Supreme Court of India
M.C. MEHTAversusUNION OF INDIA AND ORS.
- Citation
- 2004 INSC 371
- Decided
- 7 May 2004
- Disposal
- Disposed off
- Bench
- Y K SABHARWAL
Holding
All industrial units established in residential/non‑conforming areas of Delhi on or after 1 August 1990 must be closed down as per the Court's schedule, and in‑situ regularisation is impermissible where it contravenes Article 21.
Summary
The Supreme Court examined the illegal presence of hazardous and non‑conforming industrial units in residential zones of Delhi, which violated the Delhi Master Plan, the Delhi Development Act, 1957 and the National Capital Region Planning Board Act. The State Government had sought extensions and in‑situ regularisation of these units despite earlier court orders to shut them down by 31‑Dec‑1999. The Court found the State and municipal authorities wholly negligent, held that in‑situ regularisation would breach the right to life under Article 21, and that the illegal industrial activity could not be legitimised by governmental inaction. Consequently, the Court ordered the closure of all such units established on or after 1 August 1990 according to a detailed schedule, directed the disconnection of utilities, sealing of premises, and set up a monitoring committee to enforce compliance. The petition was disposed of.
Issues considered
- The legality of granting in‑situ regularisation to industrial units operating in residential/non‑conforming areas of Delhi.
- Whether the State Government and municipal authorities can be excused for failing to enforce the Master Plan and related statutes.
- Whether continuation of illegal industrial activity violates the right to life under Article 21 of the Constitution.
- The appropriate remedial measures, including closure timelines, utility disconnection, and monitoring mechanisms.
Legislation cited
- Constitution of Indias. Article 21, s. Article 243W
- Delhi Development Act, 1957s. 11-A, s. 14, s. 29(2), s. 2(a), s. 2(b), s. 31-A, s. 7, s. 8
- Delhi Municipal Corporation Act, 1957s. 345, s. 416(1), s. 417(1), s. 461
- National Capital Region Planning Board Act, 1985s. 20, s. 27
Subjects
environmental lawindustrial pollutionzoning violationsDelhi Master PlanArticle 21 right to lifein‑situ regularisationpublic interest litigationNCR planningclosure ordersmunicipal authority negligence
Judgment
A M.C. MEHTA
V.
UNION OF INDIA AND ORS.
MAY 7, 2004
B
[Y.K. SABHARWAL AND B.N. AGRAWAL, JJ.]
Environmental Law:
C Pollution-Industries located in residential and non-conforming areas
in Delhi contrary to the Master Plan and law-Directions by Supreme
Court in 1999 to close or shift such industries out ofDelhi by 31.12.1999-
Application by State Government seeking time and for regularisation of
industries where concentration of industry is 70% or more in a residential
area (INS/TU Regularisation)-Thereafter, no steps were taken to comply
D with the orders-Held, on the basis of the materials on record and the
inactions and the casual approach of the State Government and various
Government authorities, such INSITU regularisation cannot be permitted
as it has taken into account the pollution angle-Directions issued to close
down various categories of industries with time frame-Delhi Development
E Act, !957-Delhi Municipal Corporation Act, 1957-National Capital
Region Planning Board Act, 1985-Constitution of India-Articles 21 &
243W
A large number of hazardous and noxious industries and heavy
F and large industries (categories A to F) came into existence in residential
and non-conforming areas of the Delhi State contrary to the Master
Plan and Zonal Plan of the State. Public interest litigation petitions
were filed before Supreme Court challenging the existence of such
industries in violation of the Delhi Master Plan under the Delhi
Development Act, 1957, Delhi Municipal Corporation Act, 1957 and
G other statutory provisions. This Court passed orders from time to time
over a decade directing various categories of industries situated in
residential/ non-conforming areas to be shifted out of Delhi. Despite the
directions, the State Government failed to take any action and a large
number of industries continued to be operated in residential/non-
H conforming areas in violation of law.
504
M. C. MEHTA v. U.0.1. 505
This Court issued an order on 8.9.1999 directing the State A
Government to close down all the industries situated in residential
areas by 31.12.1999. On 10.12.1999, the State Government filed an
application seeking extension of time to close down the industries till
March 2004 and seeking INSITU regularisation of industrial units
where concentration of industry is 70% or more in a residential area. B
The Municipal Corporation of Delhi, National Regional Board
and the Central Pollution Control Board vehemently opposed the
continued unauthorised use for industrial activity of residential/non-
conforming areas and the proposal of INSITU regularisation.
c
The National Regional Board contended that such industries
should be immediately closed down or shifted; that such regularisation
would defeat the very purpose of the National Capital Region Board
Act, 1985 under which NCR was established to decongest the city of
~L D
The Central Pollution Control Board contended that the
regularisation would further result in air and water pollution and
would also affect the underground water.
E
Disposing the matters, the Court
HELD : 1.1. INSITU regularisation cannot be done if it results
in violation of right of life enshrined in Article 21 of the Constitution
of India. The question will have to be considered not only from the F
angle of those who have set up industrial units in violation of the
Master Plan but also who are residents and using their premises as
allowed by law. Further, the regularisation affects not only the
remaining 30% residents of the areas wherein regularisation may be
in contemplation but has effect on the entire area, particularly with
respect to infrastructure available. (518-G-H; 519-A) G
1.2 The facts demonstrate that the State Government and the
Delhi Development Authority have been wholly remiss of all its
functions, duties and obligations. The Central Government, for the
reasons which are not far to seek, has been shifting its stand. There H
506 SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R.
A is no plausible answer to the question as to why in the meanwhile the
illegality should conti1rne without any action. In any case, as at present
there is no regularisation. The industrial activities in residential/ non-
conforming zones are wholly illegal. The illegal. industrialisation in
residential/non-conforming area commenced and has continued and
B the Authority, the Governments and their agencies have been totally
negligent in discharge of the functions and obligations under the
provisions of the Delhi Development Act, 1957. [520-F-H; 521-A, F)
1.3. Dealing with the question of relocation of non-conforming
C industries and the setting up of the industrial estate in Delhi, in the light
of the facts brought before the Court, it is not open to the State
Government to argue that for want of acquisition of the land, the
industrial estates could not be developed. They had themselves written
to DDA not to develop any new industrial estate in the Union Territory
of Delhi. The State Government has been repeatedly taking time from
D the Court for the shifting of the offending industrial activity. If it was
not the responsibility of the State Government to shift the industry,
what was the purpose of filing an Application seeking extension of time
upto March 2004 and for seeking modification of the order dated
8.9.1999 whereunder the industries were directed to be closed by
E 31.12.1999. In this situation, there is no reason why those uaits which
have come up after 31.12.1999 shall not be closed and sternly dealt
with. The Court is unable to find any equity in favour of such violators
of law. The regularisation would also result in making the concept of
NCR non-functional and inoperative. (521-G-H; 524-B-FJ
F 2.1 The material on record shows that National Capital Regional
Planning Board has been taking initiative to encourage the shifting of
the industries to National Capital Region. It does not however, appear
that any significant interest was shown by the industry. The problems
are not insurmountable and can be sorted out. There is no obligation
G to provide alternative plots to those who illegally 'commenced industrial
activity. It is a matter for Government to decide if it wants to provide
alternative industrial plots to those who illegally commenced that
activity but that cannot further delay the closing of continuing illegal
industrial activity. The lack of action and initiative by the authorities
H is the main reason for the industry merrily continuing illegal activity.
M. C. MEHTA v. U.0.1. 507
There is total lack of enforcement of law by the concerned authorities. A
(528-E-H; 529-A-BJ
2.2 An illegality would not become a legality on inaction or
connivance of the Government authorities. There cannot be any doubt
that non-conforming industrial activities could not have commenced or B
continued at such a large scale in the capital of the country if the
Government and the concerned authorities had performed their
functions and obligations under various statutes. But such a situation
cannot be permitted to continue for ever so as to reach a point of no
return, where the chaotic situation in city has already reached. The C
lawbreakers, namely, the industries cannot be absolved of the illegalities
only on the ground of inaction by the authorities. From the facts, it
is evident that a casual approach was adopted in recommending
INSITU regularisation. (529-D-F; 530-E)
3. The growth of illegal manufacturing activity in residential D
areas has been without any check and hindrance from the authorities.
The manner in which such large scale violations have commenced and
continued leaves no manner of doubt that it was not possible without
the connivance of those who are required to ensure compliance of law
and reasons are obvious. Such activities result in putting on extra load E
on infrastructures. The entire planning has gone totally haywire. The
law abiders are sufferers. All this has happened at the cost of health
and decent living of the residents of the city violating their constitutional
rights enshrined under Article 21 of the Constitution of India. The
lawmakers repose confidence in the authorities that they will ensure F
implementation of the laws made by them. If the authorities breach
that confidence and act in dereliction of their duties, then the plea
that the observance of law will now have an adverse effect on the
industry or the workers cannot be allowed. Within the framework of
Jaw, keeping in view the norms of environment, health and safety, the
Government and its agencies, if there was genuine will, could help the G
industry .and workers by relocating industries by taking appropriate
steps in the last about" 15 years. [538-E-H; 539-A)
Virender Gaur & Ors. v. State ofHaryana & Ors., (1995) 2 SCC 577;
Ml Builders Pvt. Ltd. v. Radhey Shyam Sahu & Ors., (1999) 6 SCC 464; H
508 SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R.
A Administrator, Nagar Palika v. Bharat & Ors., 120011 9 sec 232; Faqir
Chand & Anr. v. Shri Ram Rattan Bhannot & Anr., 11973) l SCC 572;
Dr. K. Madan v. Krishnawati (Smt.) & Anr., 11996) 6 SC 707; Punjab
National Bankv.Arjun Dev Arora & Ors., 1198614 SCC 660; V.M Kurien
v. State of Kera/a & Ors., (200114 SCC 215; Indian Council/or Enviro-
B Legal Action & Ors. v. Union of India & Ors., (l 9961 3 SCC 212 and M
C. Mehta v. Union of India, (1987] l SCC 395, referred to.
4.1. All Industrial Units that have come up in residential/non-
conforming areas in Delhi on or after lst August, 1990 shall close down
and stop operating as the following schedule:
c
(a) Industrial units pertaining to extensive industries (F Category)
within a period of four months.
(b) Industrial Units pertaining to light and service industries
D (categories B to F) within five months.
(c) Impermissible household industries (category A) within 6
months.
(c) 6000 industrial units on waiting list for allotment of industrial
E plots within 18 months. [546-D-GI
4.2. The Central Government is directed to finalise a list of
permissible household industries falling in category A within a period
of three months. [546-HI
F
4.3. 6000 industrial units on waiting list shall be allotted industrial
plots within one year. [547-AI
4.4. The Delhi Government may announce a policy within six
weeks giving such incentives as it may deem fit and proper to those
G industrial units which came to be established after 1st August, 1990
and may close down on their own before the expiry of the time fixed
in this order. The non-announcement of incentives by the Government
shall not, however, delay the closure process. [547-BJ
H 4.5. The water and electricity connection of the industrial units
M. C. MEHTA v. U.0.l. 509
found operating after the due date of closure shall be disconnected A
forthwith and in any case not later than a month of the date fixed for
closure in Direction No. 1 above. If the industrial activity still continues,
the premises shall be sealed within a period of not later than another
one month. The seal shall be removed and water and electricity
connection restored only after filing of an undertaking by the industrial B
unit not to recommence any sort of industrial activity before an officer
nominated for the purpose by the Delhi State. [547-C-E)
4.6. The Central Government is directed to finalise within six
months appropriate steps to be taken for making NCR region a success
for industrial activity by removing the hurdles pointed out by the C
industry. The Governments of the adjoining States of U.P., Rajasthan
and Haryana are directed to extend full cooperation. [547-E-F]
4. 7. The Municipal Corporation of Delhi shall consider within
three months the aspect of withdrawal of exemption notification as D
suggested in the affidavit of its Town Planner filed on 28th October,
2002. [547-F-G)
4.8. A Monitoring Committee would comprise (i) Chief Secretary
of Delhi (ii) Commissioner of Police, Delhi (iii) Commissioner, Municipal E
Corporation of Delhi and (iv) Vice Chairman of Delhi Development
Authority. This Committee would be responsible for stoppage of illegal
industrial activity. It would, however, be open to the aforesaid m~mbers
of the Monitoring Committee to appoint responsible officers subordinate
to them to oversee and ensure compliance of the directions contained F
in the judgment. (547-G-H; 548-A]
ORIGINAL CIVIL JURISDICTION : Interlocutory Application No.
22.
IN G
Writ Petition (Civil) No. 4677 of 1985
Under Article 32 of the constitution of India.
WITH H
510 SUPREME COURT REPORTS (2004] SUPP. 2 S.C.R.
A I.A. Nos. 1206, 1204, 1205, 1224 in WP (C) No. 4677/85, IA No.
1322 in IA No. 22 in WP (C) 4677/85, WP (C) No. 98/2000, IA No. 1367
IN IA No. 22 in WP (C) 4677/85 IA No. 1815 in WP (C) No. 4677/85,
IA No. 1527 in No. IA 22 in WP (C) No. 4677/85.
B Mukul Rohtagi, Raju Ramachandran, Additional Solicitor Generals
(N.P.), Kailash Vasdev. Ranjit Kumar (A.C.), P.C. Jain (N.P.), M.C. Mehta,
K.L. Mehta, Rakesh K. Khanna, Mrs. Rashmi Khanna, Reetesh Singh,
Shashank Shekhar. Surya Kant. Mohd. Arif, M.A. Chinnasamy, K.K.
Rohtagi, Praveen Jain, Gopal Jain, Ms. Bina Gupta, Ms. Nina Gupta, Ms.
C Vanita Bhargava, Kirpal Singh, Debasis Mishra, S. Sukumaran, Ms. Divya
Nair, K. Rajeev, Manoj Swarup, Anubhav Kumar, Mrs. Manik Karanjawala,
Sushi! Kumar Jain, Naresh Khanna, P.N. Puri, Harpreet Singh, P. Venugopal,
P.S. Sudheer, Vijay Kumar, Atul Sharma, B.K. Sharma, Vishwajit Singh,
Vijay Panwani, Mrs. Indra Sawhney, V.B. Saharya, D.N. Goburdhan, R.C.
Verma, Manish Shanker, Mrs. Pinky Anand, Ms. Geeta Luthra, K.C.
D Kaushik, T.A. Khan, Mrs. Varuna Bhandari Gugnani for D.S. Mehra,
S.W.A. Qadri, Mrs. Anil Katiyar (N.P.), B.V.fl. Das (N.P.), S.N. Terdol
(N.P.), Y.P. Mahajan, TA. Khan, P. Parmeswaran (N.P.), Mrs. Varuna
Bhandari Gugnani for Mrs. Kavita Wadia, Kamalendra Mishra, Mukesh
Verma, Rajeev Kumar Dubey, Mrs. Sheil Sethi, Suresh C. Tripathi, Rakesh
E K. Sharma and R.S. Suri (N.P.), for the appearing parties.
The following Judgment of the Court was delivered by
Y.K. SABHARW AL, J. : This case about unauthorized industrial
F activity in Delhi in residential area has a protracted background. The
present examination is confined to the issue of industrial activity in
residential/non-conforming areas to decide what directions may be issued
to put an end to such illegal activity. As a result oforders passed from time
to time, hazardous and noxious industries and heavy and large industries
('H' Category) have been shifted out of Delhi. Some of extensive industries
G ('F' category) have also been shifted out of Delhi. As per the State
Government, non-polluting 'F' category industries have not been yet
shifted. The question is what should be done about continued unauthorized
use contrary to Master Plan and Zonal Plan by remaining 'F' category and
'B' to 'E' category (light and service industries) and household industries
H ('A' category industries). These industries are continuing in residential/
M. C. MEHTA v. U.O.l. [SABHARWAL, J.] 511
non-conforming areas. Such activity is mostly in residential areas. It is not A
in dispute that most of continued industrial activity under consideration is
in contravention of law except only few household industries which
are continuing in residential areas. To decide the question, it is necessary
to first briefly notice orders passed by this Court during last about one
decade.
In the various orders passed in the year 1995, this Court noticed that
a large number of industries were located in residential/non-conforming
areas in violation of the Delhi Master Plan formulated under the Delhi
Development Act, 1957 (for short, 'DD Act), Delhi Municipal Corporation
Act, 1957 (for short, 'DMC' Act) and other statutory provisions. Noticing C
that the Master Plan stipulates setting up of industries only in conforming
areas, i.e., the industrial areas earmarked for that purpose, it was indicated
that the industries in non-conforming areas h·ave to stop functioning. The
first concern of the Court was to stop the functioning of 'II' category
industries, since most of it were discharging highl.Y toxic affluent. It was D
noticed that as per the affidavit filed by Mr. D.S. Negi, Secretary
(Environment), Government of Delhi, it was estimated that there were
93,000 industries which were operating in Delhi and majority of these were
in non-conforming use zones. Public notices by the Government invited
al.I industries operating in non-conforming use zone to give option to shift E
to available industrial plots in the industrial estates. The response from the
industry was very poor. The industries operating in Delhi were called upon
by issue of public notices in newspapers to furnish information in r<"spect
of the product manufactured, activity carried on, area size, number of
persons employed, power load, year of commencement etc. Out of 93,000 F
industries, only 513 industries and 382 persons responded. It was noticed
that MCD was granting licences and registering various industrial units in
non-conforming. areas and permitting the industries to be set up in
residential areas. Naturally, a surprise was expressed by this Court that on
the one Hand, the Court was issuing orders to reallocate the existing
industries that were operating in the residential/non-conforming areas and G
on the other hand MCD was permitting setting up of new industries in
residential areas. According to the MCD, it was done under the directions
of the State Government. The M.C.D. was directed not to register or grant
licence to any industry in the non-conforming/residential area.
H
512 SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R.
A We may also make a brief reference to the orders that were passed
in the year 1996. In the order dated 19th April, 1996, noticing the
contention of Solicitor General for India that certain household industries
can be permitted to operate not only in residential area but in residential
premises itself, the Court observed that the provisions of the Master Plan
B have to be complied with and in case any non-residential activity is
permitted in residential area under the Master Plan that cannot be stopped.
A High Powered Committee was constituted to examine which type of
industries can be permitted in the residential area. The State Government
was directed to issue public notices asking the industries which are
o·perating in different residential areas of Delhi to approach the Committee
C for necessary permission. It was also made clear that the industries which
do not obtain permission shall have to stop functioning in residential area
w.e.f. January I, 1997. It would be useful to extract the reievant part of
the order dated 19th April, 1996 which reads as under :
"We .make it clear and direct that no industry in any residential
D
area of Delhi/New Delhi shall be permitted unless it has obtained
the clearance of the committee ano has obtained the necessary
licence and the consent from the statutory authorities. All those
industries which have not obtained necessary permission from the
committee shall stop operating in the residential area w.e.f.
E January I, 1997. We direct the NCT Delhi to give wide publicity
to this order so that the industries are in a position to note that
they have to obtain the necessary clearance from the committee.
Needless to say that while granting permission to an industry to
run in a residential area, the committee shall keep in view all the
F conditions laid down under the Master Plan including evaluation
of impact on municipal services and environment needs of the
area.''
The orders were also passed directing the Delhi Government to issue
public notices in newspapers requiring the industries in residential/non-
G conforming areas to apply for allotment of plots in the Industrial Estate and
also giving undertaking that on such allotment they will shift from the
existing place. The court thinking that the Delhi Government was now
seriously processing the project ofrelocating the industries operating in the
residential/non-conforming areas of Delhi, left the field for the Government
H to act on its own and relocate the industry in terms of orders dated 18th
M. C. MEHTA v. U.O.I. [SABHARWAL, J.] 513
December, 1996. The Government was, however, directed to file progress A
report in this Court every three months.
It is a matter of anguish that subsequent events show that the trust
that was reposed by this Court on the Government was belied in terms of
the action to be taken for implementation of law, namely, the continuance B
of industrial activity in areas in question in conformity with the user
prescribed by the Master Plan. On 8th September, 1999, it was noticed that
the progress report filed indicated that though some steps had been taken
but the same had not been taken in the right earnest as a result of
which industries are continuing to operate in the residential zone. C
The Court directed that if industries in the residential area cannot be
shifted and relocated for any reason whatsoever by 3 lst December,
1999, then those industries shall be closed down. The Government was
directed to give due publicity in the newspapers so as to make the industry
aware.
D
On 10th December, 1999, the State Government came up with an
application (IA No. 1206, inter alia, seeking modification of the order
dated 8th September , 1999 and for extension of time upto March 2004
for shifting of industries which had been found eligible for allotment of
alternate industrial accommodation under the 'Relocation Scheme' subject E
to their functioning in conformity with the pollution norms under the
existing laws. As per what the Delhi Government itself says in this
application, survey conducted by Delhi Pollution Control Committee in the
year 1995-96 showed that about 1,26,000 industrial units were functioning
in Delhi out of which approximately 1,01,000 were in residential/non- F
con.forming areas and only about 25,000 in approved industrial areas. The
application also states that in these 1,01,000 illegally operating industrial
units, about 7,00,000 workers would be employed. It was stated that
closure of these industries will result in hardship to approximately 7,00,000
families.
G
The question would be can the Government plead such a justification
for violation of law and throw to winds the norms of environments, health
and safety or is it possible to help the workers even without violating law
if there is a genuine will to do so. We would answer the question after
noticing few further facts. H
514 S'JPREME COURT REPORTS (2004] SUPP. 2 S.C.R.
A In the application (IA 1206) it has been further stated that out of
52,000 applications received under the relocation scheme in December,
1996, approximately 23,000 have been found to be eligible. The prayer in
the application also is that the industrial units functioning in residential
areas where concentration of industry is 70%, should be continued to
B operate from their existing location. The applicant thus seeks INSITU
regularization. According to the Government, about 15,000 industrial units
would fall in this categol)' and another approximately 6,000 industrial units
may fall in the category of household industries ('A' category)
C At the outset, it deserves to be noticed that assuming, for the present,
that facts stated above by the Government are correct and the plea of
INSITU regularization is justified then, the immediate question would be
as to what steps were taken by it in respect of remaining illegal and
unauthorized industrial units, which number over 50,000. The Government
D has no answer, let alone a satisfactory answer even despite lapse of nearly
five years.
Reference may also be made to the progress reports filed in this Court
pursuant to the orders dated 18th December, 1996. The first report dated
31st March, 1997 sought extension of time for closure of those industries
E which had applied for allotment of plots/flats and had submitted the
requisite undertakings prescribed by this Court. For them extension was
asked for till such time the industrial accommodation with power connections
were ready in newly constructed/developed flatted factory complexes/
industrial estates. Thus, the extension sought was for above category of
F industrial units and not others. That being the position, others could
continue the illegal industrial activity only because of inaction by the
Government. It is evidently total non-implementation of the statutory
provisions. In yet another Report (for the period ending 31st March, 1998),
it was stated that survey of industries in all districts has shown that in
G respect of 50,740 industrial units, 21;681 units have not applied under the
relocation scheme. The same question would again arise why no action has
been taken in respect of these industries. The scenario is same in respect
of the progress reports filed upto the period of 30th September, 1998
regarding the relocation of industries operating in residential non-confonning
H areas of Delhi.
M. C. MEHTA v. U.0.1. [SABHARWAL, J.] 515
Before filing IA No. 1206 of 1999 or at least in that application itself, A
the Government did not think it advisable to state what action it will take
against those who were not found eligible or those who did not even apply
and were continuing industrial activity in violation of law. Further, it did
not state how many would fall in the category of INSITU regularization
and in 'A' category industry. In this connection, reference may also be B
made to the observations in the order dated 8th February, 2001 that there
was an unexplained figure of more than 32,000 industries in non-
conforming areas which would not be covered by (i) INSITU regularization
or (ii) fall within the expected expanded definition of 'household industry'
or (iii) come under the category of industries which had applied and had
been found eligible for allotment ofland. It was noticed that no explanation C
was given with regard to these industries continuing in the non-conforming
areas. The position after lapse of nearly 3 years is no better.
Regarding the total number ofindustrial units functioning in residential/
non-conforming areas, different surveys have given different figures, as per D
the material placed before this Court by Government. There is also no
clarity as to the facts and figures·regarding infrastructure etc. in respect of
the industrial units being considered for INSITU regularization. Although
in the affidavit filed on 5th August, 2000 by the Principal Secretary and
the Commissioner of Industries of the Delhi Government, it was stated that E
the Government had recommended INSITU regularization, it has not been
stated as to what is the position of the water, electricity and other facilities
for the industries; what is the planning for remaining 30% residents as they
may be deprived of electricity, water and other facilities on account ofover
drawl by the 70% industrial units. Whether 30% who are usi.ng the premises F
in accordance with the permissible use in the Master Plan must continue
to suffer at the hands of those who are functioning in violation of the
Master· Plan. This question has remained unanswered despite elaborate
arguments spread over various dates. On the aspect ofINSITU regularization,
the stand of the Delhi Development Authority, as contained in the affidavit
of its Commissioner (Planning) dated 11th September, 2000 was that the G
DDA was favourably considering INSITU regularization with the following
conditions :
(i) Building norms shall be the same as that for the residential
premises. H
516 SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R.
A (ii) '
Non-pollutant/non-hazardous industries would be allowed
to operate.
(iii) Augmentation of infrastructure as per requirement would be
undertaken to meet the growing demand as a result of
conversion of these areas into manufacturing (light and
B service) household industries.
Despite lapse of about 3 years, nothing significant, either in respect
of infrastructure or the other conditions, has been done. The second Master
Plan of Delhi was enforced w.e.f. I st August, 1990. In respect of 'F'
C Category industries, it provides that no new industrial unit shall be
permitted except in the existing identified extensive industrial areas. In
respect of such 'F' category industries which were already existing in non-
conforming areas, the Master Plan provides that the said industrial units
shall be shifted to the permissible industrial use zone within a maximum
D period of three years after the allotment of plots by various Government
agencies. On one hand, the Master Plan stipulates the shifting of existing
'F' category industrial units within a specified time limit and on the other
new industrial units have come up even after enforcement of the Master
Plan and even in respect of such units the Government has not only failed
E to take action but has also failed to take a positive stand before this Court
that immediate steps would be taken to stop such blatant violations.
Further, when the Government is asked to give suggestions regarding
stoppage of functioning of these industrial units, the suggestion that comes
forth is that the industrial units in residential non-conforming areas which
were set up after 1996 may be directed to stop the industrial activity
F contrary to the Master plan. Those violators who had commenced industrial
activity in residential/non-conforming areas after 1st August, 1990 are also
not being excluded from the proposal of lNSITU regularization.
It is also necessary to note as to what stand from time to time the
G Ministry of Urban Development has taken on the aspect of INSITU
regularization. In an affidavit dated. 4th December, 2000 filed by its
Deputy Secretary, reliance has been placed by the Ministry upon the
statement made by its Minister on the floor of the House on November 24,
2000. In that statement, opposing regularization, the Minister said as to
H what Delhi we want to live, what type of legacy do we wish to bequeath
M. C. MEHTA v. U.0.1. [SABHARWAL, J.) 517
to posterity and to our children and grand children; Do we want our city A
to become a junkyard of unauthorized constructions, mirroring civic and
moral chaos, or an orderly and disciplined capital of a Resurgent Republic,
embodying values of justice and honesty on the basis of which we have
often claimed a pre-eminent position for our culture and civilization? The
statement further gave facts and figures that 50 million gallons per day of B
industrial waste is going into the Yamuna and said that what is seen flowing
in it today is nothing but sewer and industrial waste. In Okhla alone, for
instance, during March-April, 2000, the bio-chemical oxygen demand
(BOD) level in the river was about 70 mg. per litre as against a standard
of 3 mg. per litre, i.e. 25 times more than the permissible level. An C
apprehension was expressed that if the present attitudes and practices
persist, Delhi would run the risk of having as many as 30 million people
in the next few years and becoming an ugly, unhealthy, unworkable and
unlivable city. In the process, a fatal blow would also be dealt to the
development ofNational Capital Region which comprises a substantial part
of three important neighbouring Sates of Haryana, Rajasthan and Uttar D
Pradesh. The affidavit states that in case of large number of residential
colonies, with so called 70% concentration of industries of which the entire
land use is sought to be changed from residential to industrial, should the
Master Plan be amended to destroy its very soul and structure or subvert
the basic norms ofhealth, habitation and environment or reward the illegal E
establisher of industries and in the process penalize the law-abiding
residents and condemn them to stay for even in industrial areas or force
them to abandon their houses built with hard earned income? It also stated
that no one has made it clear where the residents would be taken, what
would be cost of resettlement, who will bear it and how the layouts and F
pattern of services and infrastructure, meant for residential colonies,
would be adjusted to the requirements of industries and consequent traffic
and transport that would flow not only in the colonies in question but also
in their neighbourhood.
(Emphasis supplied is ours)
G
In regard to the nature of survey that had been conducted resulting
in the proposal ofINSITU regularization in areas having 70% concentration
of industries, the affidavit states that demand to secure vital and large scale
changes in the Master Plan, which would have the effect of tearing its entire
fabric apart, is based upon the preliminary and perceptional survey of three H
518 SUPREME COURT REPORTS [2004) SUPP. 2 S.C.R.
A officers of the Industries Department of Government of Delhi. 'The report
itself calls the survey 'preliminary'. The survey is neither scientific, nor
precise nor reliable. It does not even contain detailed particulars of
industries - whether they are polluting or non-polluting, licenced or
unlicensed. The survey also does not indicates as to how many industrial
B units belong to those industrialists who may have already obtained the
benefits of relocation once, either from the Delhi Development Authority
or from the Industrial Department or have secured space in flatted factories
and have come back again to the non-conforming areas, while keeping the
alternative plots allotted to them for shifting, or have set up additional unit
or units in the residential areas.
c
Now, let us see what Ministry says after about three years in its
affidavit dated 28th July, 2003. The guidelines for Master Plan for Delhi
- 2021 issued by the Ministry were filed along with the said affidavit as
also a letter dated 28th July, 2003 sent by Secretary of the Ministry to the
D Chairman of DOA. The letter states that the Ministry has made broad
guidelines for the Master Plan which highlight some of concerns that ne.ed
resolution as well as possible policy initiatives so as to deal with the
problem that affect Delhi. The letter farther states that this should also
address the issue of concentration of industries to the extent of70% or more
E in some non-industrial areas. The guidelines noticed that a major issue
confronting the planned development of Delhi is the apparent and frequent
violation of the planning and development and control norms. It states that
there is a growing variation between the plan for Delhi and city on the
ground ancl, therefore, i1t is essential that the Master Plan policies should
F be implementable in an effective manner and vigorously enforced. The
existing legal framework for enforcement of the Master Plan provisions
including unauthorized construction and encroachment on public land also
needs examination so as to initiate proposals for its strengthening where
necessary. In the guidelines, there is no specific reference to regularization
as such but evidently there is a slant in that direction in the stand of the
G Ministry. It is, however, nobody's case that any decision about regularization
has been taken.
Regularization cannot be done if it results in violation of right of life
enshrined in Article 21 of the Constitution. The question will have to be
H considered not only from the angle of those who have set up industrial units
M. C. MEHTA v. U.0.1. [SABHARWAL, J.] 519
in violation of the Master Plan but also others who are residents and are A
using their premises as allowed by law. Further, the regularization affects
not only the remaining 30% residents of the areas wherein regularization
may be in contemplation but has affect on the entire area, particularly with
respect to infrastructure available.
B
In respect of the infrastructure in housing components, what provisions
should be made has been incorporated in the Master Plan - 200 I which
has to be kept in view. The existing availability and projected need of water
supply, sewerage, power and solid waste has been indicated in the Master
Plan. None has applied his mind to any of these aspects.
c
At first
\
instance, a proposal for INSITU regularization in 15 areas was
considered. Now 24 areas are sought to be regularized. None of the
aforesaid aspect regarding infrastructure has been considered before the
proposal was sent by the State Government and Delhi Development
Authority for INSITU regularization to the Central Government. How can D
Government of India agree in principle for INSITU regularisation in
isolation "Vithout anyone having examined the relevant considerations. It
is evident t\Jat relevant aspects such as availability of sewerage, drainage,
power and water have not been examined. Further, a perusal of the survey
document shows that many industrial activities were polluting in nature. E
The proposal was considered by Delhi Development Authority on 20th
December, 7002. The note dated 20th December, 2002 notices that a large
number of iridustrial clusters are existing in various parts of the National
Capital Territory of Delhi in contravention of land use provisions of the
MPD 2001 and thereby facing the problem in their continuance on their F
existing site imd with a view to resolve this problem a policy needs to be·
evolved for regularization/redevelopment of the said industrial clusters so
that it may eventually be considered to be part of the.MPD - 2021. It was
decided that the redevelopment proposal could be formulated and taken up
by forming cooperative industrial society by the beneficiaries ..Total
. redevelopment work will be undertaken by the cooperative society at their G
own cost. Charges in land use and enhanced FAR facilities were directed
to be paid to the concerned authorities by the society. All these proposals,
without examination of the relevant consideration as noticed hereinbefore,
were approved and were forwarded to the Government of India. All this
has happened despite the fact that the Ministry of Urban Development, in H
520 SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R.
A terms of its letter dated 8th September, 2000 had informed the Delhi
Development Authority that the change in the Master Plan was not
justified. No detailed justification for change of land use from residential
to industrial and the parameters on which such change would be based had
been given. The matter has also not been discussed and deliberated with
B the Central Pollution Control Board, Town and Country Planning
Organisation and the Delhi Urban Arts Commission. It was not made clear
as to what would happen to those who are using their residential premises
in accordance with the provisions of the Master Plan. The changes in the
Master Plan or its nmms to accommodate illegal activities not only amount
C to getting reward for illegal activities but also results in punishing the law
abiding citizens. We may refer to another letter dated 15th November, 200 I
sent by the Ministry of Urban Development to Delhi Development
Authority on the issue of INSITU regularization stating that the issue of
industrial housing, sanitation, infrastructure and adherence of polluting
control norms have to be stressed and detailed in such studies. DDA was
D also asked to consider whether such areas where non-conforming industries
are presently operating are isolated black spot in otherwise purely residential,
semi urban area or whether they represent logical extension of existing
industrial neighbourhood. It reiterated that the quality of life, environment
and the rights of the residents have to be highlighted in forefront.
E
The question cannot be examined only from the angle of the industry
or even those who are employed there in the said industries. It is imperative
for the State Government, Delhi Development Authority as also the
Government to address itself to the large question of not only legalizing
F blatant illegalities but as to what Delhi is intended to be left for the children
and future generation by permitting industrialisation in residential areas.
The facts demonstrate that the State Government and Delhi Development
Authority have been wholly remiss of all its functions, duties and
obligations. The Central Government, for the reasons which are not far to
seek, has been shifting its stand. As against a definite and positive stand
G taken in the years 2000 and 200 I and affidavits filed in this Court, there
is a shift in the stand in the affidavits filed in the years 2002 and 2003.
As against the principled stand taken in the affidavits filed in the year 2000,
now the stand in nutshell is that question would be considered when Master
Plan for 2021 is finalized. There is no plal!sible answer to the question as
H to why in the meanwhile the illegality should continue without any action.
M. C. MEHTA v. U.O.I. [SABHARWAL, J.] 521
In any case, as at present there is no regularization. The industrial activities A
in residential/non-conforming zones are wholly illegal.
The Delhi Development Authority has to bear in mind that it has to
perform its function in accord with the provisions of the Delhi Development
Act, 1957 which was enacted to provide for the development of Delhi B
according to the plan and for matters ancillary thereto. 'Amenity', as
provided in Section 2(a), includes road, water supply, street lighting,
drainage, sewerage, public works etc. 'Building', as provided in Section
2(b ), includes any structure or erection or part of a structure or erection
which is intended to be used for residential, industrial, commercial or other
purposes, whether in actual use or not. The obligation to prepare a Master C
Plan is contained in Section 7 of the DD Act. The Master Plan is required
to define the various zones into which Delhi may be divided for the
purposes of development and indicate the manner in which the land in each
zone is proposed to be used. The preparation of the zonal development
plans has been provided for in Section 8. The said plans provide for the D
proposed land use. The Town Planners are supposed to examine various
aspects before preparation of the Master Plan and Zonal Plan and providing
the land use. The Act provides for a detailed procedure for modification
of the Master Plan and the Zonal Development Plan (Section 11-A).
Section 14 forbids use of land in contravention of the plans. It provides E
that no person shall use or permit to be used any land or building otherwise
than in conformity with plan in a zone. Section 29(2) is a penal provision,
inter alia, providing for the penalty on any person who uses any land or
building in contravention of Section 14. Section 31-A is the power of the
authority to seal unauthorizeq development.
I F
The illegal industrialization in residential/non-conforming area
commenced and has continued and the Authority, the Governments and its
agencies have been totally negligent in discharge of its functions and
obligations under the provisions of the DD Act.
G
Regarding the non-setting up of Industrial Estates in Delhi what the
position was in 1990, when the second Master Plan was enforced, is
apparent from the affidavit dated 2nd February, 2001 filed by the
Commissioner (Planning), Delhi Development Authority. Dealing with the
question of relocation of non-conforming industries and the setting up of H
522 SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R.
A the industrial estate in Delhi, that affidavit states :
"Master Plan for Delhi 2001 (MP9-200 I), came in force on
1.8.1990, stipulates earmarking 6 to 7% of land in urban extension
and thus the development of 16 new light industrial areas (1533
B ha.) and another 263 ha. for extensive industrial area to be mainly
utilized for shifting of existing incompatible industrial units. As
per MPD-2001 in 1981 there were about 46,000 industrial units
out of which 800 were in non-conforming areas which were to
be shifted. It was reassessed that about 24,000 industrial units will
require shifting and by 2001 the total number of industrial units
c will be round 93000. MPD-200 I clearly stipulates that, the action
for shifting of polluting industries is to be taken by Delhi
Administration, as cited below :
"Action shalt be taken by Delhi Administration to prepare
D a list of individual noxious and hazardous industrial units to
be shifted and depending on the polluting/hazard,
administration they force these industrial units to shift within
a maximum prescribed period of 3 years."
E It further stipulates the following policy guidelines :
Y The hazardous and noxious industrial units are not
permitted in Delhi.
Y No new heavy and large industrial units shall be
F permitted in Delhi.
Y No new acid, chemical and paints and varnish industrial
units to be permitted.
G Y No new extensive industrial units shall be permitted
except in existing identified extensive industrial areas.
Existing non-conforming extensive industrial units shall
be shifted to the extensive industrial use zone within
a maximum period of 3 years after the allotment of
H plots by various Government Agencies.
M. C. MEHTA v. U.0.1. [SABHARWAL, J.] 523
~ Non-conforming light and service industrial units with A
20 or more workers shall be shifted to the industrial use
zones within a maximum period of 3 years after the
allotment of plots and by providing necessary incentives
by the various Government agencies in conforming use
zones."
B
3. Delhi Administration vi de Chief Secretary's letter dated
17.9.1991 addressed to Vice Chairman, Delhi Development
Authority conveyed that 'it is now the established policy of
the Delhi Administration not to develop any new industrial C
estates in the Union Territory of Delhi. All non-conforming
·light and extensive industrial units would have to close
down/shift on their own to areas outside Delhi, as no more
industrial areas are to be developed and (b) further, that in
the additional 2% area being earmarked for service sectors/
establishments industrial activities contained in Annexure D
III-A, III-B and IIIC of the revised Master Plan would be
promoted'."
The affidavit further states that the matter was placed before the
Authority in its meeting dated 7th July, 1992 and the proposal of the Delhi E
Administration with certain conditions was approved. The ODA resolved
that planning for industrial activity may continue as envisaged under the
Master Plan of Delhi - 2001 at the rate of6 to 7% of urban ex.tension area.
It further states that pending the said policy decision, no new industrial
development was taken up and even the industrial area indicated in the F
development plall ofDwarka (18lhectare) was reverted to commercial and
other land uses.
In the light of the aforesaid, when even industrial area is reverted to
commercial and other land use, we fail to understand :
G
I. Why no action was taken to enforce the Master Plan and for stoppage
of the functioning of the industries in the residential/nonconforming
areas;
2. How the industries commenced continued their illegal H
activity;
524 SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R.
A 3. How can the State Government regularize the illegality even without
existence and consideration of availability of infrastructure and in
disregard to the rights of the residents on the ground of 70%
concentration of industry in the concerned areas(s).
B Further, in the light of the letter of the Chief Secretary dated 17th
September, 1991, it is not open to the State Government to argue that for
want of acquisition of the land, the industrial estates could not be
developed. They had themselves written to DDA not to develop any new
industrial estate in the Union Territory of Delhi. Even existing industrial
area, as above noted, was diverted. The State Government has been
C repeatedly taking time from the Court for the shifting of the offending
industrial activity. If it was not the responsibility of the State Government
to shift the industry, what was the purpose of filing IA 1206/99 seeking
extension of time upto March 2004 and for seeking modification of the
order dated 8th September, 1999 whereunder the industries were directed
D to be closed by 31st December 1999. Even at the cost of repetition, we
may again note that for the present, we are examining the aspect of shifting
of industries which have come up after 31st December, 1989 in residential/
non-conforming areas. The letter dated 17th September, 1999 also states
that the MCD announced its ad hoc registration policy in 1989 with the
E prior approval of the Lt. Governor to grant ad hoc registration to units
which had unauthorisedly established themselves in non-conforming areas
till 31st December, 1989. In this situation, we see no reasons why those
units which have come up after 31st December, 1989 shall not be closed
and sternly dealt with. We are unable to find any equity in favour of such
F violators of law.
The regularization would also result in making the concept of NCR
non-functional and inoperative.
The l'Jational Capital Region Planning Board Act, 1985 (for short, the
G 'NCR Act') was enacted to provide for the constitution of a Planning Board
for the preparation of a plan for the development of National Capital
Region and for coordinating and monitoring the implementation of such
plan and for evolving harmonized policies for the control of land uses and
development of infrastructure in the National Capital Region so as to avoid
H- any haphazard development of that region and for matters connected
M. C. MEHTA v. U.0.1. (SABHARWAL, J.] 525
therewith or incidental thereto. The areas within the National Capital A
Region are specified in the Schedule to the NCR Act. National Capital
Region comprises the area of the entire Delhi, certain districts of Hayana,
Uttar Pradesh and Rajasthan as provided in the Schedule. 'Regional Plan'
as provided in Section 20) means the plan prepared under the NCR Act
for development of the National Capital Region and for the control ofland- B
uses and the development of infrastructure in the National Capital Region.
What the Regional Plan shall contain is provided in Section I 0. Section
I 0(2) provides that the Regional Plan shall indicate the manner in which
the land in the National Capital Region shall be used, whether by carrying
out development thereon or by conservation or otherwise, and such other C
matters as are likely to have any important influence on the development
of the National Capital Region and shall include the following elements
needed to promote growth and balanced development of the National
Capital Region, namely :
(a) the policy in relation to land-use and the allocation of land for D
different uses;
(b) the proposals for major urban settlement pattern;
( c) the proposals for providing suitable economic base for future growth; E
( d) the proposals regarding transport and communications including
railways and arterial roads serving the National Capital Region;
( e) the proposals for the supply of drinking water and for drainage;
F
(f) indication of the areas which require immediate development as
"priority areas"; and
(g) such other matters as may be included by the Board with the
concurrence of the participating States and the Union territory for the G
proper planning of the growth and balanced development of the
National Capital Region.
Section 27 provides that the provisions of the NCR Act shall have
effect notwithstanding anything inconsistent therewith contained in any H
526 SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R.
A other law for the time being in force or in any instrument having effect
by virtue of any law other than the NCR Act; or in any decree or order
of any Court, tribunal or other authority.
In exercise of power under Section I 0 of the NCR Act, the Government
B of India has prepared a Regional Plan - 200 I for National Capital Region
as approved by the National Capital Region Planning Board constituted
under Section 3(1) of the NCR Act. Besides others, the Union Minister for
Works and Housing as Chairman of the Board, the Chief Minister of
Haryana, Rajasthan, Uttar Pradesh and Delhi are members of the said
Board. Regional plan - 200 I recognises the unprecedented growth of Delhi
C and notices that the planned growth of Delhi is possible only in a regional
context. In fact, the need for regional approach was felt as early as 1959
when the draft Master Plan of 1962 recommended that a statutory National
Capital Region Planning Board should be set up for ensuring balanced and
harmonized development of the Region.
D
The aforesaid plan took into consideration the host of serious
problems by which Delhi was besieged and the causes of those problems
and the genesis of Delhi's growth on account of rapid urbanization and
ability to offer wide opportunities for large scale employment through
E specialization and increased productivity in manufacturing and supporting
services. It noticed that till 1951, Delhi was essentially an administrative
center with a population of 14.5 lakhs but, the expansion of industry, trade
and commerce providing opportunities for economic development, in turn,
began to transform its character from an administrative city to a
F multifunctional city ~nd, exhibited a significant functional shift to industrial
character in 1981 when its population size became 57.3 lakhs, recording
a growth of about 300% since 1951. It also notices that as Delhi grows,
its problems of land, housing transportation and management of essential
infrastructure like water supply and sewerage become more acute. The city
lacks reliance and adequate source of water, and thus, has to depend upon
G the adjoining States to meet its water supply requirements. The plan notices
the need for the development policies, programmes and plans aiming to
relieve Delhi from additional pressures and avoid adding new pressures.
We may note that in the affidavit dated 29th September, 2000 filed by the
Deputy Secretary of the Ministry of Urban Development, it was stated that
H those requiring plots of more than 250 sq. metres would be accommodated
M. C. MEHTA v. U.O.I. [SABHARWAL, J.] 527
in the National Capital Region where plots of very large size are available A
with all necessary infrastructure facilities. Further, the documents filed
along with another affidavit of the same officer dated 29th November, 2000
show the progress of certain items of work as notice in the meeting dated
21st September, 2000 of a cell that had been constituted by the Ministry
of Urban Development which had been appointed as a nodal agency B
pursuant to the order of this Court dated 12th September, 2000 in respect
of the National Capital Region. It states :
"V National Capital Region - Interface
An Interface amongst the industrialists of Delhi and those of
c
the three National Capital Region States has been organized by
the Ministry of Urban Development, through the National Capital
Region Planning Board on September 30, 2000 at Vigyan Bhawan
from 10.00 a.m. onwards. The basis objective of this Interface is D
to facilitate exchange of information amongst the industrialists of
the National Capital Region and to acquaint them with the
facilities that are available, including larger size of plots, lower
cost of plots and availability of auxiliary infrastructure in the
shape of residential plots and commercial plots.
E
The Delhi industrialists would be made aware of the fact that
many big industrial houses like Sony, Daewoo Motors etc., arr:
setting up their industries in the National Capital Region States
and this would give rise to demand for ancillary industries. The
representatives of Haryana State Industrial Development F
Corporaton (HSIDC), UP State Industrial Development Corporation
(UPSIDC) and Rajasthan State Industrial Development &
Investment Corporation (RIICO) would also be attending the
Interface and would indicate the loan facilities that would be made
available. G
The National Capital Region Planning Board has facilitated
development of 1,14,000 residential plots, 17,000 commercial
plots/office space and I 0,000 industrial plots/sheds in the National
Capital Region." H
528 SUPREME COURT REPORTS (2004] SUPP. 2 S.C.R.
A In the affidavit dated 4th December, 2000 of the same officer, it has
been stated as under :
"That at the said INTERFACE an exhibition was also organized,
where the agencies of three State Governments - Haryana,
Rajasthan and Uttar Pradesh - displayed their information in
B
respect ofavailability of plots as well as ofindustral infrastructure.
It was indicated that over 6,000 industrial plots of various sizes,
ranging from I 00 to I lakh Sq. Mtrs. were available for immediate
allotment. Some of these plots were of very large sizes and they
could be sub-divided to create a larger number of plots.
c
That, another meeting of senior officers of the State
Governments of three National Capital Region States and their
Resident Commissioners was called by the Union Urban
Development Minister on November 30, 2000. In this meeting,
D the Government of Haryana indicated that besides vacant plots
already developed in industrial estates it would, if required,
develop 14,487 acres of land separately and make available as
many as 80,000 plots of average size of 500 sq. mtrs. The
necessary infrastructure is either available or can be made available
E in short time."
The material on record shows that the National Capital Regional
Planning Board has been taking initiative to encourage the shifting of the
industries to National Capital Region. It appears that in January 200 I,
F number of plots were available in the States of Rajasthan, Haryana and
Uttar Pradesh for industries to shift. The industry was also informed that
large plots can be further sub-divided to accommodate more number of
small units. It does not, however, appear that any significant interest was
shown by the industry. We are not suggesting that there are no problems
but the same are not insurmountable and can be sorted out. There is no
G obligation to provide alternative plots to those who illegally commenced
. industrial activity. The second Master Plan stipulates to provide alternate
plots only to those who had set up industrial units upto 3 lst December
1989. As already observed earlier, presently we are concerned with shifting
of the industries which were set up from the year 1990 onwards contrary
H to the permissible use in the Master Plan. It is a matter for Government
M. C. MEHTA v. U.O.I. [SABHARWAL, J.] 529
to decide if it wa'1ts to provide alternative industrial plots to those who A
illegally commenced that activity but that cannot further delay the closing
of continuing illegal industrial activity. In our view, lack of action and
initiative by the authorities is the main reason for the industry merrily
continuing illegal activity. These is total lack of enforcement of law by the
concerned authorities.
B
Regarding the availability of alternate industrial plots, it may be
useful to notice the plots that are available in the National Capital Region.
The affidavit filed on 8th May, 2003 on behalf of the NCR Planning Board
states that plots on 2433 .63 acres of land in the National Capital Region C
were available. If there are teething problems, it is for the concerned
authorities to sort out the same.
Laghu Udyog Bharti, an association of small scale industries, has
taken the stand that the Government has been issuing ad hoc licences and
collecting taxes from industrial units which would show that the industries D
were working within the knowledge and consent of the Government. The
stand taken is that since the industries were working with the consent of
the Government, it cannot be said that the use by industries is non-
conforming. The stand is wholly misconceived. An illegality would not
become a legality on inaction or connivance of the Government authorities. E
There cannot be any doubt that non-conforming industrial activities could
not have commenced or continued at such a large scale in the capital of
the country ifthe Government and the concerned authorities had performed
their functions and obligations under various statutes. But such a situation
cannot be permitted to continue forever so as to reach a point of no return, F
where the chaotic situation in city has already reached. The law-breakers,
namely, the industries cannot be absolved of the illegalities only on the
ground of inaction by the authorities. It would be useful to note as to what
is stated in the affidavit of the President of the aforesaid association. It
reads :
G
"The chaotic situation existing today would not have developed
had the authorities carried out their duties and taken steps to
develop industrial areas as provided for in the MPD-62 as well
as the MPD-2001. For the reasons best known to the authorities,
the planned development of Delhi was never undertaken. On the H
530 SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R.
A other hand, they were busy in granting ad hoc licenses for non-
confonning areas, electricity connections, water connections,
collecting electricity, water, property tax at commercial rates,
collection of Sales Tax and Excise from these industries, which
were coming up. Had the concerned authorities discharged their
B duties casted upon them by the two Master Plans, the legal and
statutory document for the planned development of Delhi to
which they were duty bound to perhaps the situation, which Delhi
is in today, would not have arisen."
(Emphasis has been supplied by us)
c The affidavit further states that
"That it is respectfully submitted that till today not only
MCD, but also D.V.B., Water Department, Excise and
Sales-tax Departments, Factory Department Provident Fund
D and ESI Department have been recognizing the existence of
the industries in the non-conforming areas and in total each
industry is being visited by 53 departmental inspectors of the
Government."
E From the facts noticed above, it is evident that a casual approach has
adopted in recommending INSITU regularization.
A report of group of experts set up for detennining polluting
industries amongst list of 54 'F' category industries under the MPD - 2001
F reported that the industrial processes involving or using electroplating,
dyeing, pickling, anodizing, coal fired boilers, forging and casting are
polluting in nature and recommended a list of 33 activities to be polluting.
The report is filed along with the affidavit dated 5th February, 2001 of
Commissioner of Industries of the Delhi Government. The proposal for
JNSITU regularization, however, does not even exclude the industries
G carrying the said activities from regularization. Further the proposal does
not state what manufacturing activities are being carried on in 24 areas
where the regularization was contemplated. In fact, in respect of the areas
where INSITU regularization is under contemplation, many manufacturing
activities even going by the report of the group of experts, would be
H polluting. All this shows total non-application of mind.
M. C. MEHTA v. U.0.1. [SABHARWAL, J.] 531
In respect of a large number of unauthorized industrial activities in A
non-conforming areas, the Municipal Authorities have expressed
helplessness in taking action on the apprehension of breakdown of law and
order in areas. The Municipalities have constitutional responsibilities of
town planning. Part IX-A was inserted by Constitution (74th Amendment)
Act, 1992 w.e.f. !st June, 1993. Article 243W provides for the powers, B
authority and responsibilities of the Municipalities etc. Article 243W reads
as under :
"243W. Powers, authority and responsibilities of Municipalities,
etc. - Subject to the provisions of this Constitution, the Legislature C
of a State may, by law, endow
(a) the Municipalities with such powers and authority as
may be necessary to enable them to function as
institutions of self-government and such law may
contain provisions for the devolution of powers and D
responsibilities upon Municipalities, subject to such
conditions as may be specified therein, with respect to-
(i) · the preparation of plans for economic development
and social justice; E
(ii) the performance of functions and the
implementation of schemes as may be entrusted
to them including those in relation to the matters
listed in the Twelfth Schedule;
F
(b) the Committees with such powers and authority as may
be necessary to enable them to carry out the
responsibilities conferred upon them including those in
relation to the matters listed in the Twelfth Schedule."
G
The Municipal Corporation has the responsibility in respect of matters
enumerated in 12th Schedule of the Constitution of India, regulation of
land use, public health, sanitation, conservancy, solid waste management
being some of them. Section 345 of the MCD Act contains the power of
the Commissioner to seal. Section 416(1) provides that no person shall,, H
532 SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R.
A without the previous pennission in writing of the Commissioner, establish
in any premises, or materially alter, enlarge or extend, any factory,
workshop or trade premises in which is intended to employ steam, electric,
water or other mechanical power. Section 417( I) stipulates that no person
shall use or pennit to be used premises for any of the following purposes
B without or otherwise than in conformity with the tenns of a licence granted
by the Commissioner in this behalf, namely :
(a) any of the purposes specified in Part l of the Eleventh Schedule;
c (b) any purpose which is, in the opinion of the Commissioner dangerous
to life, health or property or likely to create a nuisance;
(c) keeping horses, cattle or other quardruped animals or birds for
transportation, sale or hire or for sale of the produce hereof, or
D (d) storing any of the article specified in Part Il of the Eleventh Schedule
except for domestic use of any of those articles.
Section 461 provides for punishment for certain offences. Part I of
the 11th Schedule of the MCD Act provides the purposes for which the
E premises may not be used without a licence. The 12th Schedule provides
for various penalties, i.e., fine and imprisonment which may be imposed
on contravention of various provisions of the MCD Act. It does not lie in
the mouth of the Corporation to plead helplessness to carry out
responsibilities and obligations under the MCD Act. The sealing of the
F premises was done in two phases, i.e., on 7th January 2001 and in second
phase as on 3rd March, 2001. Out of nearly 35,522, only 5,139 units were
sealed. It has not been explained whether any sealing was done in the areas
now under the contemplation for regularization on the ground of 70%
industrial concentration. The Delhi Government and DDA have also not
explained that while arriving at figure of 70% industrial concentration, the
G industries which were not operating or those premises which were lying
vacant or those which were sealed in phase 1 and 2 were taken into
consideration or not. These questions arise since the survey conducted by
the MCD in some of the areas show that large number of premises were
lying vacant and/or no industrial activity was going on. Further, the survey
H also shows that many industries were carrying on industrial activity which
M. C. MEHTA v. U.0.1. (SABHARWAL, J.] 533
was per se polluting. A
In Virender Gaur & Ors. v. State of Haryana & Ors., [1995] 2 SCC
577, referring to principle No. I of Stockholm Declaration of United
Nations on Human Environment, 1972 this Court observed that right to
have living atmosphere congenial to human existence is a right to life. The B
State has a duty in that behalf and to shed its extravagant unbridled
sovereign power and to forge in its policy to maintain ecological balance
and hygienic environment. Where in the Zonal plan, a land is marked out
and reserved for park for recreational purpose, it cannot be allotted for
building purpose though housing is a public purpose. Further it was
observed that though the Government has power to give directions, that C
power should be used only to effectuate and further goals of the approved
scheme. Zonal plans etc. and the land vested under the Scheme or reserved
under the plan would not be directed to be used .for any other public
purposes within the area envisaged thereunder. Dealing with the contention
that two decades had passed, it was held that self-destructive argument to D
put a premium on inaction cannot be accepted.
In Ml Builders Pvt. Ltd. v. RadheyShyam Sahu & Ors., (1999] 6 SCC
464, this Court observed that no consideration should be shown to a builder
or any other person where the construction is unauthorized. Judicial E
discretion cannot be guided by expediency. Courts are not free from
statutory fetters. Justice is to be rendered in accordance with law. Judicial
discretion wherever it is required to be exercised has to be in accordance
with law and set legal principles. Judicial review is permissible if the
impugned action is against law or in violation of the prescribed procedure F
or is unreasonable, irrational or ma/a fide. In para 73, this Court reiterated
that in_ numerous decisions, it has been held that no consideration should
be shown to the builder or any other person where construction is
unauthorized. This dicta is now almost bordering the rule of law. A
discretion which encourages illegality or perpetuates an illegality cannot
be exercised. In Ml Builders Pvt. Ltd. v. Radhey Shyam Sahu & Ors., G
[1999] 6 SCC 532, this Court declined to come to the aid of a law-violator.
In Administrator, Nagar Palika v. Bharat & Ors., [200 I] 9 SCC 232,
this Court observed that public interest has to be understood and interpreted
in the light of the entire scheme, purpose and object of the enactment. The H
534 SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R.
A hazard to health and environment of not only the persons residing in the
illegal colonization area but of the entire town as well as the provision and
scheme of the Act had to be taken into consideration.
In Faqir Chand & Anr. v. Shri Ram Rattan Bhanot & Anr., [1973]
B I sec 572, dealing with use of premises in Delhi by a tenant contrary to
the purpose for which it could be used in tenns of the lease between the
landlord and the paramount lessor, this Court observed, while dealing with
a landlord-tenant dispute that the policy of the Legislature seems to be to
put an end to unauthorized use of leased land rather than merely to enable
C the authorities to get back possession of the leased lands. While dealing
with the provisions of DD Act and clause (k) of proviso to sub-section (I)
of section 14 of the Delhi Rent Control Act, 1958, it was noticed that the
Legislature has clearly taken note of the fact that the enonnous extents of
land have been leased by the three authorities mentioned in that clause, and
has expressed by m~ans of this clause its anxiety to see that these lands
D are used for the purpose for which they were leased. It was also observed
that the authority may not be prepared to accept compansation but might
insist upto cessation of the unauthorized use. Since the most of the land
used for industrial purpose in residential/non-confonning areas is leased
land, it was even open to the authorities to cancel the lease on account of
E the misuser.
In Dr. K Madan v. Smt. Krishnawati & Anr., [1996] 6 SCC 707, it
was held that observations made in Punjab National Bank v. Arjun Dev
Arora & Ors., [1986] 4 SCC 660 to the effect that as long as the penalty
F for wrongful user is continued to be paid, the deviation of user could be
pennitted, do not appear to be in consonance with the decision of the larger
Bench in Faqir Chand's case (supra). On one hand, we have the decisions
observing that merely by payment of penalty, continued misuser cannot be
pennitted and on the other the misuser commenced and contained·contrary
to the land use under the nose of the authorities without any action being
G taken.
In V.M. Kurian v. State of Kera/a & Ors., [2001] 4 SCC 215, while
quashing the· order passed by the State Government exempting the
provisions of Kerala Building Rules, 1984 for constructing an eight
H storeyed building ~ontrary to the mandatory provisions of the Rules, it was
M. C. MEHTA v. U.0.I. [SABHARWAL, J.] 535
observed that the Rules were mandatory in nature and are required to be A
complied with. The construction of high-rise building and observance and
compliance thereof is for public safety and convenience. There cannot be
relaxation of the Rules which are mandatory in nature and cannot be
dispensed with especially in the use of a high-rise building.
B
In the present case, the land cannot be permitted to be used contrary
to the stipulated user except by amendment of the Master Plan after due
observance ofthe provisions of the Act and the Rules. Non-taking of action
by the Government amounts to indirectly permitting the unauthorized use
which mounts to the amendment of the Master Plan without following due C
procedure.
In this very matter, dealing with the industries of 'H' category which
now stand shifted pursuant to the order of this Court, it is pertinent to note
what a three Judge Bench of which one of us (B.N. Agrawal, J.) was a
member said in re]ation to entrepreneurial failure and total apathy non- D
concern for social good and benefit by the authorities as under :
"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 E
instance : it is a true public interest litigation for the protection
of the society and to avoid a deliberate peril arising out of
entrepreneuri;l.l failure and total apathy and non-concern for social
good and ben~fit. The Delhi Development Act of 1957 envisaged
preparation ofa Master Plan for Delhi with a definite statutory F
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 G
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 on 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 H
536 SUPREME COURT REPORTS [2004] SU.PP. 2 S.C.R.
A 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 I 0-5-1996
(MC. Mehta v. Union of India, [1996] 4 SCC 351) which has till
date not been complied with - indeed a sorry state of affairs and
B
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 I 0-5-1996
(MC. Mehta v. Union of India, [1996] 4 SCC 351)."
c
In Indian Council for Enviro-Legal Action & Ors. v. Union of India
& Ors., [1996] 3 SCC 212, this Court was concerned with a public interest
writ petition filed by an environmentalist association alleging environmental
pollution caused by private industrial units. It was held that the writ petition
D is not really for issuance of appropriate writ, order or directions against
the units/factories which were running polluting industries and had not
even installed any equipment for treatment of highly toxic effluents by
them, but is directed against Union oflndia, Government of Rajasthan and
Rajasthan Pollution Control Board to compel them to perform their
E statutory duties which they had failed to carry out and thereby seriously
undermined the right of life of the residents of Bichhri and the affected
area guaranteed by Article 21 of the Constitution. If this Court finds that
the authorities had not taken action required of them by law and that their
inaction is jeopardising the right to life of the citizens of this country or
F any section thereof, it is the duty of this Court to intervene. If it is found
that the respondents are flouting the provisions of Jaw and the directions
and orders issued by the lawful authorities, this Court can certainly make
appropriate directions to ensure compliance with law and lawful directions
made thereunder. If an industry is established without obtaining the
requisite permission and clearance and if the industry is continued to be
G run in blatant disregard of law to the detriment of life and liberty of the
citizens living in the vicinity, can it be suggested with any modicum of
reasonableness that this Court has no power to intervene and protect the
fundamental right to life and liberty of the citizens of this country.
H We may also recall what the Constitution Bench said in Oleum Gas
M. C. MEHTA v. U.0.1. [SABHARWAL, J.] 537
Leak case (MC. Mehta v. Union of India, [1987] 1 sec 395) in relation A
to hazardous or inherently dangerous industry, and we quote :
"We are of the view that an enterprise which is engaged in a
hazardous or inherently dangerous industry which poses a potential
threat to the health and safety of the persons working in the factory B
and residing in the surrounding areas owes an absolute and non-
delegable duty to the community to ensure that no harm results
to anyone on account of hazardous or inherently dangerous nature
of the activity which it has undertaken. The enterprise must be
held to be under an obligation to provide that the hazardous or
inherently dangerous activity in which it is engaged must be C
conducted with the highest standards of safety and if any harm
results on account of such activity, the enterprise must be
absolutely liable to compensate for such harm and it should be no
answer to the enterprise to say that it had taken all reasonable care
and that the harm occurred without any negligence on its part. D
Since the person harmed on account of the hazardous or inherently
dangerous activity carried on by the enterprise would not be in
a position to isolate the process of operation from the hazardous
preparation of substance or any other related element that caused
the harm the enterprise must be held strictly liable for causing E
such harm as a part of the social cost of carrying on the hazardous
or inherently dangerous activity. If the enterprise is permitted to
carry on an hazardous or inherently dangerous activity for its
profit, tbe I.aw must presume that such permission is conditional
on the enterprise absorbing the cost of any accident arising on F
account of such hazardous or inherently dangerous activity as an
appropriate item of its overheads. Such hazardous or inherently
dangerous activity for private profit can be tolerated only on
condition that the enterprise engaged in such hazardous or
inherently, dangerous activity indemnifies all those who suffer on
account of the carrying on of such hazardous or inherently G
dangerous activity regaqdless of whether it is carried on carefully
or not. ..... We would therefore hold that where an enterprise is
engaged in a hazardou~ or inherently dangerous activity and harm
results to anyone on account of an accident in the operation of
such hazardous or inherently dangerous activity resulting for H
538 SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R.
A example, in escape of toxic gas the enterprise is strictly and
absolutely liable to compensate all those who are affected by the
accident and such liability is not subject to any of the exceptions
which operate vis-a-vis the tortious principle of strict liability
under the rule in Ryiimds v. Fietcher. (1968) LR 3 HL 330.
B
We would also like to point out that the measure of compensation in
the paragraph must be correlated to the magnitude and capacity of the
enterprise because such compensation must have a deterrent effect. The
larger and more prosperous the enterprise, the greater must be the amount
of compensation payable by it for the harm caused on account of an
C accident in the carrying on of the hazardous or inherently dangerous
activity by the enterprise."
We may note that some of the industrial activities like the plastic
industry are inherently dangerous and is being carried on in residential/
D non-conforming areas. Such industrial activity is also carried on in area in
respect whereof regularization is under contemplation allegedly on account
of 70% concentration of industrial activity in the residential area. These
facts are evident from the material placed by the respondents themselves
before this Court.
E
The growth of illegal manufacturing activity in residential areas has
been without any check and hindrance from the authorities. The manner
in which such large scale violations have commenced and continued leaves
no manner of doubt that it was not possible without the connivance of those
F who are required to ensure compliance of law and reasons are obvious.
Such activities result in putting on extra load on infrastructures. The entire
planning has gone totally haywire. The law abiders are sufferers. All this
has happened at the cost of health and decent living of the residents of the
city violating their constitutional rights enshrined under Article 21 of the
Constitution of India. Further, it is necessary to bear in mind that the
G lawmakers repose confidence in the authorities that they will ensure
implementation of the laws made by them. If the authorities breach that
confidence and act in dereliction of their duties, then the plea that the
observance of law will now have an adverse effect on the industry or the
workers cannot be allowed. Within the framework of law, keeping in view
H the norms of environment, bealth and safety, the Government and its
M. C MEHTA v. U.0.1. [SABHARWAL, J.] 539
agencies, if there was genuine will, could help the industry and workers A
by relocating industry by taking appropriate steps in last about 15 years.
On the other hand, it encouraged illegal activities.
It may be noticed that the proposal of INS ITU regularization has also
been opposed by the National Regional Board which was pointed out that B
the very purpose of the Act would be defeated by such regularization. It
would lead to further congestion of Delhi instead of decongestion which
was the very purpose for which the Act was enacted. Mr. Mukul Rohtagi,
learned Additional Solicitor General appearing for Municipal Corporation
of Delhi, Mrs. Sheela Sethi, learned counsel appearing for National
Regional Board and Shri Panjwani, learned counsel appearing for Central C
Pollution Control Board have opposed the continued unauthorized use for
industrial activity of residential/non-conforming areas as also the proposal
of!NSITU regularization. It has been contended that such industries should
be immediately closed down/shifted. Mrs. Sethi contended that INSITU
regularization would defeat the very purpose of the Act under which NCR D
was established. The contemplated action of reg1.1larization would run
counter to the object of the Act which is to decongest the city of Delhi from
the industrial activity. The Act of regularization would result in further
congesting already highly congested city. Mr Panjwani contended that the
regularization would further result in air and water pollution and would
also affect the underground water. Learned counsel further submitted that E ·
from material on record, it does not appear that anyone examined as to what
effect the regularization will have on the aspect of pollution. It has been
pointed out on behalf of CPCB that such regularization would result in
further pollution of air ambient, water pollution besides causing other
environmental hazardous. For reasons already stated, we find substar,ce in F
these contentions.
Residents of Poorvi Viswas Nagar Samaj Kalyan Samiti have filed
Writ Petition No. 98 of2000 opposing INSITU regularization and pointing
out that the Viswas Nagar is an approved residential area where residential
buildings have been constructed by the residents and no industrial activity G
is allow as per law. Many of the plots in which the people are residing were
purchased by them from the custodian of Evacuees property. It is further
pointed out that recently industrial units were established in contravention
of rules and by adopting unfair means. They have, thus, objected to the
INSITU regularization. H
540 SUPREME COURT REPORTS [2004) SUPP. 2 S.C.R.
A From the aforesaid, it is evident that the industry belonging to 'F'
category in residential/non-conforming areas could not come up after 1st
August, 1990 since even the existing 'F' category industry in non-
conforming areas was required to be shifted to the permissible zone within
a maximum period of three years after allotment of plot. The same is the
B position in respect of light and service industry belonging to 'B' to 'E'
category except that depending upon number of workers employed, the
Master Plan stipulates different time schedule for these industries to shift.
Despite the time span mentioned in 1990 Master Plan having expired
C and various opportunities having been given during 1995, 1996 and 1997
and notices issued, and 13 years having passed, the non-conforming use
by the industry has continued. A time has come that such non-conforming
use must stop at least by those who commenced it from and after 1st
August, 1990.
D The position in respect of household industries which are permissible,
the question of the same not being carried on in residential/non-conforming
area would not arise. The difficulty arises in carrying on of such activity
of household industry which is not permissible. The State Government
sought expansion of'A' category industries. The Government of India has
E approved only 6 out of list of 41 industries. In case, the remaining are not
approved, impermissible 'A' category industrial units shall also have to
stop functioning. It is imperative for the Central Government to expeditiously
decide this issue one way or the other. In short, permissible household
industry activity can go on and impermissible activity has to stop.
F The plea of IN SITU regularization and mild resistance to shifting has
been propounded only by Mr. Govardhan, 'earned counsel appearing for
Delhi Government. In same fashion it was substantially supported by Mr.
Kailash Vasdev, senior advocate appearing for Union of India and Mr.
Saharya, learned counsel appearing for Delhi Development Authority
G though without taking a definite stand. DDA merely adopted the stand of
Union of India. Insofar as Union oflndia is concerned having already taken
a contrary stand as above noticed, it adopted a middle path without clearly
supporting or opposing the Delhi Government on the issue of lNSITU
regularization by taking a stand that it has issued guidelines and would
H consider the question of INSITU regularisation at the time of finalisation
M. C. MEHTA v. U.0.1. (SABHARWAL, J.] 541
of Master Plan - 2021. The said Master Plan is not likely to be finalized A
for another 2 years. In this view, the suggestion of Delhi Government is
that pending approval of proposal of INSITU regularization, the industrial
units falling in that category may not be ordered to be closed/shifted from
residential/non-conforming areas. In other words, it means that the illegality
should be further permitted to be continued till the new Master Plan is B
finalized - whether it takes two years or more. In regard to other illegal
industrial units, the suggestion put forth on behalfofthe Delhi Government
is that immediate directions for closure/shifting of only those industrial
units shall be made which were set up after 31st December, 1996 as under
the Order dated 19th April 1996, the industrial activity in residential/non- C
conforming area was directed to be closed after 31st December, 1996. We,
however, see no jurisdiction for continuance of the illegal and unauthorized
industrial activity in residential/non-conforming areas which commenced
after 1st August, 1990. It would also apply to industries in categories 'B'
to 'F'.
D
In respect of household industry belonging to 'A' category, it was
contended on behalf of the Delhi Government that the number of industries
falling in that category is being expanded and proposal for additional 41
items for being placed in category 'A' has been approved by DDA and
the matter is pending with the Government of India and, therefore, the E
industrial units carrying any activity falling in the proposed expanded
category should also not be shifted for the present. It appears that out of
41 items, the Government of India has granted approval in respel'. of 6
items and, no decision has been taken, one way or the other, in respect of
remaining 35 items. We again reiterate that the question is only of stopping F
unauthorized and illegal activity and not that activity which is permissible.
We may note another argument put forth on behalf of Delhi
Government that it is not the function and responsibility of the Delhi
Government to enforce the Master Plan, it has no powers to enforce it. We
are not only surprised but shocked at such frivolous stand being taken, G
despite what is stated in the order passed by this Court on 18th December,
1996. That order noticed the reason as to why the court thought it
appropriate to step aside. It was noticed that seemingly the State Government
was seriously enforcing the law. At that stage, no argument about absence
of power was put forth. If it was not the function and responsibility of State H
542 SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R.
A Government and the Government had no power, we wonder the reason why
the Government filed IA No. 1206 seeking extension of time upto March
2004 to relocate the industries. We summarily reject this wholly frivolously
submission.
Neither on behalf of the Government of India nor on behalf of the
B
Delhi Government nor on behalf of any statutory authority, it could be
disputed that the unauthorized and illegal industrial activity has commenced
and continued in Delhi in blatant breach of the provisions of Master Plan
and no action has been taken by any authority. The responsibility to take
C action was sought to be shifted. Each blaming the other. While on behalf
of Delhi Government, as above noticed, it sought to avoid its obligation
on the ground that it is not the function of the State Government to
implement the Master Plan. The Government of India avoided its
responsibility on the ground that the Central Government is not the
implementing agency though the manner in which the Central Government
D has taken a summersualt in its stand already stand noticed. Similarly, the
other statutory authorities have also avoir.~d to shoulder the responsibility
for inaction for the blatant breach of the legal provisions. Respondents have
been taking a convenient stand from time to time without any regard for
statutory provisions and have at least turned their face on the other side
E knowing that blatant breach is being committed, even if we assume that
there was no. connivance with the industry for extraneous considerations.
The Master Plan, 2001 stipulates the shifting of extensive industries ('F'
category) to conforming zone within a period of three years after allotments
of plots by authorized Government agencies. In respect of light and service
F industries ('B' to 'E' category), it provides shifting to the industrial use
zone within a maximum period of three years after allotment of plots and
by providing necessary incentive by various Government Agencies in
conforming use zone. This is in respect of all the industrial units with 20
or more workers. In respect of industrial units with I 0 to 19 workers, it
stipulates review after five years giving them chance during this period for
G reallocation in conforming zones. Similarly, industrial units with worker
strength upto nine, it pro~> ides for review after 10 years after giving them
chance during the said period for reallocation in the conforming zones. The
suggestion of Delhi Government is that such all industrial units which. have
come up after 1st January, 1997 shall be directed to be closed in the first
H instance by giving them some time. In respect of industrial units which
M. C. MEHTA v. U.0.1. (SABHARWAL, J.) 543
have come up between 1st August, 1990 to 31st December, 1996, it was A
sugges~d that the bigger units having more than 20 workers may first be
directed to be closed, later the units having workers between I 0 to 19 and
·• last of all those units which have less than 10 workers be directed to be
closed. The suggestion is that the shifting may be directed in a phased
manner.
B
Mr. Goverdhan also points out that after the advertisement for
reallocation was issued in terms of the orders of this Court, about 51,000
applications were received out of which approximately 24,000 applicants
were held to be eligible. In Bawana Industrial Estate, 18,34 7 industrial C
plots are ready and allotment and possession has been given to I 0,059
industrial units and remaining have still to take possession. It was further
pointed out that nearly 6,000 who are found eligible for allotment of
industrial plot for relocation are on the waiting list awaiting the allotment
of the industrial plot. In respect of these units, it was pointed out that
development of industrial plot will take about two and a half years. D
In respect of those not found eligible by the Government for
reallocation and also those who did not apply pursuant to the advertisement,
it was suggested that they be also given a chance to find out alternate
industrial plot. It respect of the industrial units ('A' Category) which may E
fall in extended category of 41 items if the extension is not ultimately
approved by the Government of India, they may also have to be phased
out. According to the Delhi Government, about 20,000 units fall in this
category and as the matter is pending with the Government of India,
directions may be issued for early decision by Government and in the J:'
meanwhile, these activities may not be directed to be closed.
In short, it was not seriously questioned that for the present except
those industrial units falling in category 'A', 15,000 industrial units which
fall in the category of INSITU regularization and 6,000 who are in the
waiting list, the rest of the industrial units have to close down. G
In respect of industrial activity in rural area/Lal Dora, learned counsel
appearing for the Government and various authorities did not dispute the
submission of learned Amicus Curiae that except industry falling in Group
'A' and 'A-1' of category 'A', no other industrial activity was permissible. H
544 SUPREME COURT REPORTS (2004) SUPP. 2 S.C.R.
A None made contra submission or brought to our notice any provision
permitting other industrial activity in the rural area/Lal Dora.
At this juncture, we may also deal with, in brief, the submission urged
on behalf of Government of India that it is not the implementing agency.
B One has only to refer to Section 41 of the DD Act which empowers the
Central Government to issue directions to DDA for the efficient
administration of the DD Act. Who no such direction was issued, there
could be no answer. There is also no answer as to what steps were taken
to consider the extension of category 'A' list after adding to that category
six more household industries in terms of notification dated 10th April,
C 2001, despite lapse of three years. No answer came forth that when the
matter of shifting of remaining 'F' category units was deferred by the Delhi
Government in January 2001 on the purported ground of the Police Force
being pre-occupied in making Republic Day arrangements and was dealing
with the security angle, what made the Central Government not to take up
D the issue again with the Lt. Governor of Delhi after the Republic Day
functions were over. In this regard, we may refer to a letter dated 8th
January, 2001 sent by Lt. Governor of Delhi to the Minister of Urban
Development, Government of India, stating that the operation for the
closure of more polluting 'F' category industrial units in non-conforming
E areas has been completed and for launching of fresh operation to close
down the remaining 'F' category units, the Police Force being pre-occupied
with making security arrangements for Republic Day function, the fresh
operation for closure of industrial units would be reviewed later. The later
review has not seen the light of the day ciespite expiry of more than three
F years. It is evident that, in the meanwhile, the Government of India, as
already noticed above, has changed its stance and under the garb of issuing
guidelines for the Master Plan for Delhi - 2021, action against violators
of law has come to a standstill for an indefinite period.
Insofar as the Municipal Corporation of Delhi is concerned, we have
G already noticed its stand that non-conforming industrial units falling in
category •B' to 'F' whether polluting or not polluting which have come
up in contravention of the Master Plan should not be permitted to operate
and should be closed down. In this connection, reference can be made to
a public notice issued by MCD informing the general public and owners/
H occupiers/operators of industrial units situated in non-conforming/residential
M. C. MEHTA v. U.O.I. [SABHARWAL, J.] 545
areas that in compliance with the directions of this Court, the industrial A
activity in violation .of the Master Plan of Delhi - 2001 be closed down
immediately failing which the Municipal Corporation of Delhi shall
forcibly close such units. All ad hoc licences granted, if any, shall stand
revoked/cancelled. In respect of the industrial activity in Lal Dora, in the
affidavit filed in October, 2002 by Chief Town Planner of Municipal B
Corporation of Delhi it has been stated that the proposal for the withdrawal
of exemption notification would be placed before the Corporation. Nothing
seems to have been done in that direction. It is not disputed that under the
garb of exemption notification dated 24th August, 1963, all kinds of
buildings have come up in the Lal Dora.
c
Insofar as I.A. 1527 is concerned, it seems evident that the applicant,
National Cable Industry, had undertaken to shift to the conforming area
and on that ground obtained an order for removal of the seal from its
premises so as to remove the machinery. The industrial unit was carrying
on the activity which falls in category 'F'. The premises are in rural area. D
The question whether the activity that was being carried on was polluting
or not need not be examined since the application deserves to be dismissed
firstly on the ground of suppression of material facts inasmuch as it has
not been mentioned therein that the applicant had given an undertaking that
he would be shifting his unit to the NOIDA area and secondly on the E
ground that the applicant cannot be permitted to resile from the undertaking.
The applicant has already taken advantage of the undertaking and has
removed the machinery. In this view, we need not go into the larger
question as to which provisions of Municipal Laws will be applicable and
which not to the rural areas or areas in the Lal Dora. The aspect of industrial F
activity in these areas has already been dealt with. Under no circumstances,
the applicant can be permitted to commence manufacturing activity from
the premises in question.
The result of the aforesaid discussion is that except household
industry, all other industrial units which have come up in residential/non- G
conforming area in Delhi after 1st August, 1990 have to stop functioning.
Unfortunately, the Government authorities have not lived up to the
confidence that was reposed in them when the Court had stepped aside and
left the matter to Government in the year 1996, as noticed hereinbefore.
On the other hand, in the year 2002 while these matters were pending, H
546 SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R.
A commercial use of industrial area was sought to be regularized by DOA
on payment of some amounts. On an application filed by learned Amicus
Curiae public notice to the above effect was stayed. Later it was withdrawn
by the authority. The action not only was utterly illegal but also shows total
non-application of mind. Thus, going by the past experience, it would also
B be necessary to not only monitor but also to fix responsibility so that illegal
activity does not continue any further and stops within the time schedule
for its cessation fixed in this order. We also wish to make it clear that those
who have set up industrial units after I st August, 1990 have no right for
allotment of a plot in an industrial area. This would, however, not debar
C the Government/authorities to allot to such oustees plots industrial area but
that under no circumstances should delay the closure process. Before we
part, a word deserves to be said about Mr. Ranjit Kumar, learned senior
counsel who has assisted this Court as Amicus Curiae. Learned Senior
counsel has very effectively and ably assisted this Court both on facts and
law. We place on record our deep appreciation for the able assistance
D rendered by Mr. Ranjit Kumar.
In conclusion, having regard to the aforesaid, we issue the following
directions :
E !. All Industrial Units that have come up in Residential/non-conforming
area in Delhi on or after I st August, 1990 shall close down and stop
operation as per the following schedule :
(a) Industrial Units pertaining to extensive industries ('F' category)
with a period of four months.
F
(b) Industrial Units pertaining to light and service industrial
(category 'B' to 'F') within five months.
(c) lmpermissibe household industries (category 'A') within six
months.
G
(d) 6, 000 industrial units on waiting list for allotment of industrial
plots within 18 months.
2. The Central Government is directed to finalise the list of permissible
H household industries falling in category 'A' within a period of three
M. C. MEHTA v. U.0.1. (SABHARWAL, J.] 547
months. A
3. 6,000 industrial units on waiting list shall be allotted industrial plots
within one year.
4. The Delhi Government may announce a policy with six weeks giving
B
such incentives as it may deem fit and proper to those industrial units
which came to be established after 1st August, 1990 and may close
on their own before the expiry of the time fixed in this order. The
non-announcement of incentives by the Government shall not, however,
delay the closure process.
c
5. The water and electricity connection of the industrial units found
operating after the due date of closure shall be disconnected forthwith
and in any case not later than a month of the date fixed for closure
in Direction No. 1 above. If the industrial activity still continues, the
premises shall be sealed within a period of not later than another one- D
month.
The seal shall be removed and water and electricity connection
restored only after filing of an undertaking by the industrial unit not
to recommence any sort of industrial activity before an officer E
nominated for the purpose by the Delhi State.
6. The Central Government is directed to finalise within six. months
appropriate steps to be taken for making NCR region a success for
industrial activity by removing the hurdles pointed out by the
industry. The Governments of the adjoining States ofU.P., Rajasthan
F
and Haryana are directed to extend full cooperation.
7. The Municipal Corporation of Delhi shall consider within three
months the aspect of withdrawal of exemption notification as suggested
in the affidavit of its Town Planner filed on 28th October, 2002. G
8. We appoint a Monitoring Committee comprising (i) Chief Secretary
of Delhi (ii) Commissioner of Police, D7lhi (iii) Commissioner,
Municipal Corporation of Delhi and, (iv) Vice-Chairman of Delhi
Development Authority. This Committee would be responsible for H
548 SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R.
A stoppage of illegal industrial activity. It would, however, be open to
the aforesaid members of the Monitoring Committee to appoint
responsible officers subordinate to them to oversee and ensure
compliance of the directions contained in the judgment.
B 9. The first Progress Report by the Committee shall be filed by 31st
August, 2004 and thereafter it shall be filed, at least once in a period
of every two months.
B.S. Matters disposed of.
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