M.C.
Mehta Vs. Union of India & Ors [2001] Insc 124
(1 March 2001)
G.B.
Pattannaik, Umesh C. Banerjee & B.N. Agrawal Banerjee, J.
With I.A.No.
1254 in I.A. No.22 I.A.NOS.153, 455, 1181, 451 & 441 in W.P.(C )
No.4677/1985 And IA No.1328 in IA No.1254 in IA No.129 in WP© No.4677/85 Re:
M/s. Swatnatra Bharat Mills & DCM Silk Mills IA No.1329 in IA No.1254 in IA
No.129 in WP© No.4677/85 Re: Birla Textiles
L.T.J
On
10th May, 1996, this Court on a petition filed as a public interest litigation
directed surrender of plots upon relocation of H categories industries More
than four years have passed since the date of the order but regrettably the
purpose of the order, to wit, to provide some open space and green verge for
the benefit of the people of the capital city, stands unfulfilled and thus
resultantly deprivation of lung space in the city. Laws delay in this sub-
continent is not unknown in the adversarial litigation, but the situation
should not and ought not to be similar in a public interest litigation more so
when the same concerns environmental degradation: A rather sad state of
affairs. It is on this perspective, however, that the present Interlocutory
Application taken out by the DDA for direction on six key questions as
mentioned in the petition shall have to be considered.
Incidentally,
some entrepreneurs also moved certain other Interlocutory Applications, we do
deem it fit however to record that the entrepreneurs application or any other
matter or petition pending shall await the judgment and order in DDA's
application. Before, however, proceeding with the matter further, a brief
backgrounder seems to be rather indispensable having regard to the concept of
sustainable development for the capital city. Needless to say while the Brundtland
Report called out for adaptation globally of a strategy of sustainable
development defining it as development that meets the need of the present
without compromising the ability of future generations to meet their own needs,
the initial linkage between the natural and man made environment and the
critical relevance of both environment and development is generally attributed
to the Stockholm declaration of 1972 which stands restated and reaffirmed by
the UN General Assembly in December, 1986 specifying therein sustained and
rapid development for developing nations.
Prof. Nico
Schrijver of the Institute of Social Studies at Hague, in his paper on Legal
Aspect of Sustainable Development and Protection of Environment has high-lighted
this right to development or sustainable development and indicated that the
same includes a healthy environment.
The
controversy as regards Development or Environment vis- à-vis the society
however persists and it is in this context a judgment of the Calcutta High
Court, of which one of us (Banerjee, J.) was a party, in regard to Calcuttas
Wetlands in the Eastern fringe of the city of Calcutta (see AIR 1993 Cal 215)
may be noted: Relevant extracts whereof are noted hereinbelow:- While it is true
that in a developing country there shall have to be developments, but that
development shall have to be in closest possible harmony with the environment,
as otherwise there would be development but no environment, which would result
in total devastation, though however, may not be felt in presenti but at some
future point of time, but then, it would be too late in the day, however, to
control and improve the environment.
Nature
will not tolerate us after a certain degree of its destruction and it will, in
any event, have its toll on the lives of the people. Can the present-day
society afford to have such a state and allow the nature to have its toll in
future the answer shall have to be in the negative. The present-day society has
a responsibility towards the posterity for their proper growth and development
so as to allow the 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, 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..
The
Calcutta Wetland Judgment was pronounced on the apprehended danger of a severe
bio-diversity crisis but the situation in the capital city of Delhi is rather pathetic:
Non-
availability of even the lung space has resulted in a very high degree of
pollution as a matter of fact, this Court (vide: 1996 (4) SCC 351) while
dealing with the issue at the instance of Mr. Mehta, the lawyer and
social-activist had the following to state:
7. Delhi is one of the most polluted cities
in the world. The quality of ambient air is so hazardous that lung and
respiratory diseases are on the increase. The city has become a vast and
unmanageable conglomeration of 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 the approximately 34 per cent of recreational areas have
been lost to other uses. We are aware that the housing, the sports activity and
the recreational areas are also part of the community need but the most
important community need which is wholly deficient and needed urgently is to
provide for the lung spaces in the city of Delhi in the shape of green belts and open spaces. We are therefore, of the
view that totality of the land which is surrendered and dedicated to the
community by the owners/occupiers of the relocated/shifted industries should be
used for the development of green belts and open spaces.
The
Court in discharge of its social duty and obligation as the guardian angel of
the society further directed in the same decision as below
9. We,
therefore, order and direct that the land which would become available on
account of shifting/relocation of hazardous/noxious/heavy and large industries
from the city of Delhi shall be used in the following manner:- be Sl. Extent
Percentage to be Percentage to by the Nsurrendered and developed Dedicated to
the owner for his own benefit in accordance DDA for Development of with the
user perm itted Master Plan Green belts and under the other spaces 1 2 3 4
1. Up
to 2000 sq. mts. - 100% to be developed (including the first by the owner in
2000 sq.mts. of the accordance with the larger plot) zoning regulations of the
Master Plan
2. 0.2
ha to 5 ha 57 43
3. 5
ha to 10 ha 65 35
4.
over 10 ha 68 32 The earlier paragraphs have been introduced in this judgment
as a backgrounder and to emphasize the sensitivity of the issue since
environmental degradation will have its toll and there cannot be any doubt or
dispute therein, though may not be felt in presenti.
The
directions as above in terms of the order dated 10th May, 1996 has however, led
to some confusion at the time of execution of this Courts order before the
District Judge, Delhi since none of the industrial units which were closed down
by the order of this Court, took any step whatsoever for surrendering the land
on the pretended pretext of the order of this Court dated 4.12.1996.
Significantly,
however, the order dated 4th December, 1996 of this Court came to be passed in
an Interlocutory Application for directions filed by the Central Government
wherein this Court was pleased to observe in paragraph 3 of the order as below
(vide 1997 (11) SCC 327):
3. We
see considerable force in the contention of the learned Additional Solicitor
General on the second point also. The existing hazardous industries having been
closed, what remains is the plot, superstructure and the workmen.
The
occupants of the plots and the owners of the industries which have been closed
down shall have to undertake fresh procedure for setting up of a new industry.
Needless to say that no industry can be set up which is not permitted under the
Master Plan. The procedure required for setting up of a new industry shall have
to be followed in every case. We make it clear that Government permission and
the consent from the Pollution Control Board/Committee, if required under law,
shall have to be obtained . Even fresh electric connection and water connection
shall have to be applied for and obtained in the changed circumstances. We have
no doubt when approached for necessary permission/licence/water/electric
connections the authorities shall expedite in dealing with the applications.
The
order of 4th December, 1996 though mainly pertain however to the compensation
aspect to the workers of those industries which are not re-locating and which
have been closed down but some variations were ordered having regard to the
setting up of industries in accordance with Master Plan of Delhi. The order
however was clear enough to indicate the intent of the order. In this
Interlocutory Application, however, Delhi Development Authority said to have
been confronted with various queries raised by the industries and upon
consideration thereof prayed for issuance of appropriate directions in regard
to the issues me ntioned hereinbelow:
i)
Land surrendered by the Industries as per order dated 10.5.1996 has to be on
the total plot area in possession
ii)
Land offered for surrender should be directly approachable from the road,
vacant and free from all encumbrances.
iii)
From the land surrender cases in respect of plots leased by Delhi Development
Authority, it is seen that out of 14 Industrial Units requiring to surrender
the land, 7 have a plot area ranging between 8 sq.m to 100 sq.m. Honble Supreme
Court is requested to give directions for minimum plot area to be surrendered
by an Industrial Unit.
iv)
Certain units have restarted their industries removing/modifying the
objectionable use process and obtained clearances from various departments. Are
such industries also liable to surrender land to Delhi Development Authority as
per orders dated 10.5.1996, 8.7.1996 and 4.12.1996?
v)
There are certain industries which were closed prior to the orders of Honble
Supreme Court dated 10.5.1996 but their names appear in the list of H category
industries to be closed as mentioned in the various orders of Honble Supreme
Court. Are such industries liable to surrender land? There are other industrial
units which closed pursuant to the Honble Supreme Courts orders dated 10.5.1996
and restarted the activities as per orders dated 4.12.1996 of Honble Supreme
Court. Suitable directions may be given whether land surrender from such
industries has to be effected.
vi)
There are certain units which were running in rented premises from within plot
located in an approved industrial area/non conforming area and whose name is
got included in the list of 1328 industries released by Honble Supreme Court
from time to time. After the orders of Honble Supreme Court dated 10.5.1996,
the tenant has closed down the industry and has handed over the rented premises
to the original owner. In such cases is the original owner required to
surrender land if the total plot area is more than 2000 sq.m.? Adverting to the
records at this juncture, be it noted that after the judgment of this Court on
10th May, 1996 as above, three Interlocutory Applications, having more or less
similar prayers were dismissed: Delhi Development Authority also filed the IA
No.139 for clarification of order dated 10.5.1996, 8.7.1996 and 4.12.1996 with
a prayer that the units required to surrender land are now closed down as being
a hazardous large scale industry and do not wish to relocate but to start units
which are permitted in the Master Plan and in compliance with the pollution
control norms. This Court however dismissed the Interlocutory Application on 1st October, 1997.
Significantly,
the interlocutory application No.139 was filed on behalf of Delhi Development
Authority and the prayer therein not only bears a similarity with the prayer in
this application but more or less the same has been couched in the exactly
similar language and for convenience sake the same is set out hereinbelow:-
(a)
Whether the order dated 10.5.1996 passed by the Honble Court in so far as it
require the units to surrender land would apply to such units which after
having closed the hazardous large scale industries do not wish to relocate but
to start units which are permitted under the Master Plan and which also comply
with Pollution Control Rules.
It is
on this prayer this Court passed an order of dismissal though however without
recording any reason.
Mr. Ranjit
Kumar, the learned amicus curiae appearing in the matter contended that by
reason of rejection of such a prayer, resulting in the dismissal of the application,
question of further consideration of the issue as is proposed in question No.IV
hereinbefore would not arise.
Undoubtedly,
there is some substance in such a contention but the factum of non-availability
of reasons in the order has rendered the situation slightly more flexible so as
to afford a further opportunity to this court having regard to the concept of
justice to consider in some detail the order dated 4th December, 1996 in I.A.
No.36 accepting the contention of the learned Additional Solicitor General. The
clarificatory order of 4th
December, 1996 did in
fact grant a liberty which would be dealt with in detail while answering the
issues raised in the application.
Another
redeeming feature which ought also to be noticed pertains to the desire of the
Delhi Development Authority to move the Court once again after having failed in
such an attempt earlier. We are at a loss to find a further attempt on the part
of the Delhi Development Authority. The reasons obviously there would be some:
but apparently nothing was forthcoming.
Subsequently,
Swatantra Bharat Mill and DCM Silk Mills also moved I.A.No.425 with a prayer to
direct DDA to acquire the land required to be surrendered under the DDA Act or
the Land Acquisition Act and to restrain DDA for trying to expropriate the land
of the petitioner : This prayer also was turned down by this Court and hence
the application was dismissed as withdrawn. Be it noted that the learned amicus
curie with his usual eloquence contended that review applications against the
order passed on 10th May, 1996 numbered 36 in the year 1996, 55 in the year
1997, 3 in the year 1999 and 2 petitions in the year 2000, as the records
depict, were all dismissed and on the wake of the same, Mr. Ranjit Kumar
addressed us in detail that the present petition said to be for clarification
cannot but be attributed to be a further attempt to review of the order dated
10.5.1996 which, in fact, does not call for any review nor does it call for any
further order substituting the earlier order dated 10th May, 1996.
Mr. Rawal,
the learned Additional Solicitor General however, contended that while
submission of Mr. Ranjit Kumar may have some substance pertaining to some of
issues as raised herein but that cannot said to be applicable in regard to all
the issues. Mr. Additional Solicitor General made it quite categorical that the
application as filed by DDA is not for circumvention of compliance of the order
of this Court but only to act in terms therewith. The instant petition, Mr. Rawal
contended has been initiated as a necessity and DDA had to move this Court for
certain clarification since there have been large scale unscrupulous
withholding of delivery of possession. The necessity also said to be by reason
of proposed transfer to land-locked areas which cannot possibly be utilised
even as a lung-space by reason of non- availability of an entry thereto. It has
been contended further that since a large number of proposed surrender, if not
in its entirety, are with encumbrances, question of obtaining possession
thereof upon clearance of the encumbrances by the DDA would not arise since
that would foist an additional financial burden or liability beyond the
capacity of the DDA to meet.
Mr. Rawal
contended that transfer also should be effected without any superstructure on
the land as otherwise, it would be a near impossibility for DDA to take
possession thereof. Be it noted that the order dated 10th May, 1996 specifically directed that H
category industries are required to surrender the land to the DDA. We may note
here that this order of surrender was passed by reason of the fact that the
pollution level has reached its optimum in the city of Delhi affecting the
entire society H category industries were directed to close down and to
surrender the land so as to make available some green belt and open space
popularly ascribed to be lung space for the city. Industries might have closed
in terms of the order of this Court and the compliance to the order was to this
limited extent only. Structures are still lying there and no surrender has yet
taken place. Majesty of law demanded compliance in observance rather than in
its breach it is for the society only that this Court thought it fit to pass
order to the extent as indicated above the capital city of the country ought
not to be termed as the most polluted city in the world: It is with this spirit
that the public interest litigation was filed and this Court also maintained
the same by directing the shifting of H category industries Five years have
passed by and not one industry has surrendered though of course, by reason
therefore, show-cause notice to these industries were issued by the order dated
21st September, 1999 and the public notice was directed to be issued by an
order dated 12th October, 1999.
The matters
are pending in Court but there has not been any change of situation.
Significantly by reason of a specific situation this Court in the case of
Hindustan Vegetables passed an order on7th December, 1999 directing the
Hindustan Vegetables Oil Corporation to hand over 2 acres of the land only on
which the factory premises stood and not the land measuring about 1.20 acres
belonging to the factory and situated just abutting the other side of the road:
As a matter of fact the land stands bifurcated by the road - one for the
factory use and the other for the residential purposes and it is by reason of
the peculiar factual elements, that this Court passed an order directing only
the factory area to be surrendered Thus the order as passed on 7th December,
1999 in Hindustan Vegetables case cannot be termed to be of general application
for surrender of all factory lands Any interpretation which runs counter of the
above would also be opposed to the true spirit of the order and there would be
a total failure of the avowed objects of social welfare and social benefit
which has prompted this Court to pass the order dated 10th May, 1996.
Mr. Venugopal
and Mr. Shanti Bhushan, learned Senior Counsels appearing for the entrepreneurs
however, complained of violation of fundamental rights under Article 14. Mr. Shanti
Bhushan contended that factum of surrender would not arise since the industries
which he represents are prepared to restart and relocate the industries within
the ambits of the Master Plan and Zonal Development Plans and this Court ought
in the fitness of things grant necessary clarification in regard thereto. In
the similar vein Mr. Venugopal also submitted that light and service industries
and household industrial units stands permitted in terms of the Master Plan for
Delhi and the Zonal Development Plan does
not contain any bar for their continuance in the event the same falls within
the ambit of the Master Plan. Mr. Venugopal contended that though hazardous and
noxious industrial units are not permitted in Delhi and existing heavy and
large scale industrial units both in terms of this Courts order and in terms of
the Master Plan are required to be relocated and shifted but the land which
would become available on account of such shifting ought to be used for making
up the deficiency as per the needs of the community based on norms given in the
Master Plan. Mr. Venugopal contended that as a matter of fact in the event any
land or part of the land so vacated is not needed for the deficiency of the
community service the Master Plan for Delhi itself records that the same would
be used as per prescribed land use. Strong emphasis has been laid on Master
Plan for Delhi Perspective, 2001 in particular the chapter on Work Centres
industry.
Relevant
extracts of which are set out herein below for ready reference:- Heavy and
Large Industries Refer Annexure III H(b) a.
b..
(c)
The land which would become available on account of shifting as administered in
(b) above, would be used for making up the deficiency, as per the needs of the
community;
based
on norms given in the Master Plan; if any land or part of land so vacated is
not needed for the deficiency of the community services, it will be used as per
prescribed land use; however the land shall be used for light and service industries,
even if the land use according to the Master Plan/Zonal Development Plan is
extensive industry (emphasis supplied).
(d) Modernisation
of heavy and large scale industrial units shall be permitted subject to the
following conditions:
(i) it
will reduce pollution and traffic congestion.
(ii)
Whenever the unit is asked to shift according to the policies of the plan, no
compensation shall be paid for assets attained because of modernisation.
Much
emphasis has been laid on the word however (as emphasised above) and relying
thereon it has been contended that user of land, in the event the same is not
needed for deficiency of community services, can thus be had for light and
service industries even if the Master Plan or Zonal Development Plan depicts
its user as extensive industry.
Further
reliance was also placed on paragraph (d) of the Master Plan that even modernisation
of heavy and large scale industrial units is permitted though subject to the
conditions specified in (i) and (ii) above. It is in this context also our
attention has been drawn to the Zonal Development Plan in particular the
existing land use and the proposed land use in sub-zone G. In reference to the
same Mr. Venugopal contended that existing land use totals 5456.32 hectare
whereas the proposed land use is identical in area No doubt the submission at
the first blush seems to be rather attractive but when read in the light of the
decision of this Court as recorded in the judgment dated 10th May, 1996 we are
afraid that the same pales into its insignificance since the submission cannot
be countenanced at this juncture and after the expiry of five years. There were
altogether in the records of this Court 96 Applications for Review which had
the fate of dismissal by this Court from time to time as detailed herein before
in this judgment - it is thus probably a bit too late in the day to contend and
take recourse to the rules to avoid surrender of land.
This
Courts order has been categorical and it is only expected that the
entrepreneurs would act in terms therewith and not de hors the same. Needless
to dilate that in the case of Swatantra Bharat Mills and DCM Silk Mills, the
learned District and Sessions Judge, Delhi recorded in the order dated 25th
July, 2000 about the factum of filing of objections to the execution petitions
pertaining to the surrender of land. The order of the learned Judge records
that the land in question has not been offered as yet and as such directed the
industry to remove all the superstructures from the land and also file an
undertaking that it is free from all encumbrances. The land should further be
accessible from the public road; Be it recorded that the two industries named
above in which the learned District and Sessions Judge passed the directions as
above in no uncertain terms submitted that the land to be offered, stands free
from all encumbrances and there is existing no cloud on the title of the
industry over the land which is to be surrendered.
Mr. Gopal
Subramaniam, learned senior counsel appearing for the entrepreneurs also
contended in the same vein that as a matter of fact, the Master Plan and the
Zonal Development Plans having statutory recognition in terms of the Delhi
Development Act, 1957, paragraphs © and (d) as noticed above under the title
Work centres industry ought to be given its full play and the order of this
Court, thus should be modified to incorporate the same. Incidentally, it has
been contended rather strongly that the Master Plan being the golden thread in
the orders passed by this Court from time to time, and since there is available
under the Master Plan some relief the same ought to be made available to the
entrepreneurs. In this context paragraph 11 of the judgment dated 10th May,
1996 (supra) may be noticed and which reads as below:- The DDA has suggested
that it may be necessary to amend the Master Plan for regularising the land use
as directed by us. We do not agree with the suggestion. The totality of the
land made available as a result of the relocation/shifting of the industries is
to be used for the community needs. The land surrendered by the owner has to be
used for the development of green belt and open spaces.
The
land left with the owner is to be developed in accordance with the user
permitted under the Master Plan.
In
either way the development is to meet the community needs which is in
conformity with the provisions of the Master Plan.
We
would also deem it fit to quote paragraph 12 as below for consideration of this
aspect of the matter: We are, therefore, of the view that it is not necessary
to amend the Master Plan.
While
it is true that this Court has directed user of land left with the owner to be
developed in accordance with the user permitted under the Master Plan but the
whole aim, object and spirit of the order was to meet the community need and it
is in this context also that Mr. Gopal Subramaniam drew our attention to the
Appendix to the Zonal Development Plan pertaining to area G. We are however
unable to accede to such a submission since time has not come as yet in any
event to assess the situation in its entirety. The Zonal Development Plans
produced before the Court has not been finalised as yet since it is presently
in the draft stage and as such no reliance can be placed by this Court on the
data and the materials available thereon.
A
proposal cannot be said to be a final declaration of the community need. We are
thus unable to record our concurrence therewith for the reasons noticed above.
The order of this Court dated 4th December, 1996 in the matter in issue ( 1997
(11) SCC 327) was passed in an interlocutory application for directions filed
by the Union of India wherein in paragraphs 2 and 3 this Court observed as
below:
2. So
far as the first contention is concerned, learned Additional Solicitor General
has taken us through the order of this Court in M.C. Mehta v. Union of India
(1996 (4) SCC 351) regarding land-use along with the order dated 8.7.1996 (M.C.
Mehta v. Union of India (1996) 4 SCC 750) regarding relocation of 168
industries. The intention of this Court is clear that the order regarding land
re-use was both for relocating industries as well as those which decide to
close down and not to relocate. (Emphasis supplied) The learned counsel for the
industries have not disputed this interpretation. We, therefore, accept the
contention of learned Additional Solicitor General. Nothing more need be said
on this point.
3. We
see considerable force in the contention of the learned Additional Solicitor
General on the second point also. The existing hazardous industries having been
closed, what remains is the plot, superstructure and the workmen.
The
occupants of the plots and the owners of the industries which have been closed
down shall have to undertake fresh procedure for setting up of a new industry.
Needless to say that no industry can be set up which is not permitted under the
Master Plan. The procedure required for setting up of a new industry shall have
to be followed in every case. We make it clear that Government permission and
the consent from the Pollution Control Board/Committee, if required under law,
shall have to be obtained. Even fresh electric connection and water connection
shall have to be applied for and obtained in the changed circumstances. We have
no doubt when approached for necessary permission/licence/ water/electric
connections the authorities shall expedite in dealing with the applications.
The
order as above thus unmistakably depicts the intention of this Court to rely on
its order dated 10th May, 1996 though with certain variations as noticed herein
before in this judgment. Setting up of industries was expressly authorised,
upon compliance with all regulatory requirements, unfortunately however though
certain advantages has been made available, but not one of the learned
Advocates could respond in the affirmative even on a specific enquiry from the
Court.
The
issues are long pending- the issues are urgent since the entire society is
impaired no exception can be taken to the legal battles involved in an
adversarial litigation this is not one such instance: It is a true public
interest litigation for the protection of the society and to avoid a deliberate
peril arising out of entrepreneurial failure and total apathy and non-concern
for social good and benefit.
The
Delhi Development Act of 1957 envisaged preparation of Master Plan for Delhi
with a definite statutory direction to define various zones into which Delhi
may be divided for the purposes of development and the manner in which the land
in each zone is proposed to be used and the stages by which such development
shall be carried out. As a matter of fact the Master Plan came into existence
in 1962 and H category industries ought to have shifted out of the area
specified therein by 1962 itself. Then came the Master Plan of 1990 to combat the
existing situation with a specified period of shifting within three years i.e.
there was an obligation to the H category industries to shift and relocate in
terms of the Master Plan by the year 1993 and the social activist by reason of
the failure of the entrepreneurs, moved this Court in 1995 whereupon after
allowing all possible opportunities to all entrepreneurs and upon assessment of
the situation through the appointments of Commissions and obtaining various
reports on these aspects, passed the order on 10th May, 1996 which has till
date not been complied with an indeed a sorry state of affairs and a total
neglect and apathy towards the society, new and novel submissions are advanced
as in any adversarial litigation but unfortunately as noticed above it is too
late in the day to contend otherwise apart from what the order contains as of
10th May, 1996. Needless to record that as late as April last year (28th April,
2000) this Court issued a direction to the affect that within one month all the
industries which are required to surrender land in terms of this Courts order
dated 10th May, 1996 should voluntarily surrender the same to the Delhi
Development Authority and if the same has not been done the DDA will be duty
bound to file an application for execution of this Courts order before the
District Judge, Delhi and the District Judge shall thereupon execute this
Courts order and report compliance within four weeks of the filing of the
execution application. Be it noted that by the order last referred, this Court
further directed that the execution application to be filed by DDA not later
than 8 weeks from the date of the order the entrepreneurs should have some
regard and sanctity for the orders of this Court rather than pleading anew
before the Court for further clarification [if assuming we ascribe the same to
be clarification rather than review] can this be termed to be in consonance
with the law or is it a deliberate attempt to ridicule the Courts order? We
will not be very wrong if we answer the same that probably the second
alternative is the answer. The DDA also has raised certain inquiries before
this Court again after the specific direction of this Court in 28th April,
2000s order. We are at a loss as to why after the specific order of the learned
District Judge instead of relying thereon, a further application has been filed
before this Court in July, 2000. DDA is expected to act in terms of the order
expeditiously rather than with the delayed whip in its hands. In any event we
answer the inquiries raised in the manner following:-
Re (i)..
So far as the first issue is concerned, we make it clear that the order dated
7.12.1999, in the case of vegetable oil was in the peculiar facts of that case
and is not of universal application, nor does it in any way dilute the mandate
of the order of this Court dated 10.5.1996 directing surrender of entire land
subject to the extent of availability to the owner as per order dated 10.5.1996
reported in 1996 (4) Supreme Court Cases 351.
Re
(ii). So far as the second issue is concerned, if the owner has the land which
is approachable from the road, then he must surrender with the approach, so
that the surrendered land can be utilised for the community. If, however, he is
himself not the owner of the approach road, then question of his providing an
approach road does not arise and as such surrender shall take effect on as is
where is basis. On the question as to the land to be surrendered should be free
from encumbrance, we are of the view, if the land is already encumbered, then a
direction to release it from encumbrance and surrender will be a great burden.
At the same time, such land will be of no use to the society unless released
from encumbrance. In the circumstances we direct that the owner cannot utilise
the land available to him by virtue of order of this Court dated 10.5.96, until
he releases the surrendered land from encumbrance. Further if it is not made
free from encumbrance within five years, then he will not get the benefit of
the order dated 10.5.96 and after five years even the land which the owner was
otherwise entitled to retain would stand vested with DDA for the use and the
need of the society.
Re(iii)
So far as the third issue is concerned, those who are required to surrender upto
100 sq. meter after that extent of land becomes available to them under the
order of this Court dated 10.5.96 they need not surrender, since such a tiny
bit of land cannot be utilised for any need of the society.
Re(iv)
So far as the fourth issue is concerned, it is to be noted that on the
application of the Union of India, this Court by order dated 4.12.96 in IA
No.36 in Writ Petition No.4677 of 1985, accepting the 2nd contention of the
learned Additional Solicitor General, held that the occupants of the plots and
the owners of the industries which have been closed down shall have to
undertake fresh procedure for setting up of a new industry and such industry
can be established if permissible under the Master Plan.
The
Court also observed that when approached for necessary permission/license/water/
electric connections, the authorities shall expedite in dealing the
applications. (See 1997 (11) SCC 327). In view of the aforesaid clarificatory
order of the Court on the application of the Union Government, it would not be
necessary for those units who have started new industries after obtaining
clearances from various departments, provided that the Master Plan permits
establishment of such industries, to surrender the land. But those who have not
started such industries with appropriate clearance from the competent
authority, they cannot be permitted to take the stand that they intend to start
such industry nor such a plea will entitle them to retain the land. They must
be bound by the earlier direction of the Court requiring them to surrender.
This will apply to those industries which have not relocated the hazardous
industries elsewhere. But if they have relocated, they cannot get the benefit,
as has been held by the Court in the order dated 28.4.2000, reported in 2000
(4) SCALE 267, Re(v). So far as the fifth issue is concerned, if the names of
the industries appear in the list of H categories in various orders of the
Court, and they have not appeared or put any objection, then it would not be
permissible for them to put up the plea that industries were closed down prior
to order dated 10.5.96 and claim an equitable right of not surrendering.
Re(vi)
So far as the sixth issue is concerned, it is apparent that the order of the
closure was on the industries which were found injurious, irrespective of the
fact whether it was being carried on by the owner of the land or the tenant.
This being the position, the subsequent direction of surrender also is in
relation to the land on which such industries were being carried on and were
ordered to be closed down. Consequently, it is irrelevant where tenant after
closing down the industries, handed over the premises to the owner. The owner
in such case would be bound by the order for surrender, and will have to
surrender.
Interlocutory
application filed by the DDA thus stands disposed of as above.
The
other IAs. Shall be dealt with separately.
Back
