2005 (10) TMI 593

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..... tioners. Mr.G.E.Vahanwati, Mr.Ravi Kadam, and Mr.R.M.Sawant, G.P., Mr.K.K.Singhvi, Mr.K.Setalwad Mrs.Shobha Ajitkumar, Mr.Mukul Rohatgi, Ms.Meena Doshi, Mr.A.Sayed, Mr.Janak Dwarkadas, Ms.Hatoxi Tavadia, Mr.Mahesh Thorat, Mr.J.J.Bhatt, Mr.V.R.Dhond and Mr.Shyam, Mehta, M/s.Federal Rashmikant, Mr.V.R.Manohar, Mr.Pesi Mody and Mr.Zia Mody, M/s.Federal Rashmikant, Mr.J.J.Bhatt, Mr.J.P.Sen, M/s.Federal & Rashmikant, Dr.A.M.Singhvi with Mr.J.J.Bhatt, Mr.Rajan Karanjawala & Mr.Percy Ghandy, Mr.S.Kanthawala and Mr.Amit Bhandari, M/s.Federal Rashmikant & Associates, Mr.E.P.Bharucha, Mr.Zubin Beheramkamdin M/s.Humranwala & Co., Dr.V.Tulzapurkar, Mr.Virag Tulzapurkar and Mr.Anil Menon, Mr.Dr.Veerendra Tulzapurkar, Mr.Shriraj Dhru & Mr.Ranjeet Vaghani, M/s.Dhru, Mr.V.Tulzapurkar, Mr.Paritosh Jaiswal, M/s.Kanga, Mr.Jamshed Mistry, Mr.Rahul Narichania, M/s.Thakore Zariwala, Mr.B.A.Desai, Mr.Rajiv Chavan and Mr.A.M.Sethana, Mr.R.V.Govilkar Mrs.Sadhana Mahashabde, Mr. Ajit Jakhadi, Mr.Pesi Mody, M/s.Desai & Diwanji, Mr.T.R.Andhyarujina, Mr.E.P.Bharucha, Sr.Advocates with Mr. Zal Andhyarujina with Mr.Mohan Salian, M/s.Gagrats, Mr.R.J.Gagrat, Mr.C.N.Mehta, Ms.Sheetal Awhad and Mr.N.M.Ganguli for .....

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..... he negative : The present day society has a responsibility towards the posterity to breathe normally and live in a cleaner environment and have a consequent fuller development : Time has now come therefore, to check and control the degradation of the environment and since the Law Courts also have a duty towards the society for its proper growth and further development and more so by reason of definite legislations in regard thereto as noted hereinafter, it is a plain exercise of the judicial power to see that there is no such degradation of the society and there ought not to be any hesitation in regard thereto" 4. The above observations have been quoted with approval by the Hon'ble Supreme Court in M.C. Mehta v. Union of India (2001) 4 SCC 577 at paragraph 6. Mr. Chagla pointed out that the tragic events in Mumbai in the last week of July 2005 have shown that the environmental degradation in Mumbai has crossed nature's degree of tolerance. 5. Mr. Chagla, the learned Senior Counsel, pointed out that the main legal issue in the above Petition is the true meaning and correct interpretation of Development Control Regulation No. 58 as amended in 2001, the said Regulation reads as .....

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..... entitled to Development Rights in accordance with the Regulations for grant of Transferable Development Rights as in Appendix VII in respect of the lands earmarked and handed over as per column (4) of the above Table. Notwithstanding anything contained in these Regulations, Development Rights in respect of the land earmarked and handed over as per column (3) shall be available to the owner of land for utilisation in the land as per column (5) or as Transferable Development Rights as aforesaid. (iv) Where FSI is in balance but open land is not available, for the purposes of column (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 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 te .....

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..... pproval 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 either sick and/or closed or requiring modernisation on the same land, the Commissioner may allow,:- (a) Reconstruction after demolition of existing structures limited to the extent of the built up area of the demolished structures, including by aggregating in one or more structures the built up areas of the demolished structures; (b) Multi-mills aggreation 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 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 altern .....

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..... a retired High Court Judge with one representative each of the cotton textile mill owners, recognised trade union of cotton textile mill workers, the Commissioner and the Government as members. (b) The Commissioner shall provide to the Monitoring Committee the services of a Secretary and other required staff and also the necessary facilities for its functioning. (c) Without prejudiced to the generaility of the functions provided for in clause (a) of this sub-regulation, the Monitoring Committee 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 Committ .....

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..... Senior Counsel took us through the salient features of the Maharashtra Regional and Town Planning Act, 1966 (hereinafter referred to as, "the MRTP Act") which was enacted, inter alia, "to make better provisions for the preparation of Development plans with a view to ensuring that town planning schemes are made in a proper manner and their execution is made effective". 9. He brought to our notice the judgment of the Supreme Court in Prakash Amichand Shah v. State of Gujarat (1986) 1 SC 581 at paragraph 6, a Constitution Bench while considering the provisions of the Bombay Town Planning Act, 1954, stated as follows: "6. The principal object of any town planning legislation generally are to provide for planning, the development and control of the use of land and to confer on public authorities such as City Municipalities, Municipal Boroughs, Town Municipalities, Town Panchayats etc. powers in respect of the acquisition and development of land for planning and other purposes. Such laws generally provide for the preparation of schemes that might be made in respect of the land with the general object of controlling its development, securing proper sanitary co .....

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..... rding open spaces, playgrounds etc. 12. Mr. Chagla contended that the importance of provision for, and protection of, open spaces, parks, and playgrounds, as a fundamental objective of town planning, has been highlighted by Mr. Claude Hamilton Archer Hill in his address to the Legislative Council of the Governor of Bombay at its meeting on 17th December 1913, while moving the first reading of Bill No. V of 1913 (which subsequently became the Bombay Town Planning Act, 1915). Mr. Hill inter alia stated 'Well, Sir, before sitting down, I would like, with Your Excellency's permission, to read an extract from one of the greatest living authorities on the subject of Town Planning, Raymond Unwin, not with a view to commending the detailed provision of this bill to this council, but because I think that what he writes here will impress upon the honourable members of this council that what you are undertaking to do and what, I hope, will be carried through before long, is not merely an Act of Municipal legislation of the ordinary type, providing for sanitation and cleanliness, but that it goes a little beyond that, and I want his remarks, as I am sure they will, to raise the level of discu .....

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..... pirit of the artist into our work. The artist is not content with the least that will do; his desire is for the best, the utmost he can achieve. It is the small margin which makes all the difference between a thing scamped and a thing well done to which attention must be directed. From this margin of well doing beauty will spring." (emphasis supplied) 13. Mr. Chagla drew our attention to Maneklal Chhotalal v. M.G.Makwana - AIR 1967 SC 1373, wherein a Constitution Bench of the Supreme Court dealt with a challenge to the constitutional validity of the Bombay Town Planning Act, 1954, including a contention that the State Legislature was not competent, under the Seventh Schedule to the Constitution, to pass the said Act. While highlighting the socio-economic aspect of town planning, the importance of parts and open spaces as a fundamental element of town planning is also evident from paragraph 42 of the judgment. (42) We are further satisfied that the competency of the State Legislature can also be rested under Entry No. 20, of List III, which is as follows:- "20. Economic and social planning". In principles of Town & Country Planning by Lewis Keepl, the scope of .....

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..... arks and places of public resort and public utility. "9. Before examining the contentions 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 this, it is necessary to be 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. It is common knowledge that for a number of years past, all over India, there has been and is continuing a great influx of people from the villages to towns and cities for the purpose of residence and employment. Besides this, the whole of the country is in the grip of a population explosion. Another circumstance to be reckoned with is that industrial development is taking place in and around about many cities which in its turn is attracting people from outside. Most of our towns and cities have grown up without any planning with the result that public amenities therein are now being found to be wholly inadequate for the already enlarged and still expanding population. The roads are too narrow for modern vehicular traffic. The drainag .....

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..... urt held: "31. Laws dealing with development planning are indispensable to sanitation and healthy urbanization. Development planning comprehensively takes care of statutory, manual, administrative and land-use laws hand in hand with architectural creativity. In the words of a well-known architect, development planning is the DNA of urbanization - the generic code that determines what will get built. A development plan is essential to aesthetics of urban society. American Jurisprudence 2nd (Volume 82, at page 388) states: "Planning', as that term is used in connection with community development, is a generic term, rather than a word of art, and has no fixed meaning. Broadly speaking, however, the term connotes the systematic development of a community or an area with particular reference to the location, character, and extent of streets, squares, and parks, and to kindred mapping and charting. Planning has in view the physical development of the community and its environs in relation to its social and economic well-being for the fulfilment of the rightful common destiny, according to a "master plan" based on careful and comprehensive surveys and studies of pres .....

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..... dustries situated in Delhi. One of the questions for consideration was how and in what manner was the land, made available as a result of such relocation, to be used. a) While prioritising the need for open spaces and green belts ahead of housing and other amenities, the Hon'ble Supreme Court stated that: "7. Delhi is one of the most polluted cities in the world. The quality of ambient air is so hazardous that lung and respiratory diseases are on the increase. The city has become a vast and unmanageable conglomeration of commercial, industrial, unauthorised colonies, resettlement colonies and unplanned housing. There is total lack of open spaces and green areas. Once a beautiful city Delhi now presents a chaotic picture. The most vital "community need" as at present is the conservation of the environment and reversal of the environmental degradation. There are virtually no "lung spaces" in the city. The Master Plan indicates that "approximately 34 percent of recreational areas have been lost to other uses". We are aware that the housing, the sports activity and the recreational areas are also part of the "community need" but the most i .....

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..... asonable legislative attempt bearing a rational relationship to a permissible state objective in economic and social planning will be respected by the Courts. A duly approved scheme prepared in accordance with the provisions of the Act is a legitimate attempt on the part of the Government and the statutory authorities to ensure a quiet place free of dust and din where children can run about and the aged and the infirm can rest, breath fresh air and enjoy the beauty of nature. These provisions are meant to guarantee a quiet and healthy atmosphere to suit family needs of persons of all stations. Any action which tends to defeat that object is invalid. As stated by the U.S. Supreme Court in Village of Belle Terre v. Bruce Boraas (974) 39 Law Ed 2d 787 : 416 US 1:- "... The police power is not confined to elimination of filth, stench, and unhealthy places. It is ample to lay out zones where family values, youth values, and the blessings of quiet seclusion and clean air make the area a sanctuary for people" The importance of public open spaces is emphasised in paragraph 36 of the judgment, in the following manner:- "36. Public park as a place reserved for beauty and .....

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..... e of things. But where, how, to what extent, at what cost, are the questions raised by some aggrieved citizens of Bangalore. They want congestion to be prevented, population density to be controlled, lung spaces to be provided where people can breathe, existing recreational facilities to be preserved and improved, pollution and health hazards to be removed, civic and social amenities to be provided etc. All these require a balanced use of available land. It is with that object that the Mysore Town and Country Planning Act was enacted in 1961 and it is with the interpretation of some of the provisions of that Act that we concerned in these appeals." 20. Mr. Chagla, the learned Senior Counsel strongly contended that the Environment Law of the Country is enshrined in Articles 21 and 48A of the Constitution and the "Principle of Sustainable Development" including the "Precautionary Principle" can be derived therefrom:- (a) Article 48A of the Constitution provides that: "The State shall endeavour to protect and improve the environment and safeguard the forests and wildlife of the country". (emphasis supplied) (b) The Stockholm Declaration of 19 .....

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..... thout which life cannot be enjoyed. Any contra acts or actions would cause environmental pollution. Environmental ecological, air, water, pollution etc. should be regarded as amounting to violation of Article 21. Therefore, hygienic environment is an integral facet of right to healthy life and it would be impossible to live with human dignity without a humane and healthy environment. Environmental protection, therefore, has now become a matter of grave concern for human existence. Promoting environmental protection implies maintenance of the environment as a whole comprising the man-made and the natural environment. Therefore, there is a constitutional imperative on the State Government and the municipalities, not injure to ensure and safe-guard proper environment but also an imperative duty to take adequate measures to promote, protect and improve both the man-made and the natural environment." (emphasis supplied) 22. The learned counsel referred to the concept of "sustainable development" as elucidated by the Hon'ble Supreme Court in Vellore Citizens Welfare Forum v. Union of India - (AIR 1996 SC 2715), wherein it was held as follows: "10. The traditional c .....

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..... t and other international documents, are Inter Generational Equity. Use and Conservation of Natural Resources, Environmental Protection, the Precautionary Principle, Polluter Pays principle, Obligation to assist and co-operate. Eradication of Poverty and Financial Assistance to the developing countries. We are, however, of the view that "The Precautionary Principle" and "The Polluter Pays" principle are essential features of "Sustainable Development". The "Precautionary Principle" in the context of the municipal law means: (i) Environmental measures - by the State Government and the statutory authorities -- must anticipate, prevent and attack the causes of environmental degradation. (ii) Where there are threats of serious and irreversible damage, lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation. (iii) The "Onus of proof" is on the actor or the developer/industrialist to show that his action is environmentally benign." 23. The importance of the same has been reiterated in T.N.Godavarman Thirumalpad v. Union of India - (2002) 10 SCC 606, wherein, at p .....

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..... esources on the quality of which continued activity and further development depend. Therefore, while thinking of the developmental measures the needs of the present and the ability of the future to meet its own needs and requirements have to be kept in view. While thinking of the present, the future should not be forgotten. We owe a duty duty to future generations and for a bright today, a bleak tomorrow cannot be countenanced. We must learn from our experiences of the past to make both the present and the further brighter. We learn from our experiences, mistakes from the past, so that they can be rectified for a better present and the future. It cannot be lost sight of that while today is yesterday's tomorrow, it is tomorrow's yesterday. 43. Duty is cast upon the Government under Article 21 of the Constitution of India to protect the environment and the two salutory principles which govern the law of environment are: (i) the principles of sustainable development, and (ii) the precautionary principle. It needs to be highlighted that the Convention on Biological Diversity has been acceded to by our country and, therefore, it has to implement the same. As was observed by this court .....

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..... ion the guarantee of fundamental human rights. The 'development' is not related only to the growth of GNP, in the classic work -'Development As Freedom' the Nobel prize winner Amartya Sen pointed out that 'the issue of development cannot be separated from the conceptual framework of human right'. This idea is also part of the UN Declaration on the Right to Development. The right to development includes the whole spectrum of civil, cultural, economic, political and social process, for the improvement of peoples' well being and realization of their full potential. It is an integral part of human right. Of course, construction of a dam or a mega project is definitely an attempt to achieve the goal of wholesome development. Such works could very well be treated as integral component for development. 24. Therefore, the adherence of sustainable development principle as a sine qua non for the maintenance of the symbiotic balance between the rights to environment and development. Right to environment is a fundamental right. On the other hand right to development is also one. Here the right to 'sustainable development' cannot be singled out. Therefore, the concept of 'sustainable developm .....

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..... 6. Mr. Chagla, contended that Development Control Regulations forms part of Development Plan and he discussed the scope of challenge with regard delegated legislation like Development Control Regulations. a) The Development Control Regulations for Greater Bombay, 1991 are subordinate/delegated legislation framed under the MRTP Act. They are an integral part of the Development Plan for Mumbai. He referred to paragraph 11 of the unreported judgment dated 16th April, 1991 of a Division Bench of this Hon'ble Court in Writ Petition No. 963 of 1991 (Nivara Hakk Suraksha Samiti & Ors. v. State of Maharashtra & Anr.) and other related Writ Petitions. He also referred to Nariman Point Association v. State of Maharashtra (2003 (5) Bom. C.R. 273 at paragraph 11. (b) It is settled law that, in the case of delegated legislation, the delegation is only valid when the legislative policy and guidelines to implement it are adequately laid down, and the delegate is only empowered to carry out the policy within the guidelines laid down by the legislature. Thus, in framing the DCRs, the State Government and the MCGM are only empowered to carry out and implement the legislative policy of the MRTP A .....

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..... in each of the zones in the DP. IV. The DCRs are the charter for, and determine the uses to which any land may be put. In other words, the MC cannot grant permission for development or redevelopment of any land except for the uses permitted. Wherever the MC is authorised to permit a use other than that contemplated by the land uses in Part IV, the DCRs expressly so provide. V. The lands of cotton textile mills (mill lands) are in the I-2, I-3 zones. These zones, generally, are regulated by DCR 56 and 57. Both DCR 56 and 57 expressly confer upon the MC (provided the guidelines contained therein are satisfied) the power to permit the use of such lands for, inter alia, residential or commercial purposes (See DCR 56(3) and DCR 57(4)) VI. Significantly, the mill lands are expressly excluded from the purview of these Regulations and an independent Regulation, i.e. DCR 58 exclusively provides for the development of such lands. VII. DCR 58 is, therefore, a complete and self-contained code that regulates the development of mill lands. VIII. DCR 58 was introduced, not to permit the development of such lands for residential or commercial purposes, but essentially for the revival of .....

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..... (Exhibit "B" to the Petition, 161), the State Government stated that it was necessary to avoid piecemeal and isolated development of the mill lands and that an integrated development plan for these lands should be prepared, inter alia, on the principles of the environmental and heritage aspects to be maintained/brought about in these areas. By the said order, (i)a Study Group, headed by the eminent architect and urban planner Charles Correa, was constituted to prepare an integrated development plan for the lands of cotton textile mills in Mumbai within a period of 60 days. (ii)the State Government prohibited the Municipal Commissioner from giving any building permissions in respect of such lands unless the same conformed to an integrated development plan to be prepared by the said study group. ............. L......T...........................T...................J (b) In August 1996, the Correa Study Group submitted its report and an integrated development plan in respect of the NTC mill lands. The Correa Committee report indicates that the study group was unable to prepare an integrated development plan in respect of the lands of private mills as the study group w .....

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..... issue in the Petition, i.e. THE TRUE MEANING AND INTERPRETATION OF AMENDED DCR 58, as under:- (a) By a Notification dated 20th March 2001 (Ex "C" to the Petition, at page 163) published in the Official Gazette, the State Government, in purported exercise of its powers under Section 37 of the MRTP Act, amended the original DCR 58. By an Order dated 10th April 2001 (Ex "D" to the Petition, at page 170), the State Government lifted the 1996 prohibition on development of mill lands, and stated that the Municipal Commissioner was free to grant development/re-development permissions strictly as per the modified provisions of DCR 58. (b) One of the significant amendments to DCR 58 was that the mill owner could now avail of FSI in situ in respect of the land surrendered to MCGM, and the same was no longer available only as TDR as provided in original DCR 58. Both the Correa Committee and the Ranjit Deshmukh Committee were of the considered view that this incentive would be sufficient compensation to mill owners in respect of the land surrendered by them, and would make development more financially viable. As stated above, the Ranjit Deshmukh Committee held discussi .....

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..... d by the phrase "and balance FSI" 32. Mr. Chagla, the learned counsel in depth analysed the amended DCR 58 in the following manner:- A. The permissible uses are expressly provided for by the DCR 58 itself and no power or discretion is conferred upon the Municipal Commissioner (MC) (unlike in DCR 56 and 57) to permit any change of use: in other words, the use of mill lands is that of industrial use for cotton textile mills and continues to be so. And any change of land can be in the manner prescribed in DCR 58 or not at all. B. As will be apparent from the analysis below, change of use is permitted in only 4 cases: 1. as a package of measures recommended by the BIFR for the revival/rehabilitation of a potentially viable sick and/or closed mill (Regulation 58(1)); 2. for the modernisation of a mill on the same land and in accordance with a scheme approved by the government (Regulation 58(2)); 3. where a textile mill is required to be shifted outside Greater Bombay but within the State with (a) due permission of the competent authorities and (b) in accordance with a scheme approved by the government (Regulation 58(3)); and N.B. : It is expressly provided, that in .....

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..... th January 2002 but the same was allowed to lapse. Instead, there was issued the "clarification" dated 28th March 2003. (a) The term "open lands" is to be given its natural, unrestricted meaning i.e. lands which are presently vacant and/or lands which become vacant at any time upon demolition of the structures thereon. (b) Clause (1)(b) of Original DCR 58 used the phrase "Open lands and lands after demolition of existing structures" because at the time Original DCR 58 came into force (25th March, 1991), the definition of "development" in Section 2(7) of the MRTP Act did not expressly include demolition of existing structures. This was introduced into the definition of "development" in 1994 [vide Section 2(b) of Mah. Act 10 of 1994]. The Statement of Objects and Reasons for the Bill stated, inter alia, that "In the course of time, along with other changing concepts, the concept of 'development' and 'development rights' with reference to lands and buildings in the urban areas has undergone radical changes, necessitating incorporation of such new concepts by defining or re-defining certain expressions in the Act." Hence, .....

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..... ch a scheme the development or re-development of the land after shifting may be in accordance with sub-clause (a) and (b) of sub-reg. (1). In other words, a change of user is expressly permitted by incorporation by reference of sub-clauses (a) and (b) of sub-reg.(1). Both 58(2) and 58(3) mandate the continuance of the mill. DCR 58(4) This clarifies that the recommendation of BIFR is not mandatory in the case of sub-reg. (2) and (3). DCR 58(5) The Commissioner is expressly empowered to allow additional development to the extent of balance FSI on open lands or otherwise for the same cotton textile or related user. This provision expressly empowers the Commissioner to allow a change of user viz., for a related user. DCR 58(6) a) This provision contemplates demolition of existing structures and reconstruction to the extent of the built up area of such structures, as also aggregation of the built up areas of different mills for such demolition and reconstruction. b) As DCR 58, primarily seeks to promote the revival of cotton textile mills, sub-regulation (6) allows for reconstruction of the same up to the extent of the existing built up area without any surrender of land .....

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..... ndents that the deliberate omission in 58(6) of the words "for the same cotton textile or related user", which appear in Sub-regulation (5), is significant and indicates that a change of user is contemplated. 3) The omission of those words is on the contrary clearly indicative of the position that no change of user whatsoever (not even related user) is contemplated in such regulation (6). To hold otherwise would permit the Commissioner a carte blanche to permit any change of user entirely at his own whim and fancy. Such an interpretation would render the provision ex facie ultra vires and unconstitutional. 4) Such an interpretation would negate the very basis of town planning and the development plan viz. the regulation of the use of land. The said contention is repugnant to the scheme and the legislative policy of the MRTP Act. The said contention is repugnant to Section 22, in particular clause (a), thereof, of the MRTP Act. Such alleged unrestricted and unregulated change of use of vast quantities of built up area is wholly incompatible with the provisions of a town planning legislation, and is only to be stated to be rejected. Even so, the State Government, which .....

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..... of cotton textile mills. The Respondents contention overlooks the use of the word "utilisation" in relation to clauses (a) and (b) of sub-regulation (6) as contrasted with the word "sale" used elsewhere in the same provision. Accordingly, the Petitioners submit that clause (a) of sub-regulation (8) contemplates, inter alia, that funds accruing from the running reconstructed cotton textile mills under sub-regulation (6) shall be credited to an escrow account to be utilised as provided in clause (b) of sub-regulation (8), and does not indicate that change of user is permissible under sub-regulation (6). It is clear that funds accruing from "utilisation" of the built up areas as per clause (a) of sub-Regulation (1) are also to be credited to an escrow account. This includes funds accruing from use of the existing structure "for the same cotton textile or related user" under clause (a)(i) of sub-Regulation (1). Hence, it cannot be contended that clause (a) of sub-regulation (8) only contemplates funds accruing from sale of built up area and not funds accruing from a running cotton textile mill. The Respondents contend that the requireme .....

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..... 05. This affidavit was filed purportedly to state that the Ranjit Deshmukh Committee's recommendations on DCR 58(1)(b) were not accepted by the State Cabinet, but that a contrary "view" of the Urban Development Department was accepted. Significantly, though this issue was directly in controversy, nowhere in the said affidavit does Shri Tiwari state that the Ranjit Deshmukh Committee's recommendations on DCR 58(1)(b) were not accepted by the State Cabinet, not does Shri Tiwari state that the "view" of the Urban Development Department was accepted. The State Government purports to rely on an ambiguous averment that "DCR 58 in essence reflects the Cabinet decision and the same has been clarified vide our clarification dated March 28, 2003." The said "view" of the Urban Development Department finds no mention whatsoever in the earlier affidavits of Shri Tiwari, and the affidavit dated 17th August 2005 offers no explanation why such "view" was never referred to before. 36. Mr. Chagla, the learned Senior Counsel, strongly contended that the State Government's initial interpretation and understanding of the term "Open lands" und .....

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..... ent, so construed, is also contrary to the legislative policy of the MRTP Act, and is ultra vires the provisions of the said Act. iv) The amendment, so construed, is also contrary to and violative of Articles 21 and 48A of the Constitution, as also the environment law of the country (as set out hereinabove). v) The amendment, so construed, will have to be struck down by this Hon'ble Court. 38. Mr. Chagla, the learned Senior Counsel submitted that the Petitioners' interpretation of amended DCR 58, which inter alia commends the plain meaning of the term "Open lands" (as set out hereinabove), is the only reasonable and sustainable interpretation thereof. Notwithstanding the aforesaid, it is submitted that where more than one interpretation of a provision is canvassed, the Court will prefer the interpretation which is intra vires, harmonious with the legislative policy, the Directive Principles of State Policy, international treaties, and which is not ultra vires the provisions of the Constitution. The Court will adopt the interpretation which is more reasonable and just, and will not construe such provision in a manner which defeats its manifest purpose. 39. In this co .....

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..... imply fold his hands and blame the draftsman. He mush set to work on the constructive task of finding the intention of the Parliament, and then he must supplement the written word so as to give 'force and life' to the intention of the legislature. A Judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out? He must then do as they would have done. A Judge must not alter the material of which the Act is woven, but he can and should iron out the creases". 42. Mr. Chagla, contended that ex-facie the purported clarification dated 28th March' 2003 is clearly illegal and bad for the following reasons:- On 28th August 2001, the Municipal Commissioner wrote to the State Government seeking a clarification inter alia regarding the interpretation of DCR 58(1)(b). It was not till eighteen months later that, by an Order dated 28th March 2003 in response to the Municipal Commissioner's aforesaid letter, that State Government issued a purported 'clarification' to amended DCR 58. The said purported clarification was never published, notified or publicized. The State Government 'clarif .....

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..... outs relied on by the State Government, which are stated to be approved by the State Government. In the case of "MILL-1" by deducting the existing plinth area (22,950.58 sq.m.) from the plot area (47,730.28 sq. m.) the existing open land amounts to 24,779.70 sq. m. According to the "clarification" the open land is 12,298.99 sq. m. (less than half the existing open land). MCGM's 33% share is reduced from 8,177.30 sq.m. to 4,058.67 sq.m. and MHADA's 27% share is reduced from 6,690.50 sq.m. to 3,320.72 sq.m. On the Petitioners' interpretation of the term "Open lands", MCGM would be entitled to 19,921.25 sq.m. and MHADA would be entitled to 15,783.75 sq.m. Thus, if the quantum of existing built up area consumes an FSI of 1.33 or more on the plot area, then no land would have to be shared regardless of the amount of existing open land. Accordingly, the clarification is liable to be struck down as: a) being an amendment to amended DCR 58, and ultra vires DCR 62(3) b) without authority of law, having by-passed the discipline of the MRTP Act (viz. publication of any modification and inviting suggestions and objections), and ultra vires the provisions o .....

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..... by mill owners, it has been alleged that the purported clarification does not seek to permit residential user under amended DCR 58(1)(a)(iii), but presupposes that such user is already permitted. Reliance is placed on an order dated 10th April 2001 issued by the State Government purportedly clarifying that the term "commercial purposes" in DCR 58(1)(a)(iii) includes all users permissible in a residential or commercial zone. A copy of the said order dated 10th April 2001, which was never published or notified, has been brought on record for the first time in June 2005, after the Petitioners filed Chamber Summons No. 128 of 2005 to amend the Petition, inter alia to impugn the purported clarification of 28th March 2003. The DCRs being framed under a town planning statute, commercial purpose/user would necessarily be distinct from, and would not include, residential or industrial user; and to introduce residential user under DCR 58(1)(a)(iii) would amount to an amendment of the said provision. To accept the mill owners' submission that "commercial purposes" includes residential user would amount to accepting that the said term includes any and all types of user so l .....

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..... ther manner as maybe 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 modification and the Planning Authority. (b) The State Government shall, after the specified period, forward a copy of all such objections and suggestions to the Planning Authority for its consideration. The Planning Authority shall thereupon submit its say to the Government within a period of one month from the receipt of the copies of such objections and suggestions from the Government. (c) The State Government shall, after giving hearing to the affected persons and the Planning Authority and after making such inquiry as it may consider necessary and consulting the Director of Town Planning, by notification in the official gazette, publish the approved modification with or without changes, and subject to such conditions as it may deem fit, or may decide not to carry out such modification. On the publication of the modification in the official gazette, the final Development plan shall be deemed to have been modified accordingly. .....

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..... oters and Builders Assn. - (2004) 10 SCC 796, wherein at paragraph 4, the Hon'ble Supreme Court considered the scope and ambit of Section 37 of the MRTP Act, including the ambit of the State Government's power to make changes under sub-section (2) thereof. While construing sub-section (1) the Hon'ble Supreme Court held that "The main limitation for the Government is made under clause (1) that no authority can propose an amendment so as to change the basic character of the development plan. The proposed amendment could only be minor within the limits of the development plan. And for such minor changes it is only normal for the Government to exercise a wide discretion, by keeping various relevant factors in mind" (emphasis supplied) From the judgment it is clear that the Hon'ble Supreme Court considered Section 37 after the omission of the word "minor" from the heading thereof, but nevertheless came to the conclusion that only minor modifications, which do not change the character of the development plan, are permissible thereunder. 50. The learned counsel also referred to Balakrishna H. Sawant v. Sangli, Miraj & Kupwad City Municipal Corpn. - (2005) 3 SCC 61, wh .....

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..... for low income housing. The Petitioners verily believe that the area which would have become available for public open spaces under original DCR 58 has been reduced to a mere 32 acres from approximately 200 acres, and the area which would have become available for affordable housing under original DCR 58 has been reduced to a mere 25 acres from 162-222 acres. (c) The substantial reduction in the area for open spaces and affordable housing has been brought to the attention of the State Government by a letter dated 24th July 2003 (Ex "J" to the Petition, page 187) (viz. post-clarification) addressed by the Vice President and CEO of MHADA (the authority responsible for providing affordable housing) stating that the amendment to DCr 58. "has resulted into tremendous loss to MHADA as very little area is left after deducting the built up area from the total area of the mill lands" The said letter also expressed an apprehension that private mill owners are likely to manipulate the position to show a higher built up area in order to leave a smaller component to be shared with MCGM and MHADA. (d) The substantial reduction in areas for open spaces has been recogn .....

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..... F" to the Petition, page 175), the State Government stated that under amended DCR 58-- "the lands after demolition of the existing structure would not become available for sharing due to which are available for sharing for MCGM and MHADA gets substantially reduced as compared to that which would have been otherwise available under original Regulation No. 58" (emphasis supplied). (h) Expressly recognising the substantial reduction in land which would become available under amended DCR 58 for open spaces and affordable housing, the State Government appointed a study group headed by Shri Deepak Parkeh (Chairman, HDFC) to-- (i) examine the feasibility of an integrated development plan of mill lands; and (ii) study the existing DCR and suggest ways so that enough land is made available for open use/public housing without jeopardising workers/financial institutions interests. (i) The Resolution further stated that-- "After examining the report of Study Group, Government shall take appropriate decision to amend the Regulation 58 if necessary, after following due process of law". (j) However, notwithstanding the express admission of the substantial p .....

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..... financial institutions besides other hardships which may be caused to various other persons including the workers. 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 sub-served if the National Textile Corporation is permitted to complete the transactions in terms of the scheme framed by the BIFR but the same shall be subject to the conditions 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." (emphasis supplied) (b) The said order dated 11th May, 2005 clearly requires that every sale after the said order (i.e. excluding the sale of Jupiter Mills, which occurred prior to the said Order) by the MTC-MN and NTC-SM would be only in terms of the scheme framed by the BIFR. NTC-MN and NTC-SM had earlier relied on an order dated 27th September, 2002 of the Hon'ble Supreme Court directing that the BIFR Scheme be implemented. Thus, the sale of Jupiter Mills also was required to be only in terms of the scheme framed by the BIFR. (c) The sale of Jupiter Mills does .....

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..... derstanding of the State Government and/or the BIFR that surplus land meant only that land upon which no structures existed. Indeed, the BIFR order sanctioning the rehabilitation scheme makes it clear that, despite requests from the BIFR, the Government of Maharashtra maintained its abovementioned stand. Accordingly, the rehabilitation schemes were sanctioned on 25th July, 2002 on the basis that out of the surplus land, one third was to be surrendered to the BMC and one third to MHADA. (f) That the entire "surplus land", including land under existing structures, is to be shared with MCGM and MHADA is also clear from the draft rehabilitation schemes (DRS) in respect of NTC-MN and NTC-SM prepared by IDBI (the Operating Agency), copies of which are annexed to the affidavit dated 12th September 2005 of Deodatt B. Pandit filed by NTC pursuant to the order passed by this Hon'ble Court dated 5th September, 2005. In the DRS in respect of NTC-MN, paragraph (d) (page 37 of the affidavit), states that: "The Mumbai mills are located in prime locations (Dadar and Parel). NTC (MN) proposes to dispose off the surplus land and other assets available with the mills proposed for r .....

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..... y to the sanctioned scheme, is set out in the Petitioners' affidavit dated 12th July 2005. (h) The sanctioned scheme of the BIFR clearly provides that the surrender of land to MCGM and MHADA in respect of each mill shall be out of the land of such mill itself and not out of the land of some other mill. Thus, 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. (i) 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 to 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 s .....

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..... nstruction projects" as item no. 31 in Schedule I to the original notification. Under this amendment, new townships, industrial townships, settlement colonies, commercial complexes, hotel complexes, hospitals, industrial estates and office complexes for 1,000 persons or more or discharging sewage of 50 thousand litres per day or more, with an investment of ₹ 50 crore or more would be required to obtain environmental clearance from Central Government as required under EIA Notification, 1994. It was also clarified that all new construction projects where construction work had not come up to plinth level as on 7th July, 2004 would require clearance under the notification. Annexed to the Petition is a copy of the Press Note issued by the MoEF regarding the aforesaid Notifications (Exhibit "L-1" to the Petition) (b) It became apparent during the hearing of the above Petition that despite the publicity given by the Maharashtra Pollution Control Board (MPCB) to the EIA Notification, not a single application was made for clearance until after the issue was raised in the Petition. Even thereafter, only 5 applications for clearance have been received by MPCB in respect .....

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..... public hearings). The EIA Notification is founded on the principles of sustainable development and public participation in the planning process and has been issued in the public interest and the interest of the environment. Any violation of the said notification would be contrary to public interest, would amount to an illegality and a violation of the Petitioners' rights under Article 21 of the Constitution. The MoEF and the MPCB must enforce compliance with the EIA Notification. The importance of environment impact assessment reports has been recognised by the Hon'ble Supreme Court in T.N. Godavarman Thirumalpad v. Union of India - (2002) 10 SCC 606, wherein, at paragraph 36 the Court stated: "36. In this background, the environment impact assessment reports are of great importance. The Council of European Economic Committee in their directive to the member States highlighted objectives of such assessments as follows: "The effect of a project on the environment must be assessed in order to take action of the concerns to protect human health, to contribute by means of a better environment to the quality of life, to ensure maintenance of the diversity of species and to .....

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..... as the same have deliberately not been co-related to amended DCR 58. According to the said Table, Respondent No. 9 (Morarjee Realties) has paid ₹ 150.95 crores towards VRS payments pursuant to amended DCR 58. However, in its affidavit Respondent No. 9 has stated that the said sum has been paid between 1995 and 2004. Thus, even payments made in the years 1995 to 2000 are alleged to have been paid pursuant to amended DCR 58. Relevant details have not been provided but only large amounts are mentioned in an effort to overawe this Court. f) In any event, under the order of 11th May 2005 of the Hon'ble Supreme Court, the Court has ordered that any further constructions and/or creation of third party rights by the mill owners will be at their own risk, wherefor they would not claim any equity whatsoever and furthermore, the same shall be subject to the orders of the Court. g) This Petition is filed bona fide in the public interest. Other prominent public-spirited citizens organisations such as AGNI and Citispace have, on their application, been joined in the said Writ Petition in support of the Petitioners therein. Although some of the Respondents, in affidavits filed by them, .....

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..... ges 546 to 548, the Privy Council dismissed appeals against an order of the High Court of Australia which declared certain provisions of the Conciliation and Arbitration Act 1904-1952 as ultra vires and invalid, notwithstanding that such provisions had not been challenged "for a quarter of a century" and in a series of cases it was assumed without question that such provisions were valid. The Privy Council, while considering this aspect of the case "which has been in the forefront of the appellants' arguments", observed that "It is clear from the majority judgment that the learned Chief Justice and the judges who shared his opinion were heavily pressed by this consideration. It could not be otherwise. Yet they were impelled to their conclusion by the clear conviction that consistently with the Constitution the validity of the impugned provisions could not be sustained." k) Without prejudice to the submission of the Petitioners that there is no unexplained delay in the present case, it is submitted that where the subject matter of the writ petition is of importance and concern, particularly where rights under Article 21 of the Constitution are involv .....

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..... The Hon'ble Supreme Court further held that "In public interest litigation jurisdiction of the Constitutional Court is mobilized and acts for redressal of public injury, enforcement of public duty, protection of social rights and upholding constitutional and democratic values. Technicalities do not deter the Court in wielding its power to do justice, enforcing the law and balancing the equities. We are unhesitatingly of the opinion that the appellants before us cannot raise any grievance on the ground of want of necessary pleadings." In Mohd. Aslam v. Union of India (2003) 4 SCC 1 at paragraphs 9 and 10, while recording the objections raised by the respondents therein, the Hon'ble Supreme Court held as follows: "9. The Union of India and Others submit that the interim relief granted by this Court earlier goes beyond the scope of the decision rendered by this Court in M. Ismail Faruqui's case (1994) 6 SCC 360 and the petition filed by the petitioner should be dismissed straightaway because he had filed a writ petition before the High Court of Allahabad which came to be dismissed and in this petition there is hardly any proper foundation laid for granting any relief .....

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..... ivil Appeal No. 2452 of 1992 directed against an order of a Division Bench of this Hon'ble Court dismissing Writ Petition No. 738 of 1992. The appellant filed the said writ petition by way of a public interest litigation challenging inter alia the constitutional validity of the Bombay City Civil Court and Bombay Court of Small Causes (Enhancement of Pecuniary Jurisdiction and Amendment) Act, 1986. The Hon'ble Supreme Court disposed of the said Civil Appeal on merits, including the challenge to the constitutional validity of the said Act. G.P. Mathur J. was a party to the said decision of the Hon'ble Supreme Court, as also a party to the earlier decision in Guruvayuoor Devaswom Managing Committee v. C.K. Rajan (supra). Nevertheless, the Hon'ble Supreme Court did not dismiss the said Civil Appeal on the ground that the same arose out of a writ petition, filed in the High Court in public interest, which challenged the constitutional validity of a statute. In R.K. Garg v. Union of India (1981) 4 SCC 675 at paragraph 20, the Hon'ble Supreme Court considered the constitutional validity of a statute in a public interest litigation. o) Counsel for Respondent no. 11 tendered a note contai .....

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..... ance FSI of the plot. As far as "existing built up areas" is concerned, there were three permitted users, the third of which was user for "commercial" purposes as may be permitted under the Development Control Regulations. 59. The learned Advocate General has submitted that under the old Regulation 58, a Mill Owner had the following options: Option 1: Continue existing cotton textile mill user. Option 2: Under Regulation 58(1)(a), redevelop the existing structures without changing its shell and without changing the plinth and without touching open land. In such a scenario, there was no handing over or sharing anything. Option 3: Retain existing structures (shell) and develop the open land. In such a case, Mill Owner was required to share only 2/3rd of the open land used. Option 4: Demolish the existing structures and develop the entire land i.e.(open land and land available after demolition of existing structures). Only in such a case was there to be sharing of the entire land. 60. The learned Advocate General has submitted that indeed there is no manner of doubt that under Old Regulation 58 the owners of mills could retain the "existing built up .....

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..... g also suffered. The learned Advocate General has pointed out that the aforesaid position has been set out in detail in the affidavit dated 22nd March, 2005 filed Mr.Ramanand Tiwari, the Principal Secretary, Urban Development Department. It is pointed out by the learned Advocate General that the Principal Secretary, in his affidavit, whilst setting out the background to the introduction of DCR 58-2001, has stated that on account of the problems faced by varioius cottom textile mills during the last two decades of the previous century in the city of Mumbai, these mills began to get closed and a large number of them became sick; these mills were saddled with huge liabilities to banks, workers and the State; the workers were not paid for the past several years; the lands of these mills became a huge non-performing asset on account of the deteriorating condition of the textile units. It is further stated that in order to unlock these lands for development or redevelopment and in order to facilitate the revival and/or modernization of these mills as also to have sites for public open spaces and public housing, DCR 58-1991 was introduced for the first time, however since DCR 58-1991 requ .....

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..... parture from DCR 58 (Old) in several respects. According to him, in the first place it may be noticed that the expression "newly built up areas" was specifically deleted from Regulation 58(1)(a). Similarly, the words "lands after demolition of existing structures in case of redevelopment scheme" were specifically deleted from Regulation 58(1)(b). The expression "open lands" was ratained as it is and the expression "newly built up area" in 58(1)(a) was introduced into 58(1)(b) as "balance FSI" and required to be shared; (b) that the deletion of the words "land after demolition of existing structures" in the case of redevelopment scheme, must be given effect to. As a matter of pure construction, this deletion is entirely in conformity with the provisions of Regulation 58(1)(a) which provide that existing built up areas continue to be fully enjoyable by the owners without any restriction whatsoever; (c) that the petitioners argument that after amendment of Regulation 58, the words "open lands" must include 'land after demolition of the existing structures' violates every known principle of construction. In the f .....

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..... se, certain words were deleted from Section 42(1) of the Income-tax Act, 1922. Notwithstanding the deletion, it was still sought to be contended that having regard to the marginal note, the Section only applied to non-residents. The Supreme Court held (para 14 at page 158) that the deletion had to be given effect to and observed that "the only purpose in deleting these words could be to bring residents within the ambit of the Section. There is no reason whatsoever for not giving effect to the plain words of the Section, the meaning that on the face of it they bear". (ii) (1978) 3 SCC 248 - Mangalore Electric Supply Co.V/s.CIT (Paragraphs 10 and 11). In this case, Section 12B of Income Tax Act, 1922 had been amended and an exception carved out by the proviso in favour of transfer of capital assets by reason of compulsory acquisition was deleted. The Supreme Court observed that the deletion had to be given effect to, because it contained an indelible indication of the true legislative intent, which was to include transfer of capital assets by reason of compulsory acquisition. (iii) (1973) 4 SCC 225 - Keshavananda Bharati's case. In this case, one of the questions which .....

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..... tory part of Regulation 58. Hence, on the Petitioners' argument, Regulation 58(1)(a) would permit not just the retention of the structure (shell) but also the demolition of the structure and reconstruction of the same (to the extent of built up area used earlier) and its use for commercial purposes. All this without sharing. 64. With regard to the provision of Regulation 58(6), the learned Advocate General has submited that the said Regulation 58(6) is not a "stand alone" provision. According to him, the submission of the other side that the Regulation 58(6) is limited to cases without change of user and that it is a "stand alone" provision, is entirely misconceived. In support of this contention, the learned Advocate General has submitted as follows: (a) Regulation 58(6) does not contain any such words of limitation; (b) It overlooks the fact that Rgulation 58(5) and 58(1)(a) specifically deal with a case of development of lands by a cotton textile mill, for the same cotton textile mill or related user. The construction suggested by the Petitioners thus makes Regulation 58(5) redundant. Where the legislature considered it necessary to restrict or limit us .....

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..... and excludes all others. It is submitted that the amended Regulation 58 is a self-contained Scheme and is an attempt to balance various interests. Regulation 58 cannot be looked at only from one point of view viz. compulsory provision of open spaces. According to him, in its original form, the Regulation 58 had failed to work. He submits that the Legislature was therefore required to look at various interests including the fact that workers had not been paid, that there were huge financial loans outstanding, large statutory and tax dues remained to be paid and there were large creditors of the sick or closed textile mills, and these aspects cannot be lost sight of. He has further submitted that in any exercise relating to planning, it is well settled that there has to be a broad overview of all the interests including social and economic interests. The judgment of the Hon'ble Supreme Court of India in the cse of Maneklal V/s. Chotalal - AIR 1967 SC 1373 para 42-page 1882 clearly lays down that social and economic planning forms an integral part of town planning. Regulation 58 as amended is eminently reasonable and the true test of reasonableness is what is laid down in Justice Dha .....

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..... 58, the stand or understanding of some persons including the Textile Department is irrelevant. According to him, the submission of the other side that the State of Maharashtra had interpreted Regulation 58 (New) to include land becoming vacant after demolition of existing structures in the phrase "open lands" in its representations to the BIFR is both incorrect and irrelevant. The learned Advocate General submits that it is a settled law as laid down by the Hon'ble Supreme Court in the case of Asstt.Custodian of Enemy Property V/s Brij Kishore Agarwal - AIR 1974 SC 2325 that there is no principle of law that either a Minister or any subordinate officer can be bound by the views expressed by any other department or other officer of the Government. He further submits that similar is the view expressed by the Hon'ble Supreme Court in the case of Balraj K.Garad V/s Nashik Merchant Co-op Bank Ltd. AIR 1984 SC 192, wherein the Supreme Court has observed that, "with respect, we find it difficult to subscribe to this untenable approach that the view of law or a legal provision expressed by a Government officer can afford reliable basis or even guidance in the matter of cons .....

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..... to the contrary. He further submits that there is no inconsistency in the affidavits filed by Ramand Tiwari, Principal Secretary, Urban Development Department, on hehalf of the State of Maharashtra. According to him, a conjoint reading of the said affidavits will reveal that the process which led to the modification of Regulation 58 in 2001 has been disclosed in detail. It was submited that the Sub Committee headed by Ranjit Deshmukh, Minister of Textiles, submitted a Report on 6th July, 2000. This Report together with the entirety of relevant material was placed before the Cabinet. Mr.Ranjit Deshmukh was a member of the Cabinet. The material placed before the Cabinet also included the view of the Urban Development Department, as detailed in the Affidavit dated 17th August, 2005. All this formed part of the Cabinet Note which was approved by the Cabinet. It is after considering all this that the Regulation 58 (New) was prepared. The learned Advocate General therefore submits that to suggest that the Cabinet only looked at the Report and nothing else, is an over simplification and overlooks the way Government works. He submits that the Report of the Rajnit Deshmukh Committee was ac .....

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..... Supreme Court in the case of Krishnan Kakkanth - 1997 (9) SCC 495, wherein the Supreme Court has held that it is not necessary to enter upon any exercise for finding out the wisdom in a policy decision of the Government and it is immaterial whether, better or more comprehensive policy decision has been taken. It is equally immaterial if it can be demonstrated that the policy decision is unwise and is likely to defeat the purpose for which such a decision has been taken unless the policy decision is demonstrably capricious or arbitrary and not informed by any reason whatsoever or discriminative or violative of statute or constitution, the same cannot be struck down. It should be borne in mind that except for the limited purposes of testing the public policy in the context of illegality and unconstitutionality the Court should avoid embarking on unchartered ocean of public policy. Referring to the decision of the Hon'ble Supreme Court in the case of Omprakash V/s. State of Uttar Pradesh 2004 3 SCC 402, the learned Advocate General has pointed out that the Hon'ble Supreme Court has reiterated its view that the Court should be slow to interfere with byelaws made by public representativ .....

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..... ndment to DCR 58 or the 2003 clarification is ultra vires the provisions of Section 37 of the MRTP Act and/or contrary to the policy of the MRTP Act, the learned Advocate General for the State has submitted that the amended Regulatiion 58 is neither violative of the provisions of Section 37 of the MRTP Act, not contrary to the policy of the MRTP Act. 71. With regard to the plea of the Petitioners that the Regulation 58(New) is ultra vires of Section 37 of the MRTP Act, the learned Advocate General for the State has submitted that Section 37 expressly permits modification of any part of a final plan. The word "modification" cannot be lost sight of and is unqualified. In support of his submissions, the learned Advocate General has referred to the Division Bench judgment of this Court in the case of Nivara Hakk Samiti (unreported), wherein it has been observed that the word "modification" though somewhat indefinite in its ambit, must be distinguished from a radical alteration. The word "modification" shows the continued existence of the original entity. It ceases to be a modification only if there is a wholesale rejection and replacement. According to th .....

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..... changing remedies and if there is not to be a total halt to the award march, law must make provisions for changed situations and, in this case, law has made such provisions. Conclusion of the Tribunal, however, leads to the result that once a reservation for a particular purpose always a reservation for the same purpose. Such a conclusion can well hinder implementation of various welfare schemes by the State and would also compel various State authorities, public bodies and the society at large to meekly accept and submit to the status quo irrespective of anything else. 72. The learned Advocate General therefore submits that the development plan is an organic document which is to be adapted and adjusted to changing situations and the exigencies of the times, as and when the same arise. According to him the whole fallacy in the argument of the Petitioners is that it proceeds on the basis that a "reservation" has been changed. He submits, how fallacious this can be, is seen from the concession made during the arguments of the Petitioners that there is indeed no reservation, but something similar to a reservation or what was described as a "conditional" reservati .....

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..... ;minor" based on the two Supreme Court judgments cited by the Petitioners, is unacceptable, for several reasons. He submitted that it is clear that in both the cases viz.Pune Municipal Corporation's case - (2004) 10 SCC 796 as well as Balakrishna Sawant Case - (2005) 3 SCC 61 the reference to the expression "minor modification" is a mere passing observation. According to him, it is a settled law that if the Supreme Court makes a passing or casual observation, it cannot be said to be law declared under Article 141 of the Constitution. In support of his contention he has referred to the Full Bench Judgment of this Court reported in AIR 1955 Bom.220 (Kaikhusroo Phirozshah Doctor V/s.State of Bombay) and the judgment of the Supreme Court reported in (1989) 1 SCC 101 (Municipal Corporation of Delhi V/s.Gurnam Kaur). According to the learned Advocate General, a statement made in a Supreme Court judgment without reference to the provisions of an enactment cannot be said to be "law declared". As a matter of fact, he submits that, in both the judgments, the amendment made to Section 37 of the MRTP Act in 1994 has not even been noticed. The learned Advocate General f .....

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..... tions, because any other way of doing this, amounts to a deprivation of property without the authority of law. That is why Section 149 makes detailed provisions for the obligation to acquire land in specified cases, including designation in the plan for a particular purpose. He further submits that Chapter VII of the Act provides for land acquisition. Section 125 provides that land which is required, reserved or designated in a plan, shall be deemed to be needed for a public purpose within the meaning of the Land Acquisition Act, 1894. Section 126 provides three alternative modes of acquisition. The two modes specified in Section 126(1) (a) and (b) are by agreement and on a voluntary basis. If such acquisition is not possible, it is to be acquired under the provisions of the Land Acquisition Act, 1894. This is the Scheme and policy of the Act. As mentioned in the Government's Affidavit para 12 at page 214, it was never the intention to expropriate mill lands for open spaces and public houses. Referring to paragraphs 12 at pages 214 and 215 of the affidavit, the learned Advocate General states that there is no proper response to the same, in the Rejoinder filed by the Petitioners. T .....

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..... o far as third part of his submissions as to whether 2001 amendment to DCR 58 or the 2003 Clarification are contrary to the Articles 14, 21 and 48-A of the Constitution of India, the learned Advocate General for the State has submitted that the Regulation 58(New) does not violate the mandate of Articles 14, 21 and 48-A. 75. While dealing with the Petitioners' plea that amended Rugulation 58 violates the mandate of Article 21 of the Constitution of India, the learned Advocate General has submitted that such an argument of the Petitioners is not evan a stateable one. According to him, Article 21 on a plain reading and construed and interpreted liberally, in its most expanded form, is only a guarantee that a person's life or liberty will not be taken away, except according to procedure established by law. He submits that the Hon'ble Supreme Court of India, through various judicial decisions rendered over 4 decades, has expanded the definition of life and liberty. "Life" now includes a large number of aspects which extend to the beneficial enjoyment of life i.e. the "quality of life" factors. These include the right to travel abroad, right to privacy and the right .....

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..... ted legislation as arbitrary, it is to be established that there is manifest arbitrariness. In order to describe it as arbitrary, it must be shown that it was not reasonable or was manifestly arbitrary. The expression 'arbitrary' means unreasonable manner as fixed or done capriciously or compulsorily without adequate determinative principle not found out in the nature of things or not done or acting according to reason or judgment depending on the will alone. The very fact that the amendment to Regulation 58 was done 10 years after the original DCR 58 was introduced after following due consultative process under Section 37, (which involves suggestions and objections from public and the Corporation, consideration of the same by Dy.Director of Town Planning) and thereafter promulgation of the same in the form of direct regulation establishes ex-facie that the same cannot be said to be arbitrary or capricious, much less, manifestly so. The learned Advocate General for the State has also referred to another decision of the Supreme Court in the case of Khoday Distillery V/s.State of Karnataka - (1996) 10 SCC 304, wherein it has been observed that, in order that delegated legislative can .....

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..... served, thus:- "The legal position is now well-established that even a bye-law cannot be struck down by the Court on the ground of unreasonableness merely because the Court thinks that it goes further than "is necessary" or that it does not incorporate certain provisions which, in the opinion of the Court, would have been fair and wholesome. The Court cannot say that a bye-law is unreasonable merely because the Judges do not approve of it. Unless it can be said that a bye-law is manifestly unjust, capricious, inequitable, or partial in its operation, it cannot be invalidated by the Court on the ground of unreasonableness. The responsible representative body entrusted with the power to make bye-laws must ordinarily be presumed to know what is necessary, reasonable, just and fair. In this connection we may usefully extract the following oft-quoted observations of Lord Russel of Killowen in Kruse V/s.Johnson (quoted in Trustees of the Port of Madras v.Aminchand Pyarelal - SCC P.178 para 23). When the Court is called upon to consider the bye-laws of public representative bodies clothed with the ample authority which I have described, accompanied by the checks and saf .....

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..... y clarified the settled judicial policy in matters pertaining to the environment. The observations of the Apex Court in the specific context of what the Court described as the 'classic struggle' between those members of the public who would preserve our rivers, forests, parks and open lands in thier pristine purity and those charged with administrative responsibilities who, under the pressures of the changing needs of an increasingly complex society, find it necessary to encroach to some extent upon open lands hithertobefore considered inviolate to change, are extremely instructive and offer invaluable guidance on the judicial approach when considered conflicting public interests. These are quoted below:- "We are fully aware that the issues presented in this case illustrate the classic struggle between those members of the public who would preserve our rivers, forests, parks and open lands in their pristine purity and those charged with administrative responsibilities who, under the pressures of the changing needs of an increasingly complex society, find it necessary to encroach to some extent upon open lands heretofore considered inviolative to change. The resolution of thi .....

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..... bmits that a reference to the guiding policy of Article 48-A cannot invalidate that which is constitutionally valid. 80. So far as fourth part of his submissions regarding 'Delay', the learned Advocate General for the State has submitted that the interpretation of amended/modified Regulation 58 is very clear and as stated in paragraph 23 of the Petition, "obvious" at all points of time right from March, 2001. Against this there is a gross and unexplained delay and laches on the part of the Petitioners in approaching this Court. The learned Advocate General has submitted that the faint attempt is made by the Petitioners to explain the gross and unexplained delay in para 59 of the Petition (page 41) that the effect of modified Regulation 58 and the manner of its being operated/interpreted was not apparent till very recently. It is submitted that the detailed chronology set out in paragraph 3(2) of the Reply of Ramanand Tiwari [Page 196 Vol.2 para 3 (ii)] shows that the Petitioners had every conceivable opportunity to object to the said regulation whilst the same was in the process of being formulated and finalized. The Petitioners failed and neglected to participate in the .....

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..... etition. Paragraph 54 deals with violation of article 21 based on the ground that the right to clean and healthy environment cannot be taken away except in accordance with the provisions of law. In support thereof, it is contended that the procedure mentioned in Section 37 of the M.R.T.P.Act, has not been followed. It is respectfully submitted that the Petitioners admit that the procedure required for modification of the D.C.R.has been followed, in enacting the amended Rule 58. However, it is the contention of the Petitioners that the modification could not have been done under section 37, since the said modification would change the character of the Plan. Since substantial arguments as to whether the amendment of D.C.R.58 changes the character of the Plan or not has been taken up separately, this contention will be dealt with in that context. Thus in substance there is no constitutional challenge based on Article 21 of the Constitution of India. (b) D.C.R.58, has been challenged on the ground being violative of Article 14 of the Constitution of India in paragraph 55 of the petition, on the ground that the amended D.C.R.58 benefits a small community of the Mill Owners and Develop .....

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..... ould change only where the modification changes the identity of the original Development Plan, which is not the case here. Hence, there is no substance in the contention that the amended DCR 58 is ultra vires of the Section 37 of the M.R.T.P.Act. 83. Mr.Singhvi, the learned Senior Counsel submitted as under with regard to the proper construction and true meaning of DCR 58:- (a) It may be pointed out that even according to the Petitioners the amended D.C.R.58 does not require the Mill Owners to share the land becoming vacant after demolition of the existing structures whereas under the earlier DCR 58, mill owners were obliged to share such open land with BMC & MHADA. In para 23 of the petition, it is stated that "Open land and balance FSI" of the land available for redevelopment under DCR 58 is limited only to the land on which no structure exist at the time when the application is submitted. Thus, all built up areas including those under encroachment by illegal construction, are excluded from the available area computation. While earlier scheme included not only the open land, but also the land with the existing structures ..........". (b) The Petitioners have i .....

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..... way. (e) Without prejudice to the aforesaid submission, it is respectfully submitted that the proper construction of amended Rule 58 is as under:- (i) Under the DCR 58 (1) (a) the existing built up area may be utilised for commercial purposes as permitted under these Regulations for development or redevelopment of the entire open land and the built up area of the sick and/or closed cotton textile mills, for the revival/rehabilitation at a potential viable and/or closed sick mill. (ii) Under DCR 58 (1)(b), open land and the balance FSI of the Mill are, to be utilized as indicated in the Table. In other words, open land & balance FSI will have to be shared by the Mill Owners with BMC & MHADA. Since the words "land after demolition of existing structures, in case of redevelopment schemes" in the earlier DCR 58 has been deleted, it becomes clear that the open land mentioned in clause (b) would not include the land available after demolition of the existing structure. (iii) DCR 58 (6) permits the Commissioner to approve a layout prepared for development or redevelopment of the entire open land and/or built-up area of the premises of the cotton textile mills which is e .....

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..... is petition and have stopped all further construction until the aforesaid Environmental Clearance is obtained. SUBMISSIONS OF NATIONAL TEXTILE CORPORATION: 87. Mr.Rohatgi, the learned Senior Counsel on behalf of National Textile Corporation submited that the Petitioners have alleged that the sale of 5 mills effected so far by these Respondents is in violation of the Supreme Court order inasmuch as the said order of the Hon'ble Supreme Court of India dated 11.5.2005 was made in respect of an interlocutory order made by this Court. The said order was made in the SLP filed by these Respondents being SLP No.7405 of 2005, wherein interlocutory orders dated 1st April, 2005 were made by this Court in the present Writ Petition. It was submitted by the learned Counsel that the alleged breach of the BIFR Schemes/ Order of the Supreme Court cannot form subject matter of this Writ Petition. 88. The learned Senior Counsel contended that the scheme submited by these Respondents is under the modified DCR 58 of 2001 i.e.DCR 58 (1) (b) read with 58(6). It is submitted that these Respondents have proceeded with the sale of land in accordance with the BIFR scheme as also as per the Supreme Court o .....

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..... vent of this Court concluding that the Modified DC Regulation 2001 is validly enacted as per the procedure prescribed under Section 37 of the MRTP Act, the said Modified DC Regulation of 2001 has to be viewed independently and cannot be compared with the old DCR Regulation 58 of 1991. The said DC Regulation of 1991 has since been repealed. This Court is therefore required to only construe the DCR 58 of 2001. If there is no ambiguity in the said DCR 58, 2001, then the averments made in the Petition and the arguments advanced with regard to construction of DCR 58 by the Petitioner would necessarily fail. It is submitted that the policy of the Act and the intention of the Government to amend DCR 58 2001 is clear. Effect has to be given by this Court to the said amended DCR 58 of 2001. (c) It is submitted that the Petition ignores the fact that development of cotton textile mill land is at the option of the owner of the mill land and there is no statutory obligation cast on the owner that all development of mill land should be only under DCR 58 (1)(b). The owner has a choice of submitting a development proposal under either DCR 58(1)(a), 58(1)(b) or 58(2) or 58(3) or 58(5) or 58(6)(a .....

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..... It is submitted that apart from alleging infringement or violation of Article 14 of the Constitution, there is no arbitrariness shown so as to strike down the present DCR 58 2001. No case has been made out that the amended DCR favours a distinct category of people at the expense of the broader social interest. The said DCR 58 applies uniformly to all lands of Cotton Textile Mills. B. Challenge under Article 21 of the Constitution of India: . In so far as Article 21 is concerned, it is the case of the Petitioner that the procedure adopted for enacting the said DCR 2001 is not permissible and that rights of the citizens have been deprived except in accordance with the procedure adopted by law. This case is also not made out by the petitioners. 92. Mr.Rohatgi, the learned Senior Counsel strongly disputed that the DCR 58 is violative of Section 37 of MRTP Act, for the following reasons:- (a) The Petitioners have contended that the 2001 amendment would not have been made by taking recourse to the provisions contained in Section 37 of the Act. Such an amendment, as the Petitioner would contend, can only be done by taking recourse to the provisions contained in section 33 or under .....

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..... om public. No objections were filed by the Petitioners at that stage. (c) The basis on which the Petitioner proceeds is erroneous in as much as the Petitioners are treating the contingent possibility as even more than a reservation effected under Section 22(b) and (c) of the Act. It is submitted that DCR 58 is a Regulation under Section 22(m) of the Act and not a reservation under Section 22(c). It is further submitted that even if the reservation was made under Section 22(b), such reservation would not create any enforceable right in favour of any citizen to compel the planning authority to acquire the land or keeping them open or use the same for public housing. It is further submitted that an amendment to the said regulation relating to additional development of land of cotton textile mills does not amount to a change in the character of the plan. It is further submitted that reduction of open area in the context of planning unit works out to less than 1% and is therefore also not hit as a change of substantial nature under Section 22A nor as a change in the Character of the Plan under Section 37 of the Act. . It was thus submitted by the learned Senior Counsel that the Peti .....

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..... applied in the present case while construing the provisions of DCR 58. There is no ambiguity in the said provision. (c) Though the Petitioners have contended that there are two interpretations on DCR 58, possibly and that the Petitioners would have this Court accept the interpretation sought to be put forward by them on the ground that the said interpretation advances the environmental and social needs of the city. These respondents submit that there is only one interpretation possible of the said modified DC Regulations. The interpretation of the Petitioners is not correct as it does not take into account the clear and unambiguous words used in DCR 58(a)(b) which provides for development of 'open land' and 'balance FSI'. The modified DC Regulation construed on the basis of the clear and unambiguous words used therein, would lend itself only to the interpretation as put forward by these Respondents. (d) It was therefore submitted that this Court would not be entitled to interfere with such policy decisions of the Government which have been introduced by following of an amendment after doing following due process of law. 96. Mr.Rohatgi, the learned Senior Counsel submitted as f .....

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..... tioners are and were fully aware of the proper construction of DCR 58. Despite this, the Petitioners have sought to interpret "open land" used in DCR 58 (1) (b) as set out in paragraph 56A of the Writ Petition in a manner which was not the intention of the legislation at all. (e) The interpretation of the DCR 58 if construed in the matter as submitted in the note of the Petitioner dated 6.9.2005 would lead to an anomalous result such as - (i) If open land is to be interpreted as including land available after demolition then what is the meaning to be given to the expression 'balance FSI' (See DCR 58(i) (b). (ii) If land after demolition is included in the said Regulation i.e.58(1)(b), how is it that land after demolition is referred specifically in DCR 58(6). If the expression "open land" is to be construed as including land after demolition, then the expression "land after demolition" was not required to be specified in DCR 58(6). (iii) If the definition of the term "development" as defined in section 2(7) of the Act, as amended in 1994 which includes the expression 'demolition of any existing building, structure' has to be taken for .....

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..... ic housing. This was the aim sought to be achieved by the amendment of 2001. The reading down of the said Regulation for the purpose of rendering the said regulation unconstitutional is not permissible. (viii) The changes effected in the DCR 58(1)(a) and 58(1)(b) are indicative of the legislative intent by changes brought about in 58(1)(a) by deletion of the words "newly" and simultaneous amendment in 58(1)(b) by deletion of the words "land after demolition of the existing structures in case of a redevelopment scheme". The contention therefore of the Petitioners that these amendments should be ignored and "open land" should be interpreted to notionally include even land after demolition, would be a regressive step and would defeat the very purpose of the modified DC Regulations. Such an interpretation cannot be accepted. (ix) The further submission of the Petitioners in respect of the change of user permissible under 58(1),(2),(3) and (4) was not available under 58(6) also is fallacious and must be negatived. The Petitioners have taken support of Regulation 56 and 57 in its behalf and also has referred to the definition of the expression 'existin .....

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..... ustained in view of what is stated hereinabove. 97. The learned Senior Counsel Mr.Rohatgi, thereafter dealt with the clarification dated 28.3.2003. He has submitted that the said clarification is nothing but a clarification and not an amendment and the contentions raised by the Petitioner must be negatived on this issue particularly in view of the affidavit dated 17th August, 2005 filed by the Respondent No.1. It is also submitted that the said clarification was issued in response to the queries submitted by the Respondent No.2. The clarification pertaining to 58(6) and 58(1)(a)(iii) proceeded on the assumption made by the Respondent No.2. The Respondent No.2 merely sought confirmation of the said assumption and the said clarification has to be viewed in view of this factual position and cannot be treated as an amendment. The said clarification was only given in response to the query of the MCGM for the purpose of ascertaining mode of calculation of the land component of the existing built up area for the purpose of determining the land which would not be available for sharing. The further submission of the Petitioner that the clarification violates section 37 can also not be ente .....

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..... DC regulations as applicable from time to time i.e. DCR 58 - 1991. Total exemption was sought on the ground that in other States where other subsidiaries of the holding company are in existence and which were also before the BIFR, the State Government in respect of those subsidiaries had permitted development of land of the subsidiaries without any restriction or condition of sharing land for open space and public housing. During the pendency of the said scheme, DCR 58 was modified and brought into effect in March 2001. Even under the said modified Regulation an exemptiion was sought by the holding company and the promoters. However, the consistent stand of the Respondent No.1 before the BIFR was that no such exemption would be granted and the subsidiaries would have to develop the land strictly in consonance with DCR 58 in force. This is clear from the letter dated 30th April, 2001 addressed to BIFR by the Deputy Secretary, Ministry of Textiles, Government of Maharashtra. (c) It is submitted that the norms of viability of the mill owned by the subsidiaries have undergone changes in this period of 10 years. The techno-economic viability study (TEVS) has been carried out by an ind .....

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..... i mill aggregation, sale of some mill land, modernisation and revival of some mills and sharing of land pursuant to the said scheme with MCGM and MHADA. The said scheme is formulated as per 58(6) read with 58(1)(b). The said scheme was submitted in May 2003 to Respondent No.2. After the submission of the said scheme, Respondent No.2 appointed a sub committee under the Chairmanship of Charles Correa which made a report. However, this report was not acceptable to these Respondents as the said report was not in consonance with the modified DCR 58 2001. The said issue was thereafter referred by the Respondent No.2 to the Urban Development Department of Respondent No.1. Two meetings were also held under the Chairmanship of the Hon'ble Chief Minister, Government of Maharashtra, alongwith the Hon'ble Minister of Textiles, Government of India and the representatives of the concerned departments and a decision was taken that the proposal of 7 mills of these Respondents be cleared as per the DCR 58 in force. This decision of the Government was communicated to the Respondent No.2. Thereafter the Respondent No.2 after processing the scheme granted clearance vide its order dated 27.10.2004. The .....

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..... eing made by the Petitioners to misguide and misrepresent the facts and circumstances of the case in so far as NTC Mills are concerned. It is also the submission of these Respodnents that, as aforesaid, the BIFR Scheme and its implementation is an ongoing process. Valuation done in 2002 cannot be used as a tool to non-suit the NTC or the pass order against NTC with regard to the sale of land which have already taken place. (k) It is the further submission of these Respondents that the alleged breach of the Supreme Court order dated 11.5.2005 and the allenged breach of the BIFR cannot be the subject matter of the present petition. (l) These Respondents crave leave of this Court to draw the attention to letter dated 6.1.2005 on page 279 of Vol.II as addressed by M/s.Keshab Mahindra and Deepak Parekh who are the trustees of the Urban Design Research Institute, to the then Hon'ble Chief Minister, Government of Maharashtra, wherein the said two members of the institute have represented to the Government that it is not the intention of the institute to go back to the old DCR 58. The relevant portion of the said letter reads as under:- "We understand that our representation in .....

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..... the modified DCR 58 - 2001. It is submitted that in so far as the NTC is concerned, these Respondents have incurred huge expenses towards payment of MVRS amounts to its employees, and has also issued interest bearing bonds. The total expenses incurred by these Respondents is as enumerated at page 1938 Vol.VII and page 245 - Vol.II of the Affidavit in Reply to the Writ Petition. (d) It is submitted that in view of the fact that these Respondents have incurred enormous expenses and have also created third party interest, the present Petitioner ought not be granted any relief. (e) It is therefore submitted that the Petitioners are thus disentitled from seeking any relief on the ground of the delay and latches. It is prayed that this Court be pleased to reject this petition on this ground alone. 100. Finally Mr.Rohatgi has submitted that the present petition is devoid of any merits and that the Petitioner has taken contrary stand as enumerated hereinabove. The modified DCR 58 - 2001 has been amended after following due process of law and is required to be implemented in its entirety. There is no case made out for the relief prayed for in the present petition. Hence the learned Cou .....

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..... Mr.Janak Dwarkadas, the learned Senior Counsel, appearing on behalf of Respondent No.6, on the issue of severability of the provisions of the DCR-58, has submitted as under:- (a) In the course of their arguments in rejoinder, the Petitioners contended that DCR-58(1)(b)-2001 was severable from the rest of the provisions of DCR-58(2001)_ and could alone be struck down as unconstitutional or as being violative of Section 37 of the MRTP Act. According to the Petitioners it was not necessary to strike down the entire DCR-58(2001). It was further contended that if the amended DCR-58(1)(b)-2001 was struck down as unconstitutional or illegal, the original DCR-58(1)(b)-1991 would be revived. It is submitted that the aforesaid contentions of the Petitioners are misconceived for the reasons set out below. (b) It is well settled that if a legislation is not validly enacted due to non compliance of the mandatory legislative procedure, the doctrine of severability will not apply. This has been laid down by the Supreme Court in the case of Kihoto Hollohan V/s Zachillhu - 1992 Supp.(2) SCC 651. The relevant paragraph 172 is reproduced below:- "The Doctrine of Severability applies in a c .....

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..... s, the whole of DCR-58(2001) must fall. If DCR-58(2001) is held to be illegal for the reason that it could not be enacted under Section 37 of the MRTP Act, the doctrine of severability would have no application as "the legislation is not validly enacted due to non-compliance of the mandatory legislative procedure" prescribed by Section 37. In the words of Supreme Court the whole of the DCR-58 would be still-born and it would not be possible to infuse life into it. (e) There is yet another reason why DCR-58(1)(b)-2001 is not severable and that is that all the provisions of DCR-58-2001 including DCR 58(1)(b) are so inextricably mixed up that they cannot be separated from one another. Moreover all the provisions of DCR-58(2001) form part of a single scheme which is intended to be operative as a whole. It is well settled that in the above situation, the invalidity of a portion of DCR-58(2001) would result in the invalidity of the whole of the DCR-58(2001) as laid down by the Supreme Court in the case of R.M.D. Chamarbaugwalla V/s.Union of India reported in AIR 1957 SC 628. The relevant portion of paragraph 22 is reproduced below:- "22. That being the position in law, .....

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..... ' submission is borne out by a simple illustration. If the amended DCR-58(1)(b)-2001 is struck down, the concept of "balance FSI" will go with it. The concept of "balance FSI" is not to be found in the amended DCR-58(1)(a). Hence if the original DCR-58(1)(b)-1991 is revived, read with amended DCR-58(1)(a)-2001, the concept of "balance FSI" will completely disappear from DCR-58. It will mean that balance FSI is not dealt with or covered by DCR-58. This illustration also shows that DCR 58(1)(b)-2001 is not severable from the modified DCR-58(2001). SUBMISSIONS ON BEHALF OF RESPONDENT NOS. 7,8, 10 AND 24 105. Mr. Bhatt, the learned Senior Counsel for the Respondent Nos. 7,8, 10 and 24 submitted that the principal questions that arise for consideration of this Court in the present Petition are as follows:- (i) The true and correct construction of Development Control Regulation 58 (DCR 58, for short) and in particular DCR 58(1)(b), particularly, whether on a plain reading and meaning of DCR 58(1)(b), is a mill bound to share in the proportion set out in the table therein, the entire land including the land emerging after demolition of the existing built .....

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..... s" means and includes also that land which emerges after the demolition of the existing built up area, then the proportion of sharing of land as provided for in the table contained in DCR 58(1)(b) would apply to the entire land including that which emerges after the demolition of the existing built up area with the addition of the already existing open lands. If the construction of DCR 58(1)(b) as canvassed for by these Respondents is correct, then the area required to be shared under DCR 58(1)(b) would be only that area which exists on the land after excluding the land commensurate with already built up area as contemplated by DCR 58(1)(a). 109. The learned Senior Counsel contended that the whole basis of the contention of the Petitioners that DCR 58(1)(b) should be construed to mean "open lands and lands after demolition" is two fold, viz., (i) that the policy of DCR 58 is based on a special philosophy of providing open spaces and lung spaces in the form of public areas to the people of the city of Mumbai; of providing housing to lower income groups in the form to be constructed by MHADA; and providing housing to workmen; (ii) to bring about "sustainable .....

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..... he submission of the layout or the balance FSI if there is no open land, in a given case, where the built up area consumes the entire open lands but does not consume the balance FSI. The concept of balance FSI would be rendered meaningless in a case where the entire existing structure is demolished. If the existing structure is demolished there is no question of balance FSI. Thus the phrase, "balance FSI" in conjunction with "open land" in DCR 58(1)(b) can only strengthen the contention of these Respondents that the phrase "open land" in DCR 58(1)(b) would mean open land over and above the lands which are relatable to or commensurate with the existing built up area. Further, if the contention of the Petitioners about the construction of DCR 58(1)(b) is correct, then in a case where the existing structure is partly demolished the mill would be required to share a larger area of land than what was contemplated under DCR 58 as it was promulgated in 1991. The mill would then have to surrender open lands, that is lands in excess of lands commensurate with the built up area, further lands which emerge after demolition of part of structure and share the balan .....

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..... nt amendment of the definition of the word "development" as contained in Section 2(7) of the Maharashtra Regional & Town Planning Act, 1966 ("MRTP" for short). It is contended by the Petitioners that in DCR 58 of 1991 it was necessary to include the phrase "land after demolition of existing structures" as prior to the amendment of Section 2(7) of the said Act, to the definition of the word "development" in 1994, the words in the said definition "demolition of any existing building, structure or erection" were absent and now that the said words have been specifically included in the definition of the word "development", to continue to retain the same in DCR 58(1)(b) was, according to the Petitioners, unnecessary. 115. Mr. Bhatt further submitted that such a reading of DCR 58 would be selective and contrary to and destructive of the contentions of the Petitioners. If, as per the contention of Petitioners, the phrase "land after demolition of existing structures" is deleted from DCR 58(1)(b) as it exists today, on account of the amendment of the definition of the word "development" in Sec. 2(7) of the Act .....

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..... o be granted for controlling and regulating the use and development of land and, inter alia, providing for imposition of conditions and restrictions with regard to open spaces to be maintained about the buildings, provide for certain measures to control and regulate the development and to impose conditions. Section 22(m), pursuant to which the Development Control Regulations are formulated, permits imposition of conditions and restrictions "in regard to the open space to be maintained about buildings" and cannot provide for any compulsory acquisition for whatever consideration by the Government or Municipal Authority in respect of private lands. It is in pursuance of the power to impose such condition that DCR 58 has been formulated. 118. Mr. Bhatt contended that the provisions for designation of areas for open spaces, playgrounds, stadia, zoological gardens, green belts, nature reserves, sanctuaries and dairies as provided for in Sec. 22(c) of the said Act is de hors and beyond the scope of DCR. Such a provision as contemplated by Sec. 22(c) would take into account, inter alia, the social philosophy canvassed for by the Petitioners and the provisions would be made by wa .....

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..... t Plan, public housing over and above the one reserved for and designated in the Development Plan and an environmentally friendly development of the same. There is nothing shown that the development of the said lands would result in environmentally hazardous consequences for the city of Mumbai. 122. Mr. Bhatt thereafter contended that if the interpretation of DCR 58(1)(b) as canvassed for by the Petitioners is accepted, it would be counter productive to the development of the city of Mumbai. If the Petitioners are right then the situation that prevailed post 1991 would continue and there would be hardly any sharing or surrender of any land under DCR 58(1)(b). There would be haphazard development of existing structures for commercial purpose. Large dues of workers and Financial institutions would remain unpaid and National Textile Corporation (NTC) would be debt ridden and totally unviable. If on the other hand, interpretation of these Respondents is accepted, lands would be released for buildings and apartment blocks and commercial development would take place. There would also be revival or rehabilitation of some mills. Lands would be available for public housing or for open spac .....

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..... the cotton textile mills can develop the land for cotton textile mill or related user without sharing. The development may be by demolishing the existing structure. Under DCR 58(5) no amount is required to be deposited in the escrow account. 125. It was thereafter contended that the Petitioners' contention would drive mill land to a situation where: i) only cotton textile mill can be operated or; ii) healthy mills are driven to sickness to be able to develop the land, or iii) no land would be developed as large areas would have to be surrendered and only small areas would be available for development making the entire exercise unviable. 126. Shri Bhatt, the learned Senior Counsel further submitted that if only those mills as are sick and consequently compulsorily subject to BIFR can develop, it would mean that BIFR would be required to be equipped with the knowledge of Town Planning when it provides for various conditions under Sections 16, 17 and 18 of the Sick Industrial Companies (Special Provisions) Act. It is open to BIFR to direct the sale or disposal of the land or assets of the company. In order to be able to do so, if the Petitioners are right, BIFR would have to .....

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..... arbitrary or result in unequal treatment to similarly situated entities or be unreasonable or is such as would have no relation to the object sought to be achieved thereby and that the Petitioners have not made out any ground to show that DCR 58 as it stands today suffers from any of the aforesaid. The learned Senior Counsel also submitted that it is well settled that in considering a challenge to the constitutional vires of an action, the constitutional validity of a statute is to be presumed and the burden on the Petitioners to displace the presumption is strong and heavy, such a presumption gets enhanced in the case of delegated legislation and that the Courts cannot go behind the policy of a provision, the piece of legislation - and in this case the Development Control Regulation - cannot be struck down if the Courts thinks it to be unreasonable, unnecessary or unwarranted. The learned Senior Counsel further submitted that in fact, the Court should endeavour to validate a legislation and not view it suspiciously to strike it down at the threshold, and that the test of arbitrariness is relaxed in the case of delegated legislation, the legislation should be manifestly unjust and .....

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..... s based on how the statute would be administered. The learned Senior Counsel further submitted that it is well settled that validity of a statute cannot be tested on the basis of how it would be administered- AIR 1962 SC 317, at 331 paragraph 33. There have been three stages through which DCR 58 has progressed. The first was prior to 1991 when the mills and the lands were in unused dilapidated conditions. The second was when DCR 58 was introduced in 1991 when there was haphazard minimal development with negligible land being available for public open spaces and public housing and, thirdly, post 2001 when there is development of mill lands and there is available land for open public spaces and public housing. Thus, even if the validity of the provision has to be tested on the basis of its administration, which it is submitted it cannot be, the contention of the Petitioners cannot stand. 131. In view of the aforesaid submission, the learned Senior Counsel submitted that the challenge of the Petitioners based on Article 21 read with Article 48A of the Constitution of India is liable to be rejected. 132. Mr. Bhatt, the learned Senior Counsel for the Respondent Nos. 7, 8, 10 and 24 th .....

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..... up areas to be utilized: i) for the same cotton textile or related user subject to observance of all other Regulations; ii) for diversified industrial user in accordance with the industrial location policy, with office space only ancillary to and required for such users, subject to and observance of all other Regulations; iii) for commercial purposes, as permitted under these Regulations; (b) Open lands and balance FSI shall be used as in the Table below: ......" (emphasis supplied) 135. It was submitted that the Petitioners have contended that on a construction (according to the Petitioners), DCR 58(1)(a) relates only to the utilization of the existing built up areas without demolition and DCR 58(1)(b) relates to the development of open lands and balance FSI that remains if the existing built up area is chosen to be retained or of the entire land if the existing built up area is sought to be demolished, in other words, the Petitioners contend that the phrase "open land" in Clause 58(1)(b) is to be read and/or read down as "open lands and lands after demolition of existing structures". 136. It was submitted that the question that arises for con .....

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..... most natural interpretation and plain meaning of the phrase "open lands". The aforesaid natural interpretation canvassed for by these Respondents, apart from emanating from a plain reading of the phrase "open lands", is also additionally supported by the following:- i) DCR 58(1) provides for a conjoint "development or redevelopment of the entire open lands and the built up areas". Thus, there is an internal indication in the opening part of DCR 58 itself that the term "open lands and built up area" are distinct; ii) The layout to be prepared and submitted under DCR 58(1) is for the development of the "entire open land and built up area". Thus, the layout prepared would be at the time when both the open lands and the built up areas exist on a property and it is the layout for development of such built up areas and open lands that has to be submitted. On the date of the submission of the layout, the only open lands that would be available would be over and above that which is commensurate with the built up area; iii) The phrase "open lands" in DCr 58(1)(b) is a composite phrase viz. "open lands and balance FSI&qu .....

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..... is no warrant or justification to restrict or enlarge the scope of either of these concepts and that by no stretch of imagination, can the phrase "open lands" be naturally construed to mean or include lands after demolition of the existing structures. 141. It was submitted that in view of the aforesaid, the phrase "open lands" in DCR 58 must mean only lands or that area which exist on the property after excluding the area of land relatable to or commensurate with the built up area. 142. It was submitted that even though the meaning of the said phrase 'open lands' in DCR 58 as it exists today is clear, if additional support for the aforesaid construction is sought, the same is available in DCR 58(1) as it was originally promulgated in 1991 where in DCR 58(1)(b) specific distinction was made between "open lands" and "lands after demolition of existing structures", both of which were specifically included in DCR 58(1)(b). The deletion of the phrase "land after demolition of existing structures" in DCR 58(1)(b) as it originally stood in 1991, clearly gives specific expression to the intention of the legislature to delete from the pur .....

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..... e purpose mentioned therein. Thus construed, DCR 58(1), would, on the Petitioners' own showing, invest authority in favour of the Commissioner to permit change of user of land or building subject to the Regulations and also demolition of any existing building, structure or erection. Such a construction would mean that DCR 58(1)(a) permits a complete demolition and reconstruction of the existing built up areas without there being any requirement of sharing under DCR 58(1)(b). The support sought for by the Petitioners from the amended definition of the word "development", far from supporting the case of the Petitioners, clearly supports the case of these Respondents. 145. The Respondent No. 9 further submitted that the construction put forward by the Petitioners completely negates the objective of introducing DCR 58 as it stands today. After introduction of old DCR 58 in 1991, the facts clearly demonstrated that there was no development taking place in respect of lands belonging to cotton textile mill companies and whatever development was permitted was haphazard and more importantly resulted in releasing only negligible open spaces in the form of public areas or for publi .....

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..... consistent with the validity of DCR 58 would only mean that the term "open lands" in DCR 58(1)(b) would cover only those open lands as are over and above the existing built up area. 148. In view of the aforesaid, it was contended that the construction of "open lands" must be as is submitted by these Respondents. 149. Respondent No. 9 further submitted that the arguments of the Petitioners based on the underlying philosophy or policy behind DCR 58 is misplaced and that there is no foundation or premise to conclude that DCR 58 is aimed only at giving expression to a policy of providing for open spaces or lung space or public housing or employment or revival or rehabilitation of the textile mills. The learned Senior Counsel thereafter submitted that the Government realized: a) that most cotton textile mills were also sick or closed; b) that vast land occupied by the said mills were lying unutilized; c) that there was urgent need for solving problems created by the sickness or closure of textile mills; d) that the said problems could be solved with compendiously providing incentives to mills to develop their lands. DCR 58, while providing such an incentiv .....

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..... large number of mills are situated, which is so in the case of Mumbai, there will be no coherent planning and development and that in the same zone or area there would be residential buildings, commercial complexes, cotton textile industries, related industries and diversified industries. Therefore it was submitted that it certainly could not be the intention of DCR 58 that such haphazard development of a given area takes place and a hotchpotch of construction for various divergent purposes mushrooms and that the dilapidated mill structures would continue to lie in the state in which they are at present and the so called social philosophy behind DCR 58 would not be realized to any extent whatsoever. 152. It was further contended that the object of DCR 58 is revival and rehabilitation of existing mills and require them to run as cotton textile mills is incorrect and that to revive and rehabilitate a sick or closed textile mill company, moneys have to be pumped in which can only come from sale of land or development of land. It was further contended that the revival and rehabilitation of the mill, companies would consume entire land on which the mill structures stand at present and .....

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..... on to do and that again what comes within the purview and jurisdiction of BIFR is not a mill but the corporate entity. The learned Senior Counsel, Mr. Manohar therefore submitted that thus, if a cotton textile mill within Mumbai is a part of several units of a corporate entity viz. a company, other units being engaged in manufacturing other products - and there are several such companies involved in mill land - it would mean that the loss making unviable textile mill unit which is a part of several units of a company, would have to continue its loss making activity in the city of Mumbai as the main corporate or company or company continues to be a profit making unit and that this profit making unit of a corporate body would be required to fund continuously the losses of its cotton textile unit within Mumbai till the funds dry out or exhausted or till it is capable of doing so and then declare itself sick, go to the BIFR and get a scheme approved. 156. It was submitted that again the healthy textile unit which is the only unit of a company would have no option but to continue its textile activity and can never choose to close down its textile activity for, if it so chooses to close .....

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..... nd that the Petitioners have not been able to show how the legislation is arbitrary or unreasonable, viz: (i) (1974) 4 SCC 415 (Amalgamated Tea Estates Co. Ltd. Vs. State of Kerala) (ii) (1996) 3 SCC 709 (State of A.P. Vs. McDowell & Co.) (iii) (1996) 10 SCC 304 (Khoday Distilleries Ltd. Vs. State of Karnataka) (iv) (1997) 2 SCC 453 (State of Bihar Vs. Bihar Distillery Ltd.) (v) (2002) 2 SCC 188 (Sharma Transport Vs. Government of A.P.) 158. It was further contended that being unable to show any direct or manifest arbitrariness in DCR 58 as it stands today, the Petitioners have sought to do so by juxtaposing DCR 58 as it stands today with DCR 58 as was promulgated in 1991 and that the Petitioners contend that under DCR 58 as promulgated in 1991, more open spaces would have been available to the city of Bombay by way of public places and for public housing. The learned Senior Counsel further submitted that such a comparison or juxtaposing of present DCR 58 with the erstwhile DCR 58 is not permissible, a legislation for consideration of its constitutional validity has to be tested as it stands per se and not in comparison with its earlier form and that there is nothing in .....

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..... not apply unless the mill is sick and/or closed and under the purview of BIFR and that the consequence of such an argument or interpretation of DCR 58 would necessarily be that even those mills which are not before BIFR or a part of the modernization or shifting exercise who wish to share 2/3rd of their entire area in accordance with the interpretation of DCR 58 by the Petitioners would be unable to do so and that the city and MHADA would be denied the benefit of huge areas of land which might be potentially available. 162. The Respondent No. 9, submitted that the aforesaid written submissions are restricted to some of the principal issues before this Court. Respondent No. 9 also adopted the arguments given by Respondent No. 11 on the issues dealt by them and that in respect of delay and laches on the part the Petitioners, the case of these Respondents is that: (i) The commercial office premises of Unit No. II of Respondent No. 9 is complete, all units therein have been sold and building completion certificates have been granted as far back as between 12.09.2001 to 30.10.2004. (ii) In relation to Unit No. I, Respondent No. 9 has received IODs and CCs in respect of the 4 resid .....

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..... gregate figures in 2005 adds upto ₹ 6696.02 crores. 164. It is the submission of Dr.Singhvi that in the light of this stagnating status quo, a policy was devised, at the heart of which lay the object of solving several problems at the same time. According to Dr.Singhvi, the principal objects of this policy, ex-facie inherent in DCR 58, 1991 itself, were as follows:- (a) to unlock for the use the large immovable assets occupied by cotton textile mills in Greater Mumbai lying uporoductive, unutilized and sterlie; (b) to achieve the shifting out and/or closure of industrial use mills in a city where almost all the contiguous and surrounding areas were functionally residential or office/commercial. 165. According to Dr.Singhvi, the 1991 scheme, although inspired by clear public interest and national interest objectives, the said policy failed to achieve its objectives through the promulagation of DCR 58, 1991. It is not unusual that mere good intentions fail to achieve the desired objective. Dr.Singhvi has submitted that since DCR 58, 1991 was admittedly not a land acquisition scheme, the crucial element of legal compulsion was necessarily missing in that scheme. The scheme .....

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..... existing structures but would require to share by way of surrender broadly 2/3rd of that area over which no earlier built up structure stood (i.e. 2/3rd of remaining areas). This crucial change was however subjected to several additional safeguards including creation of an Escrow Account and the creation of a high powered Monitoring Committee headed by a retired High Court Judge, to ensure the disbursal of the large funds expected to be received to meet various liabilities. Dr.Singhvi has therefore submitted that in the light of this sequence of events, policy objectives underlying both 1991 and 2001 initiatives, the ground reality of 1991-2001 experience and a holistic policy perspective, that the entire argument of reduction in green areas advanced by the Petitioners is completely fallacious and erroneous, principally because it is purely hypothetical and imaginary. According to him expression "reduction" is itself a relative term and must necessarily be viewed against a larger benchmark which exists in reality or in sutuation from which the alleged reduction results. In the present case, admittedly, there has been no actual green area of a significant degree achieved i .....

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..... the touchstone of that non-existent World. Consequently, it reflects an ostrich in the sand attitude unrelated and unlinked to reality. Since the premise from which the Petitioners approach the problem is itself flawed, the Petitioners' case, conceding without admitting all bonafide intentions on their part, in fact raises an anti-public interest case, because the achievement of a reasonable, good and significant reality is sought to be tested by them against the touchstone of a non-existent, non-reality. The learned Senior Counsel therefore submits that the Petitioners, are guilty, at the least best of allowing a non-achievable perfect to become the enemy of the actually achieved good. 168. Dr.Singhvi, the learned Senior Counsel appearing on behalf of Respondent No.11, on the issue of interpretation of DCR 58, has submitted that the deletion be given full effect. According to him, as seen from Rule 58(1)(a), existing built-up area is not available for sharing. Sharing is provided in DCR 58(1)(b) as per the ratios provided therein. According to him, if DCR 58(6) is read with DCR 58(a) & (b), if there is reconstruction after demolition to the extent of the built up area of the demo .....

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..... d in DCR 58, 1991. In support of his submissions, the learned Senior Counsel has referred to and relied upon the decison of the Supreme Court in the case of Onkarlal Nandlal V/s.State of Rajasthan (1985) 4 SCC 404, wherein, the Supreme Court whilst expounding the doctrine of incorporation by reference in an amended statute laid down in para 9 of the said judgment that the Rule is that when a subsequent enactment amends an earlier one in such a way as to incorporate itself or a part of itself into the earlier, then the earlier Act must thereafter be read and construed (except where that would lead to a repugnancy, inconsistency or absurdity) as if the altered words had been written into the earlier Act with pen and ink and the old words scored out so that thereafter there is no need to refer to the amending Act at all. Thereater the learned Senior Counsel Dr.Singhvi, has referred to and relied upon the judgment in the case of Ventaka Sabamma and Anr.V/s.Ramayya and Ors. - AIR 32 PC 92, wherein the Privy Council has held that when a section of a statute has been substituted by a new one, it may well be that upon the old section the argument on behalf of one of the parties would have .....

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..... e), (b) Regulation 52 which deals with users in a Residential Zone with shop line (R-2), provides in Regulation 52(4)(i) for all users permitted in a purely Residential Zone(R-1). Clearly, therefore, DCR 58(1)(a)(iii) itself provides for residential user in respect of the development of the existing built-up areas after they are demolished. 171. According to Dr.Singhvi, the submission of the Petitioners that the clarification of the Government dated 28.3.2003 is an amendment of DCR 58 of "01" is clearly fallacious. Further, according to Dr.Sinhvi, the submission of the Petitioners that under DCR 58 of "01", development of mill lands is permitted for residential user only under DCR 58(1)(b) under which the mill is required to share its lands in proportions of 1/3rd, is wholly erroneous. According to him, clearly the existing built-up areas of the mills can be developed under Regulation 58(1)(a)(iii) for residential purposes, and the Government threfore correctly clarified by its order dated 10.4.2001 (which was reiterated by its order dated 28.3.2003) that the commercial purposes under Regulation 58(1)(a)(iii) includes permissible user in the residential zone .....

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..... emaining after excluding built up areas. (v) DCR 58(6) read with DCR 58(1) clearly contemplates:- (a) no sharing in so far as there is reconstruction after demolition limited to the extent of the built up area of the demolished structure, and (b) sharing only in respect of open lands and balance FSI which necessarily means lands and FSI after excluding the built up area portion. In respect of (a) above, 58(6) operates in conjunction with 58(1)(a) while in respect of (b) above, 58(6) operates in conjunction with 58(1)(b). Hence 58(6) and 58(1) are inextricably interwined and interdependent. 58(6) is not a stand alone provision. (vi) Consequently, as far as the issue of sharing remaining lands after excluding built up structures is concerned, if the foregoing interpretatiion of DCR 58, 2001 is correct, ex-hypothesi, the document dated 28.3.2003 could not, in substance, add or subtrct from the basis principles already made crystal clear by DCR 58, 2001. Inother words, even if one were to ignore and/or exclude altogether the document dated 28.3.2003, the operation, implementation and effect of DCR 58, 2001 would remain unaffected in so far as the basis principle of sharing of remai .....

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..... rs grievance qua the Order dated 28.3.2003, is mainly in respect of allegedly wrongly permitting residential user (Page 38B para 56B(i)(i) of Petition Vol.1). In this paragraph and in the other pleadings of the Petition in this respect, the Petitioners are not making any grievance regarding the issue of sharing only the balance but are focusing entirely on the alleged wrongful permission regarding residential user. (xii) However, while this mandate of DCR 58, 2001 even before the 2003 clarification was reasonably clear and unequivocal, there were several other issues related to calculation of FSI which involve questions which would inevitably arise in the nitty-gritty operation of DCR 58 and which led to several queries. This is the factual context in which the document of 28.3.2003 came to be issued. To say that it amends DCR 58, 2001 substantively by bringing in for the first time the concept of sharing remaining area after excluding built up structure is thus erroneous, and is to ignore the sequence of events and the aforesaid context completely. (xiii) The affidavit of Shri.Tiwari dated 17.8.2005 (filed before this Court) also makes it clear that, in effect, so far as the m .....

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..... how the clarification intended to ensure that optiion B out of two calculation options was adopted so as to ensure that a larger area was surrendered by the land owner. 173. The learned Senior Counsel Dr.Singhvi has further submitted that DCR 2001 does not change the character of the development plan and hence there is no violation of section 37 of the MRTP Act. The learned Senior Counsel has submitted that, the Petitioners contend that the alteration achieved by 2001 DCR 58 is of a nature which "changes the character of such Development Plan" (Development Plan, according to them, includes all regulations) and therefore the change could not be effected by following Sec.37. If at all a change had to be made, the procedure of Sec.38 would have to be followed including, inter alia, carying out a fresh survey, preparing an existing land used map and various provisions listed in Sec.38 to revise the Development Plan. Admittedly this has not been done. According to Dr.Singhvi, the phrase "changes the character of such Development Plan" under Section 37(1AA) cannot be interpreted to mean any modification or any change because Section 37(1AA) itself suggests that the c .....

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..... ge the character of the plan, as has been held by the Division Bench of this Court in the case of Panshikar V/s State of Maharashtra - 2002(5) BCR 318 (paragraphs 44, 46 and 47). According to Dr.Singhvi, the present 2001 change in DCR is not a change to the basic character or basic structure and is not vitally significant, firstly because the total areas affected by this change are only, of an average, approximately 3.07% of the total area of the wards in which such mill lands are located, secondly because that such mill lands in the aggregate are only 0.6% of the entire land area obtained in Mumbai, and thirdly because there can be no question of change of the Development Plan or its basic character because the Development Plan as existing continues to show the lands in question as industrial zone (I-2, I-3) and the conversion to open spaces & public housing which will be achieved on the event of implementation of 2001 DCR 58 is not reflected in the existing Development Plan. There cannot be an alteration, at least by way of deprivation of green areas when the original Development Plan does not even show such areas as green. The learned Senior Counsel Dr.Singhvi has further submit .....

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..... / or other zones permitting Retention Activity. There is therefore no quetion of DCR 58, 2001 having reduced any of the open spaces or public housing reserved under Section 22(c) in the Final Development Plan, 1991. The areas designated and reserved for open spaces or public housing under Section 22(c) have not been touched or reduced by DCR 58, 2001. DCR 58, 2001 only applies to the Mill Lands, which are situated in I-2, I-3 Zone or other zones permitting retention activity. Hence, Dr.Singhvi submits there is therefore no question of DCR 58, 2001 being ultra vires the provisions of Section 22(c) of the said Act, or being ultra vires the provisions of the MRTP Act. 175. Dr.Singhvi, the learned Senior Counsel has further submitted that no expropriation of Mill Lands by the State Government is permissible except by legally acquiring under Land Acquisition Act. In support of his submissions, Dr.Singhvi referred to and relied upon the Supreme Court Judgment in the case of Raju S.Jethmalani V/s.State of Maharashtra - JT 2005(5) SC 244, wherein the Supreme Court has observed that in a case arising under the MRTP Act that the State Government cannot deprive a person of his land under th .....

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..... ves udnerlying DCR 58. In support of his submissions, the learned Senior Counsel referred to and relied upon the decision of the Supreme Court in the case of Raunaq International Ltd. - (1999) 1 SCC 492, (paragraphs 11 to 13 and 17). 177. On the issue of Delay/ Laches, the learned Senior Counsel Dr.Singhvi, has submitted as to how there is a delay on the part of the Petitioners for atleast four years and/or unexplained laches for 24 months. He has given reference of various dates, as follows:- 12.10.2000 Indian Express Report Announcing new Textile Policy 29.11.2000 Public Notification inviting objections to proposed Modification of Reg.58. 02.12.2000 Public Notice in local Marathi Newspaper Sakal. 03.12.2000 Public Notice in India Express Jan.2001 Deputy Director Town Planning U/s.162 of the Act gave public hearing to all 24 Objectors. 06.01.2001 Objections forwarded to BMC for comments. 24.01.1001 TOI Report regarding new policy policy of Mill Lands. 26.01.2001 TOI Report regarding change in policy 03.02.2001 Comments from BMC received by R1. 02.03.2001 Deputy Director, Town Planning prepared Report for R1 based on above objections. 20.0 .....

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..... een created by them by sale of premises to flat purchasers, development rights created in favour of third parties, mortgages created in favour of banks and financial institutions, etc. In the case of these Respondents, the total financial obligations amount to ₹ 932.55 crores, which include payment of ₹ 120.55 crores to its workers by way of VRS and a further obligation to pay them an amount of ₹ 50 crores as also an obligation to repay loans taken from Banks and Financial Institutions amounting to ₹ 347 crores. In respect of 44 out of the 58 mills, including 25 mills of NTC, the total liabilities/payments made/committed based on DCR 58 of 2001 is ₹ 6696.02 crores. The learned Seniour Counsel Dr.Singhvi has also given charts which are annexed as Annexures "B" and "C" to his written submissions, which give details about the said liabilities/payments, obligations undertaken by various mills between March, 2001 when amended DCR 58 came into force and the date of filing of the Writ Petition. Based on the above submissions, the learned Counsel Dr.Singhvi, has submitted that the Writ Petition filed by the Petitioners ought to be dismissed .....

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..... t 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. (viii) Judgment of the Hon'ble Supreme Court in the case of Raunaq International Ltd. - (1999) 1 SCC 492, (Paragraph 7). 180. On the issue of Waiver/Acqiescence, the learned Senior Counsel Dr.Singhvi has submitted that, as the Petitioners did not raise any objections or suggestions to the proposed amendment of DCR 58 of 1991, when the same were invited from members of the Public by the State Government by issuing a public notice in this regard dated 29th November, 2000, followed by a publication of the said notice in the marathi newspaper "Sakal" dated 2nd December, 2000 and in the english newspaper "Indian Express" dated 3rd December, 2000, the Petitioners were not entitled to challenge the same four years after amended DCR 58 was brought into force. The State Government issued the said public notice as required under the provisions of Section 37(1AA) of the MRTP Act. Even prior to the issuance of the said public notice, the entire issue relating to the proposed amendment to DCR 58 of 1991 was in the public domai .....

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..... c interest, based on completely non-existent assumptions and suffers from huge, unexplained laches. However, in the wholly without prejudice and unlikely eventuality of this Court allowing the writ petition, either wholly or in part, and specially in view of the enormous delay laches and huge third party rights already created as submitted earlier, this Court ought to invoke and apply the doctrine of prospective over-ruling so as to invalidate, if at all, DCR 58, 2001 and all actions taken thereunder only w.e.f.the date of the judgment of this Court. The learned Counsel has submitted that the doctrine of prospective overruling is an established part of the Indian Law, innovatively created and developed to meet unforseen exigencies to tailor and mould the relief to those exigencies and to ensure that justice is done to a particular party or parties even if the law is subsequently declared contrary to such parties' assertion. According to him, the doctrine of prospective over-ruling is an unavoidable consequence of the fact that Judge made law and judicial decisions are, ex facie conceptual ex-post facto declaration of law which are fictionally deemed to declare always existing legal .....

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..... SCC 89 (Paragraphs 19, 20 and 24), upholding the results of the High Courts. 184. The learned Senior Counsel Dr.Singhvi has further stated that, the contention that the doctrine is inapplicable to cases of interpretation of ordinary statutes and is restricted to the constitution, is also erroneous and unsustainable. He has submitted that the contention/assumption that the doctrine of prospective overruling is inapplicable to delegated legislation is equally fallacious. In this context, he referred to the decision of the Supreme Court in the case of Shridhara V/s State of Karnataka - 2002 (9) SCC 441, (paragraph 9), wherein, the Supreme Court struck down Rule 3B of the Karnataka State Civil Services (General Recruitment) Rules, but applied its conclusion prospectively. Similarly, in the case of State of Karnataka V/s Kum.Gowri - 95 Suppl.2 SCC 560 (Paragraph 11), the Apex Court upheld the judgment of the High Court striking down certain provisions of Karnataka State Civil Services (Direct Recruitment) Rules 1977 but applied its ruling prospectively. SUBMISSIONS ON BEHALF OF RESPONDENT NO. 12 185. Mr.E.P.Bharucha, the learned Senior Counsel appearing on behalf of Swan Mills Limit .....

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..... for the State of Maharashtra, and the learned Advocate for B.M.C. 189. Dr.Tulzapurkar, the learned Senior Counsel contended that as far as the interpretation of DCR 58(1)(b) is concerned, two interpretations are possible. 190. Dr.Tulzapurkar, the learned Senior Counsel thereafter referred to and relied upon the judgment of the Supreme Court in the case of Raymonds Synthetics AIR 1992 SC 847, to contend that the interpretation suggested by these Respondents is not unreasonable. Hence, he submitted that any interpretatiion which is not unreasonable, ought to be accepted. 191. Dr.Tulzapurkar has pointed out that the entire petition proceeds on the basis that the amended DCR would be contrary to the provisions of Maharashtra Regional Town Planning Act and contrary to Articles 14, 21, 48A of the Constitution of India. He submits that the entire basis of the Petitioners is erroneous and misconceived, since as of date, there are no open spaces or green spaces or spaces for public housing being made available by the mill owners and that there is no question of same being taken away. To put in otherwords, the Petitioners cannot claim any vested right on such open spaces or lands for publ .....

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..... schemes which are meant only for revival of sick mills under the SIC Act and not for closure of a mill. If the BIFR comes to the conclusion that the mill cannot be revived or that its net worth cannot be made positive, it recommends winding up and in such a situation, the question of sanctioning a scheme for revival doe snot arise. Therefore the sale/development or redevelopment of mill land under Regulation 58 has to be seen in the context of revival of the mill and NOT revival of a company. Regulation 58 is specifically meant for textile mills and not for the company. If this was the case, then the lands of the company apart from those of textile mill lands, would also be included under Regulation 58, which is not so. If the Mill is to be closed, Regulation 58 would not apply. Ms. Singh pointed out that as per ii) the Ranjit Deshmukh Committee Report, the objective of Regulation 58 is to revive a closed/sick mill. (iii) The fact that Regulation 58 was to be used only in relation to a running mill is evident from Regulation 58(1) which provides for sanctioning by the BIFR of a sick mill and the manner in which the land of the mill is to be used. Sub Regulation (2) provides .....

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..... OF 1991 BY MILL OWNERS as follows:- (i) The State Government, MCGB and the mill owners have stated the Regulation 58 of 1991 was unworkable and that only two mills applied under Regulation 58(1)(a) and only three mills applied under Regulation 58(1)(b). It is the case of the State Government that the two mills namely, Kamala Mills and Phoenix Mills applied under Regulation 58(1)(a) and that they sought development of existing structures only for commercial purpose. This is absolutely false since in both the cases, all the structures were demolished and there was complete alteration in the plinth. At the time when the development of the mill land commenced, both the mills had closed and there was no revival of either of the mills. In both the cases, the mills were before the BIFR. (ii) In the case of Phoenix mills, altered audited accounts were submitted before the BIFR to show that its net worth had mysteriously become positive. It therefore succeeded in obtaining an order from the BIFR allowing it to deregister itself. At about the same time, it made an application to the MCGM on 23rd April 1998 stating that it "proposed relocation of recreation facilities with addition .....

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..... knowledge of all the parties. (iii) In the case of Kamala Mills, the Mill had been referred to the BIFR and had been declared sick under the SIC Act. The mill had submitted a rehabilitation package for modernisation of the mill. Under the scheme, the mill was required to be revived and modernised. The development/redevelopment of mill land was to form part of this revival package. Kamala Mills applied Regulation 58(1)(a)(iii) on the ground that it did not want to demolish any structures but to utilise only the existing structures for commercial purpose. Instead of reviving the mill, it terminated the services of all the workers paying a paltry sum of legal dues under the name of VRS and the entire mill structures were demolished and new structures constructed. As in the case of Phoenix Mills, Kamala Mills was also required to give one third of its land to MCGM and one third to MHADA but instead, it utilised the entire mill land for commercial purpose. Therefore in both the cases there has been complete demolition of the mill structures, alteration in the plinth area, change of user with both mills closing down their operations, and no sharing of land with MCGM or MHADA. (iv) Th .....

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..... ue that Regulation 58 was meant exclusively for revival/rehabilitation and/or modernisation of the textile mills and not of the company. At the time when DC Regulation 58 of 1991 was introduced, there were at least 10 mills which were closed out of which three mills were in liquidation. All the other 7 mills were before the BIFR and their schemes for rehabilitation were under consideration. Therefore though these mills were closed they were proposed to be restarted and revived. This is evident from all the revival schemes sanctioned by the BIFR in respect of the said seven closed mills. These mills were Kamala Mills, new Great Eastern Spinning Mills, Raghuvanshi Mills, three units of Swan Mills and Modern Mills. Some of the departments of these mills were proposed to be reorganised and/or closed and the workers who were rendered surplus were to be paid VRS. In all these cases, as soon as the scheme was sanctioned, the workers were at least paid their VRS immediately. The payments were not linked to the development/sale of land as is now being done. In the case of Modern mill ₹ 10 crores were distributed to the workers between 1993 to 2001 i.e. prior to the amendment. After 20 .....

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..... Regulation 58. For this purpose, detailed discussions were held with the representatives of mill owners and mill workers. The GKSS was also called for these meetings and submitted its recommendations with regard to the loopholes in the old Regulation 58. The issue of job losses and housing for workers residing in the mills premises was also raised by GKSS. It was the case of the workers that the Regulation 58 of 1991 was being circumvented and that it therefore required to be tightened to ensure that it was effectively implemented. Detailed correspondence has been done by GKSS with the State Government in this regard. (ii) The Deshmukh Committee has reiterated the fact that Regulation 58 was introduced only for the revival/rehabilitation and modernisation of the textile mill. Development/redevelopment of mill land could be allowed only for this purpose. Since the old Regulation 58 was being misused and mill land was being developed without reviving and modernising the mill, the Deshmukh Committee made certain recommendations and all these recommendations have been accepted in toto and have been incorporated in the new DC Regulations 58. The State Government has been unable to .....

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..... fter the words "revival/rehabilitation of a potentially viable sick" the words "and closed" may be added. It is thus evident that even in cases of closed mills, revival schemes were being sanctioned by the BIFR and this was required to be specifically mentioned in the modified DC Regulations which was done. This inclusion of the word "closed" does not mean that the D.C. Regulation 58 of 2001 allows closure of mills. d) The Deshmukh Committee has also defined the words "related user" as meaning the cotton textile and all the processes incidental thereto. e) Since modernisation of the mill was to be encouraged, the area to be developed in the case of modernisation proposal was increased from 155 to 30% and a ceiling of 30% was imposed for any such modernisation proposals. All these recommendations have been carried out in the modified DC Regulation 58 of 2001. The main objective of Regulation 58 old and new is to revive/rehabilitate and/or modernise the mills for carrying out a planned and balanced urban development and to protect the interests of the workers. There has thus been no change in the objective of the old and new DCR 58. In or .....

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..... to the employees. Similarly in the case of Mafatlal mills the scheme was sanctioned in 2001. However, till date the payments have not been made. Instead of making immediate and quick payments to the workers after the modified DC Regulation 58, the workers have undergone great financial difficulties since not only are their legal dues paltry amounts but are spread over a considerable period of time ranging from 5 to 7 years. For example, under the scheme Mafatlal Mills is supposed to receive about ₹ 16 crores from the sale of the 8th floor at Mafatlal Centre and about ₹ 200 crores from the sale of the built up area of Mafatlal Centre at Parel. This is far in excess of the legal dues of the workers which is about ₹ 93 crores. However, the workers have been paid only part of their paltry sums whereas the dues of the banks have been cleared. The workers are also being held at ransom by linking the legal dues to the sale/development of the mill land. This was not the case under the old Regulation 58. GKSS has filed an extract from the revival scheme of the Mafatlal Mill which is at Exhibit-J to its affidavit at page 1595. In its affidavit, RMMS has stated that under .....

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..... sehold land have not been furnished by the State Government or MCGM. The fact that some of these mills are on lease hold land is admitted by the mills in their affidavits. Both Hindustan and Morarjee mills stated in their affidavit that 87% of the private land is on free hold land. Therefore, according to the admission of the mill owners, at least a minimum of 13% of the mill land is on leasehold land. This land should be immediately taken over by the Government and used for public housing. In addition to this the following mills are situated on lease hold land: a) Morarjee Mill Unit No. 1 Lease hold land - 23006 sq. meters b) Morarjee Mill Unit No. 2 is on private lease. However, no details have been furnished. c) Simplex Mills Lease Hold land - 7836.18 sq. meters. Lease deed has expired in 1983. d) Swan Mills, Kurla Lease Hold - 22,577.20 sq. meters e) Century Mill (lease deed in possession of GKSS) f) Raghuvanshi Mill g) Phoenix Mill h) Khatau Mill i) Bombay Dyeing j) Mafatlal Mills k) Ruby Mills l) Hindoostan Mills 198. The learned Counsel, pointed the following details with regard to Development of Mill land:- Those mills whose affidavits have been f .....

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..... order to revive the remaining mills. The excess amounts received have to be disclosed to BIFR. No details have been given as to how the excess amounts are to be utilized. There are a large number of workers who have not yet received even their legal dues. For example, about 500 workers of Kohinoor Mill have not yet received their dues though a large number have obtained orders from the Labour Courts. The stand of NTC is that it has no funds to pay the dues of the workers. The Technical/Supervisory staff in all the NTC mills in Maharashtra have not yet been paid their revised salaries on the ground of lack of funds and so is the case of a large number of workers. A number of occupants residing within the NTC mills have been forcibly evicted and in order to pressurize others to leave, large sums of money ranging from about Rs. one lakh to Rs. two lakhs are being deducted from the VRS amounts of each worker who is occupying a tenement in the NTC Mill land since some of the NTC mills are being closed in order to revive other NTC Mills, the entire mill land is to be divided in three equal shares, in accordance with the schemes sanctioned by BIFR. 200. Finally, Ms. Singh, the learned Co .....

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..... nia has submitted that what has been recommended as a minima for Bombay is 4 Acres of open space per 1000 persons whereas the Bombay have only 0.03 (or less) Acres of open space available for per 1000 persons. 206. Mr.Rahul Narichania submits that there has been an uncontrolled growth of the city during the last five decades and as such, the city has left with a very little breathing space for its inhabitants. 207. Mr.Rahul Narichania showed us a map of the city wherein he emphasised that in the entire area where the mills are situated there are only three main arterial roads vertically i.e.South to North, and on the contrary, horizontally there are very small and narrow lanes. He emphasised that without making a detailed and proper study, if alomst five hundred Acres of land were suddenly allowed to be developed with high rise buildings, there will be no proper roads provided for the vehicles to park. 208. The learned Counsel Mr.Rahul Narichania has submitted that the Authority seems to have not even taken into account the available drinking water as well as providing of proper drainage facility. According to him, if within a year five hundred Acres of land were to be suddenly .....

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..... ary of Ministry of Environment and Forests mentioning categorically that the development of textile mills land in Mumbai covering 600 Acres will have serious implications on the provision of community facilities, open spaces, transport networking and the infrastructure services. This letter was directly sent to the Chief Secretary to the Government of Maharashtra. Mr. Desai, the learned Additional Solicitor General of India has contended that the Government of India is very keen to protect the environment and to ensure the strict compliance of the aforesaid notification to prevent any environmental damage to the city of Mumbai. 213. Mr.Govilkar, the learned Counsel appearing on behalf of Maharashtra Pollution Control Board (being Respondent No.20) has assured that there will be strict compliance of the notification issued by the Ministry of Environment and Forests and especially the amendment dated 7th July, 2004. 214. It is pertinent to note that after hearing was commenced, it was brought to the notice of this Court that various construction activities were going on in full swing and quite a few constructions have even come up to more than 10 floors without obtaining any cleara .....

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..... statement in paragraph 1.3 of the BIFR order (page 8) and paragraph 1.15 of the BIFR Scheme (page 22), which reads as under:- "GOM had stated that one-third of the land to be given to Bombay Municipal Corporation (BMC), one-third to MHADA and the balance one-third of the land could be sold by the Company." This statement only refers to the division of 1/3rd of land to BMC, 1/3rd to MHADA and 1/3rd to the Company which is the ratio common to both amended and un-amended Regulation 58. 221. The learned Senior Counsel further submitted that the BIFR had directed that if as a consequence of the above, there was any shortfall of funds, the Purchaser would bring in the same. Thereafter, paragraph 22 of the BIFR order at page 12 clearly states that the operating agency had taken into account the modified Regulation 58 and consequently the Scheme would not undergo any change and that this is obviously because NTC would get larger amount for rehabilitation as per the Amended DCR 58 as a larger amount would be available from the sale. 222. Thus, the learned Senior Counsel, Mr. Andhyarujina submitted that the in the premises, the sale is in accordance with the BIFR Scheme. 22 .....

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..... ve their livelihood. 230. Mr.Ganguli also emphasised that the National Textile Corporation was acting contrary to the objectives of 1995 Nationalisation Act. 231. The learned Counsel pointed out that none of the mill owners are providing accommodation of 225 Sq.feet to all the occupants as mandated under amended DCR 58(7), free of cost. 232. Mr.R.J.Gagrat, the learned Counsel for Respondent Nos.28, 29 and 30 adopted and reiterated the arguments of mill owners. Delay And Laches Aspect 233. Almost all the learned Counsel for Respondents have opposed the above petition on the ground of delay and laches and had cited various judgments as mentioned hereinabove. Mr.Chagla, the learned Senior Counsel for the Petitioner had contended that there was no undue delay in the above for the reasons set out by the Counsel, and even if it were to be construed that there was delay, still in the facts and circumstances of the case, the same ought not to prevent this Court from deciding the case on merits. 234. The learned Advocate General had contended that the Petitioners did not even object when the amendment was proposed with regard to DCR 58 and the same was duly amended in the year 2001, h .....

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..... JT 2000 (Supp.2) SC 6, the Supreme Court had upheld the contention of delay. vi) Breach Candy Residents Association V/s.B.M.C. (unreported judgment dated 27.1.2000) of this Court wherein the Petition was dismissed on the ground of delay and creation of third party rights. vii) B.E.A.G. V/s. State of Maharashtra - (2001) 3 Mah.L.J.260, this Court had dismissed P.I.L. on the ground of delay pertaining to construction of a flyover. viii) Raunaq International Ltd. - (1991) 1 SCC 492, (paragraph 7), wherein the Supreme Court, pertaining to an award of a tender, the Court dismissed the same on the ground of delay. 239. On the contrary, Mr.Chagla, the learned Senior Counsel for the Petitioners had contended that there was no undue delay in the above, for the following reasons: i) Even the Government itself was not clear about the true and correct interpretation of amended DCR 58, hence clarification was issued in March, 2003. ii) Even MHADA and Bombay Municipal Corporation through its Mayor had protested against the amended DCR 58 in the year 2003. iii) The State Government itself had conceded that the amended DCR 58 had reduced open spaces and public housing, by its resolut .....

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..... liation and Arbitration Act 1904-1952 as ultra vires and invalid, notwithstanding that such provisions had not been challenged " for a quarter of a century" and in a series of cases it was assumed without question that such provisions were valid. The Privy Council, while considering this aspect of the case "which has been in the forefront of the appellants' arguments", observed that "It is clear from the majority judgement that the learned Chief Justice and the judges who shared his opinion were heavily pressed by this consideration. It could not be otherwise. Yet they were impelled to their conclusion by the clear conviction that consistently with the Constitution the validity of the impugned provisions could not be sustained". (d) In Narmada Bachao Andolan V/s Union of India - JT 2000 (Supp.2) SC 6, in paragraph 49, the Hon'ble Supreme Court has held as under:- "49. This Court has entertained this petition with a view to satisfy itself that there is proper implementation of the relief and rehabilitation measures at least to the extent they have been ordered by the Tribunal's Award. In short, it was only the concern of this Court for the prot .....

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..... restimated and undervalued. The importance of natural wetlands and waterbodies for flood control has been completely overlooked in the planning process. The approach has been to destroy the natural resources and in its place construct man made projects. As a direct result, Mumbai has already lost a large number of fresh water reservoirs, tanks etc., and even the existing ones are under perennial threat. This has been one of the major causes for heavy flooding in Mumbai during the last week of July, 2005. 244. All of us are aware that play grounds, gardens and other open spaces are being steadily encroached upon either by slum dwellers or by official and authorised encroachments like club houses, gymkhanas, religious & political functions and fairs etc. 245. Today no one can dispute that all cities and towns need green spaces as much as other amenities like hospitals, educational institutions, roads, public chowks etc. The health of the residents is directly releated to the ratio of built-up area and open area, inasmuch as in a congested area, the occurance of respiratory ailments is much more compared to the places where there is sufficient balance maintained between the built up .....

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..... ically it has been also established that for a proper and healthy growth of children specially for their lungs and bones, the children will have to play in an open ground and play ground by running around. 248. While dealing with the importance of maintaining the ecological balance in every area, while developing the area, the Hon'ble Supreme Court observed as follows in Sushanta Tagore V/s.Union of India - AIR 2005 SC 1975:- "36. It is imperative that the ecological balance be maintained keeping in view the provisions of both directive principles of State Policy read with Article 21 of the Constitution. Furthermore, a State within the meaning of Article 12 of the Constitution of India must give effect to the provisions of Article 51A(g) of the Constitution which reads as under: "51A. Fundamental duties. It shall be the duty of every citizen of India ... ... (g) to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures." "37. It may be true that the Appellants herein have their own houses within 3000 acres of land but they have been residing there for a long time. What is b .....

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..... ition, being the true meaning and correct interpretation of amended DCR - 58, would be as follows: a) The entire matter will have to be considered in the backdrop of two important factors: (i) that textile mills and area where they are located (Girangaon) constituted at one time the hub of commercial activity. Mumbai was known as Textile City along side Ahmedabad, Coimbatore etc. (ii) Land belonging to these mills, forms a sizable chunk of the total land area. (b) It is true that textile mills were in a bad shape after the textile strike. However, it is not the textile strike alone which is responsible for these state of affairs. As has been noted by the Supreme Court, the owners acts of omission and commission are also responsible for their downfall. Apart from that, Authorities also did not initiate certain emergent and necessary measures. The State took up its Constitutional obligation and tried to improve these state of affairs by resorting to measures such as nationalisation and rehabilitation and revival of the mills without recourse to nationalisation. Two enactments viz., Sick Textile Mills (Nationalisation) Act of 1974 and 1995. The Sick Industrial Companies (Spec .....

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..... s could have been paid off. Allowing such step, would only encourage owners to run away from their obligation of providing work to the employees. It would also result in a shortfall in production. This would adversely affect the economy. Permitting such alienation of lands encourages uncontrolled construction activity. That would put additional pressure on the existing infrastructure which was already inadequate to meet the demands of growing population. Permitting unregulated construction activity on mill lands would make the areas more congested. An ecological imbalance will also be created by proliferation of high-rise structures in Girangaon area, which was essentially planned for commercial and industrial activities. h) It is for achieving both purposes and objects that special provisions, carving out regulatory measures insofar as development and re-development of cotton textile mill lands are concerned, were incorporated in the D.C. Regulations. The D.C. Regulations vide Regulation 58 facilitate the implementation of measures for revival, rehabilitation and modernisation of closed, sick, potentially viable sick mills. i) It was not necessary to introduce such provisions .....

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..... hile approving such lay outs. Needless to state that such conditions ought to be imposed and specified by the Commissioner. The words used are "Deemed appropriate". Naturally the meaning that can be given to this term is that conditions consistent with the object and purpose of M.R.T.P. Act and Regulation 58 can be imposed. Last but not the least, all this has to be as a part of package of measures recommended by BIFR. o) With all this, development or re-development was not possible unless Commissioner had discretion to permit utilisation of existing built up area and open lands as well as balance FSI. Therefore, provision in that behalf is made. Thus, if existing structures/built up areas are not to be utilised as permitted and the owner desires demolishing them and developing the land, then the premises would be taken as open land which is capable of being developed and used as per 58(1)(b). p) It is only with such consolidated and comprehensive measures that the exercise of permitting development and re-development becomes fruitful and achieves the purpose and object for which the regulation is framed. q) Both unamended and amended regulations are framed to fulfi .....

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..... A mill may not be sick or closed but requires modernisation to stay in business and face competition. For this purpose, funds are necessary. The funds can be generated for this exercise by developing the land or by better and prudent use of existing structures. Therefore, a scheme can be framed and approved by the authorities for this purpose. u) Regulation 58(3) deals with lands of Cotton Textile Mills shifting outside Greater Bombay. It is clear that such development or re-development of the property even if the mill shifts is made part and parcel of Regulation 58. The reason is obvious. If you cannot revive and restart the mill in Bombay and it has to be shifted elsewhere in the State, the expenditure can be met by developing the lands in Bombay. Looked at from other angle, there is incentive and benefit if you decide to stay in the cotton textile trade. Since the State permits shifting, naturally, the intent is not to deprive the owner of his rights in the property but at the same time strike a proper balance. Regulatory measures have turned out beneficial as well. v) Regulation 58(4) makes it clear that the condition of recommendation by BIFR is not mandatory for modernis .....

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..... nt. The word "Escrow" has a definite legal connotation. Monies are deposited in Trust for fulfilling terms and conditions. They cannot be taken away or used until the conditions are complied with. The utilisation of funds is for an earmarked purpose as set out in Regulation 58(8)(b). Regulation 58(9) provides for establishment of Monitoring Agency. Monitoring agency is established under the Chairmanship of a Retired High Court Judge and its constitution is also set out. Its powers and functions are enlisted clearly. 250. It is well settled that the principle that all sections of an Act/enactment have to be read together and harmonised and this applies even to part of a section or sub-sections thereof. In other words, the court must endeavour and rather it is its duty to read the provisions together and harmonise them keeping in mind the object and purpose of enacting them. It is only after this exercise that a consistent enactment can be made of the whole. aa) Applying this well settled principle it is clear that Regulation 58 of D.C. Rules makes provision for development, re-development of lands of cotton textile mills with a clear and unambiguous intent and duty of .....

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..... ancial institutions. ah) There are several benefits and advantages as enlisted above and by dilution of the social and other obligations, very purpose of regulating and checking the development and re-development would be defeated. ai) Assuming that there is no obligation to restart or revive the same textile mill, yet, insofar as utilisation of existing built-up areas, the rule makers intended that they be utilised for cotton textile or related user or diversified industrial or commercial purpose. To facilitate this, provision is made in Regulation 58(6). aj) Insofar as utilisation of open lands and balance FSI, admittedly, a provision is made in DCR 58(1)(b). The reason for this appears to be obvious. If the owner is not interested in utilising the existing built-up areas as aforesaid, even by demolition and reconstruction, then, upon demolition of existing structures, there has to be some provision for usage of the land beneath as also adjacent open land which is undeveloped and unutilised. ak) Such usage could not have been left unchecked, uncontrolled or totally unregulated. The framers were aware that upon demolition of existing structures the land would become open a .....

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..... re old and dilapidated as well. Buildings and structures are abutting the main road. There are by-lanes and narrow streets abutting which are old residential and other structures. Thus, the area is thickly populated. If further construction activity is permitted, then basic amenities, which are already minimal, would disappear altogether. an) The above mentioned pleas do not take into consideration the unauthorised and unregulated development which has already taken place in the area in question and all over Mumbai. If more residential towers are erected, then it is quite likely that the local authorities would not be in a position to meet the demand for additional basic amenities. Thus, to meet the demand of the existing and growing population in the area, it is necessary that there are more public amenities and utilities. ao) The arguments of respondents overlook the fact that when the mill structures were constructed, in their vicinity, development took place. This went on increasing rapidly as the business was flourishing. Now, the business of textile may have dwindled, but other business is very much there. The population has increased. It is not as if that mills being clo .....

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..... lopment' and 'development rights' with reference to lands and buildings in the urban areas has undergone radical changes, necessitating incorporation of such new concepts by defining or re-defining certain expressions in the Act". Hence, prior to the said amendment, when demolition of the existing structure was contemplated under original clause (1)(b), it was necessary to expressly provide for the same, in view of the definition of "development" as it then stood. iii. Therefore, in March, 2001, when amended DCR 58 was brought into force, the term "development" expressly included demolition of existing structures, and there was no longer any need to expressly provide for demolition of existing structures in (1) (b) in order to give effect to the natural meaning of the term "open lands" (which includes lands becoming vacant upon demolition). Thus, the deletion of the phrase "lands after demolition of existing structures" was intentional as the amended definition of "development" made the said phrase otiose and tautologous. iv). The deletion of the said phrase was not to restrict the plain and natural meaning of the term &quo .....

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..... we have adopted the rule of construction which is more reasonable and just. The Hon'ble Supreme Court in B.P.Khemka Pvt.Ltd. V/s Birendra K.Bhowmik - (1987) 2 SCC 407 at paragraph 11, quoted with approval the following passage from its judgment in Madhav Rao Scindia V/s Union of India (1971) 1 SCC 85:- "The Court will interpret a statute as far as possible, agreeably to justice and reason and that in case of two or more interpretations, one which is more reasonable and just will be adopted, for there is always a presumption against the law maker intending injustice and unreason ... The provision in a statute will not be construed to defeat its manifest purpose and general values which animate its structure". 256. While dealing with a Public Interest Litigation, the Constitutional Court acts as the sentinel on the qui vive discharging its obligation as custodian of the Constitutional morals, ethics and code of conduct, as observed by the Supreme Court in Padma V/s.Hiralal Motilal Desarda - (2002) 7 SCC 564, in the following words:- "While hearing a public interest litigation the constitutional court acts as the sentinel on the qui vive discharging its obligation a .....

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..... y or unreasonable. The private interest stands subordinated to the public good". In Municipal Corporation, Ludhiana V/s Balinder Bachan Singh - (2004) 5 SCC 182, the Hon'ble Supreme Court held:- 17. For every locality green spaces and green belts have to be provided to provide lung space to the residents of the locality. A provision for green park was made by the Municipal Corporation keeping in view the minimum requirement to provide open/green space to the residents of the locality. 18................................................... ..................................................... "Having taken advantage of selling the plots in a developed colony and charging higher price, which were purchased by the inhabitants with the understanding that civic amenities including the park were well provided for, the Plaintiff-Respondents cannot be permitted to turn around to claim the land left in the scheme for being used as a park as their personal property". 258. There is also a dire need for land in Mumbai for "Public Housing", which became very apparent recently, when 5 old buildings collapsed, there was no accommodation with MHADA to accommodate the .....

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..... of DCR 58(1)(b), with regard to "open lands" the above mentioned clarification dated 28th March, 2003 will clearly amount to an amendment of DCR 58, and not a clarification under DCR 62(3), hence it cannot be sustained. 263. The above clarification is contrary to the mandatory procedures contemplated under Section 37 of the MRTP Act, i.e.inviting objections etc. and considering them. 264. The above clarification is clearly violative of Article 21 of the Constitution of India. NON COMPLIANCE OF EIA NOTIFICATION 265. As mentioned hereinabove, pursuant to our directions, the Maharashtra Pollution Control Board, Bombay Municipal Corporation and the State Government had deputed its officers to physically verify whether any of the Mills which were carrying on construction had obtained the clearance as per the EIA notification amended on 7th July, 2004, from the Ministry of Environment and Forests. It is explicitly clear from the report of Maharashtra Pullution Control Board dated 30th August, 2005 and the affidavit of Bombay Municipal Corporation dated 15th September, 2005 that none of the Mills had obtained clearance as per the above EIA notification, though most of them w .....

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..... by means of a better environment to the quality of life, to ensure maintenance of the diversity of species and to maintain the reproductive capacity of the ecosystem as a basic resource of life". 270. The Supreme Court also lamented about the lackadaisical functioning of the State Pollution Control Board in State of M.P.V/s.Kedia Leather and Liquor Ltd. - (2001) 9 SCC 605, as follows:- "5. Considering the aforesaid disturbing facts revealed by the joint inspection, it prima facie appears that the M.P.State Pollution Control Board has failed to discharge its statutory functions despite the order passed by the Sub-Divisional Magistrate since 1990. It is to be remembered that a statutory board is constituted under the Act for implementing the Act or Rules framed thereunder and not only for holding post or wielding power." "6. We fail to understand why the State Pollution Control Board has not taken any action nor inspected the various industries without directions being issued by this Court. It is to be made clear that this statutory authority is required to discharge its functions without there being any directions by this Court. If it fails to discharge its .....

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..... 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 to 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 "The sanction of BIFR is awaited and Respondent Nos.3 and 4 will implement the same after approval of BIFR". However, contrary to the aforesaid statement and in breach of the orders of the Hon'ble Supreme Court, NTC has sold five mills under the integrated development scheme approved by MCGM without the approval of the BIFR to the modifications in the sanctioned scheme. 277. Hence we are clearly of the view that the sale of lands by NTC from 5 mills viz. (a) Apollo Textile Mills (SM), (b) Mumbai Textile Mills (SM), (c) Elphinstone Mills (SM), (d) Kohinoor Mill No.3 (MN) and (e) Jupiter Mills are clearly contr .....

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..... make available material resources to the community. It's role is that of a trustee. All properties vest in the Central Government under such enactments as and by way of trust for public good and public purpose. It acts in public interest while enacting such Legislation. The principle is to remove poverty and unemployment and at the same time make cloth available for vast millions of citizens of this country. Therefore, sick textile mills are taken over and rehabilitated and managed thereafter in the light of and in accordance with other provisions of the said Act." 280. Unfortunately, NTC, like a private mill owner was only keen in trading its land for high profits totally contrary to the above objectives and also the sanctioned BIFR Schemes and both the aforesaid Supreme Court orders. DOCTRINE OF PROSPECTIVE OVERRULING:- 281. Dr.Singhvi, on behalf of Respondent NO.11, had contended that in the event if the interpretation of amended DCR 58 as propounded by the Petitioners is accepted by this Court, then the said interpretation should be given prospective application, applying the principle of "doctrine of prospective overruling". Dr.Singhvi in that behalf relied .....

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