M.C. MEHTA v. UNION OF INDIA AND ORS (18)

Citation: [2004] SUPP. 2 S.C.R. 504

Court: Supreme Court of India

Bench: Y.K. SABHARWAL, B.N. AGRAWAL

Case summary

M.C. MEHTA v. UNION OF INDIA AND ORS (18).pdf

Judgment text

M. C. MEHTA V. UNION OF INDIA AND ORS. MAY 7, 2004 [Y. K. SABHARWAL AND B. N. AGRAWAL, JJ. ] Environmental Law: 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 ofindustry is 70% or more in a residential area (INS/TU Regularisation)-Thereafter, no steps were taken to comply 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 ofindustries with timeframe-Delhi Development Act, !

957-Delhi Municipal Corporation Act, 1957-National Capital Region Planning Board Act, 1985-Constitution ofIndia-Articles 21 & 243W A large number of hazardous and noxious industries and heavy 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 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/nonconforming areas in violation of law. M. C.

MEHTA v. U. 0. 1. 505 This Court issued an order on 8. 9. 1999 directing the State 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. 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/nonconforming areas and the proposal of INSITU regularisation.

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 The Central Pollution Control Board contended that the regularisation would further result in air and water pollution and would also affect the underground water. 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 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) 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 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/ nonconforming zones are wholly illegal. The illegal.

industrialisation in residential/non-conforming area commenced and has continued and 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 industries and the setting up ofthe 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 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 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 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 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 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. (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 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 lawbreakers, namely, the industries cannot be absolved ofthe 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 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 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 ofthe residents ofthe 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 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 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; 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 ofKera/a & Ors. , (200114 SCC 215; Indian Council/or Enviro- Legal Action & Ors. v. Union ofIndia & 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/nonconforming areas in Delhi on or after lst August, 1990 shall close down and stop operating as the following schedule: (a) Industrial units pertaining to extensive industries (F Category) within a period of four months. (b) Industrial Units pertaining to light and service industries (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 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 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 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 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 forthwith and in any case not later than a month of the date fixed for closure in Direction No. 1above.

Ifthe 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 ofan undertaking by the industrial 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 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 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 ofDelhi (ii) Commissioner ofPolice, Delhi (iii) Commissioner, Municipal 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 ofthe Monitoring Committee to appoint responsible officers subordinate to them to oversee and ensure compliance of the directions contained in the judgment. (547-G-H; 548-A] ORIGINAL CIVIL JURISDICTION : Interlocutory Application No. 22. IN Writ Petition (Civil) No. 4677 of 1985 Under Article 32 of the constitution of India. WITH 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. 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. 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. 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 K. Sharma and R. S. Suri (N. P. ), for the appearing parties. The following Judgment of the Court was delivered by Y. K. SABHARWAL, J. : This case about unauthorized industrial 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 ofDelhi. Some ofextensive industries ('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 ('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 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 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 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 ofthese 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 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 ides for review after 10 years after giving them chance during the said period for reallocation in the conforming zones. The suggestion ofDelhi Government is that such all industrial units which. have come up after 1st January, 1997 shall be directed to be closed in the first instance by giving them some time. In respect of industrial units which have come up between 1st August, 1990 to 31st December, 1996, it was sugges~d that the bigger units having more than 20 workers may first be directed to be closed, later the units having workers between I0 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. 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, 18,347 industrial plots are ready and allotment and possession has been given to I0,059 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.

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 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.

In respect ofindustrial 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. 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. 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, 2001, despite lapse of three years. No answer came forth that when the matter ofshifting ofremaining '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 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 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 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 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/ occupiers/operators ofindustrial 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 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 Corporation ofDelhi it has been stated that the proposal for the withdrawal ofexemption 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. 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.

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 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 ofindustrial 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/nonconforming 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, 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 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 Ist August, 1990 have no right for allotment of a plot in an industrial area. This would, however, not debar 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 rendered by Mr. Ranjit Kumar.

In conclusion, having regard to the aforesaid, we issue the following directions : All Industrial Units that have come up in Residential/non-conforming !. area in Delhi on or after Ist 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. (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. (d) 6,000 industrial units on waiting list for allotment ofindustrial plots within 18 months. 2. The Central Government is directed to finalise the list ofpermissible household industries falling in category 'A' within a period of three months. 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 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 ofincentives by the Government shall not, however, delay the closure process. 5. The water and electricity connection of the industrial units found operating after the due date ofclosure shall be disconnected forthwith and in any case not later than a month of the date fixed for closure in Direction No. 1 above. Ifthe industrial activity still continues, the premises shall be sealed within a period of not later than another onemonth. 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 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 ofthe adjoining States ofU. P. , Rajasthan and Haryana are directed to extend full cooperation. 7. The Municipal Corporation of Delhi shall consider within three months the aspect ofwithdrawal ofexemption notification as suggested in the affidavit of its Town Planner filed on 28th October, 2002. 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 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. The first Progress Report by the Committee shall be filed by 31st B 9. August, 2004 and thereafter it shall be filed, at least once in a period of every two months. B. S. Matters disposed of.