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

BOMBAY DYEING AND MFG. CO. LTD."· BOMBAY ENVIRONMENTAL ACTION GROUP [SINHA.I.] 97 J

· by the words "balance FSI shall''. This was the subject matter of Item A (A-6) of schedule I to the Public Notice which was issued on November 29, 2000."

Evidently, the Charles Correa Committee Report had not been given effect to, but the same as would appear hereinafter had been taken note of by the Deshmukh Committee. B A fourth affidavit again came to be filed by the same deponent on 29th

.. '' "' August, 2005 .

REPORTS OF THE TWO COMMITTEES RELEVANCE c It may also be of some interest to refer to the report of the two Committees.

The State of Maharashtra appointed a committee headed by Shri Charles Correa, Architect/ Planner in 1996. The development under 1991 Regulation was put on hold from 1996 to 200 I. Jn Part I of the Report, the Committee D lamented that out of the 53 mills, they could gain access only to 26 mills. They advocated for aggregation of mills. They identified those which were viable or considered viable and suggested that the lands of unviable mills should be disposed of. It proposed a holistic development qf the mill lands. It also noticed the need for leaving open spaces. It took into consideration E other factors, namely, transport, urban form, open spaces and employment generation. As regard open spaces, it stated: ·

"The Public Open Spaces proposed (see fig 23) vary in size from large Maidans .to small Neighbourhood Parks, so that a variety of different open-air activities can take place. Jn front of the Railway F Stations, large Pedestrian plazas have been proposed, surrounded by shopping arcades (so that the people can pick up their vegetables and other purchases on their way home a classic pattern found all over Mumbai). Then again, the principal roads can be widened and lined with trees, so that they are converted into leafy boulevards." G A second committee was constituted but it did not submit any report. Another Committee was constituted under the Chairmanship of Shri Ranjit Deshmukh, the then Minister for Textiles and included a representative of all the Ministries and Departments concerned including the Urban Development Department. The Committee appointed a sub-committee. The sub-committee H

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A inter alia took into consideration the recommendations of the Charles Correa I . Study Group, prevailing provisions belonging to textile mills, prevailing state of affairs with respect thereto, demands of the National Textile Industries Board. It also held discussions with various bodies including the mill workers and mill owners as also MPs and MLAs of the town of Mumbai. It, however, B carried out actual site inspection of some textile mills only. The Committee recommended:

"Since rule 58( I )(a) contains the term ;'newly built-up", it is presumed that it permits new construction. But, carrying out such new construction means using the balance Floor Space Index and consequently using the adjoining open space. Thus, using open space c in this manner under the provisions of rule 58(1 )(a) means indirectly to override the provisions of rule 58(1 )(b ). Hence, in order to more clearly distinguish the boundary line between rule 58(1)(a) and 58(1Xb) following amendments are required to be carried out in this rule under section 37. D (a) The words "or newly" in rule 58(1)(a) should be excluded.

(b) The words "permissible FSI and" in rule 58(1)(a)(i) should be excludecj.

(c) The words "FSC of 1.00 and" in rule 58(l)(a)(ii) should be excluded.

Upon making aforesaid changes the rule 58(1 )(a) shall be limited to the extent of new use of the existing buildings of the mills only and exercise of rule 58(1)(b) shall be regarding development of the available open lands and land becoming vacant upon demolition of the existing buildings. However, such development shall be subject to permissible FSI."

Jn Paragraph 19.1, it made some suggestions for giving encouragement to revival of mills stating: - G " ... Hence the provisions of rule 58( I )(b) should be made more attractive and in order to promote revival, the mills owners should be permitted to use the development rights of the open lands, to be { handed over to municipal corporation, in the lands of their share as per column (5) of the aforesaid Table (even if such lands are situate H in Mumbai island) and for this purpose the prevailing provision of

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rule 58( I )(b) should be amended as per section 3 7. Such A recommendation is also made by the Korea (sic Correa) Study Group."

It furthermore encouraged modernization of mills. It suggested certain incidental amendments also.

From what has been noticed hereinbefore, it is evident that as per the suggestion ofRanjit Deshmukh Committee the words ''or newly" were omitted as according to it, it may give rise to a lot of confusion. From paragraph 18.⁸

. -r . of the report also, it appears that the said Committee suggested use of different language, namely, "lands after demolition of structure". We find from the said report that the Committee suggested a draft in respect of DCR 58(1 )(b) of the Regulations. It is in that context, we may have to consider the second affidavit affirmed by Shri Ramanand Tiwari when he stated that the Cabinet had approved the report albeit not in its entirety.

The draft regulations thereafter were notified for considering the objections thereto, if any. Several objections were filed, they were considered by the appropriate authority including the planning authority.

Evidently, the said two reports were considered by the Cabinet but it intended to give more to the mill owners than what was recommended inter alia by introducing sub-regulation (6) of DCR 58. The intent and purport of the State is apparent from DCR 58. It accepted a major part of the recommendations of the Deshmukh Committee but thought that the mill owners should be given something more.

PUBLIC INTEREST LITIGATION : SCOPE OF

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.

The courts in doing so would have to take into consideration a large H (

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A 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.

Scope of Public Interest Litigations in view of several decisions of this B Court has its own limitations. We would hereinafter notice a few of them. In Raunaq International Ltd. v. /. V.R. Constructions Ltd & Ors., [1999] 1 SCC 492, this Court highlighted that the public interest litigation should not be a mere cloak. The court niust be satisfied that there is some element .• . of public interest involved in entertaining such a petition. The court also cautioned that before entertaining a writ petition and passing an interim order overwhelming public interest should be taken into consideration therefor. It was further observed :

" .... It is important to bear in mind that by court intervention, the proposed project may be considerably delayed thus escalating the cost far more than any saving which the court would ultimately effect in public money by deciding the dispute in favour of one tenderer or the other tenderer. Therefore, unless the court is satisfied that there is a substantial amount of public interest, or the transaction is entered into ma/a fide, the court should not intervene under Article 226 in disputes between two rival tenderers."

In Ashok Lanka v. Rishi Dixit, [2005] 5 SCC 598, this Court opined:

" .. .it is well settled that even in a case where a petitioner might have moved the Court in his private interest and for redressal of personal grievances, the Court in furtherance of the public interest may treat it necessary to enquire into the state of affairs of the subject of litigation in the interest of justice."

In K.K. Bhalla v. State of MP. & Ors., [2006] 1 SCALE 238, it was ·( stated:

H "The Appellant has brought to the notice of the High Court that a

BOMBAY DYEING AND MFG. CO.LTD. v. BOMBAY ENVIRONMENT AL ACTION GROUP [SINHA,!.] 97 5

malady has been prevailing in the department of the State of Madhya A ~Y Pradesh and the JOA. It may be true that the Appellant did not file any application questioning similar allotments but it is well-settled if an illegality is brought to the notice of the court, it can in certain situations exercise its power of judicial review suo motu"

Public interest litigations, thus, have been entertained more frequently where a question of violation of the provisions of the statutes governing the '-- environmental or ecology of the country has been brought to its notice in the matter of depletion of forest areas and/ or when the executive while exercising its administrative functions or making subordinate legislations has interfered with the ecological balance with impunity. The High Court of Bombay, therefore, cannot be faulted with for entertaining the writ petition as a public interest litigation.

PRINCIPLES OF INTERPRETATION

Before us, the learned counsel appearing for the parties have relied on ,j several principles of interpretation of statute. F

The golden rule of interpretation is that unless literal meaning given to a document leads to anomaly or absurdity, the principles of literal interpretation should be adhered to. [See Compack (P) Ltd. v. CCE, [2005] 8 SCC 300, Gurudevdatta VKSSS Maryadit v. State of Maharashtra, [2001] 4 SCC 534, G Dayal Singh v. Union of India, [2003] 2 SCC 593 and Swedish Match AB v. Securities and Exchange Board, India, [2004] 11 SCC 641]. y The learned Judges of the High Court as also this Court have been taken through the provisions of the MRTP Act, those of the DCR and in particular DCR 58 as framed in 1991 as well as in 2001 times without H

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A number. With the assistance of different counsel appearing for different + purpose, we have read, re-read and re-read several provisions. Before us, several principles, canons and rules of interpretation have been emphasized. We have not only been W<:en through various decisions of this Court but also various authorities and treatises dealing with the subject of interpretation of statutes.

We have also been asked by the learned counsel- for the parties to interpret the impugned legislation in the light of constitutional scheme and in particular Articles 14 and 21 of the Constitution of India, the provisions of • the MRTP Act, the doctrine of sustainable development and various other principles. In the aforementioned situation, it is not possible for us to take recourse to the golden rule.

As would appear from the discussions made hereinafter, we are, however, of the opinion that for correct interpretation of DCR 58, the principles of purposive interpretation should be applied. D In Francis Bennion's Statutory Interpretation, purposive construction has been described in the following manner:

'A purposive construction of an enactment is one which gives effect to the legislative purpose by (a) following the literal meaning of the E enactment where that meaning is in accordance with the legislative purpose (in this Code called a purposive-and-literal construction), or (b) applying a strained meaning where the literal meaning is not in accordance with the legislative purpose (in the Code called a purposive- and-strained construction).'

F In K.l. Gupta & Ors. v. The Bombay Municipal Corporation and Ors .. [ 1968) I SCR 274, it was stated:

" ... Before examining the contentions on the points of law raised in this case, it is necessary to appreciate what the Act sought to achieve and why it was brought on the statute book. In order to do this, it is G necessary to take stock of the position at the time of its enactment so that attention may be focussed on the situation calling for a remedy and how the legislature sought to tackle it ... " ... However, the pith of this statement has now found form in the doctrine of purposive construction, as accepted by this Court in several cases. H

BOMBAY DYEING AND MFG. CO. l TD. v. BOMBAY ENVIRONMENT AL ACTION GROUP [SINHA, J.) 977

In Maruti Udyog Ltd v. Ram Lal and Ors., [2005] 2 SCC 638, while interpreting the provisions of Industrial Disputes Act, 1947, the rule of purposive construction was followed.

In Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd., [1987] I SCC 424 this Court stated: is " .. Jf a statute looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear ,t different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and ·each word is meant and designed to say as to fit into the scheme of the entire Act..."

In 'The Interpretation and Application of Statutes', Reed Dickerson, at p.135 discussed the subject while dealing with the importance of context of the statute in the following tenns: I I ' ... The essence of the language is to reflect, express, and perhaps even affect the conceptual matrix of established ideas and values that identifies the culture to which it belongs. For this reason, language has been called "conceptual map of human experience".' E In Punjab Land Development and Reclamation Corpn. Ltd. v. Presiding Officer, Labour Court, Chandigarh, [1990] 3 SCC 682, this Court referred to the following passage from Hans Kelsen's Pure Theory Law of Law:

" ... The legal act applying a legal norm may be perfonned in such a F way that it confonns (a) with the one or the other of the different I meanings of the legal nonn, (b) with the will of the norm-creating authority that is to be determined somehow, (c) with the expression which the nonn-creating authority has chosen, (d) with the one or the other of the contradictory nonns, or (e) the concrete case to which the two contradictory norms refer may be decided under the assumption G that the two contradictory norms annul each other. In all these cases, the law to be applied constitutes only a frame within which several ''f applications are possible, whereby every act is legal that stays within the frame."

[See also High Court of Gujarat v. Gujarat Kishan Mazdoor Panchayat, H

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A (2003] 4 SCC 712, Indian Handicrafts Emporium and Ors. v. Union of India and Ors., (2003) 7 SCC 589 and Deepal Girishbhai Soni and Ors. v. United India Insurance Co. Ltd., Baroda, (2004) 5 SCC 385, para 56]

In Bairam Kumawat v. Union of India and Ors., [2003] 7 SCC 628, this Court held that if special purpose is to be served even by a special statute, the same may not always be given any narrow and pedantic, literal and lexical construction nor doctrine of strict construction should always be adhered to.

In Pratap Singh v. State ofJharkhand and Anr., [2005] 3 SCC 551, this Court emphasized assignment of contextual meaning to a statute having regard to the constitutional as well as international law operating in the field. Strict adherence to the procedure, subject to just exceptions, was highlighted therein.

However, in P.S. Sathappan (Dead) By LRS. v. Andhra Bank Ltd and Ors., (2004) 11 SCC 672, it was observed that in the guise of purposive construction one cannot interpret a section in a manner which would lead to a conflict between two sub-sections of the same section.

Having noticed the principles of purposive construction, we may take note of certain other principles which are necessary to be considered for proper interpretation of OCR 58. E 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 F 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.

In Venkata Subamma and Anr. v. Ramayya and Ors., AIR (1932) PC 92, it is stated that an Act should be interpreted having regard to its history and the meaning given to a word cannot be read in a different way than what was interpreted in the earlier repealed section.

It is also a fundamental proposition of construction that the effect of deletion of words must receive serious consideration while interpreting a statute as this has been repeatedly affirmed by this Court in a series of judgments. [See Commr. Of Jncome-tax/E,xcess Profits Tax, Bombay City v.

BOMBAY DYEING AND MFG. CO. LTD. v. BOMBAY ENVIRONMENTAL ACTION GROUP[SINHA.I.] 979

Messrs. Bhogilal laherchand including Batliboi and Co., Bombay, AIR (1954) A SC 155, The Mangalore Electric Supply Co. Ltd v. The Commissioner of Income Tax, West Bengal, (1978] 3 SCC 248, His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kera/a and Anr., [1973) 4 SCC 225 and Mis. Onkarlal Nandlal v. State of Rajasthan and Anr., [1985] 4 SCC 404].

It is furthennore well~known that when the statute makes a distinction B 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 t ·t. is brought back into the statute and finds place in words which were already there in the first place.

In Charles Bradlaugh v. Henry lewis Clarke, (1883) 8 AC 354, Lord C Watson as regards conscious omission from the statute stated the law, thus:

"I see no reason to suppose that all these omissions were accidental, and as little reason to suppose that the enactments with regard to personal disabilities were intentionally left out, whilst the express D mention made of common infonners was omitted through accident or inadvertence."

It is also a well-settled principle of law that common sense construction rule should be taken recourse to in certain cases as has been adumbrated in Halsbury's Laws of England (Fourth Edition) Volume 44(1) (Reissue). We E would refer to the said principle in some details later.

INTERPRETATION OF ACT AND REGULATIONS

OCR 58 has been attempted to be interpreted in more than one manner by the learned counsel appearing for the parties. F OCR 58 was made to revive and resurrect neighbourhood~, foster development, regenerate lands which had become sterile, encourage the shifting of textile mills (thereby reducing the attendant strain and industrial activity places on civil amenities) and pay off chronic arrears and dues of workers, banks institutions, statutory dues, etc. In its operation and implementation G new OCR 58 would also unlock large real estate and make it available to residents.

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 H

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A purpose and object for which the statute is made. The MRTP Act provides for formulation of regional plans and development plan. The planning authority, before a plan is finalized, is required to see that the provisions thereof have been fully complied with. The MRTP Act provides for appointment of a 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 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 of such development plan.

E 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 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, ut 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. H Ordinarily, it would not be for the court 'to substitute its decision to that of

BOMBAY DYEING AND MFG. CO.LTD. v. BOMBAY ENVIRONMENT AL ACTION GROUP [SINHA.!.] 981

~ ,. the planning authority unless an appropriate case is made out therefor. When, however, question of public interest comes up, the court indisputably would A

try to delicately balance the different factors, if possible.

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 B factor also for interpretation of the statute. Public interest so far as maintenance of ecology is concerned pertains to a constitutional scheme comprising of t Articles 14, 21, 48A and 51A(g) of the Constitution of India, the other " factors are no less significant. [See also T.N. Godavarman Thirumalpad v. Union of India 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 c v. Union of India and Ors., (1996] 5 SCC 647]. All concerned, namely, operating agencies, the State Government, the National Textile Mills as also BIFR interpreting the said regulation opined that sharing of land is imperative, but the question remains, to what extent? Whether radical changes were made in the year 2003, when the State made the aforementioned clarification would again be a question which is required to be posed and answered. Was ). such a clarification in consonance with the reports of Charles Correa Committee and the Ranjit Deshmukh Committee? Did 2000 acres of vacant land which would have been otherwise available come down to 50 acres? Had any balance been struck between the original concept of sharing of lands by Bombay Municipal Corporation, MHADA and the mill owners? It is in the aforementioned backdrop, the nature of change must be considered. 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, but again the question would be "was there any reduction"? The amendments in the F ~ 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.

A statutory scheme herein also by way of Section 22 clearly speaks G about open spaces. The Legislative Act confers guidelines which advocates the necessity of environmental impact assessment. The State, when it exercises "'·f its power under Section 37 of the MRTP Act is required to act within the four-comers of the Act. Any modification or amendment must address the "L ·'-. environmental consequences together with other relevant factors. H

982 SUPREME COURT REPORTS [2006) 2 S.C.R.

A As a logical corollary, it must also be detennined 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 th~ statutory scheme.

B Having said so, we have no other option but, as indicated hereinbefore, to take recourse to the principles of purposive construction and interpret DCR 58 in accordance with the scope and object of the Act. For the said purpose, we may also have to consider various aspects of the matter. We would make an attempt in this behalf. c SCOPE OF JUDICIAL REVIEW V/S-fii;-VIS LEGISLATIVE POLICY

A policy decision, as is well known, should not be lightly interfered with but it is difficult to accept the submissions made on behalf of the learned counsel appearing on behalf of the Appellants that the courts cannot exercise · D their power of judicial review at all. 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.

"It is axiomatic that the contents of a policy document cannot be read and interpreted as statutory provisions. Too much of legalism

BOMBAY DYEING AND MFG. CO. LTD. v. BOMBAY ENVIRONMENT AL ACTION GROUP [SINHA,!.] 98)

cannot be imported in understanding the scope and meaning of the clauses contained in policy formulations. At the same time, the Central Government which combines the dual role of policy-maker and the delegate of legislative power, cannot at its sweet will and pleasure give a go-by to the policy guidelines evolved by itself in the matter of selection of drugs for price control. The Government itself stressed on the need to evolve and adopt transparent criteria to be applied across the board so as to minimize the scope for subjective approach and therefore came forward with specific criteria. It is nobody's case that for any good reasons, the policy or norms have been changed or have become impracticable of compliance."

[Emphasis supplied] c 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 D view of the fact that it does not possess such expertise.

Divergent opinions, however, have been expressed by the authorities in this behalf. The scope and extent of judicial review of legislation, it is trite, would vary from case to case. E Reliance has been placed by the Appellants on Maharashtra State Board of Secondary and Higher Secondary Education and Anr. v. Paritosh Bhupesh Kumar Sheth and Ors., [1984] 4 SCC 27 wherein this Court was concerned with a regulation laying down the terms and conditions for revaluating the answer papers. Indisputably, there exists a distinction between regulations, rules and bye-laws. The sources of framing regulations and bye-laws are F different and distinct but the same, in our opinion, would not mean that the court will have no jurisdiction to interfere with any policy decision, legislative or otherwise.

In R.K. Garg v. Union of India & Ors., [1981] 4 SCC 675. this Court G noticed that the legislature is presumed to understand and correctly appreciate the needs of its own people, but the same again would not mean that judicial "--< · review of legislation is impermissible.

In Ba/co Employees Union v. Union of India, [2002] 2 SCC 333, this Court while dealing with new economic policies of the elected government H

984 SUPREME COURT REPORTS [2006] 2 S.C.R.

A held:

" ... Any such change may result in adversely affecting some vested interests. Unless any illegality is committed in the execution of the policy or the same is contrary to law or ma/a fide, a decision bringing about change cannot per se be interfered with by the court. B Wisdom and advisability of economic policies are ordinarily not amenable to judicial review unless it can be demonstrated that the policy is contrary to any statutory provision or the Constitution. In other words, it is not for the courts to consider relative merits of different economic policies and consider whether a wiser or better c one can be evolved. For testing the correctness of a policy, the appropriate forum is Parliament and not the courts ... "

The embargo as regard exercise of power of judicial review may not be beyond the aforementioned dicta.

D Here, however, we are 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. OCR 58 deals with only a class of people who owned and possessed cotton textile mills and want revival/ E rehabilitation of their sick or closed textile mills or intend to modernize or shift their mills.

We may notice that in State of Rajas than & Ors. v. Basant Nahata AIR (2005) SC 340 I, it was pointed out :

'The contention raised to the effect that this Court would not F interfere with the policy decision is again devoid of any merit. A legislative policy must conform to the provisions of the constitutional mandates. Even otherwise a policy decision can be subjected to judicial review"

G Furthermore, interpretation of a town planning statute which 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 validity and/or interpretation of a legislation must be resorted to within the parameters of -

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.• \ judicial review, but it is difficult to accept the contention that it is totally excluded.

Unreasonableness is certainly a ground of striking down a subordinate legislation. A presumption as to the constitutionality of a 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.

It is interesting to note that the scope of judicial review is now being expanded in different jurisdictions. Even judicial review on facts has been held to be permissible in law. [See Manager, Reserve Bank of India, Bangalore C v. S. Mani and Ors., [2005] 5 SCC 100, Sonepat Cooperative Sugar Mills Ltd v. Ajit Singh, [2005] 3 SCC 232 and Cho/an Roadways Ltd. v. G. Thirugnanasambandam, [2005] 3 SCC 241 ].

In Anil Kumar Jha v. Union of India, [2005] 3 SCC 150, it was held that in an appropriate case, the Supreme Court may even interfere with a D political decision including an action of the Speaker or Governor of the State although it may amount to entering into a political thicket. [See also Rameswar Prasad & Ors. v. Union of India & Anr., (2006) I SCALE 385].

Such directions have more often than not been issued even where the question involved relates to enforcement of a human right or environmental aspects. Interpretation and application of constitutional and human rights had G 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. By way of example, we may point out that by interpreting Article 21, this Court

- has created new rights including right to environmental protection. H

986 SUPREME COURT REPORTS [2006) 2 S.C.R.

A The Wednesbury principles to which r~ference has been made in The Trustees of the Port of Madras v. Mis Aminchand Pyarelal and Ors., (1976] 3 sec 167 in some jurisdiction are being held to be not applicable in view of the development in constitutional law in this behalf. [See e.g. Huang and Ors. v. Secretary of State for the Home Department, [2005] 3 All. ER 435, wherein referring to R. v. Secretary of State of the Home Department, ex. P B Daly, [200 l] 3 All ER 433, it was held that in certain cases, the adjudicator may require to conduct a judicial exercise which is not merely more intrusive than Wednesbury, but involves a full-blown merits judgment, which is yet more than Ex p. Daly requires on a judicial review where the court has to. decide a proportionality issue. Law is never static; it changes with the change C of time. [See Motor General Traders and Anr. v. State of Andhra Pradesh and Ors., [1984] l SCC 222 and John Va//amattom v. Union of India, [2003] 6 sec 6111.

For the foregoing reasons, we are of the opinion that in cases where constitutionality and/ or interpretation of any legislation, be it made by the D 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 legislative making power. A legislation be it made by the E Parliament/ Legislature or by the executive must be interpreted within the parameters of the 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-' -vis the constitutional provisions and other relevant factors. We would have to bear some of the aforementioned principles in mind while adverting to the rival contentions raised at the bar in regard to interpretation of OCR 58' as well as constitutionality thereof. ·•

DCR 58: INTERPRETATION

For the purpose of interpretation of OCR 58, it may be beneficial to notice the changes effected by 200 I Regulations vis-a-vis 1991 Regulations:

BOMBAY DYEING AND MFG. CO.LTD.'' BOMBAY ENVIRONMENTAL ACTIONGROUP[SINHA,l] 987

Old DCR 58 New DCR 58 A

58. Development or redevelopment 58. Development or redevelopment of lands of cotton textile mills; of lands of cotton textile mills;

( l) Lands of sick and/or closed cotton ( 1) Lands of sick and/or closed textile mills. - With the previous cotton textile mills. - With the B • approval of the Commissioner to a previous approval of the . layout prepared for development or Commissioner to a layout prepared redevelopment of the entire open land for development or redevelopment built-up area of the premises of a sick of the entire open land built-up area and/or closed cotton textile mill, and of the premises of a sick and/or on such conditions deemed closed cotton textile mill, and on C appropriate and specified by him, and such conditions deemed appropriate as a part of a package of measures and specified by him, and as a part recommended by the Board of of a package of measures Industrial and Financial recommended by the Financial Reconstruction (BIFR); Financial Institutions and Commissionerate of D Institutions and Commissionerate of Industries for the revival/ Industries for the revival/ rehabilitation of a potentially viable rehabilitation of a potentially viable sick and/or closed mill, the sick mill, the Commissioner may Commissioner may allow; allow; E (a) The existing or newly built-up (a) The existing built-up areas to areas to be utilised- be utilised-

(i) for the same cotton textile or {i) for the same cotton textile or related user subject to permissible FSI related user subject to observance and observance of all other of all other Regulations; F Regulations;

(ii) for diversified industrial users in (ii) for diversified industrial users accordance with the industrial in accordance with the industrial location policy, with office space location policy, with office space G only ancillary to and required for only ancillary to and required for such users, subject to FSI of 1.00 and such users, subject to and observance of all other Regulations; observance of all other Regulations;

(iii) for commercial purposes, as (iii) for commercial purposes, as permitted under these Regulations: permitted under these Regulations; H

988 SUPREME COURT REPORTS (2006) 2 S.C.R.

A Provided that in the Island City, the Provided that in the Island City, the 1 area used for office purposes shall area used for office purposes shall not exceed that used earlier for the not exceed that used earlier for the same purpose. same purpose.

(b) Open lands and lands after (b) Open lands and balance FSI shall B demolition of existing structures in be used as in the Table below case of a redevelopment scheme to be used as in the Table below y

A bare comparison of the said provisions would show that in sub- C regulation (I) of OCR 58, the language remains the same. However, in clause (a) thereof the words "or newly" have been omitted in the 2001 Regulations. Clause (a) of sub-regulation '(l) provides for change of user in relation to the existing built-up area, subject to the recommendations of BIFR as a package. The question as to whether the mills which are closed but were not referred D to BIFR come within the purview of the said clause would be dealt with a little later. J Sub-regulation (I) of OCR 58 provides for an approval of the Commissioner to a layout prepared for the development or redevelopment of the entire open land as well as built-up area of the premises of a sick and/ E or closed textile mill. For the purpose of grant of sanction as regards change of user, the Commissioner may specify certain conditions as it may deem appropriate. Such an approval was sought to be a part of the measure of the package recommended by BIFR for the revival/rehabilitation of a potentially viable sick mill. Only if such conditions are specified, clause (a) shall apply which provides for change of user relating to existing built-up area. F We have noticed hereinbefore that Regulation 56(3)(b) and Regulation 57(4 )(c) also makes specific provisions for grant of change of user in respect of sick mills as a part of a package of measures recommended by BIFR.

The drastic changes have, however, been made in clause (b) of Sub- G regulation (I) of OCR 58. It refers to a case of redevelopment. In clause (b) the words "after demolition of existing structures in case of a redevelopment scheme" have been deleted. . ',,r

OCR 58 as made in 199 I consisted of four different concepts:

H (I) Existing built up areas;

BOMBAY DYEING AND MFG. CO. l TD.,. BOMBAY ENVIRONMENT AL ACTION GROUP [SINHA, J.] 989

(2) Newly built up areas in OCR 58( I)(a); A (3) Open land and (4) Lands after demolition of existing structures in the case of a redevelopment scheme in OCR 58(1)(b).

It is not in dispute that the scheme framed thereunder did not work or B in any event did not work to the satisfaction of all the mill owners and other players including the State. .•. 'y

In view of the limited options contained therein and the consequences flowing therefrom in terms of the Old Regulations a mill owner could

(i) c continue to use the existing cotton textile mill; (ii) redevelop the existing structure without changing its shell and without touching the open land in which event, no sharing of land or structure was necessary; (iii) retain existing structure and develop the open land in which event D \. the mill owners were required to share 2/3rd of the open land used; (iv) demolish the existing structures and develop the entire land, meaning thereby, the open land as also the land available after demolition of the existing structure in which event sharing of E entire land was contemplattd.

We have noticed that only five mills opted in terms of the old Regulation. Hardly any development took place. Thus, most textile mills continued with status quo. Closed mills remained closed, workers had not been paid their wages, banks and financial institutions did not receive back their dues. Even F t the statutory dues and taxes continued to mount. The structures might have become more dilapidated and ten years went down the line in the aforementioned scenario. Even otherwise, mills like Phoenix Mills retained more than I00 years old shell and glassed it up and even in the said shell, malls, supermarkets, night clubs and restaurants were constructed. Thus, it G resulted in unplanned and unregulated development. It is in that situation, the State might have thought that workable changes are necessary wherefor, after "1' taking into consideration some reports, they had come out with a draft. When . the draft was published in terms of Section 37(1AA) of the MRTP Act, 24 objections were received. The writ petitioners admittedly were not amongst them. The said objections were placed before the planning authorities. The H

990 SUPREME COURT REPORTS [2006] 2 S.C.R.

A Bombay Municipal Corporation had also put inputs as a planning authority. ~ Only thereafter the matter went back to the State.

The effect of amendment in clause (b) must be seen from the Table appended thereto. In tenns of the Old Regulation in respect of land covering more than 10 hectares, for green area 33% land was to be set apart, and for B MHADA 37% thereof, whereas the owner retained 30%. Under the new OCR 58, admittedly the owner of the mill at least obtains construction rights over 63% of the land as the land in tenns ofColumn 3 gets loaded in Column

5. The mill owner furthennore even according to the writ petitioners gets . TOR of 37%. Open land in clause (b) is what is not covered by the built-up c area. The balance FSI, indisputably, is not open area.

The meaning of 'open land' must be construed as land other than land required to sustain the built up area. We may now attempt to understand the effect of FSI having regard to a concrete example. If the area of a plot is 1000 sq. m., applying the FSI of 1.33, a person will be entitled to construct D a built up area of 1330 sq. m. If he intends to build a two-storeyed building, he will utilize 665 sq. m. of land whereas in a case of ground plus four storeyed building, he will be using 266 sq. m. of land and in case of nine storeyed structure, he will be using only 133 sq. m.

The greater the height of the building, more lands will be available either by way of public green or private green as also for MHADA. However, in such a case, the plinth area will vary significantly. Whereas in the first case, it would be 665 sq. m., in the third case, it would only be 133 sq.m. although the built up area remains the same.

Taking the illustration as mentioned hereinbefore, the open land in each case shall vary. Thus, open land would not mean land occupied by the t plinth but would mean land other than that is necessary to sustain the built up area.

We do not accept the contention of Mr. Salve that clause (b) applies to open land as also lands after demolition of existing structure in case of a G redevelopment scheme and only because the words "and lands after demolition of existing structures" had been deleted, the same may not be of much significance inasmuch as clause (b) of the new regulations will have to be . ,r construed in the light of clause (a). It will bear repetition to state that whereas clause (a) refers to change of user in relation to the existing built-up area, H clause (b) provides for open lands. The manner in which the development

BOMBAY DYEING AND MFG. CO.LTD. v. BOMBAY ENVIRONMENTAL ACTION GROUP [SINHA, l.] 991

A -\ and/ or redevelopment should take place has been clubbed in sub-regulation (I) of DCR 58 read with sub-regulation (6) thereof. For proper interpretation, all the relevant provisions are required to be read harmoniously.

DCR 58(1 )(a) deals with a case of non-sharing of a land as is evident from the fact that no sharing percentage is provided therein. It, therefore, envisages change of user for the three purposes mentioned therein, in the B event the existing built-up area is utilized. In terms of the said provision, the internal area of such structure remains the same although they can be " redesignated or reconstructed. The only benefit conferred by reason thereof is grant of change of user indicated therein. The State while making this regulation contemplated that the change of user would enable earning of additional sums of money from the assets which were unproductive. Clause c (b), however, expressly provides for sharing of land as specified in the Table therein. The question, however, is as to what would be the extent of open land available on the spot.

Existing built-up area, in our view, would not be open land. We have D \, also to take note of the fact that the newly built-up area, as existing in the old clause (a) of sub-Regulation (I) of OCR 58 has been omitted, the effect whereof would be noticed a little later.

We are not oblivious of the fact that the word "and" has been used twice in sub-regulation ( 1) of OCR 58. It ordinarily shall be read conjunctively E and not disjunctively. However, for the purpose of giving effect to the said provisions, the rule of purposive construction is required to be taken recourse to. Sub-regulation (I) speaks of entire open land as well as built-up area. It speaks of the necessity of having the recommendation of BIFR as a package of measures. Such recommendations must be for the revival/rehabilitation of 't- F a potentially viable sick mill. The provisions, therefore, may not apply to a mill which is neither sick nor otherwise not potentially viable, subject, of course, to the explanation contained in Note (vi) appended thereto as also sub-regulation (6) thereof.

For the aforementioned purpose, let us at this juncture also notice the G tables appended to clause (b) of sub-Regulation (1) of DCR 58. ~.,~ Column (2) of the Table refers to the extent of land. Column (3) provides . for percentage to be earmarked for recreation ground/ garden, playground or any other open user as specified by the Commissioner. Column (4) refers to percentage to be earmarked and handed over for development by MHAOA H

992 SUPREME COURT REPORTS (2006] 2 S.C.R.

A for public housing/ for mill worker's housing as per guidelines approved by the Government to be shared equally. Column (5) provides for percentage to be earmarked and to be developed for residential or commercial user (including users permissible in residential or commercial zone as per these regulations or diversified industrial users as per Industrial Location Policy) to be developed by the owner.

There is no change in Note (i) or Note (ii). Changes have been made in Note (iii) and Notes (iv), (v) and (vi) have been added. Interestingly, from Note (iii), after the words "Transferable Development Rights as in Appendix VII" and before the words "in respect of the lands earmarked for open spaces in column (3)", the expression "only" has been omitted. Thus, whereas earlier transferable development rights could be granted only for the purpose of the open lands which were to be handed over to MCGM, i.e., about 33%, now apart from that, development rights in respect of lands earmarked and handed over as per Column (3) have been made available to the mill owners for utilization thereof as per Column (5) as TDR as aforesaid. The mill owner, therefore, gets FSI of 1.33. He, furthermore. gets corresponding TOR to be utilized in the sub-urbs area or to sell the same. The idea appears to be to give more FSI and TOR to the person who surrenders the lands.

Things, however, may be different in a case where the mill owner demolishes a portion of the existing structure and construct new areas so as to be called 'newly built-up' area on that part of the land remaining the other part of the structure that it will come within the purview of clause (a) inasmuch as approval for development would be necessary for the newly built-up area for change of user. In such a case, requirements of clause (b) were not required to be complied with as it would squarely fall within the purview of p clause (a). The omission of the words "or newly'' from clause (a) provides for a guideline. If the entire structure is to be demolished, the newly built-up area will have to be in terms of clause (b) read with sub-regulation (6). Such newly built-up structure, having regard to omission from clause (a) would have no role to play if no built-up area existed. Thus, all new constructions including constructions on lands after demolition of the existing structure and new constructions whether under a development or redevelopment scheme would be covered by clause (b) read with sub-regulation (6) thereof. If new constructions are raised, FSI, in a case of such development or redevelopment, being covered by clause (b) would be for the entire plot, except the built-up

BOMBAY DYEING AND MFG. CO.LTD.''· BOMBAY ENVIRONMENTAL ACTION GROUP [SINHA, J.] 993

area which was existing, FSI having regard to its statutory definition would, thus, have to be calculated having regard to the ratio of the total construction to the area of the plot except the land component of the existing built up area.

There is no dispute as regard grant of better facility to the mill owners through TOR. The only dispute is what meaning should be attributed to the expression 'balance FSI'. B In order to detennine whether vital changes have been effected by way 'r of the amendment of 2001, both the sub-clauses of sub-regulation (1) would be necessary to be taken into consideration for construing the words "balance FSI". c The expression "balance" would mean "apart from" which in turn would mean apart from the area for which protection has already been given.

Balance FSI would, thus, mean FSI which is available for construction after excluding the FSI relatable to an already consumed by the existing built-up structure. \ Both the phrases "open lands" as also "balance FSI" contained in OCR ; 58(1 )(b) play significant role. The word "balance" is crucial which would naturally mean FSJ 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 built-up 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 OCR 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, as would be amplified from the discussions made hereinafter 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 OCR 58(1)(a) and OCR 58(l)(b), which ex facie would lead to an anomaly.

In view of the fact that the built up area was to be protected in 'tenns H

994 SUPREME COURT REPORTS [2006) 2 S.C.R.

., A of sub-regulation (I) of OCR 58, a'fortiori the land component 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 FSJ on open lands or _otherwise had also been used in sub-regulation (5) of OCR 58. It also, thus, gives a significant clue to find out the meaning of balance FSI. B 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 OCR 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. c The words "built-up area" find its source from the definition of existing building, as noticed herein before. 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 built-up area additionally but separate and distinct from the old existing built-up area. The existing built-up area, thus, was sought to be protected D 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.

In a case where the existing structure is demolished in part, the balance E 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 F reason of 200 I Regulations and, thus, if after demolition of the entire structure the whole plot is treated to be open land and FSJ is calculated on the basis 1 thereof the purport and object of the amendment will be defeated. 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. G Indisputably, though, the Regulations made by the State which is a piece of subordinate legislation should be read in the light of the statutory scheme made under the legislative act as also having regard to the constitutional ,... scheme as contained in Articles 14, 24, 48-A and 51-A(g) of the Constitution oflndia, but while doing so the effect and purport for which such amendment .H were brought about cannot be lost sight of. The amendments carried out in

f BOMBAY DYEING AND MFG. CO.LTD.,. BOMBAY ENVIRONMENT AL ACTION GROUP [SINHA, J.] 995

• ~ the MRTP Act from time to time and clearly the provisions of Sub-section A (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. B In the marginal note, the expression "development or redevelopment" \o r of land of cotton textile mills has been mentioned. What, 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. [See Smt. Nandini Satpathy v. P.L. Dani and Anr., AIR (I 978) SC 1025, para 33].

The expression "development or redevelopment" in the marginal note does not advance the contention of the writ petitioners that DCR 58 does not frame change of user to non-textile mill users. Indisputably, having regard to the provisions of the entire Regulation, OCR 58 is a special provision. It is a self-contained code. It provides for a large number of things. The State while making the said legislation was required to provide for almost all the eventualities in respect of the different categories of cotton textile mills. They could be, apart from the sick mills referred to BIFR; (a) closed, (b) non- closed mills intending to modernization, (c) non-closed mills intending to shifting, (d) sick mills which have not been referred to BIFR under SICA and, thus, no scheme wherefor was made. There were multiple options and one mill or the other may fall in more than one category. A closed mill may come within the purview of DCR 58(l)(a) or 58(l)(b) or 58(6). Some of the NTC mills also may come within one or more categories. It is possible and in fact some of the mill owners had opted for one or more of the multiple options of development/ redevelopment activity in terms of the said regulation. By way of example, Ruby Mill opted for both modernization and shifting and permission had been granted therefor. The fact that DCR 58 is a self-contained code is evident from sub-regulation (8) which provides that funds accruing to a sick, closed or mill requiring modernization or shifting shall be credited to an escrow account, which shall be utilized only for revival/ rehabilitation, modernization or shifting of the industry. Sub-regulation (9) provides a mechanism for putting this into place. The State, not only endeavoured to take care of needs ()f various categories of cotton textile mills but also made ·- attempts to find out a solution having regard to the fact that the 1991 H Regulations did not work. By framing DCR 58, therefore, a mechanism was

996 SUPREME COURT REPORTS (2006] 2 S.C.R.

A sought to be provided for achieving the purpose of providing some relief to J.. all players in the field. II The said Regulations were framed under Section 22(m) of the MRTP Act for controlling and regulating the use and development of land. They are not, and cannot be, treated to be provisions for compulsory. acquisition of B land. It also does not provide for reservation and/ or designation in a development plan.

In sub-regulation (I) of OCR 58, the phrase "lands of sick and/ or ~

closed cotton textile mills" has been used. The same phrase has been used in Regulations 58(6), 58(8){a) and 58(9)(a). OCR 58(1) read with DCR 58 (4) c although postulates recommendations by BIFR, the words "closed mills" also find place both in Regulations 58(1) and 58(6). We have heretobefore noticed the statutory meaning attributed to the expression "exiting building".

DCR 58(1)(a) deals with existing structure which could have been D subjected to modification internally. OCR 58( I)(b) deals with the rest of it, namely, open land. Under old regulation, the expression "open land'' would mean such lands which were required to sustain built-up area. The concept finds place in OCR 58(6). In terms of OCR 58( I )(a), thus, no demolition is contemplated which in tum would mean that no sharing of land also is contemplated, i.e., the land owners are not required to surrender any land. E However, it contemplates change of user. It contemplates: (i) the old cotton textile mills may continue to operate; (ii) Alternatively, it may take recourse to "related user", i.e., user related to such mills. F (iii) It could also take recourse to "diversified industrial user", meaning thereby, user other than cotton textile mill and would include uses for other industries in terms of the industrial location.

It is not in dispute that a long list of industries is contained in the said policy. It could further be used for commercial purpose and the same having G regard to the regulations would also include residential purposes.

In terms of OCR 58(l)(a), there could be no demolition and only the existing structures, namely, those which were existing prior to coming into force of the said Regulation should be developed by utilizing the existing structure which could not either be demolished or reconstructed or relocated. .,. H

BOMBAY DYEING AND MFG. CO. LTD. v. BOMBAY ENVIRONMENT AL ACTION GROUP [SINHA. J.] 997

~ \ The contention of Mr. Salve that the word "demolition" brought about A by reason of 1994 amendment in Section 2(7) of the MRTP Act plays a significant role also cannot be accepted for more than one reason.

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. B The High Court, therefore, in its judgment wrongly laid undue emphasis } thereupon.

Furthermore, in OCR 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 c 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 OCR 58(1) would permit not just the 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 OCR 58.

It has not been disputed that keeping in view of the fact that the structures of the mills had been built long long time back. they had sprawling existing structures. Ranjit Deshmukh Committee Report does not categorically state that the balance FSI has to be calculated only from the operi land which was available before demolition and not from the land which became open by reason of demolition of structures existing thereon.

It is true that the lands of different mills had different built-up areas. 't 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 of structures which had been standing on the lands but the same is a fortuitous circumstance. Only because in a given case, the extent "' of the area to be given to MHADA or MCGM would be comparatively less than the case of land belonging to other mills, the same by itself cannot be G a ground for construing DCR 58 differently.

"'. Furthermore, in Note (iv) of DCR 58(l)(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 H

998 SUPREME COURT REPORTS [20061 2 S.C.R.

~ A 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 OCR 58(6)(a) the words ·'reconstruction after demolition of existing structures limited to the extent of 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 B premises" which would also go to show that in the event, the interpretation as advocated by Mr. Salve is accepted, such detailed and specific references to the specific contingency of openness of land arising after and upon • demolition or reconstruction done after demolition would become wholly meaningless. c It is, thus, clear that the expression "open lands" is meant to connote lands other than lands available after demolition of existing structures. [See Lennon v. Gibson, (1919) AC 709 at 711, Craies on Statute Law. Seventh Edition, page 141 and G.P. Singh's Principles of Statutory Interpretation, Ninth edition, page 258]. D Having said so, let us take a re-look at sub-regulation (6) of OCR 58. Sub clauses (a) and (b) of sub-regulation (6) refer to built-up areas which would mean that such area which the owner of the mill had built whether existing or after demolition. The statute contemplates retention of the built- up area that means the same area which the owner could retain had the building been not demolished. The area which the structure had occupied is intended to be left with the mill owner. However, how much area would be allowed to be retained, would inevitably differ from mill to mill. Sub-regulation (6) merely provides for a guiding principle that the owners of the mill would be permitted to retain the existing structure and built-up area; precisely that is the concept of sub-regulation (6). In other words, rebuilding to the same t effect or aggregation between different plots is permitted so long the existing built up area is dt:molished and the same would not require sharing of any land thereunder, provided of course that existing built up area is not enhanced. OCR 58(6) is carved out of OCR 58(l)(b). In terms of it only the construction is permitted for the same area for the purpose of reconstruction. It is also worth noticing that both old and new regulation speak of retention of same structure. OCR 58(6), thus, confers an additional benefit in respect of cases falling within OCR 58(l)(a) allowing inter a/ia: ,, (a) demolition which it could not do under OCR 58( I )(a);

H (b) it does not require any sharing for which benefit was also available

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under DCR 58(1)(a); A (c) built up area remaining the same, the shape, size and nature of the existing structure could be changed which could not be done under DCR 58(1)(a);

(d) The second part of sub-regulation (6) permits aggregation on the same single mill plot, which was not available under DCR 58(1)(a), B subject of course to the existing built up area remaining the same.

- The contention of BEAG is that the implementation of DCR 58 would lead to a disastrous result and in this behalf our attention was drawn to a sanctioned plan in respect of Mill No. 4 to show that the consequences thereof would be that the share of MCGM and MHADA would come to C

662.61 sq. m. and 542.13 sq. m. respectively, although the plot area of Mill No. 4 is 58,458.36 sq. m. We do not find any merit in the said contention as keeping in view of our finding aforementioned, the built up area was required to be deducted therefrom. With a view to examine the said contention, we may hereinbelow notice some charts in respect of Mill No. I and Mill No. D 4:

Mill No. I

Existing Development E PLOT AREA 47,730.28 SQ.M. (EXCL. SET BACK AREA) EXIST. PLINTH AREA 22,950.58 SQ.M. RA TIO OF GROUND COVER 48.08% EXISTING R.G. AREA ALMOST NIL F Proposed Development PLOT AREA (EXCL. SET BACK AREA) 47,730.28 SQ.M. PROP. PLINTH AREA 3,980.00 SQ.M. G RA TIO OF GROUND COVER 8.34% LAYOUT R.G. DCR 21 11,910.00 SQ. M. M.C.G.M. 4,058.65 SQ.M. R.G. + M.C.G.M. 15,968.65 (33.5%) H

1000 SUPREME COURT REPORTS (2006] 2 S.C.R.

A Computation of Open Land j. •

I. PLOT AREA 47,730.28 SQ.M. (EXCL. SET BACK AREA)

2. LAND COMPONENT OF 47,123.67 SQ.M. EXISTING B.U. AREA 1.33 B UNDER DCR 58(6) i.e. EXISTING BU AREA PERMISSIBLE FSI 35,437.29 SQ.M. f

3. BALANCE OPEN LAND 12,298.99 SQ.M. TO BE SHARED UNDER DCR c (i) 58(l)(b) SHARE OF MCGM (33%) 4,058.67 SQ.M. (ii) SHARE OF MHADA (27%) 3,320.73 SQ.M. (iii) SHARE OF OWNER (40%) 4.919.60 SQ.M. OWNER'S HOLDING [2+ 3(iii)] 40,356.89 SQ.M.

D Mill No. 4 Existing Development

PLOT AREA E (EXCLU. SET BACK AREA) 58,458.36 SQ. M. EXIST. PLINTH AREA 39,304.83 RATIO OF GROUND COVER 67.20% EXISTING R.G. AREA ALMOST NIL

F Proposed Development

PLOT AREA (EXCL. SET BACK AREA) 58,458.36 SQ.M. PROP. PLINTH AREA 10.789.40 SQ.M. G RA TIO OF GROUND COVER 18.45% LAYOUT R.G. DCR 21 17.423.51 M.C.G.M. 662.61 SQ.M. R.G. + M.C.G.M. 18086.12 SQ.M. H

BOMBAY DYEING AND MFG. co.LTD.,. BOMBAY ENVIRONMENTAL ACTION GROUP (SINHA, J.] I 00 I

Computation of Open Land A I. PLOT AREA 58,458.36 SQ.M. (EXCL. SET BACK AREA)

2. LAND COMPONENT OF 75,079.11 SQ.M. EXISTING B.U. AREA 1.33 B UNDER. DCR 58(6) i.e. EXISTING BU AREA PERMISSIBLE FSI 56,450.46 SQ.M. 3.

3. BALANCE OPEN LAND 2,007 .90 SQ.M. TO BE SHARED UNDER OCR 58(l)(b) c (i) SHARE OF MCGM (33%) 662.61 SQ.M. (ii) . SHARE OF MHDA (27%) 542.13 SQ.M. (iii) SHARE OF ONER (40%) 803.16 SQ.M. OWNER'S HOLDING [2+3(iii)] 57253.62 SQ.M. For computing the extent of the land required to be shared, the plinth D area will have no relevance. So far as Mill No. 4 is concerned, having regard to the existing built up area, the share of MCGM and MHADA would be on a low side, but it is evident that so far as Mill No. I is concerned, whereas the plot area was only 47, 730.28 sq. m., having regard to the built up area, the share ofMCGM and M_HADA would come to 4,058.67 sq. m. and 3,320.73 E sq. m. respectively. These are indicative of the fact that the extent of open land to be shared by the owners with MCGM and MHADA would depend upon the built up area of the structure which existed on site. The share of MCGM and MHADA, therefore, would vary from case to case and, thus, we cannot determine the question keeping in view only the case of one mill and F not the others.

We do not furthermore 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 G. cannot be taken into consideration for interpretation of a statute. We cannot look to a statute with a coloured glass, we have to consider the provisions as the legislature thought. The same should be subject, of course, to the constitutional and other limitations.

At this juncture, we may consider the cases of the closed milis. H

1002 SUPREME COURT REPORTS [2006] 2 S.C.R.

A CLOSED INDUSTRIES .. - No specific provision has been made for industries which are closed but for one. reason or the other had not been referred to BIFR. A mill may be closed although the company which owns it and having other businesses or other properties is not sick company in terms of SICA. From its other resources, it can modernize or shift the industry. But, there may be a case where the mill is the only property, if it lies closed and no action is taken for its revival, the same may defeat the purpose for which DCR 58 was made, or the company although as such is not sick but finds it difficult to arrange

- + funds for revival of the closed mill. The doctrine of purposive interpretation in such a case has to be applied. The expression "sick and/ or closed" used in sub-regulation (I) of DCR 58 must be read as disjunctive and not conjunctive.

Furthermore, in this behalf the principles of common sense construction, as noticed hereinbefore, should be taken recours~ to. In Halsbury's Laws of D England (Fourth Edition) Volume 44(1) (Reissue). the law is stated in the following terms:

"1392. Commonsense Construction Rule. It is a rule of the common law, which may be referred to as the commonsense construction rule, that when considering, in relation to the facts of the instant case, E which of the opposing constructions of the enactment would give effect to the legislative intention, the court should presume that the .. legislator intended common sense to be used in construing the enactment.

1477. Nature of presumption against absurdity. It is presumed that F Parliament intend that the court, when considering, in relation to the facts of the instant case, which of the opposing constructions of an enactment corresponds to its legal meaning, should find against a • construction which produces an absurd result, since this is unlikely to have been intended by Parliament. Here 'absurd' means contrary to sense and reason, so in this context the term 'absurd' is used to G include a result which is unworkable or impracticable, inconvenient, anomalous or illogical, futile or pointless, artificial or productive of a disproportionate counter-mischief.

1480. Presumption against anomalous or illogical result. It is presumed that Parliament intends that the Court, when considering, in relation H

1 BOMBAY DYEING AND MFG. CO. LTD ' BOMBAY ENVIRONMENT AL ACTION GROUP [SINHA, J.] \ 00)

1 to the facts of the instant case, which of the opposing constructions A .. ' of an enactment corresponds to its legal meaning, should find against a construction that creates an anomaly or otherwise produces an irrational or illogical result. The presumption may be applicable where on one construction a benefit is not available in like cases, or a detriment is not imposed in like cases, or the decision would tum on an immaterial distinction or an anomaly would be created in legal B doctrine. Where each of the constructions contended for involves some anomaly then, in so far as the court uses anomaly as a test, it has to balance the effect of each construction and determine which ~ i anomaly is greater. It may be possible to avoid the anomaly by the < exercise of a discretion. It may be, however, that the anomaly is c clearly intended, when effect must be given to the intention. The court will pay little attention to a proclaimed anomaly if it is purely

.. hypothetical, and unlikely to arise in practice."

If such an interpretation is not given, a very valuable asset would be rendered sterile. If it is to be construed that a scheme made by BIFR is the D condition precedent for applicability of DCR 58. by reason whereof the benefit conferred thereunder would not be available in like cases for no apparent >. reasons whatsoever particularly when it was the intention of the State that all ~ categories of the mills which require rehabilitation, revival or modernization should be brought within the purview of DCR 58. .. It is, thus, not possible to accept Mr. Salve's submission that even a E

closed mill although not covered under DCR 58 may be utilized for purposed mentioned in Regulation 56.

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 "'· DCR 58 was to 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 DCR 58. It may be true that in terms of sub-regulation (I) of DCR 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 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 H

1004 SUPREME COURT REPORTS [2006] 2 S.C.R.

A effecting a closure under the Industrial Disputes Act, notice has to be given to the State and in certain cases its prior pennission 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 genuineness or otherwise of such closure. In such a case, even in B tenns 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. [See State of Rajasthan and Anr. v. Mohammed Ayuh Naz, (2006) I SCALE 79].

C SICK MILLS SICA is a special statute. It is an Act made by the Parliament. It was enacted in the public interest so as to make special provisions with a view to securing the timely detection of sick and potentially sick companies owning industrial undertakings, the speedy determination by a Board of experts of D the preventive, ameliorative, remedial and other measures which need to be taken with respect to such companies, the expeditious enforcement of the measures so detennined and for matters connected therewith or incidental thereto. SICA was enacted for giving effect to the policy of the State towards securing the principles specified in clauses (b) and (c) of Article 39 of the E Constitution of India. It would prevail over other statutes including MRTP and the Regulations framed thereunder.

Section 3(e) of SICA defines "industrial company" to mean "a company which owns 01.1e or more industrial undertakings." "Industrial undertakings" has been defined in· Section 3(t) of SICA. "Sick industrial company" has been defined in Section 3(o) of SICA to mean "an industrial company (being a company registered for not less than five years) which has at the end of any financial year accumulated losses equal to or exceeding its entire net worth". Section 15 of SICA provides for reference to a Board where an industrial company has become a sick industrial company for detennination of the measures which should be adopted with respect thereto. Section 17 provides for the power of Board to make suitable orders on the completion of inquiry. Various provisions have been laid down in Chapter III of SICA enabling the Board to issue several directions. Section 32 of SICA provides for a non- obstante clause stating that the provisions thereof shall prevail notwithstanding anything contained in any other law for the time being in force or in the H Memorandum or Articles of Association of an industrial company or in any

BOMBAY DYEING AND MFG. CO. LTD.•·. BOMBAY ENVIRONMENTAL ACTION GROUP [SINHA, J.] ) 005

other instrument having effect by virtue of any law except enactments specified A "· \ therein.

The question as regards the interpretation df the sick industries contained in sub-regulation (6) of DCR 58 must be considered from that perspective.

DCR 58(6) is adjunct to the other provisions. Although on some B occasions, DCR 58(2) may apply without DCR 58(6). However, there is no such machinery so far as sick mills are concerned, it is, therefore, difficult to comprehend that those mills which are sick but not referred to BIFR also t 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 where a company is sick c in terms of the 1985 Act, an industrial undertaking belonging to it may be subject matter of the provisions thereof. The State for that matter 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 D

.. \ or for that matter by any other authority apart from BIFR.

MODERNIZATION! SHIFTING

Sub-regulation (2) of DCR 58 deals with cases requiring modernization. For invoking the said provision, certain steps are required to be taken which E are as under:

(i) Application for Scheme of Modernization to Government (Competent Authority i.e. Corporation and Textile Department, Government of Maharashtra) as per DCR 58(2) read with 58(6)(a)(b) as the case may be. F "'· (ii) Scrutiny by the Department of Textiles. (iii) Approval to Scheme by Government (with direction to approach MCGM for further approval as per Regulation 58(2) read with 58(6)(a)(b ). G (iv) Application by Owner to Municipal Commissioner for a layout prepared for development or redevelopment of the entire open - i land and/ or built up areas of the premises of mill. With regard to the utilization of built up area (if reconstruction, aggregation is proposed then it has to be read with 58(6)(a)(b) as the case may H

1006 SUPREME COURT REPORTS [2006] 2 S.C.R.

A be), the provisions of clause (a) of sub-regulation 1 of these regulations shall apply and if the development of open lands and I ' balance FSl exceeds 30% of the open land and balance FSl, the provision of clause (b) sub-regulation I of this regulation shall apply.

B As per Notes (ii) in case of more than one cotton textile mills owned by the same company, the exemption of 30%, as specified above, may be permitted to be consolidated.

Permission for development or redevelopment granted as per 58(2) read with 58(6)(a)(b). c (v) Ready for Implementation for Scheme of Modernization. (vi) As per 58(8)(a)(b) Funds accruing in ESCROW Account, monitored by Monitoring Committee as per OCR 58(9)(a).

If it fulfills the said requirements, it becomes entitled to utilization of open land and FSl to the extent of 30% of the balance FSI available. Under 1991 Regulation, the mill owners in terms of the similar provision was entitled to the exemption of 15% which by reason of 2001 Regulations had been raised to 30%. Furthermore, for providing the incentive for modernization where there exists more than one textile mill, the exemption may also be consolidated on any of the mill land subject to the extent of balance FSJ in the receiving land without having to share land as would be evident from Note (ii) appended thereto.

However, sub-regulation (6) of DCR 58 may not be available to an applicant intending to modernize its mill where aggregation is not resorted to and no demolition of the existing built up area is involved as also open lands/ balance FSI are utilized for additional constructions as per OCR 58( I)(b) but in appropriate cases, evidently it has to share.

For the purpose of change of user of the lands, previous approval of the Commissioner to a layout plan in accordance with the Scheme approved by the Government is necessary. In terms of the said provision, Clause (a) of Sub-regulation (I) thereto shall apply as regard utilization of the built-up area and clause (b) shall apply in relation to development of open lands and balance FSI exceeds 30% of the open land and for balance FSI clause (b) of sub-regulation (I) shall apply. Sub-regulation (3) applies in respect of the cotton textile mills which intend to shift with the permission of the competent

BOMBAY DYEING AND MFG. CO. LTD. v. BOMBAY ENVIRONMENTAL ACTION GROUP [SINHA, J.] J007

authorities and in accordance with the scheme approved by the Government. A ·- \ In terms of the said provision also, Clauses (a) and (b) of sub-regulation (!) 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. B OCR 58(3) provides for shifting. Shifting of industries outside the town is encouraged. ~ • Ruby Mills Limited, which is one of the Appellants in civil appeal arising out ofSLP (C) No. 23634 of2005, is one of the companies which had opted for shifting. It had, however, made a scheme for shifting-cum- c modernization under the said provisions as also commercial development of a portion of its textile mill land.

OTHER REGULATIONS D Sub-regulation (5) provides for additional development to the extent of \ balance FSI on open lands or otherwise by the cotton textile mill itself not J only for the same cotton textile but also for related user. The calculation of FSI indisputably would be in terins of the Appendix VII.

Sub-regulation (6) provides for multi-mill aggregation. This provision E in certain respects is to be considered with Note (vi) of sub-regulation (1) of DCR 58. The aforementioned clause cannot be read in isolation. It has to be read in conjunction with the other regulations. It would apply to a case which might have otherwise been covered by sub-regulations (!), (2), (3) and (5). But the same would not mean that a part of sub-regulation (I) and a part of sub-regulation (2) cannot be applied in a given case. Although sub-regulation F ~ (6) does not specifically refer to the recommendations of BIFR as imperative where the other sub-regulations are applicable, sub-regulation (6) cannot be read as a 'stand alone' clause.

The writ petitioners contended that sub-regulation (6) should be read independently so that its benefit may not become obtainable while obtaining G benefit under one or the other sub-regulation. Such a construction would defeat the other provisions of the regulation. We have noticed hereinbefore -t that Regulations 56 and 57 deal with industries located in 1-2 and 1-3 zones. 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 H

1008 SUPREME COURT REPORTS [2006] 2 S.C.R.

A 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 I . frame the regulation in its present form. If sub-regulation (6) of DCR 58 is read in the manner suggested by the learned counsel for the Respondents, other parts of DCR 58 would have been unnecessary. Sub-regulation (6) specifically refers to sick and/ or closed or requiring modernization on the B 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. The construction that we have put on DCR 58(6), furthermore, does not cause any injustice to any party. If an ~

industrial undertaking is really sick within the provisions of the 1985 Act, for c 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. Sub-regulation (6) of DCR 58 must be read in sharp contrast to Sub-regulation (3)(c) of Regulation 56 and Sub- D 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.

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 ( 1) of OCR 58 but in 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 of sub-regulatitms ( 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.

BOMBAY DYEING AND MFG. CO.LTD.'· BOMBAY ENVIRONMENT AL ACTION GROUP [SINHA,!.) ) 009

CONSTITUTIONALITY OF DCR 58 A The constitutionality of DCR 58 had been questioned principally on three grounds, namely, it is violative of: (i) Article 21; (ii) Article 14; and (iii) it is not in consonance with Article 48-A of the Constitution of India. The High Court, however, read DCR 58 on the touchstone of Article 21 as also Article 48-A of the Constitution of India. B The High Court did not go into the question of its constitutionality. It ~ .. proceeded on the basis that if the said provision is read down, the same would render the provision constitutional. It is no doubt true that a planning regulation which requires to meet environmental challenges may not be interpreted in the same fashion as economic legislation. But whether it is c necessary to apply the strict scrutiny test or not, would depend upon the statute. The State, while exercising its power to make a subordinate legislation, may or may not obtain expert opinion. But invariably the Court would satisfy itself as to whether relevant factors as laid down in the legislative act had been taken into consideration. D

; "' The question, however, raised in these appeals is as to whether requirements to obtain such expert opinion so as to enable the court to look at the quality of the input both with reference to its source as also the scope thereof is mandatory in nature. In this case, in our opinion, the said question need not be gone into in great detail. We would, however, broadly consider E the same. The court ordinarily is required to consider the constitutionality of the subordinate legislation within the accepted norms. We have hereto before, noticed the parameters of judicial review. The question raised, therefore, will have to be considered having regard thereto.

f- A matter involving environmental challenges may have to be considered F ""' by a superior court depending upon the fact as to whether the impugned action is a legislative action or an executive action. In case of an executive action, the court can look into and consider several factors, namely,

(i) Whether the discretion conferred upon the statutory authority had ·-· been property exercised; G (ii) Whether exercise of such discretion is in consonance with the -· provisions of the Act;

(iii) Whether while taking such action, the executive government had .. taken into consideration the purport and object of the Act; H

1010 SUPREME COURT REPORTS [2006) 2 S.C.R.

A (iv) Whether the same subserved other relevant factors which would affect the public in large; (v) Whether the principles of sustainable development which have become part of our constitutional law have been taken into consideration; and B (vi) Whether in arriving at such a decision, both substantive due process and procedural due process had been complied with.

It would, however, unless an appropriate case is made out, be difficult to apply the aforementioned principles in the case of a legislative act. 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.

We do not agree with the contention of Mr. Jethmalani, that Article 21 of the Constitution of India should be literally construed as was done in A.K. Gopa/an v. State of Madras, [1950] SCR 88. In view of the fact that the factors governing the quality of life have been included in the expression "life" contained in Article 21 by reason of creative interpretation of the said .. provision by this Court, is it possible to argue that Article 21 does not provide for an absolute immunity? Article 21 does not only refer to the necessity to comply with procedural requirements, but also substantive rights of a citizen. G It aims at preventive measures as well as payment of compensation in cases human rights of a citizen are violated. So far as the question of compliance of the procedural due process is concerned, it was conceded before the High Court by the writ petitioners Respondents that the procedural requirements· laid down in provisions of Section 37 of the MRTP Act had been complied with. H

BOMBAY DYEING AND MFG. co. LTD.,._ BOMBAY ENVIRONMENT AL ACTION GROUP [SINHA,l] 1011

We, however, are unable to uphold the contention of Mr. Salve, as at present adviSed, 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. As indicated hereinbefore, 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. C 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 D 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 E 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. F The Ranjit Deshmukh Committee, not only visited some mills but also took recourse to the consultative process. Even 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. G 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 committees had not been accepted in toto but would do so inter alia on the ground as to whether they otherwise violate the constitutional principles. H

1012 SUPREME COURT REPORTS f2006] 2 S.C.R.

A Arbitrariness on the part of the legislature so as to make the legislation f •

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-a-vis the purpose and object thereof. [See Sharma Transport v. Government of Andhra Pradesh. (2002] 2 SCC 188, para 25, Khoday Distillery v. State of Karnataka, (1996] I0 SCC B 304 and Otis Elevator Employees' Union S. Reg. and Ors. v. Union of India and Ors., (2003] 12 SCC 68, para 17]. ; In Om Prakash and Ors. v. State of U.P. and Ors., (2004] 3 SCC 402, this Court has held that the test of reasonableness is nothing substantially C different from social engineering, balancing of interests or any other formulae which modem sociological theories suggest as an answer to the problem of judicial interference.