Holding

Interim relief in a PIL may be granted only after satisfying the criteria of prima facie case, balance of convenience and irreparable injury, and the National Textile Corporation may complete its mill transactions subject to land‑adjustment conditions if the petition ultimately succeeds.

Summary

The case arose from a strike that closed 58 textile mills in Bombay, leading to the framing of Regulation 58 under the Maharashtra Regional and Town Planning Act to modernise mills and develop surplus land. The regulation was amended in 2001, prompting a public interest litigation challenging its validity. The Bombay High Court issued interim orders allowing the National Textile Corporation (NTC) to complete the sale of certain mills subject to conditions and directing the State and Municipal Corporation to produce documents. On appeal, the Supreme Court held that an interim order in a PIL must be granted only after assessing a prima facie case, balance of convenience, and irreparable injury, and it permitted NTC to complete the transactions conditionally, while laying down procedural safeguards for statutory authorities. The Court also directed the State and Municipal Corporation to comply with document production orders and disposed of the appeals.

Issues considered

Whether an interim injunction can be granted in a public interest litigation without a prima facie case, balance of convenience, and irreparable injury considerations.
Whether the High Court's interim order permitting the National Textile Corporation to complete the sale of mills is justified.
Whether the State of Maharashtra and the Bombay Municipal Corporation must produce documents without a hearing.
Whether the amendment of Regulation 58 in 2001 is ultra vires the Maharashtra Regional and Town Planning Act.

Legislation cited

Subjects

public interest litigationinterim injunctionbalance of convenienceprima facie caseRegulation 58textile mill rehabilitationNational Textile CorporationBIFR schemeland developmentenvironmental law

Judgment

A BOMBAY DYEING AND MANUFACTURING CO. LTD.
v.
BOMBAY ENVIRONMENTAL ACTION GROUP AND ORS.

MAY 11, 2005

B (N. SANTOSH HEGDE AND S.B. SINHA, JJ.]

Maharashtra Regional and Town Planning Act, 1966-Development
Control Regulations, 199J_.;..Regu/ation 58-Regulation 58-Closure of Textile
C Mills-Scheme under the Regulation for development of the mills and the land
of the mills, as per BIFR approved rehabilitation scheme-Amendment of the_
Regulation in view of its failure-Amendment challenged in Public interest
Litigation-interim order by High Court-However, permitting Textile
Corporation complete the sale offew of its mills-on appeal, held: Completion
of sale by Textile Corporation permissible in terms of scheme of BJFR subject
D to condition of adujstment of land from other mills in case of success of the
petition-Jn cases where lay out are sanctioned or commencement certificaies
issued, statutory authorities directed to process the application in accordance
with law.

Code of Civil Procedure 1908-0rder XXXJX-lnterim Order-In Public
E interest Litigation-Criteria for consideration-Held: Before passing an interim
order in such cases, the Court should consider as to whether a prima facie
case existed, whether in case of refusal of injunction irreparable injury is
caused to the petitioners and balance of convenience.

On account of strike by workmen 58 textile mills, 25 belonging to
F National Textile Corporation and 33 belonging to private parties, were
closed. Development Control Rules, 1967 framed in terms of Maharashtra
Regional and Town Planning Act, 1966 were amended and Development
Control Regulations, 1991 were framed. Regulation 58 of the Regulations
permitted modernization of mills and development of surplus mill lands
G as a part of ~IFR approved rehabilitation .schemes. As the 1991
Regulatiosn were found not workable, Regulation 58 was amended in 2001.

Respondent No.I filed writ petition in the nature of Public Interest
Litigation seeking striking down of-amendment of Regulation 58 in 2001.
High Court passed two interim orders. However, it permitted National
H 282
BOMBAY DYEING AND MFG. CO.LTD. v. BOMBAY ENVIRONMENTAL ACTION GROUP 283

Textile Corporation to proceed with the sale of its mills subject to certain A
conditions. Jt also directed the State and the Municipal Corporation to
file large number of documents. Hence the present appeal against the
interim order.

Disposing of the appeals, the Court
B
HELD: 1.1. Before an interim order is passed, and in particular, in
a public interest litigation, the court must consider the question as regards
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 C
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 parameters as laid down by this Court
in Morgan Stanley case are required to be complied with. The courts while
passing an order of interim injunction must also consider the parameters
of a Public Interest Litigation. 1293-G; 294-A) D
Morgan Stanley Mutual Fund etc. v. Kartick Das etc., (1994) 4 SCC
225; Dr.B. Singh v. Union ofIndia and Ors., (2004) 3 SCC 363 and Dattaraj
Nathuji Thaware v. State of Maharashtra and Ors., (2005) 1 SCC 590, relied
on.
E
Andhra Bank v. Official Liquidator and Anr. (2005) 3 SCALE 178,
referred to.

1.2. The courts, however, have to strike a balance between two
extre~e positions, viz., whether the writ petition would itself become
infructuous if interim order is refused, on the one hand, and the enormity F
of lo.sses 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. [295-A, BJ

Deoraj v. State of Maharashtra and Ors., [2004) 4 sec 697, relied on. G
1.3. 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. (295-G)
H
284 SUPREME COURT REPORTS [2005] SUPP. I S.C.R.

A Raunaq International Ltd. v. I. V R. Construction Ltd. and Ors., (19991
t SCC 492 and Guruvayoor Devaswom Managing Committee and Anr. v. CK.
Rajan and Ors., (2003) 7 SCC 546, relied on.

Chairman and MD BPL Ltd. v. SP. Gururaja and Ors., (2003] 8 SCC
567; Narmada Bachao Ando/an v. Union of India and Ors., (2000) lO SCC
B 664 and R & M Trust v. Koramangala Residents Vigilance Group and Ors.,
(2005) 3 sec 91, relied on.

2. The transactions relating to seven mills bel_onging to National
Textile Corporation have reached a final stage. If the. transactions in
respect of the mills are not allowed to be completed, the.scheme framed
C 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. In view of the facts and circumstances of this case
as also the law operating in the field, interest of justice would be subserved
D 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 condition that in the event, the writ petition ultimately
succeeds, the vacant land available from other mills, if necessary, shall be
offered by way of adjustment. (296-D-G]

E 3.1. In cases, where the State might have sanctioned DCR, IODs
might have been obtained or a Commencement Certificates might have
been granted, the statutory authorities shall process applications or further
a_ppl_ications f?r grant of sanction required for commencement and/ or
continuation of structures strictly in accordance with law. The Appellants
F and/ or interveners herein, however, before creating any further third
party interest or before raising any constr_uctions pursuant to or in
furtherance of any fresh lay out, I ODs or CCs, must put an advertisement
in two newspapers having wide circulation in Mumbai. 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
G subject to any other or further order which may ultimately be passed by
the High Court in the pending proceedings. (296-E; 297-C-D]

3.2. 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
H
BOMBAY DYEING AND MFG. CO.LTD. v. BOMBAY ENVIRONMENTAL ACTION GROUP 2 85

to the orders of the Court. However, any new appfication for grant of A
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. 4. The inter se disputes representing different
sections of workers, if any, may be determined by an appropriate forum
in an appropriate proceeding. [297-E, F]
B
5. 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 C
necessary. (297-H; 298-A]

CIVIL APPELLATE JURJSDICTION: Civil Appeal No. 3271 of2005.

From the Judgment and Order dated 1.4.2005 of the Bombay High
Court in P.I.L. W.P.No. 482 of 2005.
D
WITH

I.A. No. 2 in C.A. No. 3271/2005 @ SLP (C) No. 7405/2005, C.A.
Nos. 3272-73/2005, I.A. No. 7-11 in C.A. Nos. 3272-73/2005@ SLP (C)
Nos. 7549-7550/2005, C.A. No. 3274/2005, I.A. No. 3 in C.A. No. 3274 @ E
SLP(C) No. 10511/2005, C.A. Nos. 3275/2005, I.A. No. 2 in C.A. Nos.
3275/2005 @ SLP(C) No. 7453/2005, C.A. Nos. 3276/2005, I.A. No. 2-3 in
C.A. Nos. 3276/2005 @ SLP (C) 745112005 C.A. No. 3277/2005, I.A. No.
2 in C.A. Nos. 3277/2005 @ SLP (C) No. 8362/2005 and C.A. No, 3278/
2005, I.A. No. 2 in C.A. 3278/2005@ SLP (C) No.8378 of 2005.
F
G.G.Vahanvati, Solicitor General, F.S. Nariman, Arun Jaitley, K.
Parasaran, Mukul Rohtagi, Dr. A.M. Singhvi, Iqbal Chagla, K.K. Singhvi,
Colin Gonsalves, R.F. Nariman, T.R. Andhyarujina, Gopal Subramanium,
Ravi Kadam, AG., Percy Chandy, J.J. Bhatt, Ms. Zia Modi, Pretesh Kapoor,
Eassai Vahanvati, Shailesh, C. Rashmikant, Gopal Jain, R.N.Karanjawala;
Ms. Ruby Singh Ahuja, Ms. Pragya Singh, Ms. Kanika Agnihotri, Ms. G
Avantika Keshwani, Mrs. Manik Karanjawala, Ms. B. Sunita Rao, Sushi!
Kumar Pathak, S. S. Shinde, A. P. Mayee, Janak Dwarkadas, Rishi Agrawal,
E. c. Agrawala, Lynn Periera, Gautam Patel, Prag Kabadi, Ms. Indu Malhotra,
Sharad J., Dheeraj Nair, Vikas Mehta, S. H. Ujjainwala, Pallav Shisodia,
D.N. Mishra, Ms. Aparna Bhat, P. Ramesh Kumar, Prem Kishan, Vipin M. H
286 SUPREME COURT REPORTS [2005] SUPP. 1 S.C.R.

A Benjamin, Mrs. Purnima Bhat Kak, Pankaj R., U.A. Rana, Mrs. K. Sumathi,
Anil Menon, U. Udaya Kumar Sagar, Ms. Bina Madhavan, Ms. Susan
Zachariah, A. Venayagam, M.N. Shroff, M.S. Girish, Chirag M. Shroff, Pratap
Venugopal, Dhawan V., Dilnawaz Bhagalia for K. J. John with them for the
appearing parties.

B The Judgment of the Court was delivered by

S.B. 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
C 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
D 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
E 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:

F (i) The mill owners could continue to operate their mills even though
it was running into losses. This was the status-quo option which
enta«±0iled no land being surrendered to MHADA, public greer
(ii) The second option entailed retaining the outer shell of the mill
structures and building commercial structures within the mill
G 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
H and sharing the entire mill lands in approximately three equal
BOMBAY DYEING AND MFG. CO.LTD.'" BOMBAY ENVIRONMENTAL ACTION GROUP[SINHA, J.] 287

proportions. The first part would remain with the mill owner A
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 B
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 C
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 D
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 iri the E
year 200 l. 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 F
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 oyerseen by a Monitoring G
Committee which over see an escrow account to ensure financial
accountability, their payment to workers/ financial institution etc.
and is hea~ed by a retired High Court Judge appointed under the
said Regulation 58 of 2001. Pursuant to or in furtherance of the
new regulation, the mill owners allegedly borrowed huge sums H
288 SUPREME COURT REPORTS [2005] SUPP. l S.C.R.

A 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
B th~ 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 200 I
Regulations, third party rights have been created, sanctions have
been obtained for modernization of scheme and the parties have
C altered their position to a large· extent.·

The said regulation of2001 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:
D "( 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. "
E
However admittedly no recommendation has been made by the said
committee nor its term has been extended.

The first Respondent is a public charitable frust registered both under
F 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 l~th 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:
G
"(a) For an appropriate writ, order or direction striking down the
impugned order dated 20th March; 200r(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,
H
BOMBAY DYEING AND MFG. CO.LTD. v. BOMBAY ENVIRONMENTAL ACTION GROUP[SINHA, J.] 289

void ab initio and non est; A
(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 · B
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 C
structures;

(iii) to forbear and desist from granting any permission, in accordance
with amended OCR 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 D
by "Team One".

(c) For a writ of mandamus or a writ in the nature of a writ of
mandamus directing Respondent Nos. I 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 E
provide for the comprehensive development of these mill lands in an
integrated manrier 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, F
i
Respondent Nos. 1 and 2 should be restrained by an appropriate writ,
....' order dir_ectlon 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;
G
(e) ·That pending the hearing and final disposal of this petition, the
Respondent Nos. I 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. I and 2 by
Respondent Nos. 3 and 4 as part of their application fo~ permission H
290 SUPREME COURT REPORTS [2005] SUPP. I S.C.R.

A 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 I 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,
B 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. I and 2 considered
c 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 pet1t1on, I
Respondent Nos. l and 2 should be ordered and directed to appoint
a Special Pl<Jnning Authority or any other supervisory body/ committee
D
to supervise the comprehensive I 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 Rep0rt submitted in August, 1996;

(h) For ad-int,~rim reliefs in terms of prayer clauses (d) to (g); and J
E
(i) For such further and other reliefs and orders as this Hon 'hie
Court deem fit in the nature and circumstances of this petition. " .
In the said writ petition, apart from the State of Maharashtra, the ,,i'
Municipal Corporation of Mumbai, the Maharashtra Housing and Area
F 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 "Yho allegedly have invested
a huge sum on the lands of the Mill owners or otherwise interested in
'
implementation of Regulation 58 of 200 l filed applications for their •
G 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.
H
)
BOMBAY DYEING AND MFG. CO.LTD."· BOMBAY ENVIRONMENT AL ACTION GROUP[ SINHA, J.] 29 }

Before the High Court, the National Textile Corporation inter alia A
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 BJFR has already formulated eight
schemes which stand approved by all concerned and agencies. But B
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. C
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.
D
The High Court passed two interim orders on lst 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 E
Counsel make out any further as N.T.C. has 25 mills the requestfor
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 F
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 confinn the sale of Jupiter Mills. " '
G
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. " H
292 SUPREME COURT REPORTS [2005] SUPP. 1 S.C.R.

A 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 C()rporation to file a large number of documents under
fourteen different heads.

The learned counsel appearing on behalf of the Appellants inter alia
B 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 rellef.
(ii) Regulation 58 being a subordinate legislation, a public interest
c 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
D 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 pennitting
them to file their affidavits.
E
(v) Several parties have obtained lay out, !OD 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.

F 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 regara 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.

G 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
H land belonging to the other mills.
BOMBAY DYEING AND MFG. CO.LTD. v. BOMBAY ENVIRONMENTAL ACTION GROUP[SINHA,J.) 293

Mr. Iqbal Chagla, learned senior counsel appearing on behalf of the A
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 B
counsel would contend, is imperative having regard to the fact that whereas
in other metros, three to four aqes 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 ofMaharashtra itself imposed a ban in 1996 on C
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 D
end. It had been pointed out that Bombay Municipal Corporation and MHADA
had adopted resolutions asking the State Government to have a retook 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 E
other activity in relation whereto agreements have been entered into or requisite
sanctions liave 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 F
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 G
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 H
294 SUPREME COURT REPORTS [2005) SUPP. l S.C.R.

A 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
B Fund etc. v; 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 -

C (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
D 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 e~ parte
injunction;
E (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.

F (g) General principles like prima facie case, balance of convenience
and irreparable loss would also be considered by the court. "

[See also Andhra Bank v. Official Liquidator and Anr., (2005) 3 SCALE
178]

G The courts while passing an order of interim injunction must also
consider the parameters of a Public Interest Litigation as laid down by this
Court in Dr. B. Singh v. Union of India and Ors., [2004] 3 SCC 363 and
Dattaraj Nathuji Thaware v. State of Maharashtra and Ors., [2005] 1 SCC
590.
H
BOMBAY DYEING AND MFG. CO.LTD. v. BOMBAY ENVIRONMENT AL ACTION GROUP[SINHA, I.) 295

The courts, however, have to strike a balance between two extreme A
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.
B
In Deoraj v. State of Maharashtra and Ors., (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 C
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 primafacie case, the D
considerations of balance of convenience and irreparable injury
forcefully tilting the balance of the case totally iri. 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 E
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 F
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. "

In Raunaq International Ltd v. I. V.R. Construction Ltd and Ors.,
[ 1999) 1 sec 492, this Court held that in appropriate cases, the petitioners G
should be put on appropriate tenns 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
and Anr. v. CK. Rajan and Ors., [2003) 7 SCC 546.

The Courts are also required to consider the decisions of this Court H
296 SUPREME COURT REPORTS [2005] SUPP. I S.C.R.

A relating to public interest litigation vis-a-vis reason of delay in bringing the
same as noticed by this Court in Chairman and MD BPL Ltd v. S. P. Gururaja
and Ors., [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-
B 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

c sufficient investment. Delay of this nature should have been considered
by the High Court to be of vital importance.'"

[See also Narmada Bachao Ando/an v.· Union of India and Ors., [2000] 10
SCC 664 at 762 and R & M Trust v. Koramangala Residents Vigilance
Group and Ors., [2005] 3 SCC 91 at I 12-13]

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
E 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
F as also the law operating in the fidd, 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 condition that in the event, the writ petition
ultimately succeeds, the vacant land available from other mills, if necessary,
G 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
H of sanction required for commencement and/ or continuation of structures
BO~IBAY DYEING AND MFG. CO.LTD .... BOMBAY ENVIRONMENTAL ACTION GROUP[SINHA, I.] 297

strictly in accordance with law. 1t is stated that in some cases such applications A
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 bye
laws framed under the provisions of Maharashtra Regional & Town Planning B
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 C
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. D
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 ~pproval of any lay E
outs; issue of I ODs or commencement certifications may be processed but no
construction shall be caJTied 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. F
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 3 lst July, 2005. G
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 H
298 SUPREME COURT REPORTS [2005) SUPP. I S.C.R.

A 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
B into consideration the hardship which may be faced by the State and/ or
Bombay Municipal Corporation.

We, by our order dated I 8th 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
C 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 riot necessary to pass any
separate orders on the applications for impleadment and/or intervention.
D
K.K.T. No order as to costs.