BOMBAY DYEING AND MFG. CO.LTD. v. BOMBAY ENVIRONMENTAL ACTION GROUP AND ORS

Citation: [2006] 2 S.C.R. 920

Court: Supreme Court of India

Bench: S.B. SINHA, P.P. NAOLEKAR

Case summary

BOMBAY DYEING AND MFG. CO.LTD. v. BOMBAY ENVIRONMENTAL ACTION GROUP AND ORS.pdf

Judgment text

• BOMBAY DYEING AND MFG. CO. LTD. • .. v. BOMBAY ENVIRONMENTAL ACTION GROUP AND ORS. MARCH 7, 2006 [S. B. SINHA AND P. P. NAOLEKAR, JJ. ] Maharashtra Regional and Town Planning Act, 1966 : Sections 2(7), 2(9), 2(9-A), 2(13AJ. 2(27), 14, 21, 22, 37, 38, 43, 45 and 159-Maharashtra - Development Control Regulations. 1991-Regulations 2(28), 2(48), 3, 9, 21, 32, 34, 51, 56-58: Closure of Collon Textile Mills in Bombay due to continued strike by workers-Lands ofsuch milfr-- Development of-Amendment ofDevelopment Regulation 58-Government !

votijication clarifYing scope thereof-Validity of-Held, not ultra vires Section 37 of the 1966 Act-Nor violative of the Constitution-Bo1h Regulation 58 and the clanficatory Notification not contrary lo principles governing environmental aspects including principles of sustainable and planned development vis-a-vis Article 21 of the Constitution-Sick col/on mills taken over by NTC-Subsequently NTC itself becoming sick-In terms of Rehabilitation Scheme framed by BIFR, NTC selling some of ! he mills-Validity of--Sick lnriustrial Companies (Special Provisions) Act, 1985---Sections 3(e), 15, 32-----Constitution of India, 1950, Articles 14, 21 and 48A. Maharashtra Development Control Regulations, 1991 : Regulation 58--Judicial Review ofthe Regulations-Permissibility of- Held, judicial review permissible against legislative policy----Constitution of • • India, 1950, Article 226.

Constitution of India, 1950 : Article 226--Writ petition-Filing of-Laches and delay-Held, writ petition not to be dismissed only on ground of delay. PIL--Scope of-Explained BOMBAYDYEING AND MFG. CO. LTD. v. BOMBAY ENVIRONMENTAL ACTION GROUP 92 J Interpretation of Statutes : Interpretation of Act and Regulations made thereunder-Doctrine of contemporaneous exposition-Discussed-Maharashtra Regional and Town Planning Act, 1966 and Development Control Regulations made thereunder. Doctrines: · Doctrine of contemporaneous exposition-Applicability of-Discussed. 1~ The question involved in these appeals is whether any synthesis ' between environmental aspects and building regulation vis-a-vis the scheme floated by the Board of Industrial and Financial Reconstruction (BIFR) in terms of the provisions of the Sick Industrial Companies (Special Provisions) Act, 1985 (SICA) herein is possible.

' On behalf of the Appellants and supporting respondents, it was contended that Development Control Regulation 58 of 1991 (DCR 58), as amended in 2001, would be applicable not only to a sick mill but also to a closed mill being unviable which had opted for revival/ modernization/ \c shifting, the original DCR 58 being not invalid, the mere grant of •• additional benefits would not make it ultra vires; that the State could not be said to have ignored various conflicting objectives while carrying out the amendment in DCR 58; that the High Court, in exercise of its jurisdiction of judicial review, could not have interfered with a policy decision of the State; that the High Court committed a manifest error in holding that the amended version of DCR 58 vis-a-vis the term 'open space' would have the same meaning as was contemplated under DCR 58of1991; that the High Court failed to appreciate that reading down of DCR. 58 ,. l.

was impermissible in law; that the High Court ought to have taken into consideration the past experience of the State necessitating amendment ' of DCR; that the High Court failed to take note of the fact that the committees appointed by the State also made recommendations that the mill owners would be allowed to develop their lands; that two different interpretations of DCR 58 having been found by the High Court to be possible, it could not have arrived at a conclusion that clarificatory notification dated 28. 03. 2003 amounted to an amendment of'the Regulation and, thus, void; that the impugned judgment is wholly unsustainable as several irrelevant factors, t' e. g.

deluge in the city of Bornbay in 2005, were taken into consideration for the purpose of interpretation of DCR 58; that the findings ofthe High Court would lead to a radical discrimination between cotton textile mills and other industries which being not based on any rational criteria renders it unconstitutional being violative of Article 14 of the Constitution of India; that the High Court failed to take into consideration the fact that equity was in favour of the appellants as they having already demolished the building as having created third party interests, should not have been asked to go back to the same position as was obtaining in the year 1991; that if the impugned judgment is upheld, several provisions of DCR 58, like clause (6) thereof would become otiose and redundant and, thus, interpretation of the High Court in respect of DCR 58 is unsustainable; that no foundational fact having been laid in the writ petition to show as to how the clarification amounts to amendment of DCR 58, the High Court committed a manifest error in arriving at a finding that the said Regulations are ultra vires Section 37 of the Act and/or Article 21 of the Constitution of India; that the Respondent-writ petitioners were guilty ofserious delay and laches in filing the writ petition; that the High Court in granting relief in favour of the writ petitioners failed to take into consideration relevant factors and based its decision on irrelevant factors and, thus, misdirected itself in law; that the judgment in Bombay Dyeing & Manufacturing Co.

Ltd. v. Bombay Environmental Action Group and Ors. (20051 5 SCC 61 being final and binding on the parties, the High Court committed a serious illegality in interfering therewith; and '. that BIFR scheme had wrongly been taken recourse to for the purpose of construction of the Regulation. On behalf of Respondents 1 and 2, it was contended that DCR broadly lays down a scheme of land uses and zoning, Clause 58 thereof as amended in 200I should be read in conformity with the provisions of the MRTP Act; that the expression 'open land' as contained in DCR 58 must be in!

erpreted in such a manner as to enable the concerned authorities to sanction a building plan in terms of the extant regulations; that on a plain construction of OCR 58 of2001, it has rightly been held by the High Court • • that the intention of the State evidently was to give only double FSI and not to diminish the stake of MCGM and MHADA in the mill land; that interpretation of OCR 58 by the State has defeated the purport and object of the Act; that for the purpose of upholding the constitutionality ofDCR 58, the same was required to be read down, failing which it is rendered unconstitutional; that the effect and purpose of DCR 58 as clarified by the state only having come to the notice of the writ petitioners in 2005 and as the writ petition was filed by them immediately thereafter, the same was not liable to be dismissed on the ground of delay and laches on their part; that in view of the subsequent events, this Court may lay down the principles for the \ ~ I ' BOMBAY DYEING AND MFG.

CO. LTD. "· BOMBAY ENVIRONMENTAL ACTION GROUP 923 · . purpose of moulding the reliefs and remit the matter to the High Court for consideration ofthe matter afresh; that MHADA and the MCGM having taken different stands before the High Court, they should not be permitted to support the State; and that all applications for grant of permission for development/ redevelopment were required to be considered having regard to the nature of the land as would be existing after demolition of the existing structures. Allowing the appeals, the Court HELD: 1. 1.

While entertaining a public interest litigation of this nature several aspects of public interest being involved, the Court should find out as to how greater public interest should be subserved and for the said purpose a balance should be struck and harmony should be maintained between several interests such as (a) consideration of ecology; (b) interest of workers (c) interest of public sector institution, other financial institutions, priority claimed due to workers; (d) advancement of public interest in general and not only a particular aspect of public interest; (e) interest and rights of owners; (f) the interest of a sick and closed industry; and (g) schemes framed by BIFR for revival of the company. [973-F, GI 1. 2. The courts in doing so would have to take into consideration a large number of factors, some of which may be found to be competing with each other.

It may not be proper to give undue importance to one at the cost of the other which may ultimately be found to be vital and give effect to the intent and purport for which the legislation was made. [973-H; 974-AI Raunaq International Ltd. v. /. V. R. Constructions Ltd. & Ors. , (1999] l > SCC 492; Ashok Lanka v. Rishi Dixit, [2005] 5 SCC 598; Guruvayoor Devaswom Managing Committee v. C. K. Rajan, 12003] 7 SCC 546; Shivajirao Nilangekar Patil v. Dr. Mahesh Madhav Gosavi, (1987) 1SCC227; Chairman & MD, BPL Ltd. v. S. P. Gururaja and Ors. , 120031 8 SCC 567; KK. Bhalla v. State ofM. P. & Ors. , (2006) 1 SCALE 238; Dr. B. Singh v. Union ofIndia and Ors. , (2004) 3 SCC 363; Ashok Kumar Thakur v. State ofBihar & Ors. , (1995) 5 SCC 403 and T. N. Godavarman Thirumu/pad v. Union ofIndia and Ors. , (2006) 1 sec 10, relied on. 1. 3.

Public interest litigations, have been entertained more frequently ¥ where a question of violation of the provisions of the statutes governing the environment or ecology of the country has been brought to its notice in the matter of depletion of forest a·reas and/or when the executive while exercising its administrative functions or making subordinate legislations has interfered with the ecological balance with impunity. In the instant case, the High Court of Bombay, therefore, cannot be faulted with for entertaining the writ petition as a public interest litigation. [975-D, El 2. I. It is well-settled principle of law that in the absence of any context indicating a contrary intention, the same meaning would be attached to the word used in the latter as is given to them in the earlier statute. It is trite that the words or expression used in a statute before and after amendment should be given the same meaning.

When the legislature uses the same words in a similar connection, it is to be presumed that in the absence of any context indicating a contrary intention, the same meaning should attach to the words. [978-E, F) 2. 2. It is well-known that when the statute makes a distinction between the two phrases and one of the two is expressly deleted, it is contrary to the cardinal principle of statutory construction to hold that what is deleted is brought back into the statute and finds place in words which were already there in the first place. It is also a wellcsettled principle of law that common sense construction rule should be taken recourse to , in certain cases. (979-B, DI •• Compack (P) Ltd. v. CC£. [20051 8 SCC 300; Gurudevdatta VKSSS Maryadit v. State ofMaharashtra, [200II 4 SCC 534; Dayal Singh v. Union ofIndia, 120031 2 SCC 593; Swedish Match AB v. Securities and Exchange Board, India, (2004) I I SCC 641; Commr. OfIncome-tax/Excess Profits Tax, Bombay City v. Messrs.

Bhogilal Laherchand including Batliboi and Co. , Bombay, AIR (I954) SC 155; The Mangalore Electric Supply Co. Ltd. v. The Commissioner ofIncome Tax, West Bengal, (197813 SCC 248; His Holiness - Kesavananda Bharati Sripadaga/varu v. State ofKera/a and Anr. , [I973J 4 SCC 225 and Mis. Onkarla/ Nandlal v. State ofRajasthan and Anr.. [I9851 ' . 4 sec 404, relied on. K. L. Gupta & Ors. v. The Bombay Municipal Corporation and Ors.. (1968) I SCR 274; Maruti Udyog Ltd. v. Ram Lal and Ors.. (20051 2 SCC 638; Reserve Bank ofIndia v. Peerless General Finance and Investment Co. Ltd. , [I987) I SCC 424; Punjab Land Development and Reclamation Corpn. L Ltd v. Presiding Officer, Labour Court, Chandigarh, [I99013 SCC 682; High Court ofGujarat v. Gujarat Kishan Mazdoor Panchayat, (200314 SCC 712; Indian Handicrafts Emporium and Ors. v. Union ofIndia and Ors.. (20031 7 \. BOMBAY DYEING AND MFG. CO. LTD. '· BOMBAY ENVIRONMENTAL ACTION GROUP 925 SCC 589; Deepal Girishbhai Soni and Ors. v.

United India Insurance Co. Ltd. , Baroda, 120041 5 SCC 385; Bairam Kumawat v. Union ofIndia and Ors. , 12003] 7 SCC 628; Pratap Singh v. State ofJharkhand andAnr. , 120051 3 SCC 551; P. S. Sathappan (Dead) By LRS. v. Andhra Bank Ltd. and Ors. , f2004J 11 SCC 672 and Venkata Subamma and Anr. v. Ramayya and Ors. , AIR (1932) PC 92, referred to. Charles Bradlaugh v. Henry Lewis Clarke, (1883) 8 AC 354, referred to. \ 1 Francis Bennion 's Statutory Interpretation; Interpretation and Application of Statutes: Reed Dickerson, p. I35 and Halsbury 's Laws of England (Fourth Edition) Volume 44(/) (Re-issue), referred to. 3. 1. A statute, it is well known, is to be read as a whole. Subordinate legislation indisputably has to be read in the light of the provisions of the Act whereunder it has been made. It, however, must be read having regard to the purpose and object for which the statute is made. 3. 2. The MRTP Act provides for formulation of regional plans and ' development plan.

The planning authority, before a plan is finalized, is required I-! to see that the provisions thereof have been fully complied with. The MRTP Act provides for appointment of 11 town planning officer who possesses requisite qualification. The MRTP Act lays down the matters which are mandatorily required to be considered by the planning authority in all the stages, namely, survey, preparation, submission and sanction of development plan. While doing so, it is bound to take into consideration a large number of factors as specified therein. The State has been conferred with a special power to frame development control regulations in terms of Section 159(2) of the J. MRTP Act. Development Control Regulations have been framed in terms of ... the said provisions. The State has furthermore been given a power to supervise and maintain control over the planning authorities. Such control may be exercised in more than one manner.

The planning authority is not only required to obtain statutory sanction and approval wherever applicable, but the State, has also been conferred with a special power to make a development plan subject, of course, to the condition that the same shall not change the character ofsuch development plan. 1980-A-El ~- 3. 3. Section 22 of the MRTP Act provides for the contents of the development plan, i. e. , to be divided into several areas for allocating the use of land for the purposes as, for example, residential or commercial, proposals [2006] 2 S. C. R. for designation of land for public purposes, proposal for designation of areas ').. for open spaces, playgrounds, stadia, zoological gardens, green belts, nature reserves, sanctuaries, dairies, transports and communications, such as roads, highways, parkways, railways, waterways, canals and airports, including their extension and development, water supply, drainage, sewerage, etc.

and reservation of land for community facilities and services. Whereas designation and/ or reservation of areas for certain public purposes would vary from place to place, it must take care of not only the public purposes but also several others including open spaces. Water supply, drainage, sewerage, and other public utilities including electricity and gas or highways or waterways, schools, etc. , however, would be considered to be equally important A planning authority, therefore, must take into consideration all the relevant factors, although in a given case, one gets priority over the other. Ordinarily, it would not be for the court to substitute its decision to that of the planning authority unless an appropriate case is made out therefor. When, however, question of public interest comes up, the court indisputably would try to delicately balance the different factors, if possible. (980-E-H; 981-A( 3. 4.

Both open space as also the other factors relevant for making the regulation would be in public interest. The question would, however, ' ' be as to which is of greater public interest. Public interest, thus, would be a relevant factor also for interpretation of the statute. Public interest so far as maintenance of ecology is concerned pertains to a constitutional scheme comprising of Articles 14, 21, 48A and SIA(g) of the Constitution of India, the other factors are no less significant. (981-B-C) 3. 5. The amendment in 2001, therefore, must be interpreted having regard to the provisions of the MRTP Act which professed increase in the ecological interest by providing more open space and not decreasing the same. The amendments in the regulation must be construed in furtherance of the " legislative policy and not in derogation thereof. But, while doing so, the past experience of the State which paved the necessities for modifying the earlier regulation should not be forgotten.

(981-E-GI 3. 6. A statutory scheme also by way of Section 22 clearly speaks about open spaces. The Legislative Act confers guidelines which advocates the necessity of environmental impact assessment. The State, when it '• exercises its power under Section 37 of the MRTP Act is required to act within the four-corners of the Act. Any modification or amendment must address the environmental consequences together with other relevant factors. \ ' "" BOMBAY DYEING AND MFG. CO. LTD. v. BOMBAY ENVIRONMENTAL ACTION GROUP 927 )1" As a logical corollary, it must also be determined as to whether the amendments amounted to a minor modification or substantive one. Literal interpretation of the Act and the Rules would give rise to many anomalies. It would not advance the object and purport of the Act. It would also create difficulties in implementing the statutory scheme. [981-G, H; 982-A, BJ T. N. Godavarman Thiruma/pad v. Union ofIndia and Ors. , (2002) 10 SCC 606; N. D. Jayal and Anr. v.

Union of India and Ors. , (2004) 9 SCC 362 and Ve/lore Citizens' Welfare Forum v. Union ofIndia and Ors. , (1996) t. 5 sec 647, relied on. 4. 1. A policy decision, as is well known, should not be lightly interfered with. By reason of any legislation whether enacted by the . legislature or by way of subordinate legislation, the State gives effect to its legislative policy. Such legislation, however, must not be ultra vires the Constitution. A subordinate legislation apart from being intra vires the Constitution, should not also be ultra vires the parent Act under which it has been made. A subordinate legislation, it is trite, must be reasonable and in consonance with the legislative policy as also give effect to the ').. . ) purport and object of the Act and in good faith. [982-C-E) 4. 2. The parameters of judicial review in relation to a policy decision would depend upon the nature as also the scope and object of the legislation. No hard and fast rule can be laid down therefor.

The court normally would not, however, interfere with a policy decision which has been made by experts in view of the fact that it does not possess such expertise. [983-C-D) 4. 3. However, this Court is not at all dealing with an economic policy _. _ of the State, but a special planning statute of which economic factor is ~ only one of the components. Even then, it has no bearing with the economic policy affecting the State or general public. DCR 58 deals with only a class of people - who owned and possessed cotton textile mills and want revivaV rehabilitation of their sick or closed textile mills or intend to modernize or shift their mills. (984-D-E] 4. 4. Furthermore, interpretation of a town planning statute which v has an environmental aspect leading to application of Articles 14 and 21 of the Constitution of India cannot be held to be within the exclusive domain of the executive. There cannot be any doubt whatsoever, that the [2006] 2 S. C. R. .

validity and/or interpretation of a legislation must be resorted to within the ,.. parameters of judicial review, but it is difficult to accept the contention that it is totally excluded. [984-G, H; 985-AI 4. 5. Unreasonableness is certainly a ground of striking down a subordinate legislation. A presumption as to the constitutionality ofa statute is also to be raised but it does not mean that the environmental factors can altogether be omitted from consideration only because the executive has construed the statute otherwise. [985-A-B) 4. 6. Interpretation and application of constitutional and human rights had never been limited by this Court only to the black letter of law. Expansive meaning of such rights had all along been given by the Courts by taking recourse to creative interpretation which lead to creation of new rights. (985-G) 4. 7.

In cases where constitutionality and/or interpretation of any legislation, be it made by the Parliament or an executive authority by way of delegated legislation, is in question, it would be idle to contend that a ( court of superior jurisdiction cannot exercise the power of judicial review. ·~ A distinction must be made between an executive decision laying down a policy and executive decision in exercise of its legislation making power. A legislation be it made by the Parliament/ Legislature or by the executive must be interpreted within the parameters ofthe well-known principles enunciated by this Court. Whether a legislation would be declared ultra vires or what would be the effect and purport of a legislation upon interpretation thereof will depend upon the legislation in question vis-a-vis the constitutional provisions and other relevant factors. (986-C-FJ PJ. Irani v. The State ofMadras, (1962) 2 SCR 169; Mis. Punjab Tin Supply Co. , Chandigarh and Ors. v.

Central Government and Ors. , (1984) l SCC 206; Secretary, Ministry a/Chemicals & Fertilizers, Government ofIndia v. Cipla Ltd & Ors. , (20031 7 SCC l; Manager. Reserve Bank of India, Bangalore v. S. Mani and Ors. , (2005) 5 SCC 100; Sonepat Cooperative Sugar Mills Ltd. v. Ajit Singh. [2005) . 3 SCC 232; Cho/an Roadways Ltd v. G. Thirugnanasambandam, (2005) 3 SCC 241; Anil Kumar Jha v. Union ofIndia, (2005) 3 SCC 150; Rameswar Prasad & Ors. v. Union ofIndia & Anr. , (2006) .. l SCALE 385; Vineet Narain and Ors. v. Union ofIndia and Anr. , (1996) 2 SCC 199; Union of India and Anr. v. C. Dinakar, JPS and Ors. , (20041 6 SCC ll8; Kapila Hingorani v. State of Bihar. (20031 6 SCC l and Motor \ "· BOMBAY DYEINGAND MFG. CO. LTD. '· BOMBAY ENVIRONMENTAL ACTION GROUP 929 General Traders and Anr. v. State ofAndhra Pradesh and Ors. , (1984) 1 SCC 222 and John Vallamattom v. Union ofIndia, {2003] 6 SCC 611, relied on. Maharashtra State Board ofSecondary and Higher Secondary Education and Anr. v.

Paritosh Bhupesh Kumar Sheth and Ors. , (1984) 4 SCC 27; R. K Garg v. Union ofIndia & Ors. , (1981) 4 SCC 675; Ba/co Employees Union v. Union ofIndia, (2002] 2 SCC 333; State ofRajasthan & Ors. v. Basant Nahata, AIR (2005) SC 3401 and The Trustees ofthe Port ofMadras v. Ml s Aminchand Pyarelal and Ors. , (1976( 3 SCC 167, referred to. Huang and Ors. v. Secretary ofState for the Home Department, (2005) 3 All. ER 435 and R. v. Secretary ofState ofthe Home Department, ex. P Daly, (2001) 3 All ER 433, referred to. 5. 1. Both the phrases "open lands" as also "balance FSI" contained in DCR 58(l)(b) play significant role. The word "balance" is crucial which would naturally mean FSI which is available to be utilized upon open land. Such balance FSI must be apart from the existing FSI. Indisputably, the built-up area had consumed some FSI and, thus, when the expression "balance FSI" is used, the same would mean additional built-up area. It ...

contemplates that where the entire plot has been used by existing builtup areas and some open land has been left out on the remaining non-built up area of the plot additionally unconsumed FSI could be used. It is in that sense separate. It is true that DCR 58(1) uses the word entire land · but the said expression is followed by the expression "built-up area". "Balance FSI" in the aforementioned situation would not mean the FSI which is involved for the purpose of construction of structures not only on the open land which had been existing but also the land which had become open by reason of the demolition of the existing structures. It is only in that sense that the State intended to give additional protection to the mill owners. If open land is given its natural or dictionary meaning, no distinction could be made in between DCR 58(1)(a) and DCR 58(1)(b), . which ex facie would lead to an anomaly. (993-D-Gf 5. 2.

In view of the fact that the built up area was to be pr~tected in terms of sub-regulation (1) of DCR 58, a 'fortiori the ·land colnponent thereof could be protected under clause (b) thereof. Thus, the same land which was protected under clause (a) could not become shareable under clause (b) which would render the distinction between the said provisions otiose. Balance FSI on open lands or otherwise had also been used in subregulation (5) of OCR 58. It also, thus, gives a significant clue to find out the meaning of balance FSI. Additional reason for the aforementioned conclusion is that development or redevelopment of entire open land and built up area of the premises referred to in DCR 58(1), in the event, the findings of the High Court are accepted, there would not be any necessity for the State to use two different words "open land" and "built-up area" separately and distinctly. 1993-H; 994-A-CI 5. 3.

The words "built-up area" find its source from the definition of existing building. The existing built-up area was not to be shared and the same if read with the word "existing'', it may be contrasted with a builtup area additionally but separate and distinct from the old existing builtup area. The existing built-up area, thus, was sought to be protected which would mean that they were sought to be protected from non-shareable land component thereof. It is thus possible to come to the conclusion that the obligation to share was intended to be absent only so long as no additional built-up area was created. 1994-C-E) 5. 4. In a case where the existing structure is demolished in part, the balance FSI would be available but in relation to the entire open lands, FSI has to be calculated taking into account the area of open land appurtenant to the existing structures.

Thus, no basic change had been · ~ effected in drafting the regulation to segregate newly built-up areas from existing built-up areas. It cannot be denied that the State intended to give more benefits to the mill owners by reason of 2001 Regulations and, thus, if after demolition of the entire structure the whole plot is treated to be open land and FSI is calculated on the basis thereof the purport and object of the amendment will be defoated. The fact that the State intended to consider the matter relating to amendment having regard to the fact that there had hardly been any takers for the 1991 Scheme as it failed to provide sufficient incentives, cannot be ignored. (994-E-G) • 5. 5. The amendments carried out in the MRTP Act from time to time and clearly the provisions of Sub-section (2) of Section 26 of the MRTP Act point out that the State had been leaning towards environmental aspects but that was not the sole objective.

The title of the regulation reads as a modification to DCR 58. It was, therefore, not in substitution of the resolution of 1991 nor was it framed by way of recasting thereof. (994-H; 995-A-B) 5. 6. In the marginal note, the expression "development or redevelopment" of land of cotton textile mills has been mentioned. What, BOMBAY DYEING AND MFG. CO. LTD. >. BOMBAY ENVIRONMENTAL ACTION GROUP 93 J therefore, in focus was the land of cotton textile mills. The expression. "land", thus, plays an important role. Although a marginal note may not be determinative of the content of the provision, it may act as an intrinsic aid to construction. (995-B-C) 5. 7. The amendment of 1994 appears to be clarificatory in nature, having regard to the fact that prior thereto the land owners could carry on demolition without prior intimation and/ or obtaining permission from the corporation. The High Court, therefore, in its judgment wrongly laid -'t.... undue emphasis thereupon.

Furthermore, in DCR 58 the word redevelopment had all along been used. By reason of the said amendment, no different meaning which would not be in consonance with the object should be attributed. Whatever that may mean, redevelopment contemplates in its ordinary parlance a renewal or substitution of development and involves pulling down of the structures. Development by way of demolition cannot mean that DCR 58(1) would permit not just tbe retention of the structure (shell) but also demolition of structure (shell). The purpose for introducing the said amendment, therefore, was for a different purpose and could not have been used for the purpose of \. _ construction of DCR 58. [995-C-H; 996-A] ~ ' 5. 8. It is true that the lands of different mills had different built-up areas. Balance FSI was required to be calculated on the basis thereof.

The extent of vacant land available for the purpose of distribution would indisputably depend upon the extent ofstructures which had been standing on the lands but the same is a fortuitous circumstance. Only because in given case, the extent of the area to be given to MHADA or MCGM would be comparativ~ly less than the case of land belonging to other mills, the same by itself cannot be a ground for construing DCR 58 differently. .. Furthermore, in Note (iv) of DCR 58(1)(b) itself, it is categorically stated ~ that land would become open by demolishing the existing structure which also points to the fact that the contentions of the Respondents - Writ Petitioners are not correct in view of the fact that if the land after demolition was already subsumed under open land, it was not necessary to deal with the same subject specifically with land which had become open on demolition.

It is also interesting to note that in DCR 58(6)(a) the words y "reconstruction after demolition of existing structures limited to the extent cf the built up area of the demolished structure... " have been used with reference to "development/ redevelopment of the entire open land and/ or built up area of premises... " It is, thus, clear that the expression "open . ' [2006] 2 S. C. R. lands" is meant to connote lands other than lands available after ... demolition of existing structures. (997-F-H; 998-A-CJ 5. 9. The extent of open land to be shared by the owners with MCGM and MHAOA would depend upon the built up area of the structure which existed on site. The share of MCGM and MHAOA, therefore, would vary from case to case and, thus, one cannot determine the question keeping in view only the case of one mill and not the others.

This Court does not agree with the approach of the High Court in interpreting the aforementioned provisions having regard to certain other factors, namely, deluge in Bombay in the year 2005 as also the requirements of the entire population of Bombay from environmental aspect. Such factors cannot be taken into consideration for interpretation of a statute. One cannot look to a statute with a coloured glass, but has to consider the provisions as the legislature thought. The same should be subject, of course, to the constitutional and other limitations. (1001-E-HJ Smt. Nandini Satpathy v. P. L. Dani and Anr. AIR (1978) SC 1025, referred to. Lennon v. Gibson, (1919) AC 709 at 7ll, referred to. Craies on Statute law. Seventh Edn. p. 141 and G. P. Singh's Principles ofStatutory Interpretation, Ninth Edn. p. 258, referred to. 6. 1.

If it is to be construed that a scheme made by BIFR is the condition precedent for applicability of OCR 58 by reason whereof the benefit conferred thereunder would not be availa'ble in like cases for no apparent reasons whatsoever particularly when it was the intention of the State that all categories of the m. ills which require rehabilitation, revival or modernization should be brought within the purview of OCR 58. [1003-0-EJ 6. 2. Indisputably, there may be closed mills which have not been referred to BIFR or otherwise not capable of being referred to. The spirit of making OCR 58 was for revival and/or rehabilitation of the cotton textile mills. Revival of closed mill was also, thus, a component part of the scheme behind framing of OCR 58. It may be true that in terms of sub-regulation (l) of OCR 58 recommendation of the BIFR is contemplated but recommendation of BIFR would be necessary where it is otherwise available.

If it is insisted that the recommendation by BIFR was mandatory ~ I BOMBAYDYEING AND MFG. CO. LTD. '·BOMBAY ENVIRONMENTAL ACTION GROUP 933 L -:,: even for closed mill, much of the significance for using the words 'and/or closed' after the word 'sick' is lost. A closed mill would mean a mill in respect whereof closure has been effected in accordance with law. Such closure can be effected in accordance with law in terms of the provisions of the Industrial Disputes Act. Before effecting a closure under the Industrial Disputes Act, notice has to be given to the State and in certain cases its prior permission is also required to be obtained. Thus, all cases, which entail closure of an industry; would be within the knowledge of the State. The State through its machinery can furthermore verify the -t,. genuineness or otherwise of such closure.

In such a case, even in terms of the provisions of the Industrial Disputes Act having regard to the purport and object for which the same had been enacted, the authorities thereunder as also for the State a duty is cast to restore back the industrial peace. [1003-F-H; 1004-A-B) State ofRajasthan & Anr. v. Mohammed Ayub Naz, (2006) 1 SCALE ~· 79, relied on. Halsbury's laws of England (Fourth Edition) Vol. (44) I (Re-issue), ~- referred to. ~ . 7. DCR 58(6) is adjunct to the other provisions. Although on some occasions, OCR 58(2) may apply without DCR 58(6), yet there is no such .. machinery so far as sick mills are concerned. It is, therefore, difficult to E. comprehend that those mills which are sick but not referred to BIFR also can take advantage of sub-regulation (6). How an industrial undertaking belonging to a company which is sick should be determined to be so as laid down under the provisions of SICA. Only in a case \\'.

here a company is sick in terms of the 1985 Act, an industrial undertaking belonging to it ... _ may be subject matter of the provisions thereof. The State forthat matter ,l neither has any statutory power or competence to deal with sick undertakings. Furthermore, the extent to which such sick company requires protection to the extent of the sickness of the industrial undertaking cannot also be gone into by the State or for that matter by any other authority apart from BIFR. (1005-B-DJ 8. For the purpose of change of user of the lands, previous approval of the Commissioner to a layout plan in accordance with the Scheme -( ap. p. roved by the Government is necessary. In terms of the said provision, Clause (a) of sub-regulation (1) thereto shall apply as regard utilization of the built-""p area and clause (b) shall apply in relation to development of open lands and balance FSI exceeds 30% of the open land and for __,) [2006] 2 S. C. R.

t:balance FSI clause (b) of sub·-regulation (1) shall apply. Sub-regulation ~ (3) applies in respect of the cotton textile mills which intend to shift with the permission of the competent authorities and in accordance with the scheme approved by the Government. In terms of the said provision also, • Clauses (a) and (b) ofsub-regulation (I) of DCR 58 would apply in regard to the development or redevelopment of its land after shifting. Sub- Regulation (4) provides that in case of modernization and shifting, recommendation by BIFR would not be mandatory which implies that such recommendation shall be mandatory. DCR 58(3) provides fof shifting. - Shifting of industries outside the town is encouraged. (1006-G-H; 1007-A-B( 9. 1. Both in Regulations 56 and 57 cotton textile mills had expressly been excluded from a general power to convert the user into a residential or commercial purpose.

If such a provision was required to be made in making an exception in relation to the cotton textile mill, it was not necessary for the State to frame the regulation in its present form. Subregulation (6) specifically refers to sick and/ or closed or requiring modernization on the same land. Such cases would, thus, bring within its purview only closed mills which had not been referred to BIFR but the • change of user, must be confined to DCR 58 itself and not under DCR 56. Such a construction does not cause any injustice to any party. If an industrial undertaking is really sick within the provisions of the 1985 Act, for the purpose of availing the benefits under DCR 58, it can refer the question to BIFR and once a scheme is framed as regard revival and/or rehabilitation, the owner of the mill can take recourse thereto. The lands of the cotton textile mills, thus, although become open lands available but therefor they cannot be used for purposes specified in 1-2 Zone.

Subregulation (6) of DCR 58 must be read in sharp contrast to Sub-regulation (3)(c) of Regulation 56 and Sub-regulation 4(c) of Regulation 57 which permits a change of user to industrial lands other than lands of cotton textile mills. Sub-regulation (6) of DCR 58 although contains no power to change of user but the same had been provided in other clauses. If it is not held that sub-regulation (6) contains the power to change user in respect of existing structures, a 'fortiori it may not be possible to give effect thereto as there would be no power to user of change of land under existing structures. [1007-H; 1008-A-El -.. 9. 2. So far as NTC mills are concerned, development had taken place as a package of measure recommended by BIFR. Indisputably, the same would come within the purview of sub-regulation (l) of OCR 58 but in ,_ BOMBAY DYEING AND MFG. CO. LTD. '·BOMBAY ENVIRONMENTAL ACTION GROUP A certain cases sub-regulation (6). also may be attracted.

Each of the relevant sub-regulations of DCR 58 confers regulatory power upon the Commissioner of the State. Development or redevelopment in terms ofsubregulations (1), (2), (3) and. (5) are required to be made in terms of a layout plan as approved by the Commissioner and in case of modernization as per the scheme approved by the State. As the said provisions, contain a safeguard, namely, prior approval of the Commissioner, all the mill owners irrespective of the fact that they fall in different categories in terms of the regulations would, thus, be entitled to take benefit of clause (6) subject + " to strict compliance of other provisions. [1008-E-G) 10. 1.

It is no doubt true that Articles 14, 21, 48-A of the Constitution of India must be applied both in relation to an executive action as also in relation to a legislation, however, although the facet of reasonableness is a constitutional principle and adherence thereto being a constitutional duty may apply, the degree and the extent to which such application would be made indisputably would be different. Judicial review of administrative action and judicial review of legislation stand on a different footing. What is permissible for the court in case of judicial review of administrative \_ action may not be permissible while exercising the power of judicial review >,, of legislation. It may, however, be a different thing to contend that the legislation had been enacted without constitutional principles in mind. The real question is whether the constitutional mandates had been complied with in making such legislation. (1010-B-E) 10. 2.

It cannot be said that before making DCR 58 in the year 2001, it was obligatory on the part of the State to accept in toto the recommendations made by the Expert Committees who had undertaken certain exercises; the equities should have been adjusted and the provisions ... of the pollution laws including the provisions of sub-section (2) of Section . 28 of the MRTP Act should have been considered. A presumption arises as regards the constitutionality of a statute. Such a presumption would also arise in a case of subordinate legislation. A subordinate legislation, however, shall be susceptible or vulnerable to challenge not only on the ground that the same offends Articles 14, 21 read with Article 48-A of the Constitution of India but also that the provisions of the MRTP Act are unreasonable. (1011-A-C) y 10. 3. In the instant case, the State appointed two committees. They have been taken into consideration by the State, may albeit be only in part.

The State might not have agreed with the entirety of the report. The State might have taken into consideration other factors which would subserve ... ~· the purport and object of the regulation. But, it will be difficult for us to arrive at a finding that the environmental aspects had totally been ignored. To what extent, DCR 58 would be commensurate with the ideal ecological ' condition as is suggested by the experts is one thing but it is another thing to say that no consideration at all in this behalf had been made by it. The State in its affidavit categorically stated that the said reports had fallen for consideration and had been accepted by it but in the third affidavit it has merely been stated that the State intended to give more than what was suggested in the said report. It has been accepted by the parties that ..... certain suggestions have been accepted in toto and the provisions have been amended pursuant thereto or in furtherance thereof.

The Ranjit Deshmukh Committee, not only visited some mills but also took recourse to the consultative process. Eiven the Charles Correa Committee visited all the public sector textile mills. While taking the said reports into consideration, the State acquainted itself with the existing ground realities as they then existed. For the purpose of striking down a legislation on the ground of infraction of the Constitutional provisions, the court would not exercise its jurisdiction only because the recommendations of the j committees had not been acc1~pted in toto but would do so inter alia on ~ the ground as to whether they otherwise violate the constitutional principles. (1011-C-G( 10. 4. Arbitrariness on the part of the legislature so as to make the legislation violative of Article 14 of the Constitution should ordinarily be manifest arbitrariness.

What would be arbitrary exercise of legislative power would depend upon the provisions of the statute vis-_-vis the • purpose and object thereof. (1012-A-B) ... 10. 5. The amendment to OCR 58 was carried out IO years after the original DCR 58 was introduced. Before doing so, due consultative process as laid down in Section 37 of the MRTP Act which involves suggestions and objections from public and the concerned statutory authorities was taken recourse to. Consideration of the same by Dy. Director of Town Planning and thereafter promulgation of the same in the form of direct regulation establishes that the same is not ex facie arbitrary in nature, particularly when most of the suggestions of the said Committees were ·~ accepted. A statute may not be ultra vires Article 48-A itself if it is not otherwise offensive of Articles 14 and 21 of the Constitution of India. What, however, cannot be done for striking down legislation can certainly BOMBAY DYEING AND MFG. CO. LTD.

"- BOMBAY ENVIRONMENTAL ACTION GROUP 937 ____be done for striking down executive a_ction. (1012-H; 1013-A-DJ 10. 6. Ecological factors indisputably are very relevant considerations in construing a town planning statute. The court normally would lean in favour of environmental protection in view of the creative interpretation made by this Court in finding a right of environmental including right to clear water, air, etc. under Article 21 of the Constitution of India. But, in this case, this Court . is not dealing with a similar problem. It must be borne in mind while interpreti! lg DCR 58 that there exists a stark distinction between the interpretation of planning and zoning statutes enforcing ecology vis-a-vis industrial effluents and hazardous industries and those re_latl"iig to com:e·rted efforts at rehabilitating the industry. It is around this pivot that interpretation must revolve. (1013-D-F( 10. 7. Ecology in terms of DCR 58 has not been marginalized.

The statute does not prescribe any fixed norm. It provides for guidelines. It has not been shown that the said guidelines have been violated. The environmental aspect considered in DCR 58 may not be to everybody's satisfaction but the regulation in question has to be interpreted having regard to the purport and object for which the same was enacted, meaning thereby, a holistic approach to a large number of problems. QCR 58 was . ' made in a special situation. In any other situation, probably this Court might have interpreted a similar provision differently. But, DCR 58 seeks ·to strike a balance between different public interests. The State has its own ·limitations. DCR 58 cannot be struck down solely on the ground that the interest of the common citizen (from the ecological point of view) has been affected, unless its actions are considered to be unfair. (1013-F-GJ 10. 8. The State indeed in making the regulation intended to solve a longstanding problem wherewith it was beset.

The State while framing the aforementioned regulation had to deal with various objectives in mind. It might have taken recourse to trial and error method. It started with an experiment in the year 1991 but having failed therein it introduced a new policy. The State considered the same to be fair on its part. (1014-B-CI 10. 9. A substantive law as also delegated legislation raises presumption of constitutionality. Attempt is, thus, required to be made for upholding the same. Sale of lands belonging to mills which are absolutely unviable and/or those which are lying closed for one reason or the other as also those who intend to modernize their mills and/or shifting the same and/ or part of it mm;t be kept for consideration in the matter of interpretation of OCR 58. Thus, it cannot be held that OCR 58 is unconstitutional. I1014-E-GI Sharma Transport v. Government of Andhra Pradesh, (2002) 2 SCC 188; Khoday Distillery v.

State of Karnataka, [19961 10 SCC 304; Otis Elevator Employees' Union S. Reg and Ors. v. Union ofIndia and Ors. , (2003) 12 SCC 68; KK. Bhalla v. State ofMP. & Ors. , (2006) l SCALE 238; S. N. Chandrashekar and Anr. v. State ofKarna/aka and Ors. JT (2006) 2 SC 202 and Forward Construction Co. and Ors. v. Prabhat Manda/ (Regd), Andheri and Ors. , (1986) l SCC 100, relied on. Om Prakash and Ors. v. State of U. P. and Ors. , (2004) 3 SCC 402, referred to. American Jurisprudence 2d, vol. 82, p. 496, referred to. - I1. 1. Clarification was issued having regard to a letter of MCGM dated 28. 08. 2001 to the Urban Development Department stating as to how it understood OCR 58 of 2001 which was confirmed by the Urban Development Department. Thus, although at one point of time they interpreted OCR in the same manner as that of the State; only much later they raised a doubt which was bonafide. Only with a view to clear the air of doubt, the clarification was issued by the State.

It is interesting to note that in paragraph 23 of the writ petition, the writ petitioners treated the purported reduction in area attributable to OCR 58 as amended in 2001 and not because of any purported change brought about by clarification made in 2003. [1015-F-G) l 1. 2. Furthermore, it is one thing to say that the clarification is beyond the statutory power of the State or plainly contrary to the ,. regulations, the effect whereof is required to be determined, but it is another thing to say that while doing so the State gives out its mind as to what it meant thereby as an author of the regulations. The grievance of the writ petitioner respondents primarily in that behalf is that in terms of the said clarification, reconstruction on land made available after demolition of the existing structure is to be in terms of sub-regulation (6) of OCR 58 and the user thereof is proposed to be changed from industrial to commercial or residential under sub-regulation (l)(a)(iii).

[1016-A-B) , 11. 3. If some mill owners claim the right to change of user under sub-regulation (6) alone, the same would be in the teeth of the BOMBAY DYEINGAND MFG. CO. LTD. ''· BOMBAY ENVIRONMENTAL ACTION GROUP 939 interpretation of DCR 58. It cannot be said that by taking recourse to the said power of clarification the State has improperly exercised its power. Reference to resolution dated 27. 08. 2003 passed by MCGM, does not have the effect of clarification being set at naught for DCR 58. Similarly, the letter dated 24. 07. 2003 issued by the Chief Executive Officer of MHADA to the Housing Board or the State Government also does not talk about the incorrectness or otherwise of the clarification issued by the State but as regards the effect of DCR of 2001. (1016-D-EJ 12. The principle of contemporaneous exposition cannot be said to have universal application. Each case must be considered on its own facts.

An executive construction is entitled to respect but is not beyond the pale of judicial review. [1019-G-H] Union ofIndia and Anr. v. Azadi Bachao Ando/an and Anr. , [2004) 10 SCC 1; Baleshwar Bagarti v. Bhagirathi Dass ! LR (1908) 35 Cal. 701; Collector ofCentral Excise, Vadodara v. Dhiren Chemical Industries [2002] 2 SCC 127; Kalyani Packaging Industry v. Union ofIndia and Anr,. (2004] 6 SCC 719; Municipal Corpn for City ofPune v. Bh11rat Forge Co. Ltd (1995) 3 SCC 434; Ajay Gandhi v. B. Singh, (2004] 2 SCC 120 and Jamshed N. Guzdar v. State ofMaharashtra (20051 2 SCC 591, referred to. ,; . Gullick v. West Norfolk Area Health Authority, (1986) AC 112, referred to. 13. A development plan is an organic document. in the sense that periodic changes are contemplated thereby. A development plan is required to be changed every 20 years. Such changes are to be brought about keeping in view the past experience of the planning authority and the intended future development of the town.

While, therefore, interpreting the words "change in the character of plan" the question would be as to whether the change in the character is referable to alteration of the entire plan. The change in the character would, therefore, necessarily mean the change in the basic feature thereof and the entire plan as a whole wherefor the same must be read in totality. In this case, the changes made have not brought about any significant changes so as to come to a conclusion that its basic features are altered. Thus, the clarification issued by the State is not violative of Section 37 of the MRTP Act. (1023-B-D) Bangalore Medical Trust v. B. S. Muddappa & Ors. , (1991) 4 SCC 54; Forward Construction Company v. Prabhat Manda/, (1986( l SCC 100; Puran Lal v. President of India, (1962] 1 SCR 688; MA. Panshikar v. State of Maharashtra through its Urban Development Department & Anr. , (2002) S BCR 318; Pune Municipal Corporation and Anr. v. Promoters and Builders Association and Anr..

(2004) 10 SCC 796 and Balakrishna H. Sawant and Ors. v. Sangli, Miraj & Kupwad City Municipal Corpn. and Ors. , (20051 3 sec 61, referred to. Legg v. Ilea [197213 All ER 177, referred to. 14. l. The development of the doctrine of sustainable development indeed is a welcome feature but while emphasizing the need of ecological impact, a delicate balance between it and the necessity for development must be struck. Whereas it is not possible to ignore inter-generational interest, it is also not possible to ignore the dire need which the society urgently requires. In a case of this nature, an endeavour should be made in giving effect to the intention of the legislature. For the satd purpose, it is necessary to ascertain the object the iegislature seeks to achieve. It may also be necessary to address questions as regards the nature of the statute. (1029-A-C) 14. 2. The main purpose of the legislation is revival of industry inter alia.

by modernisation and shifting of industr)" Article 21 guarantees a right to a decent environment and, thus, what should be the parameters therefor would essentially be a legislative policy. Undoubtedly, different criteria may be laid down to achieve different purposes. When the discretionary power under a statute is arbitrarily exercised, evidently the court will not tolerate the same and strike it down. DCR 58, however, ex facie does not impair sustainable development of the town of Bombay. (1029-D-EJ Ve/lore Citizens' Welfare Forum v. Union ofIndia and Ors. , (19961 5 SCC 647; Intellectual Forum, Tirupathi v. State ofA. P. & Ors. , JT (2006) 2 SC 568; A. P. Pollution Control Board v. Prof M. V. Nayudu (Retd) and Ors. , [1999) 2 SCC 718; Narmada Bachao Ando/an v. Union of India and Ors. , (2000110 SCC 664; MC. Mehta v. Union ofIndia and Ors. , (1996) 4 SCC 351; M. C. Mehta v. Union ofIndia and Ors. , (2004) 6 SCC 588; M. C. Mehta v. Union of India and Ors. , (2005) 2 SCC 186; M. C.

Mehta v. Kamal Nath and Ors. , [1997) I SCC 388; Consumer Education & Research Society v. Union of India and Ors. , [20001 2 SCC 599; Sushanta Tagore and Ors. v. Union ofIndia and Ors. , [20051 3 SCC 16; Indian Handicrafts Emporium ·-y and Ors. v. Union of India and Ors. , [2003) 7 SCC 589; Virender Gaur and Ors v. State of Haryana and Ors. [1995) 2 SCC 577 and Friends Colony A BOMBAY DYEING AND MFG. CO. LTD. '· BO. MBAYENVIRONMENTAL ACTION GROUP Development Committee v. State ofOrissa and Ors. , (2004) 8 SCC 733, relied on. x South Bucks District Council v. Porter Chichester District Council v. Searle and Ors. , [2003) 3 All ER I, referred to. 15. 1. If Regulation prior to 1991 was implemented, the average of the Green Areas would have come to 8. 33% whereas after 1991, it comes to 8. 16%. It is difficult to agree with the contentions of the writ petitioners that there had been substantial reduction in green area.

It must also be placed on record that civic load in respect of residential construction so far as land occupied by the mill owners was more than the present ratio of FSI at 1. 33%. FSI given for construction of buildings to MHADA itself would be 1. 596 i. e. almost 1. 6%. (1037-D-E] 15. 2. Thus, it is evident that the purported reduction in green area compared to pre-1991 situation, would not create much difference so far as maintenance of the ecological balance is concerned by giving effect to 2001 Regulations vis-a-vis the 1991 Regulations. (1037-F-G) Padma v. Hirata/ Motilal Desarda and Ors. , (2002)... 7 SCC 564, referred le. to. ; ' 16. 1. An integrated plan was set out for sale of lands in terms whereof lands situate in other mills were kept aside to provide open lands which may be required in the event the writ petition filed by the Writ Petitioners - Re_s~~ndents was allowed. Negotiations were held between the purchasers and:. NTC as regards sale of the said land.

Several queries were made by the intending purchasers which were duly answered. Specific assurances were given to the bidders by NTC that deficiencies in open space shall be . made good by making available equivalent open space from its other mills .... in the vicinity, in the event the writ petition was allowed. Clarifications -> were also issued to the effect that NTC was committed to sell lands specified in respect of each mill as well as specified in FSI as approved by the Bombay Municipal Corporation and, thus, any extra surrendering of land, if any occasion arises therefor, would be borne by it. It was furthermore clarified that "assuming that the court decides otherwise, then NTC has other mills to offer as far as the share of MHADA and MCGM '. is concerned and NTC will take care of the interest of the purchasers". .. ,- An undertaking had also been given by it in the High Court. (1040-B-E] . 16. 2.

It is not in dispute that in the special leave petition wherein the High Court's order·dated 27. 09. 2002 was passed, the parties therein were not concerned with the sale of any mill lands or for enforcement and/ or interpretation of any regulation framed under the MRTP Act. The said observations were made while entertaining an application filed on behalf of the workmen and not for any other purpose. The observations were not made for the purpose of determination of any of the issues involved in the matter. It could not, thus, be treated to be a direction on the part of this Court. The question of the sale of mill lands by NTC could be held to be invalid if the same had been effected contrary to the direction of this Court and not otherwise. (1042-C-DJ NTC (IDA) Employees Association v. Union ofIndia & Ors. , [SLP No. 16732 of 1997 Order dated 7. 5. 1999), referred to. 17. 1. While passing the order dated 11. 05. 2005, this Court merely noted the terms of the BIFR scheme.

It did not issue any direction to the effect that the sale of the mill land should be effected strictly in terms thereof or in a particular manner. The BIFR scheme evidently was referred to as this Court noticed that even statutory authorities constituted under a Parliamentary Act found it necessary to direct sale of the mill lands in public interest. While considering a writ petition on an environmental issue, the focus of the court should have been confined thereto. It was impermissible for the High Court to examine the BIFR scheme as if the environmental issues were considered therein. (1043-F-H; 1044-A[ 17. 2. The BIFR exercises its jurisdiction under a statute; the objects whereof are distinct and different from a town planning scheme. The BIFR is not a town planner. It is not a development authority. It has nothing to do with the town planning or development scheme or maintenance of ecological balance.

The BIFR was concerned only with the manner in which sick industrial undertaking should be made to revive. Before passing the said order, it was required to hear all concerned, namely, the management, the workmen, the financial institutions, banks etc. as also the operating agencies. It did so. (1044-A-C) 17. 3. BIFR appointed IDBI as an operating agency. The authorities were concerned with obtaining maximum amount by way of sale of mill lands. It was in any event not concerned with the interpretation and/or applicability of the provisions of the MRTP Act or the Regulation framed thereunder. BIFR was not concerned with the interpretation of DCR 58 /' BOMBAY DYEING AND MFG. CO. LTD. •. BOMBAY ENVIRONMENTAL ACTION GROUP and, thus, only because this Court in its aforementioned orders dated >' 27. 09. 2002 and 11. 05.

2005 had referred thereto, the same would not mean that thereby any direction was issued either directly or indirectly that the sale of the lands pertaining to cotton textile mills must strictly be conducted in accordance with the said scheme. This Court merely asked the authorities to effect sale of mill land upon following the scheme framed by BIFR and in accordance with the procedure laid down therefor. This Court in its order dated 11. 5. 2005 categorically observed that if the transactions in respect of mills are not allowed to be completed, the scheme framed by the BIFR would come to a standstill resulting in accrual of 't, liability of a huge amount. by way of interest payable by NTC to the financial institutions besides other hardships which may be caused to various other persons including the workers.

The scheme framed by the BIFR, therefore, was taken to be a relevant factor only for the purpose of determining the issues involved in the appeal which arose out of an interim order. It was only in that situation mention was made to the scheme framed by the BIFR and not for any other purpose. This Court, . merely intended to give effect to the consensus arrived at the bar that an undertaking by the NTC to the effect that'the order of this High Court ~ would be complied with by way of adjustment of lands from other mills ) would subserve the interest of justice. The validity or otherwise of the transaction of sales of seven mills of NTC were, thus, not open to a further determination by the High Court. (1044-C-H) 17. 4. The BIFR scheme did not postulate that the surrender of lands to MCGM and MHADA should be out of the lands of each individual mill itself and not out of the lands of some other mills.

The BIFR had no occasion to say so nor could it do so having regard to the provisions contained in DCR 58. The writ petitioner-respondents have nowhere .... denied or disputed that the seven mills which were put up for sale were J. unviable ones. The lands pertaining to the mills were found to be surplus. For the purpose of giving effect to the scheme framed by BIFR, indisputably an Asset Sale Committee was constituted to discharge the functions of overseeing the sale of surplus assets of the said mills. It is furthermore not in dispute that an Integrated Development Scheme was framed by NTC with the assistance of the architects which was submitted ... to MCGM and the same was duly approved. Sanction ofsale of two mills " out of seven mills was not granted evidently in view of the pendency of the writ petition. The BIFR scheme or the said Integrated Development Scheme framed by_NTC was not in question in the writ petition.

Even when the interlocutory application was being heard, no submission was made as regard violation of the BIFR scheme or the aforementioned order dated - 27. 09. 2002. Before this Court as also the High Court the question which arose was as to whether sufficient lands were available in the event the writ petition was to be allowed. (1045-B-F) Saraf Chandra Mishra and Ors. v. State of Orissa and Ors. , (2006] 1 SCC 638 and State ofKarnataka and Ors. v. C. Lalitha, (2006) 1 SCALE 73, relied on. 18. It is not in dispute that the writ petitioners merely filed an affidavit on 12th July, 2005 before the High Court alleging that the sale of surplus land by NTC was in violation of this Court's order and/ or the scheme framed by the BIFR.

If the prayer in the writ petition had not been amended, it is beyond comprehension on what premise the High Court proceeded to consider the question as regards the alleged violation of the order of this Court, as also the BIFR Scheme by NTC for the purpose of setting aside the sale. In a collateral proceeding, the High Court, could not issue any direction which would not only be contrary to a statutory scheme but defeasive of the purport and object for which SICA was enacted. Furthermore, it was none of the concern of the writ petitioners - Respondents as to how BIFR calculated the financial viability by way of sale of surplus land by NTC. It was equally impermissible for the High Court to consider as to whether despite there being a provision for multi-mill aggregation in terms of DCR 2001, the same had been taken into consideration under BIFR Scheme or not.

For the purpose of considering the validity or otherwise of the sale in terms of BIFR Scheme itself, ASC was appointed wherein a member of the BIFR was also represented. Therefore, the judgment of the High Court in this behalf is not correct. (1048-C-FJ .. 19. The purchasers of the cotton textile mills of the NTC cannot be made to suffer for no fault on their part and, thus, the High Court committed a manifest error in that behalf. (1050-CJ Gurjoginder Singh v. Jaswant Kaur (Smt. ) and Anr. , (1994) 2 SCC 368; Janak Raj v. Gurdial Singh and Anr. , (1967) 2 SCR 77 and Padanathil Ruqmini Amma v. P. K. Abdulla, (1996) 7 SCC 668, referred to. ·r Zain-ul-Abdin Khan v. Muhammad Asghar Ali Khan, 15 IA 12, referred to. j . / . , BOMBAY DYEING AND MFG. CO. LTD. v. BOMBAY ENVIRONMENTAL ACTION GROUP 945 ·. 20. 1. Delay and laches on the part of the writ petitioners indisputably A'•· ·has a role to play in the matter of grant of reliefs in a writ petition.

This Court in a large number of decisions has categorically laid down that where by reason of delay and/ or laches on the part of the writ petitioners the parties altered their positions and/ or third parties interests have been created, public interest litigations may be summarily dismissed. Delay although may not be the sole ground for dismissing a public interest litigation in some cases and, thus, each case must be considered having regard to the facts and circumstances obtaining therein, the underlying equitable principles cannot be ignored. As regards applicability of the said principles, public interest litigations are no exceptions. (1052-A-C) 20. 2. This Court does not intend to lay down a law that delay or laches alone should be the sole ground for throwing out a public interest litigation irrespective of the merit of the matter or the stage thereof.

Keeping in view the magnitude of public interest, the court may consider the desirability to relax the rigours of the accepted norms. This Court does not accept the explanation in this regard sought to be offered by the writ petitioners. There is no doubt that the writ petitioners are guilty of serious ,; . delay and laches on their part. (1053-C-DJ 20. 3. As this Court has considered the matter on merits, evidently, the writ petition is not dismissed on the ground of delay and Iaches alone but taken the same as one of the factors in determining the questions raised before this Court. (1054-C-DJ Chairman & MD, BPL Ltd v. S. P. Gururaja and Ors. , [2003) 8 SCC 567; Narmada Bachao Ando/an v. Union ofIndia, (2000) 10 SCC 664; R. & M Trust v. Koramangala Residents Vigilance Group, (2005) 3 SCC 91 and p State ofMaharashtra v. Digambar, [19951 4 SCC 683, relied on. Mis Lohia Machines v. Union of India, AIR (1985) SC 421, distinguished. Proprietary Articles Trade Association v.

AG ofCanada (1931) AC 310 and Attorney General ofthe Commonwealth ofAustralia v. Queen 95 CLR 529, referred to. · 21. As regards the workers' dues, in terms of the Regulations, the entire amount is to be deposited in the funds specially created therfor. It is the Committee appointed by the State alone which can spend the amount. The priority as regard disbursal ofsuch amount has categorically been laid down in the regulation itself. If the fund created is not being expended for the purposes mentioned therein, a separate cause of action . · will arise therefor. Guidelines for the Committee are also not necessary to be laid down. In any event, this Court is not called upon nor is it necessary to make any attempt in that regard. However, if any occasion arises for any of the parties in this behalf, the aggrieved party indisputably would be at liberty to agitate the same before appropriate forums. [1056-C-E) CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1519 of2006.

From the Final Judgment and Order dated 17. 10. 2005 of the Bombay High Court in PIL Writ Petition No. 482/2005. WITH C. A. Nos. 1528, 1545, 1541, 1532, 1540, 1550, 1520, 1536, 1521. 1515, 1538, 1518, 1523, 1543, 1517, 1522, 1530, 1534, 1526 and 1516 of 2006. Ravi M. Kadam, Adv. Gen. , Soli J. Sorabjee, Ram Jethmalani, Arun Jaitley, F. S. Nariman, Uday U. Lalit, Girish Godbole, Mukul Rohtagi, Dr. Rajiv Dhawan, Dr. Abhishek Manu Singhvi, T. R. Andhyarujina, R. F. Nariman, K. K. Venugopal, Dr. V. V. Tulzapurkar, V. A. Mohta, K. K. Singhvi, Harish N. Salve, Iqbal Chagla, M. L. Verma, Colin Gonsalves, Dinesh Dwivedi, Janak Dwarkadas, J. J. Bhat, Percy Ghandy, Ms. Shahrukh Kathawala, Salesh, C. Rashikant, R. N. Karanjawala, Ms. Ruby Singh Ahuja, Ms. Kanika Agnihotri, Debmalya Banerjee, Ms. Manik Karanjawala, Ravinder Narain, Pallav Sishodia, Pravin Bahadur, Ms. Meghalee Barthakur, Ms. Nupur Singh, Rajan Narain, Shivaji M. Jadhav, Himanshu Gupta, Brij Kishor Sah, Parimal K. Shroff, Ms.

Bina Gupta, Ms. Rakhi Ray, Ms. Inklee Barooah, C. Rashikant, Shailesh, Gopal Jain, Venkatesh Dhond, P. H. Parekh, Lalit Chauhan, Sumit Goel, Shyam Mehta, Bhavesh Panjwani (for Mis. P. H. Parekh & Co. ), Ms. Meena H. Doshi, Ms. B. Sunita Rao, Amit Bhandari. Sushi Kr. Pathak, U. A. Rana, Sadeep Khare! , Ms. Srabonee Roy (for M/s. Gagrat & Co. ), Ravi Gandhi, Dhaval Vussonji, Pratap Venugopal, E. Venu Kumar, Hurshad V. Hameed (for M/s. K. J. John & Co. ), Anil Menon, S. U. K. Sagar, Ms. Bina Madhavan, Ambuj Agrawal (for M/s. Lawyer's Knit & Co. ), Dhaval Mehta, Mrs. Rekha Palli, Venkatesh Dhand, Shailesh Kalambi, Pritesh Kapoor, Ms. Pumima Bhat Kak, Gopal Jain, C. Reshmikant, S. K. Srivastav, Santosh Paul, BOMBAY DYEING ANDMFG. CO LTD. , BOMBAY ENVIRONMENTAL ACTION GROUP [SINHA,!. ] ,. :. ,. ,,! ' .. M. K. Dava, Farrukh Rasheed, Ujjainwala S. H. , Rakesh Katana, D. N. Mishra, Jay Savla, Gautam Patel, Parag Kabadi, Lynn Periera, Sharan Jagtiani, Devansh Mohta, Ms. Reena Bagga, Ms.

Meenakshi Ogra, Ms. Meenakshi, Satya Mitra, M. N. Shroff, Ms. Anuradha Singh, Ms. Apama Bhat, Ravindra K. Adsure, Sambhaji S. Shinde, V. N. Raghupathy, Anirudha P. Mayee, Mukesh Verma, Ashok B. Jain, D. T. Devale, Manish Shanker, Pankaj K. Singh, Ashish Mohan, Yash Pal Dhingra, N. M. Ganguly, Vinay Navare, Naresh Kumar, C. S. Ashri, Prashant Bhushan, Vishal Gupta, Rohit Kumar Singh, Ms. Sumeet Sharma, Vikas Mehta, Mahesh Agarwal, Manu Krishnan and E. C. Agrawala for the appearing parties. The Judgment of the Court was delivered by S. B. SINHA, J. Leave granted in all SLPs. INTRODUCTION Whether any synthesis between environmental aspects and building . regulation vis-a-vis the scheme floated by the Board of Industrial and Financial \.. - Reconstruction (for short 'BIFR') in terms of the provisions of the Sick ,J Industrial Companies (Special Provisions) Act, 1985 (for short, 'SICA') herein is possible is the core question involved in these appeals.

BACKGROUND FACTS The First Respondent herein is a public charitable trust. Its aims and objects, inter alia, are to look after the environment in all respects. It had allegedly initiated and/or participated in matters of environmental importance as regard preservation and improvement wherefor it had moved the court in public interest on several occasions. The Second Respondent herein is said .. to be the honorary Secretary of the First Respondent and served in various . A committees appointed by the Central and State Governments as also by the Bombay High Court. The said respondents filed a writ petition questioning the validity of Development Control Regulation No. 58 (OCR 58) framed by the State of · Maharashtra in terms of the Maharashtra Regional and Town Planning Act, 1966 [for short "the MRTP Act"]. The Respondents in the writ application, ...

; -industry then further obligation is cast to offer on priority in the ; re-located mill or diversified industry, as the case may be, employment to the workers. (xi) Fruits and benefits of development and re-development cannot be retained by owners but they have to be passed on to . those who are legitimately entitled thereto. (xii) Monies are required to be put in Escrow Account. (xiii) It is a complete and comprehensive code so far as development ,... and re-development of lands of cotton textile mills is concerned. ~ Mill owners must not be allowed to trade in the properties owned by it. (xiv) The scheme is very much workable as the regulation allows enough free play to meet the obligations towards workers and financial institutions. (xv) The intent is to control the development and re-development by 'f making comprehensive regulatory measures, the portions becoming vacant after demolition of existing built-up areas have to be included in the concept "open lands.

" • As regards, the clarification made by the State dated 28. 3. 2003, it was opined that the same amounts to amendment of OCR 58 and, thus, not being a clarification simpliciter in terms of OCR 62(3), the same was unsustainable. The said clarification was also ultra vires Article 21 of the Constitution of India. As regards non-complianc . (E) The High Court failed to appreciate that reading down ofDCR 58 ; was impermissible in law. ·(F) The High Court ought to have taken into consideration the past experience of the State necessitating amendinent of DCR. (G) The High Court furthermore failed to take note ofthe fact that the committees appointed by the State also made recommendations that the mill owners would be allowed to develop their lands. (H) Two different interpretations of DCR 58 having been found by the High Court to be possible, it could not have arrived at a conclusion that clarificatory notification dated 28. 03 .

2003 amounted to an amendment of the Regulation and, thus, void. (I) The impugned judgment is wholly unsustainable as several irrelevant factors, e. g. deluge in the city of Bombay in 2005, were taken into consideration for the purpose of interpretation of DCR 58. (J) The findings of the High Court would lead to a radical discrimination between cotton textile mills and other industries which being not based on any rational criteria renders it unconstitutional being violative of Article 14 of the Constitution of India. (K) The High Court fail,ed to take into consideration the fact that the equity was in favour ofthe appellants herein as they having already demolished the building as having created third party interests, should not have been asked to go back to the same position as was obtaining in the year 1991.

(L) If the impugned judgment is upheld, several provisions of DCR 58, as for example, clause (6) thereof would become otiose and redundant and, thus, interpretation of the High Court in respect of . T, DCR 58 is unsustainable. (M) No foundational fact having been laid in the writ petition to show as to how the clarification amounts to amendment of DCR 58, the High Court committed a manifest error in arriving at a finding that the said Regulations are ultra vires Section 37 of the Act and/ or Article 21 of the Constitution of India. (N) The Respondent-writ petitioners were guilty of serious aelay and ! aches in filling of the writ petition and thus it was liable to be not dismissed in limine. Re: Validity of sales of5 mills by NTC (a) The High Court in granting relief in favour of the writ petitioners failed to take into consideration relevant factors and based its decision on irrelevant factors and, thus, misdirected itself in law.

(b) The judgment of this Court in Bombay Dyeing & Manufacturing Co. Ltd. v. Bombay Environmental Action Group and Ors. , [2005) 5 SCC 61 being final and binding on the parties, the High Court committed a serious illegality in interfering therewith. .. (c) BIFR scheme had wrongly been taken recourse to for the purpose of construction of the Regulation. Submissions of Writ Petitioners Respondents No. 1-2 (I) DCR broadly lays down a scheme of land uses and zoning, Clause 58 thereof as amended in 200 I should be read in conformity with y the provisions of the MRTP Act. (2) The expression 'open land' as contained in DCR 58 must be ~ BOMBAY DYEING ANDMFG. CO. LTD. v BOMBAY ENVIRONMENTAL ACTIONGROUP [SINHA,J. ) interpreted in such a manner so as to enable the concerned . , /\' authorities to sanction a building plan in terms of the extant regulations. (3) On a plain construction of DCR 58 of 2001, it bas rightly been '!

held by the High Court that the intention of the State evidently was to give only double FSI and not to diminish the stake of MCGM and MHADA in the mill land. (4) Interpretation of DCR 58 by the State has defeated the purport and object of the Act. ,1_· . • (5) For the purpose of upholding the constitutionality of DCR 58, the same was required to be read down, failing which it is rendered unconstitutional. (6) The effect and purpose of DCR 58 as clarified by the state only having come to the notice of the writ petitioners in 2005 and as the writ petition was filed by them immediately thereafter, the same was not liable to be dismissed on the ground of delay and ! aches on their part. >- (7) In view of the subsequent events, this Court may lay down the I principles for the purpose of moulding the reliefs and remit the matter to the High Court for consideration of the matter afresh.

(8) MHADA and the MCGM having taken different stands before the High Court, that they should not be permitted to support the State before this Court. (9) All applications for grant of permission for development/ ' redevelopment was required to be considered having regard to the nature of the land as would be existing after demolition of the >,. , existing structures. JI STATUTORY SCHEME Bombay Town Planning Act, 1954 replaced the Bombay Town Planning Act 1915 which became applicable to the entire State ofMaharashtra including the town of Mumbai. -.. ,-- In the year, 1966, the legislature of the State of Maharashtra with a view to make provisions for planning and development and use of land in regions established for that purpose and for constitution of Regional Planning ' Boards therefor and for other purposes mentioned in the preamble thereto enacted the MRTP Act repealing and replacing the Bombay Town Planning Act, 1954. It came into force with effect from IIth January, 1967. .

MRTP Act provides for formulation of regional plans and development plans. Definitions of some of the expressions which are relevant for our purpose are as under: 2(7) "Development" with its grammatical variations means the carrying out of buildings, engineering, mining or other operations in, or over, or under, land or the making of any material change, in any building r. or land or in the use of any building or land or any material or • structural change in any heritage; building or its precincts and includes demolition of any existing building structure or erection or part of such building, structure of erection; and reclamation, redevelopment and lay-out and sub-division of any land; and "to develop" shall be construed accordingly; 2(9) "Development plan" means a plan for the development or redevelopment ofthe area within the jurisdiction of a planning Authority and includes revision of a development plan and proposals of a special .

A planning Authority for development of land within its jurisdiction; 2(9A) "development right" means right to carry out development or to develop the land or building or both and shall include the transferable development right in the form of right to utilise the Floor Space Index of land utilisable either on the remainder of the land -0r partially reserved for a public purpose or elsewhere, as the final Development Control Regulations in this behalf provide; 2(13A) "Floor Space Index" means the quotient or the ratio of the combined gross floor area to the total area of the plot, viz. : - ,; .. "Total covered area of all floors Floor Space Index = Plot area Section 2(27) defines regulations made under Section 159 of the MRTP Act and includes zoning and other regulations made as part of a regional { plan, development plan or town planning scheme. The land-use maps and the development control rules/regulations together comprise the development plan " under Section 22.

The land-use map indicates the zone in which a piece of land falls, in regard whereto the permissible uses are specified in the rules/ BOMBAY DYEINGAND MFG. CO. LTD. v. BOMBAY ENVIRONMENTAL ACTION GROUP [SINHA,J. ] 957 regulations. In each of such zonal plan, although the industrial areas have been delineated separately but existence of each of the cotton textile mills >·, therein has specifically been shown which evidently shows that cotton textile mills had been given a special status. The regional plan is drawn up by the State Government in terms of Section 14 read with Section 17 of the MRTP Act. Section 14 inter alia mandates specification of land uses, i. e. , residential, industrial, agricultural, etc. , reservation for open spaces, gardens, etc. , reservation and conservation of areas of natural scenery as also infrastructure such as transport, water supply, drainage, sewerage, etc.

Section 21 mandates drafting of a Development Plan by every Planning Authority for the area within its jurisdiction. Section 22 lays out