpretation of the town planning provisions in a broad manner. The said discussions are not relevant for our purpose. He further relied upon a decision of House of Lords in South Bucks District Council v. Porter Chichester District Council v. Searle [2003] 3 All ER 1 wherein it was held : "Over the past 60 years there has been ever-increasing recognition of the need to control the use and development of land so as to prevent inappropriate development 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 l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... environmental impact vis- -vis the buildings which would be constructed would be used for residential or commercial purposes. The problem will have to be addressed from the point of view that as a part of the scheme framed by the State in making DCR 58, the money would be invested not only for the purpose of revivial and / or rehabilitation of the sick or closed mills, the same would also give a boost to mordernization and/or shifting of mills and/or parts, thereof from residential area to outside the town of Bombay. It is not disputed that modernization and shifting of the mills from Bombay to the suburbs would go a long way in solving ecological problems of the town. If some mills opt for modernization, the ecological impact would be lesser than the mills which are existing for a very long time. While setting up modern mills in place of old ones, evidently approval of the Commissioner 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., t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prehension that by reason of the 2001 Regulations, the existing green area would be reduced, does not appear to be based on any factual data. According to the Respondent Nos. 1 and 2, in terms of 1991 Regula- tions, the residents would have got 165 acres for greens whereas under the new Regulations, they would get approximately 32 acres of greens. Reduction in green areas envisages reduction of an area which was existing. 29.6 The said submission does not have any factual foundation. No actual greens existed by way of designation under section 22(c) of the MRTP Act or otherwise under any other legislation. In any event, DCR 58 of 1991 did not work. Increase in FSI by reason of 2001 Regulations even according to Mr. Salve would have added many more floors which thus became otherwise permissible in law. It ensures giving of some areas voluntarily by the mill owners. It is, however, one thing to 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 S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s %of area occupied by mills 1. 2. 3. 4. 5. 6. 7. A E F (South) F (North) G (South) G (North) L 1 12 13 1 25 3 3 31% 6.61% 5% 0.67% 9.95% 1.43% 0.88% From the affidavit affirmed by Shri Raoul S. Thackersey, it appears that the mill lands available for development, both open and built-up area, aggregate 400 acres approx. and not 600 acres of land as contended by the writ petitioners. Approximately, 200 acres of mill lands comprising running textile mills are not available for development. 29.10 Out of the total lands, 87% of the lands occupied by the mill owners are freehold lands and 13% of the lands are lease-hold either from the State or private parties. All the textile mills are not within I-2 Zone. 13 cotton textile mills are situated within the residential zone. 29.11 As per the provisions of DCR 58 of 1991, it was in the discretion of the owner whether to come forward the total redevelopment of the mill and/or 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .81** 5286.33*** 23. Swan Mills (Seweree) 4059.00 3321.00 24. Western India Spg. Wvg. Mill 1436.00 1175.00 25. Bombay Dyeing (Spring Mill Wadala) 25775.24 26556.30 26. Bombay Dyeing Textile Mill (Lower Parel) 7052.86 5770.52 ** Proposed to be earmarked and handed over at India United Mill Nos. 2 3 *** Proposed to be earmarked at New Hind Textile Mill and India United Mill Nos. 2 3" The difference can, thus, at once be felt. 29.12 The main features of the DCR 58 will have to be construed having regard to the changes brought about thereby. For the aforementioned purpose, we may notice the following chart showing the purported reduction of space : Ward A E F(South) F(North) G(South) G(North) L % of total Open Space in each ward as per old DCR 58 5.79% 9.29% 4.47% 6.12% 12.43% 4.40% 19.30% % of total Open Space in each ward as per new DCR 58 5.73% 7.84% 3.37% 5.97% 10.29% 4.08% 19.11% ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vested in the Central Government by virtue of sub-section (1) of section 3 of the said Act had been transferred to and vested in the National Textile Corporation. 30.2 The Parliament of India again enacted the Textile Undertakings (Nationalisation) Act, 1995 (for short "the 1995 Act") for acquisition and transfer of textile undertakings specified in the First Schedule appended thereto with a view to augmenting the production and distribution of different varieties of cloth and yarn so as to subserve the interests of the general public for matters connected therewith or incidental thereto. In terms of the provisions of the said Act, 25 mills notified thereunder vested in NTC. It, inter alia, has two subsidiaries, viz., National Textile Corporation (South Maharashtra) and National Textile Corporation (North Maharashtra). By reason of the 1974 Act and the 1995 Act, about 119 textile mills situate throughout the country were nationalized. Out of the 25 mills of National Textile Corporation which are in the town of Bombay, 18 mills were lying closed. 14,800 employees were retrenched. National Textile Corporation together with its six other subsidiary corporations were referred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nancial institutions, a sum of Rs. 72 crores had been paid. 30.5 Pursuant to the said Scheme dated 25-7-2002, National Textile Corporation submitted in Integrated Development Plan on 3-5-2005 for all the 25 mills situate in the town of Bombay. The said scheme was prepared keeping in view DCR 58 as modified in 2001. 30.6 On or about 27-10-2004, Municipal Corporation of Greater Mumbai (MCGM) however, approved the scheme only for seven mills, permitting sale of five mills and surrender of India United Mills 2 and 3 as well as New Hind Textile Mill as share of Maharashtra Housing and Area Development Authority (MHADA) and MCGM. 30.7 An integrated plan was set out for sale of lands in terms whereof lands situate in other mills were kept aside to provide open lands which may be required in the event the writ petition filed by the Writ Petitioners. Respondents, was allowed. Negotiations were held between the purchasers and NTC as regards sale of the said land. several queries were made by the intending purchasers which were duly answered. Specific assurances were given to the bidders by NTC that deficiencies in open space shall be made good by making available equivalent open ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt dated 27th September, 2002. 275. The sanctioned scheme of BIFR, clearly provides that the surrender of land of 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. Hence, the integrated scheme in respect of 7 mills approved by MCGM on 27th October, 2004 (which provides for aggregation of land to be surrendered to MCGM and MHADA in respect of the five mills sold, on two other mills) is contrary to the sanctioned scheme, which clearly does not contemplate any such integration. [Emphasis supplied] 276. In paragraph 5 of the affidavit dated 12th September, 2005 filed by NTC, it is expressly admitted that the integrated development scheme submitted to MCGM is a modification of the sanctioned scheme of BIFR. It is stated that a proposal for modification of the sanctioned scheme has been made of BIFR about a year ago. It is submitted by the Petitioners that this application for sanction of the BIFR to such modifications was made in view of the direction of the Supreme Court dated 27th September, 2002 "Let the scheme as sanctioned by BIFR be implemented". It is stated in the said affidavit of NTC that "Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We, therefore, having regard to the facts and circumstances of this case as also the law operating in the field, are of the opinion that interest of justice would be subserved if the National Textile Corporation is permitted to complete the transactions in terms of the scheme framed by BIFR but the same shall be subject to the condition that in the event, the writ petition ultimately succeeds, the vacant land available from other mills, if necessary, shall be offered by way of adjustment." In the said order, it was recorded : "Mr. Parasaran and Mr. Rohatgi, learned Senior Counsel appearing on behalf of the National Textile Corporation would contend that keeping in view the fact that in respect of seven mills, negotiations have been entered into, they should be allowed to be sold off and in the event, the writ petition succeeds, the order of the Court can be complied with by adjusting vacant land belonging to the other mills. Mr. Iqbal Chagla, learned Senior Counsel appearing on behalf of the writ petitioner-respondents, on the other hand, would urge that the undertaking directed to be given by the National Textile Corporation is commensurate with the suggestion given by Mr. P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll lands. It was in any event not concerned with the interpretation and/or applicability of the provisions of the MRTP Act or the Regulation framed thereunder. BIFR was not concerned with the interpretation of DCR 58 and, thus, only because this Court in its aforementioned orders dated 27-9-2002 and 11-5-2005 had referred thereto, the same would not mean that thereby any direction was issued either directly or indirectly that the sale of the lands pertaining to cotton textile mills must strictly be conducted in accordance with the said scheme. This Court merely asked the authorities to effect sale of mill land upon following the scheme framed by BIFR and in accordance with the procedure laid down therefor. This Court in its order dated 11-5-2005 categorically observed that if the transactions in respect of mills are not allowed to be completed, the scheme framed by the BIFR would come to a standstill resulting in accrual of liability of a huge amount by way of interest payable by NTC to the financial institutions besides other hardships which may be caused to various other persons including the workers. The scheme framed by the BIFR, therefore, was taken to be a relevant factor onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the writ petition. The BIFR scheme or the said Integrated Development Scheme framed by NTC was not in question in the writ petition. Even when the interlocutory application was being heard, no submission was made as regard violation of the BIFR scheme or the aforementioned order dated 27-9-2002. Before this Court as also the High Court the question which arose was as to whether sufficient lands were available in the event the writ petition was to be allowed. BIFR Scheme 31.6 The order of the BIFR dated 25-7-2002 passed in Case No. 536 of 1992 clearly shows that after hearing the concerned parties it has been noticed that the Government of Maharashtra although had not given clearance to sell the surplus lands of all the 13 mills in Mumbai and 5 mills outside Mumbai, as has been done in other States, agreed that with a view to compensate therefor MCGM would give additional Floor Space Index (FSI) and MHADA would give Transfer Development Rights which would not enable the NTCMNL to earn full consideration for the land. It further appears that the Government of Maharashtra had not been asked to make assessment regarding sacrifice, if any, made by them in this behalf or any ben ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s statutory function. BIFR would issue any direction which would be to a great extent defeasive of the purpose for which the schemes were made. We have noticed hereinbefore the anxiety expressed by the BIFR to have/save more funds for NTC. 31.8 Our attention has also been drawn to the fact that there is nothing to show that the BIFR scheme provided that the lands were to be surrendered to MCGM and MHADA from each of the mills and not out of the land of some other mill. The High Court, therefore, committed an error of records. Even otherwise, the scheme should have been read in the light of the factual matrix obtaining therein as also the extant regulation. It is furthermore not in dispute that sale of the lands was approved by ASC. One of the directors of the BIFR, again indisputably, was a member of the said Committee. Once approval of ASC was obtained, the sales were to be treated as confirmed. The order of this Court dated 11-5-2005 had, thus, been given effect to. It is furthermore not in dispute that conveyance deeds had duly been executed and registered between the parties. It is also not in dispute that additional lands for open space were available from the two mill ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issue any direction which would not only be contrary to a statutory scheme but defeasive of the purport and object for which SICA was enacted. Furthermore, it was none of the concern of the writ petitioners-Respondents as to how BIFR calculated the financial viability by way of sale of surplus land by NTC. It was equally impermissible for the High Court to consider as to whether despite there being a provision for multi-mill aggregation in terms of DCR 2001, the same had been taken into consideration under BIFR Scheme or not. We have noticed hereinbefore that for the purpose of considering the validity or otherwise of the sale in terms of BIFR Scheme itself, ASC was appointed wherein a member of the BIFR was also represented. We are, therefore, of the firm opinion that the judgment of the High Court in this behalf is not correct. Effect of Such Sales on Auction Purchasers 32. NTC issued advertisements in several newspapers for sale of five mills, viz. , Jupiter Textile Mill, Mumbai Textile Mill, Apollo Textile Mill, Kohinoor Mill No. 3 and Elphinstone Spinning and Weaving Mills. Some of the Appellants herein, pursuant to or in furtherance of the said advertisements sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sequently set aside, when such purchasers are not parties to the suit. But for such protection, the properties which are sold in court auctions would not fetch a proper price and the decree-holder himself would suffer. The same consideration does not apply when the decree-holder is himself the purchaser and the decree in his favour is set aside. He is a party to the litigation and is very much aware of the vicissitudes of litigation and needs no protection." (p. 672) 32.4 We are not oblivious of the fact that the decisions referred to hereinbefore have no direct application in the instant case as the sale of NTC mill lands were not effected in execution of decrees passed by a competent court of law, but we have referred thereto only to highlight that having regard to the principles analogous to the ratio laid down in the aforementioned decisions the court should make an endeavour to safeguard the interest of the bona fide purchasers unless and until there exists any statutory interdict. It is, thus, absolutely clear that the purchasers of the cotton textile mills of the NTC cannot be made to suffer for no fault on their part and, thus, the High Court committed a manifest er ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ners filed an affidavit and in paragraph 27 thereof it was categorically averred that the BIFR Scheme had no bearing on the validity of the rule. Although, permission for multi-mill aggregation was granted on 27-10-2004, the validity or legality thereof had not been questioned in the writ petition. Yet again on 19-4-2005, another affidavit was affirmed on behalf of the writ petitioners wherein it was averred that the scheme framed by the BIFR was irrelevant for the purpose of its decision. An application for amending the writ petition was filed only on 7-7-2005 wherein a contention as regard the interpretative effect of the clarification was raised. Only in the third affidavit dated 12-7-2005, the writ petitioners raised the question in regard to the correctness or otherwise of BIFR Scheme for the first time only whereupon an interim order was passed on 1-4-2005 by the High Court. 33.5 On 11-5-2005, this Court set aside the interim order passed by the High Court whereafter an advertisement was issued by NTC. Tender documents were published in newspapers and put on website on 21-6-2005. The last date for submission of the bid was 27-7-2005. On 12-7-2005, the writ petitioners had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . .sacrosanct jurisdiction of public interest litigation should be invoked very sparingly and in favour of the vigilant litigant and not for the persons who invoke this jurisdiction for the sake of publicity or for the purposes of serving their private ends". (p. 109) It was further stated : "34. There is no doubt that delay is a very important factor while exercising extraordinary jurisdiction under Article 226 of the Constitution. We cannot disturb a third party interest created on account of delay. Even otherwise also why should the Court come to the rescue of a person who is not vigilant of his rights." (p. 113) 33.9 In State of Maharashtra v. Digambar [1995] 4 SCC 683, this Court held: "14. where the High Court grants relief to a citizen or to any person under Article 226 of the Constitution against any person including the State without considering his blameworthy conduct, such as laches, or undue delay, acquiescence or waiver, the relief so granted becomes unsustainable even if the relief was granted in respect of alleged deprivation of his legal right by the State." (p. 690) However, we do not intend to lay down a law that delay or laches alone should be th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tition, and as noticed hereinbefore, only during arguments such a contention was raised. The High Court, in our considered opinion, thus, committed a manifest error in acting thereupon. Before us, we may notice, a statement has been made across the bar that keeping in view the orders passed by this Court dated 11th May, 2005, the sale of NTC mills is seriously not in question. 33.12 As we have considered the matter on merits, evidently, we are not dismissing the writ petition on the ground of delay and laches alone but we have taken the same as one of the factors in determining the questions raised before us. Conflicting Stand of Workmen 34. The workers are vertically divided. Whereas Rashtriya Mill Mazdoor Sangh (RMMS) sides with the mill owners. Girni Kamgar Sangharsh Committee (GKSS) sides with the writ petitioners. They contradict each other not only from their own stand point vis-a-vis the point of view of the workers, but also as regards the interpretation and constitutionality of DCR 58. RMMS complains that the High Court did not consider its principal submissions at all which were placed before it by way of written submissions, but merely considered only those ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , in the case of Mafatlal Centre although the scheme was sanctioned in 2001, no payment has been made despite the fact that the company received a sum of Rs. 16 crores from the sale of the built-up areas of Mafatlal Centre at Parel. The workers dues being to the extent of 93 crores, the same are in excess of the legal dues of the workers and only a paltry sum had been paid to them whereas the dues of the banks had been cleared. 34.2 In these appeals, we are not concerned with the said issues. We may, however, place on record that according to Mr. Sorabjee the statement of Mr. Colin Gonsalves that nothing had been paid to the workers is baseless and irresponsible. It was contended that the Union represented by Mr. Gonsalves impleaded itself in the writ petition filed by it before the High Court against the MCGM as regard non-disposal of layout plan, etc. wherein they categorically stated that it would have no objection to the development of their property subject to realization of the cheques given in favour of the workers. It is stated that the cheques had been fully realized and the workers have enjoyed the benefit of payment. 34.3 We have pointed out these factors only f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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