Bombay Dyeing & Manufacturing Co. Ltd. Vs. Bombay Environmental Action Group & Ors [2005] Insc 334 (11 May 2005)
N. Santosh
Hegde & S.B. Sinha
[@SLP
(C) No. 7405 OF 2005] WITH
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SINHA, J:
Leave
granted.
In the
early eighties the workmen of the cotton mills situated in the town of Bombay went on a strike resulting in
closure of 58 textile mills which together occupied lands measuring about 600
acres. Out of the said 58 mills, 25 belonged to the National Textile
Corporation and 33 to private parties.
In
terms of the Maharashtra Regional & Town Planning Act, 1966, the
Development Control Rules (DCR), 1967 were framed. The State Government took a
policy decision to amend the DCR wherefor suggestions/ opinion from the public
were invited. In the year 1991, Development Control Regulations, 1991 were
framed; Regulation 58 whereof permitted modernization of mills and development
of surplus mill lands in the manner specified therein. It also provided for
development of mill lands as a part of BIFR approved rehabilitation schemes and
also for modernization and shifting thereof.
The
said Regulation 58 sought to deal with the lands appertaining to cotton textile
mill pursuant whereto each of the mill owners could give one of the options out
of the following:
(i)
The mill owners could continue to operate their mills even though it was
running into losses. This was the status-quo option which entailed no land
being surrendered to MHADA, public greens;
(ii)
The second option entailed retaining the outer shell of the mill structures and
building commercial structures within the mill structure;
(iii)
The third option entailed two steps. The first step was raising of construction
within the old structure and the second step was to construct on the part of
open spaces;
(iv)
The fourth option ensured demolition of the entire old structures and sharing
the entire mill lands in approximately three equal proportions.
The
first part would remain with the mill owner which he would be entailed to
redevelop. The second share would go to MHADA and the third share would go to
public greens.
Pursuant
to or in furtherance of the said regulation, only two mills exercised the
second option and three mills the third one. Nobody opted for the fourth as in
terms thereof the mill owners were required to surrender a major portion of
their land. As allegedly, the said regulation did not work satisfactorily as no
significant amount of land either for public green or for MHADA came to be
surrendered, it was not implemented.
It is
stated that some mills endeavoured to develop the lands in accordance with the
said regulation but the same did not achieve the purpose for which the
Regulation 58 was brought into force. In the aforementioned situation, as would
be noticed supra, Regulation 58 was amended in 2001.
The
Respondents filed a writ petition in the Bombay High Court questioning the
validity of the said regulation. Some interim orders have been passed therein
which are in question in these appeals.
The
Appellants contend:
(i) As
the scheme containing 1991 regulations was not found to be workable, committees
were appointed and in furtherance of their recommendations a new Regulation 58
was introduced in the year 2001. The new Regulation 58 envisaged a coherent
development of the various mills and their lands in Mumbai and also ensured
that the proceeds of such development are utilized in accordance with either
the schemes promulgated by BIFR and/ or for the satisfaction of the dues of the
workers and/ or for the satisfaction of the large outstanding public monies by
way of loans from financial institutions and banks under the supervision of a
Monitoring Committee.
Regulation
58 of 2001 while providing for a coherent development also took care of the
provision for open spaces, public amenities and public housing. The entire development
is to be overseen by a Monitoring Committee which over see an escrow account to
ensure financial accountability, their payment to workers/ financial
institution etc. and is headed by a retired High Court Judge appointed under
the said Regualtion 58 of 2001. Pursuant to or in furtherance of the new
regulation, the mill owners allegedly borrowed huge sums of money, i.e., Rs.
2002 crores from the banks and financial institutions to pay of the dues of the
workers and also the dues of the others.
(ii) Bombay
Dyeing & Manufacturing Co. Ltd. alone after taking advances from the
financial institutions paid Rs. 120 crores to the workers and is committed to
pay a further sum of Rs. 50 crores.
(iii)
Within a span of four years since coming into force of the 2001 Regulations,
third party rights have been created, sanctions have been obtained for
modernization of scheme and the parties have altered their position to a large
extent.
The
said regulation of 2001 was clarified in the year 2003. With a view to have a
re-look at Regulation 58, a nine member committee with Shri Deepak Parekh,
Chairman, HDFC as its Chairman was appointed; the terms of reference whereof
are:
"(1)
To examine the feasibility of an integrated development of mills land.
(2) To
study the existing DCR and suggest ways so that enough land is made available
for open use/ public housing without jeopardizing workers/ financial
institutions interests." However admittedly no recommendation has been
made by the said committee nor its term has been extended.
The
first Respondent is a public charitable trust registered both under the Bombay
Public Trust Act, 1950 as also a society registered under the Societies
Registration Act. Its aims and objects inter alia are to look after environment
in all aspects and it had been carrying activities therein. The Respondent
filed a writ petition on or about 18th February, 2005 in the nature of a Public Interest
Litigation in the High Court of Judicature at Bombay praying inter alia for the following reliefs:
"(a)
For an appropriate writ, order or direction striking down the impugned order
dated 20th March, 2001 (Exhibit "C", hereto) and consequent amendment
to DC Regulation 58, in particular, Clauses A-6 and C-1 (5) of Schedule 1 of
the impugned order dated 20th March, 2001 as ultra vires the MRTP Act, illegal,
unconstitutional, void ab initio and non est;
(b)
For a writ of mandamus, or a writ in the nature of mandamus or any other
appropriate writ, order or direction, ordering and directing the 1st and 2nd
Respondents (and their servants, agents or officers):
(i) to
withdraw/ cancel the impugned order dated 20th March, 2001 and the consequent amendment to DCR
58;
(ii)
to take such action as is necessary in law to amend DCR 58 to ensure that the
total amount of space available for redevelopment in respect of which the
percentage wise allocations are to be determined, is the open land and the land
available after demolition of existing structures;
(iii) to
forbear and desist from granting any permission, in accordance with amended DCR
58 (including to Respondent Nos. 3 and 4) for the redevelopment of the mill
lands;
(iv) restraining
them from in any way acting in furtherance of the report submitted by NTC and
prepared by "Team One".
(c)
For a writ of mandamus or a writ in the nature of a writ of mandamus directing
Respondent Nos.
1 and
2 (and their servants, agents or officers) to undertake preparation of plan for
comprehensive development of appropriately delineated Textile Mill District so
as to provide for the comprehensive development of these mill lands in an
integrated manner in furtherance of the recommendations made by the Charles
Correa Expert Committee Report submitted in August, 1996;
(d)
That pending the hearing and final disposal of this petition, Respondent Nos. 1
and 2 should be restrained by an appropriate writ, order direction or
injunction from granting any permission or taking any action pursuant to
permission already granted for the redevelopment of mill lands (including to
Respondent Nos. 3 and 4) in pursuant of the provisions of amended DCR 58;
(e)
That pending the hearing and final disposal of this petition, the Respondent
Nos. 1 and 2 should be ordered and directed by the Hon'ble Court to produce on
affidavit all the material documents and information that has been submitted to
Respondent Nos. 1 and 2 by Respondent Nos. 3 and 4 as part of their application
for permission to develop the said land or any part thereof and any other
material and information available to Respondent Nos. 1 and 2 which it has
considered / likely to consider in relation to the grant of permission to
Respondent Nos. 3 and 4 for the development of the said mill land;
(f)
That pending the hearing and final disposal of this petition, Respondent Nos. 1
and 2 should be ordered and directed by this Hon'ble Court to produce on
affidavit all the material documents and information that has been submitted to
Respondent Nos. 1 and 2 by privately owned mills as part of their applications
for permission to develop their respective textile mill lands, and any other
material information and documents that Respondents Nos. 1 and 2 considered in
relation to the grant of permission to them for the development of their
respective mill lands;
(g)
That pending the hearing and final disposal of this petition, Respondent Nos. 1
and 2 should be ordered and directed to appoint a Special Planning Authority or
any other supervisory body/ committee to supervise the comprehensive /
integrated development of mill lands, including private mill lands (that fall
within the purview of DCR 58), in furtherance of the recommendations of the
Charles Correa Expert Committee Report submitted in August, 1996;
(h)
For ad-interim reliefs in terms of prayer clauses (d) to (g); and (i) For such
further and other reliefs and orders as this Hon'ble Court deem fit in the
nature and circumstances of this petition." In the said writ petition,
apart from the State of Maharashtra, the Municipal Corporation of Mumbai, the Maharashtra
Housing and Area Development Authority, National Textile Corporation Maharashtra
North and South Maharashtra were impleaded as Respondents. Before the said High
Court, a large number of mill owners and others who allegedly have invested a
huge sum on the lands of the Mill owners or otherwise interested in
implementation of Regulation 58 of 2001 filed applications for their impleadment
as parties therein but the same was opposed by the Respondents. The Applicants,
however, were allowed to intervene.
It
was, however, stated at the bar that whereas 6th April, 2005 was fixed for filing responses by the interveners, but
after hearing the matter for three days, viz., 29th to 31st March, 2005, the
impugned orders were passed.
Before
the High Court, the National Textile Corporation inter alia contended that it
had been carrying on its activities in terms of a scheme framed by the BIFR and
which has been approved by this Court by an order dated 27.9.2002 in the
following terms:
"We
have been informed that BIFR has already formulated eight schemes which stand
approved by all concerned and agencies. But the Schemes as sanctioned by BIFR be
implemented. The special leave petition and the transfer petitions stand
disposed of accordingly." The National Textile Corporation contends that
out of 25 mills 17/18 Mills have closed down. Approximately 14,800 employees
have been relieved. Payment of Rs. 643.94 crores have been made to the
employees.
It has
further been contended that several financial institutions and others have
acted pursuant to or in furtherance of the said scheme. It is stated that
negotiations for selling seven textile cotton mills have been finalized and,
thus, it was submitted that no stay should be granted.
The
High Court passed two interim orders on 1st April, 2005. As regard National Textile
Corporation, it was directed:
"On
behalf of the N.T.C. the learned Counsel submits that they should be allowed to
proceed with the sale of Jupiter Mills. The matter is pending before this
Court. However, considering the urgency which Counsel make out any further as
N.T.C. has 25 mills the request for confirming the sale can be agreed to,
subject to the following conditions:
i) The
NTC will file an undertaking in this Court, that on the Court passing an order
on interim relief they will comply with the order of the Court including if a
situation arises of reserving the land in the other mills for which development
is sought in terms of the order that may be passed by the Court. On such
undertaking being filed, it is open to the NTC to confirm the sale of Jupiter
Mills." It was further directed:
"ii)
Considering that the matter has now been adjourned to 20.4.2005 the Respondent
No. 2 Municipal Corporation directed not to approve any further lay outs,
issue IOD, or CC without the permission of this Court or till further
orders." It is not in dispute that although no argument was advanced in
that behalf, the Division Bench by a separate order directed the State as also
the Bombay Municipal Corporation to file a large number of documents under
fourteen different heads.
The
learned counsel appearing on behalf of the Appellants inter alia would submit:
(i)
Keeping in view of the fact that the writ petitioners did not file any
objection or suggestions before Regulation 58 was given a concrete shape, it
was not entitled to any interim relief.
(ii)
Regulation 58 being a subordinate legislation, a public interest litigation
should not have been entertained questioning its validity.
(iii)
In any event, as within the interregnum of four years, the Appellants as also
the others have invested a huge sum of money, the interim order ought not to
have been passed as they would affect the interests inter alia of
(i) the
workers,
(ii) the
financial institutions,
(iii) the
mill owners; and
(iv) the
third party purchasers.
(iv)
No interim order in any view of the matter could have been passed without impleading
the interested parties and permitting them to file their affidavits.
(v)
Several parties have obtained lay out, IOD or commencement certificates for
different stages and in that view of the matter if the interim order is allowed
to operate, the same would result in great hardship.
The
learned Solicitor General appearing on behalf of the State of Maharashtra
further submitted that if the State of Maharashtra is asked to carry out the
directions of the High Court as regard filing of the documents, they will be
put to a great hardship as truck loads of documents will have to be brought
before the High Court.
Mr. Parasaran
and Mr. Rohtagi, learned senior counsel appearing on behalf of the National
Textile Corporation would contend that keeping in view of the fact that in
respect of seven mills, negotiations have been entered into, they should be
allowed to be sold off and in the event, the writ petition succeeds, the order
of the court can be complied with by adjusting vacant land belonging to the
other mills.
Mr. Iqbal
Chagla, learned senior counsel appearing on behalf of the writ
petitioner-Respondents, on the other hand, would contend that in terms of the
1991 Regulations, at least 200 acres out of 600 acres of land situate in the
middle of the city would have been made available providing for large space for
the inhabitants of the town and further 200 acres of land would have been
available to MHADA for construction of residential houses for the weaker
sections. Integrated development of town of Bombay, the learned counsel would
contend, is imperative having regard to the fact that whereas in other metros,
three to four acres of open space is available for one thousand residents, in
the town of Mumbai, it is only 0.03 acres per thousand. It was contended that
in terms of Section 37 of the Maharashtra Regional & Town Planning Act,
1966, the State of Maharashtra itself imposed a ban in 1996 on constructions on
the ground that no final decision had been taken in that behalf and in that
view of the matter there is absolutely no reason as to why the impugned order
cannot be sustained in as much as the validity of Regulation 58 has been
questioned in the writ petition. It was pointed out that the State of Maharashtra itself issued clarification of 2001
Regulations in March, 2003 in terms whereof allotment in favour of MHADA came
to an end. It had been pointed out that Bombay Municipal Corporation and MHADA
had adopted resolutions asking the State Government to have a relook in the
matter and in January, 2005, the State appointed a committee therefor. In any
event, the learned counsel would contend that the High Court by reason of the
impugned order having not directed stoppage of constructions or any other
activity in relation whereto agreements have been entered into or requisite
sanctions have been granted, the impugned orders should not be interfered with.
The
learned counsel would urge that the undertaking directed to be given by the
National Textile Corporation is commensurate with the suggestion given by Mr. Parasarn
before this Court.
This
Court at this stage is concerned with an interim order passed by the High
Court. The writ petition is still to be heard. Affidavits between the parties
are yet to be exchanged. The objection as regard maintainability of the writ
petition is also required to be finally determined by the High Court itself.
This Court at this stage cannot, thus, enter into all the contentious questions
raised in these appeals. But, there cannot be doubt or dispute whatsoever that
before an interim order is passed and in particular a public interest
litigation, the court must consider the question as regard existence of a prima
facie case, balance of convenience as also the question as to whether the writ
petitioners shall suffer an irreparable injury, if the injunction sought for is
refused. The courts normally do not pass an interlocutory order which would
affect a person without giving an opportunity of hearing to him. Only in
extreme cases, an ad interim order can be passed but even therefor, the
following parameters as laid down by this Court in Morgan Stanley Mutual Fund
etc. vs. Kartick Das etc. [(1994) 4 SCC 225] are required to be complied with:
"As
a principle, ex parte injunction could be granted only under exceptional
circumstances. The factors which should weigh with the court in the grant of ex
parte injunction are
(a) whether
irreparable or serious mischief will ensue to the plaintiff;
(b) whether
the refusal of ex parte injunction would involve greater injustice than the
grant of it would involve;
(c) the
court will also consider the time at which the plaintiff first had notice of
the act complained so that the making of improper order against a party in his
absence is prevented;
(d) the
court will consider whether the plaintiff had acquiesced for sometime and in
such circumstances it will not grant ex parte injunction;
(e) the
court would expect a party applying for ex parte injunction to show utmost good
faith in making the application.
(f) even
if granted, the ex parte injunction would be for a limited period of time.
(g)
General principles like prima facie case, balance of convenience and
irreparable loss would also be considered by the court." 178]
The
courts while passing an order of interim injunction must also consider the
parameters of a Public Interest Litigation as laid down by this SCC 590].
The
courts, however, have to strike a balance between two extreme positions, viz.,
whether the writ petition would itself become infructuous if interim order is
refused, on the one hand, and the enormity of losses and hardships which may be
suffered by others if an interim order is granted, particularly having regard
to the fact that in such an event, the losses sustained by the affected parties
thereby may not be possible to be redeemed.
In Deoraj
vs. State of Maharashtra and Others [(2004) 4 SCC 697] this Court opined:
"12.
Situations emerge where the granting of an interim relief would tantamount to
granting the final relief itself.
And
then there may be converse cases where withholding of an interim relief would
tantamount to dismissal of the main petition itself; for, by the time the main
matter comes up for hearing there would be nothing left to be allowed as relief
to the petitioner though all the findings may be in his favour. In such cases
the availability of a very strong prima facie case of a standard much higher
than just prima facie case, the considerations of balance of convenience and
irreparable injury forcefully tilting the balance of the case totally in favour
of the applicant may persuade the court to grant an interim relief though it
amounts to granting the final relief itself.
Of
course, such would be rare and exceptional cases. The court would grant such an
interim relief only if satisfied that withholding of it would prick the
conscience of the court and do violence to the sense of justice, resulting in
injustice being perpetuated throughout the hearing, and at the end the court
would not be able to vindicate the cause of justice. Obviously such would be
rare cases accompanied by compelling circumstances, where the injury complained
of is immediate and pressing and would cause extreme hardship. The conduct of the
parties shall also have to be seen and the court may put the parties on such
terms as may be prudent." [(1999) 1 SCC 492], this Court held that in
appropriate cases, the petitioners should be put on appropriate terms such as
providing an indemnity or an adequate undertaking to make good the loss or
damage in the event the PIL filed is dismissed. [See also Guruvayoor Devaswom
Managing Committee The Courts are also required to consider the decisions of
this Court relating to public interest litigation vis-`-vis reason of delay in
bringing the Gururaja and Others, (2003) 8 SCC 567] in the following terms:
"In
the facts and circumstances, we do not find that the Board and the State had
committed any illegality which could have been a subject-matter of judicial
review. The High Court in our opinion committed a manifest error insofar as it
failed to take into consideration that the delay in this case had defeated
equity. The allotment was made in the year 1995. The writ application was filed
after one year. By that time the Company had not only taken possession of the
land but also made sufficient investment. Delay of this nature should have been
considered by the High Court to be of vital importance." Group and Others,
(2005) 3 SCC 91 at 112-13] So far as transactions relating to seven mills
belonging to National Thermal Corporation are concerned, including sale of
Jupiter Mills, it is not in dispute that transactions have reached a final
stage. The purchasers of Jupiter Mills have already paid 16 crores and a sum of
Rs. 376 crores would pass hands if the transaction is completed. If the
transactions in respect of the mills are not allowed to be completed, the
scheme framed by the BIFR would come to a stand still resulting in accrual of
interest payable by the National Textile Corporation to the 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.
In
some cases, the State might have sanctioned DCR. Yet in some other cases, IODs
might have been obtained. Yet again, in some cases, Commencement Certificates
might have been granted. In such cases, the statutory authorities shall process
applications or further applications for grant of sanction required for
commencement and/ or continuation of structures strictly in accordance with
law. It is stated that in some cases such applications may be entertained
although the period of lease has expired.
We do
not think that the statutory authorities shall be so callous so as to grant
permission in favour of a person who does not have ownership over the land in
question. We furthermore have no doubt that the scheme, rules, regulations and
byelaws framed under the provisions of Maharashtra Regional & Town Planning
Act, 1966 shall be strictly complied while granting permission. We have
furthermore no doubt that the committee appointed in terms of the regulation
shall grant its approval only in accordance with the extant regulations. The
Appellants and/ or interveners herein, however, before creating any further
third party interest or before raising any constructions pursuant to or in
furtherance of any fresh lay out, IODs or CCs must put an advertisement in two
newspapers having wide circulation in Mumbai; one in English and the other in
Marathi Vernacular clearly indicating the same. If any agreement is to be
entered into in future or any third party right is to be created, a stipulation
shall be made therein that the enforcement thereof shall be subject to any
other or further order which may ultimately be passed by the High Court in the
pending proceedings.
Any
further constructions and/ or creation of any 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. However, any new application for grant of approval of any lay outs,
issue of IODs or commencement certifications may be processed but no
construction shall be carried on pursuant thereto or in furtherance thereof.
It
appears that there exists some dispute between two rival trade unions. Their interse
disputes representing different sections of workers, if any, may be determined
by an appropriate forum in an appropriate proceeding.
We are
informed that the Division Bench of the Bombay High Court had fixed hearing of
the writ petition in the last week of August, 2005. We would request the High
Court to consider the desirability of preponing the date so that the writ
petition may be heard out and disposed of at an early date and preferably by
31st July, 2005.
The impleaded
parties and/ or interveners may file their affidavits before the High Court
within three weeks from date.
The
State of Maharashtra and the Bombay Municipal Corporation shall place all the
relevant documents before the High Court and in the event, it is found at a
later stage that they have withheld any document which is relevant, the High
Court would be at liberty to draw adverse inference against them or pass such
other order or orders as may be found necessary. We have passed this order
having regard to the fact that the directions to produce documents have been
passed without hearing the parties and without taking into consideration the
hardship which may be faced by the State and/ or Bombay Municipal Corporation.
We, by
our order dated 18th April, 2005 directed the matter to be placed on 23rd
August, 2005 for hearing but keeping in view of the fact that in these appeals
we were called upon to deal with an interim order, we are of the opinion that
no purpose would be served in keeping the matters pending.
We,
therefore, dispose of these appeals and the intervention applications on the
aforementioned terms.
Having
regard to the directions issued, it is not necessary to pass any separate
orders on the applications for impleadment and/or intervention..
No
order as to costs.
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