M.C. MEHTA v. UNION OF INDIA AND ORS.

The following Judgment of the Court was delivered by

Y.K. SABHARW AL, J. : This case about unauthorized industrial F activity in Delhi in residential area has a protracted background. The present examination is confined to the issue of industrial activity in residential/non-conforming areas to decide what directions may be issued to put an end to such illegal activity. As a result oforders passed from time to time, hazardous and noxious industries and heavy and large industries ('H' Category) have been shifted out of Delhi. Some of extensive industries G ('F' category) have also been shifted out of Delhi. As per the State Government, non-polluting 'F' category industries have not been yet shifted. The question is what should be done about continued unauthorized use contrary to Master Plan and Zonal Plan by remaining 'F' category and 'B' to 'E' category (light and service industries) and household industries H ('A' category industries). These industries are continuing in residential/

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non-conforming areas. Such activity is mostly in residential areas. It is not A in dispute that most of continued industrial activity under consideration is in contravention of law except only few household industries which are continuing in residential areas. To decide the question, it is necessary to first briefly notice orders passed by this Court during last about one decade.

In the various orders passed in the year 1995, this Court noticed that a large number of industries were located in residential/non-conforming areas in violation of the Delhi Master Plan formulated under the Delhi Development Act, 1957 (for short, 'DD Act), Delhi Municipal Corporation Act, 1957 (for short, 'DMC' Act) and other statutory provisions. Noticing C that the Master Plan stipulates setting up of industries only in conforming areas, i.e., the industrial areas earmarked for that purpose, it was indicated that the industries in non-conforming areas h·ave to stop functioning. The first concern of the Court was to stop the functioning of 'II' category industries, since most of it were discharging highl.Y toxic affluent. It was noticed that as per the affidavit filed by Mr. D.S. Negi, Secretary (Environment), Government of Delhi, it was estimated that there were 93,000 industries which were operating in Delhi and majority of these were in non-conforming use zones. Public notices by the Government invited al.I industries operating in non-conforming use zone to give option to shift to available industrial plots in the industrial estates. The response from the industry was very poor. The industries operating in Delhi were called upon by issue of public notices in newspapers to furnish information in r<"spect of the product manufactured, activity carried on, area size, number of persons employed, power load, year of commencement etc. Out of 93,000 F industries, only 513 industries and 382 persons responded. It was noticed that MCD was granting licences and registering various industrial units in non-conforming. areas and permitting the industries to be set up in residential areas. Naturally, a surprise was expressed by this Court that on the one Hand, the Court was issuing orders to reallocate the existing industries that were operating in the residential/non-conforming areas and G on the other hand MCD was permitting setting up of new industries in residential areas. According to the MCD, it was done under the directions of the State Government. The M.C.D. was directed not to register or grant licence to any industry in the non-conforming/residential area. H

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A We may also make a brief reference to the orders that were passed in the year 1996. In the order dated 19th April, 1996, noticing the contention of Solicitor General for India that certain household industries can be permitted to operate not only in residential area but in residential premises itself, the Court observed that the provisions of the Master Plan B have to be complied with and in case any non-residential activity is permitted in residential area under the Master Plan that cannot be stopped. A High Powered Committee was constituted to examine which type of industries can be permitted in the residential area. The State Government was directed to issue public notices asking the industries which are o·perating in different residential areas of Delhi to approach the Committee C for necessary permission. It was also made clear that the industries which do not obtain permission shall have to stop functioning in residential area w.e.f. January I, 1997. It would be useful to extract the reievant part of the order dated 19th April, 1996 which reads as under :

"We .make it clear and direct that no industry in any residential D area of Delhi/New Delhi shall be permitted unless it has obtained the clearance of the committee ano has obtained the necessary licence and the consent from the statutory authorities. All those industries which have not obtained necessary permission from the committee shall stop operating in the residential area w.e.f. E January I, 1997. We direct the NCT Delhi to give wide publicity to this order so that the industries are in a position to note that they have to obtain the necessary clearance from the committee. Needless to say that while granting permission to an industry to run in a residential area, the committee shall keep in view all the F conditions laid down under the Master Plan including evaluation of impact on municipal services and environment needs of the area.''

The orders were also passed directing the Delhi Government to issue public notices in newspapers requiring the industries in residential/non- G conforming areas to apply for allotment of plots in the Industrial Estate and also giving undertaking that on such allotment they will shift from the existing place. The court thinking that the Delhi Government was now seriously processing the project ofrelocating the industries operating in the residential/non-conforming areas of Delhi, left the field for the Government H to act on its own and relocate the industry in terms of orders dated 18th

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December, 1996. The Government was, however, directed to file progress report in this Court every three months.

It is a matter of anguish that subsequent events show that the trust that was reposed by this Court on the Government was belied in terms of the action to be taken for implementation of law, namely, the continuance of industrial activity in areas in question in conformity with the user prescribed by the Master Plan. On 8th September, 1999, it was noticed that the progress report filed indicated that though some steps had been taken but the same had not been taken in the right earnest as a result of which industries are continuing to operate in the residential zone. C The Court directed that if industries in the residential area cannot be shifted and relocated for any reason whatsoever by 3 lst December, 1999, then those industries shall be closed down. The Government was directed to give due publicity in the newspapers so as to make the industry aware. D On 10th December, 1999, the State Government came up with an application (IA No. 1206, inter alia, seeking modification of the order dated 8th September , 1999 and for extension of time upto March 2004 for shifting of industries which had been found eligible for allotment of alternate industrial accommodation under the 'Relocation Scheme' subject E to their functioning in conformity with the pollution norms under the existing laws. As per what the Delhi Government itself says in this application, survey conducted by Delhi Pollution Control Committee in the year 1995-96 showed that about 1,26,000 industrial units were functioning in Delhi out of which approximately 1,01,000 were in residential/non- F con.forming areas and only about 25,000 in approved industrial areas. The application also states that in these 1,01,000 illegally operating industrial units, about 7,00,000 workers would be employed. It was stated that closure of these industries will result in hardship to approximately 7,00,000 families. G The question would be can the Government plead such a justification for violation of law and throw to winds the norms of environments, health and safety or is it possible to help the workers even without violating law if there is a genuine will to do so. We would answer the question after noticing few further facts. H

514 S'JPREME COURT REPORTS (2004] SUPP. 2 S.C.R.

A In the application (IA 1206) it has been further stated that out of 52,000 applications received under the relocation scheme in December, 1996, approximately 23,000 have been found to be eligible. The prayer in the application also is that the industrial units functioning in residential areas where concentration of industry is 70%, should be continued to B operate from their existing location. The applicant thus seeks INSITU regularization. According to the Government, about 15,000 industrial units would fall in this categol)' and another approximately 6,000 industrial units may fall in the category of household industries ('A' category)

C At the outset, it deserves to be noticed that assuming, for the present, that facts stated above by the Government are correct and the plea of INSITU regularization is justified then, the immediate question would be as to what steps were taken by it in respect of remaining illegal and unauthorized industrial units, which number over 50,000. The Government D has no answer, let alone a satisfactory answer even despite lapse of nearly five years.

Reference may also be made to the progress reports filed in this Court pursuant to the orders dated 18th December, 1996. The first report dated 31st March, 1997 sought extension of time for closure of those industries which had applied for allotment of plots/flats and had submitted the requisite undertakings prescribed by this Court. For them extension was asked for till such time the industrial accommodation with power connections were ready in newly constructed/developed flatted factory complexes/ industrial estates. Thus, the extension sought was for above category of industrial units and not others. That being the position, others could continue the illegal industrial activity only because of inaction by the Government. It is evidently total non-implementation of the statutory provisions. In yet another Report (for the period ending 31st March, 1998), it was stated that survey of industries in all districts has shown that in respect of 50,740 industrial units, 21;681 units have not applied under the relocation scheme. The same question would again arise why no action has been taken in respect of these industries. The scenario is same in respect of the progress reports filed upto the period of 30th September, 1998 regarding the relocation of industries operating in residential non-confonning areas of Delhi.

M. C. MEHTA v. U.0.1. [SABHARWAL, J.] 515

Before filing IA No. 1206 of 1999 or at least in that application itself, the Government did not think it advisable to state what action it will take against those who were not found eligible or those who did not even apply and were continuing industrial activity in violation of law. Further, it did not state how many would fall in the category of INSITU regularization and in 'A' category industry. In this connection, reference may also be made to the observations in the order dated 8th February, 2001 that there was an unexplained figure of more than 32,000 industries in non- conforming areas which would not be covered by (i) INSITU regularization or (ii) fall within the expected expanded definition of 'household industry' or (iii) come under the category of industries which had applied and had been found eligible for allotment ofland. It was noticed that no explanation was given with regard to these industries continuing in the non-conforming areas. The position after lapse of nearly 3 years is no better.

Regarding the total number ofindustrial units functioning in residential/ non-conforming areas, different surveys have given different figures, as per the material placed before this Court by Government. There is also no clarity as to the facts and figures·regarding infrastructure etc. in respect of the industrial units being considered for INSITU regularization. Although in the affidavit filed on 5th August, 2000 by the Principal Secretary and the Commissioner of Industries of the Delhi Government, it was stated that the Government had recommended INSITU regularization, it has not been stated as to what is the position of the water, electricity and other facilities for the industries; what is the planning for remaining 30% residents as they may be deprived of electricity, water and other facilities on account ofover drawl by the 70% industrial units. Whether 30% who are usi.ng the premises in accordance with the permissible use in the Master Plan must continue to suffer at the hands of those who are functioning in violation of the Master· Plan. This question has remained unanswered despite elaborate arguments spread over various dates. On the aspect ofINSITU regularization, the stand of the Delhi Development Authority, as contained in the affidavit of its Commissioner (Planning) dated 11th September, 2000 was that the G DDA was favourably considering INSITU regularization with the following conditions :

(i) Building norms shall be the same as that for the residential premises. H

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A (ii) ' Non-pollutant/non-hazardous industries would be allowed to operate.

(iii) Augmentation of infrastructure as per requirement would be undertaken to meet the growing demand as a result of conversion of these areas into manufacturing (light and B service) household industries.

Despite lapse of about 3 years, nothing significant, either in respect of infrastructure or the other conditions, has been done. The second Master Plan of Delhi was enforced w.e.f. I st August, 1990. In respect of 'F' C Category industries, it provides that no new industrial unit shall be permitted except in the existing identified extensive industrial areas. In respect of such 'F' category industries which were already existing in non- conforming areas, the Master Plan provides that the said industrial units shall be shifted to the permissible industrial use zone within a maximum period of three years after the allotment of plots by various Government agencies. On one hand, the Master Plan stipulates the shifting of existing 'F' category industrial units within a specified time limit and on the other new industrial units have come up even after enforcement of the Master Plan and even in respect of such units the Government has not only failed to take action but has also failed to take a positive stand before this Court that immediate steps would be taken to stop such blatant violations. Further, when the Government is asked to give suggestions regarding stoppage of functioning of these industrial units, the suggestion that comes forth is that the industrial units in residential non-conforming areas which were set up after 1996 may be directed to stop the industrial activity contrary to the Master plan. Those violators who had commenced industrial activity in residential/non-conforming areas after 1st August, 1990 are also not being excluded from the proposal of lNSITU regularization.

It is also necessary to note as to what stand from time to time the G Ministry of Urban Development has taken on the aspect of INSITU regularization. In an affidavit dated. 4th December, 2000 filed by its Deputy Secretary, reliance has been placed by the Ministry upon the statement made by its Minister on the floor of the House on November 24,

2000. In that statement, opposing regularization, the Minister said as to what Delhi we want to live, what type of legacy do we wish to bequeath

M. C. MEHTA v. U.0.1. [SABHARWAL, J.) 517

to posterity and to our children and grand children; Do we want our city to become a junkyard of unauthorized constructions, mirroring civic and moral chaos, or an orderly and disciplined capital of a Resurgent Republic, embodying values of justice and honesty on the basis of which we have often claimed a pre-eminent position for our culture and civilization? The statement further gave facts and figures that 50 million gallons per day of industrial waste is going into the Yamuna and said that what is seen flowing in it today is nothing but sewer and industrial waste. In Okhla alone, for instance, during March-April, 2000, the bio-chemical oxygen demand (BOD) level in the river was about 70 mg. per litre as against a standard of 3 mg. per litre, i.e. 25 times more than the permissible level. An C apprehension was expressed that if the present attitudes and practices persist, Delhi would run the risk of having as many as 30 million people in the next few years and becoming an ugly, unhealthy, unworkable and unlivable city. In the process, a fatal blow would also be dealt to the development ofNational Capital Region which comprises a substantial part of three important neighbouring Sates of Haryana, Rajasthan and Uttar D Pradesh. The affidavit states that in case of large number of residential colonies, with so called 70% concentration of industries of which the entire land use is sought to be changed from residential to industrial, should the Master Plan be amended to destroy its very soul and structure or subvert the basic norms ofhealth, habitation and environment or reward the illegal establisher of industries and in the process penalize the law-abiding residents and condemn them to stay for even in industrial areas or force them to abandon their houses built with hard earned income? It also stated that no one has made it clear where the residents would be taken, what would be cost of resettlement, who will bear it and how the layouts and pattern of services and infrastructure, meant for residential colonies, would be adjusted to the requirements of industries and consequent traffic and transport that would flow not only in the colonies in question but also in their neighbourhood. (Emphasis supplied is ours) G In regard to the nature of survey that had been conducted resulting in the proposal ofINSITU regularization in areas having 70% concentration of industries, the affidavit states that demand to secure vital and large scale changes in the Master Plan, which would have the effect of tearing its entire fabric apart, is based upon the preliminary and perceptional survey of three H

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A officers of the Industries Department of Government of Delhi. 'The report itself calls the survey 'preliminary'. The survey is neither scientific, nor precise nor reliable. It does not even contain detailed particulars of industries - whether they are polluting or non-polluting, licenced or unlicensed. The survey also does not indicates as to how many industrial B units belong to those industrialists who may have already obtained the benefits of relocation once, either from the Delhi Development Authority or from the Industrial Department or have secured space in flatted factories and have come back again to the non-conforming areas, while keeping the alternative plots allotted to them for shifting, or have set up additional unit or units in the residential areas. c Now, let us see what Ministry says after about three years in its affidavit dated 28th July, 2003. The guidelines for Master Plan for Delhi - 2021 issued by the Ministry were filed along with the said affidavit as also a letter dated 28th July, 2003 sent by Secretary of the Ministry to the D Chairman of DOA. The letter states that the Ministry has made broad guidelines for the Master Plan which highlight some of concerns that ne.ed resolution as well as possible policy initiatives so as to deal with the problem that affect Delhi. The letter farther states that this should also address the issue of concentration of industries to the extent of70% or more in some non-industrial areas. The guidelines noticed that a major issue confronting the planned development of Delhi is the apparent and frequent violation of the planning and development and control norms. It states that there is a growing variation between the plan for Delhi and city on the ground ancl, therefore, i1t is essential that the Master Plan policies should be implementable in an effective manner and vigorously enforced. The existing legal framework for enforcement of the Master Plan provisions including unauthorized construction and encroachment on public land also needs examination so as to initiate proposals for its strengthening where necessary. In the guidelines, there is no specific reference to regularization as such but evidently there is a slant in that direction in the stand of the G Ministry. It is, however, nobody's case that any decision about regularization has been taken.

Regularization cannot be done if it results in violation of right of life enshrined in Article 21 of the Constitution. The question will have to be considered not only from the angle of those who have set up industrial units

M. C. MEHTA v. U.0.1. [SABHARWAL, J.] 519

in violation of the Master Plan but also others who are residents and are using their premises as allowed by law. Further, the regularization affects not only the remaining 30% residents of the areas wherein regularization may be in contemplation but has affect on the entire area, particularly with respect to infrastructure available.

B In respect of the infrastructure in housing components, what provisions should be made has been incorporated in the Master Plan - 200 I which has to be kept in view. The existing availability and projected need of water supply, sewerage, power and solid waste has been indicated in the Master Plan. None has applied his mind to any of these aspects. c At first \ instance, a proposal for INSITU regularization in 15 areas was considered. Now 24 areas are sought to be regularized. None of the aforesaid aspect regarding infrastructure has been considered before the proposal was sent by the State Government and Delhi Development Authority for INSITU regularization to the Central Government. How can D Government of India agree in principle for INSITU regularisation in isolation "Vithout anyone having examined the relevant considerations. It is evident t\Jat relevant aspects such as availability of sewerage, drainage, power and water have not been examined. Further, a perusal of the survey document shows that many industrial activities were polluting in nature. E The proposal was considered by Delhi Development Authority on 20th December, 7002. The note dated 20th December, 2002 notices that a large number of iridustrial clusters are existing in various parts of the National Capital Territory of Delhi in contravention of land use provisions of the MPD 2001 and thereby facing the problem in their continuance on their existing site imd with a view to resolve this problem a policy needs to be· evolved for regularization/redevelopment of the said industrial clusters so that it may eventually be considered to be part of the.MPD - 2021. It was decided that the redevelopment proposal could be formulated and taken up by forming cooperative industrial society by the beneficiaries ..Total . redevelopment work will be undertaken by the cooperative society at their own cost. Charges in land use and enhanced FAR facilities were directed to be paid to the concerned authorities by the society. All these proposals, without examination of the relevant consideration as noticed hereinbefore, were approved and were forwarded to the Government of India. All this has happened despite the fact that the Ministry of Urban Development, in H

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A terms of its letter dated 8th September, 2000 had informed the Delhi Development Authority that the change in the Master Plan was not justified. No detailed justification for change of land use from residential to industrial and the parameters on which such change would be based had been given. The matter has also not been discussed and deliberated with the Central Pollution Control Board, Town and Country Planning Organisation and the Delhi Urban Arts Commission. It was not made clear as to what would happen to those who are using their residential premises in accordance with the provisions of the Master Plan. The changes in the Master Plan or its nmms to accommodate illegal activities not only amount to getting reward for illegal activities but also results in punishing the law abiding citizens. We may refer to another letter dated 15th November, 200 I sent by the Ministry of Urban Development to Delhi Development Authority on the issue of INSITU regularization stating that the issue of industrial housing, sanitation, infrastructure and adherence of polluting control norms have to be stressed and detailed in such studies. DDA was also asked to consider whether such areas where non-conforming industries are presently operating are isolated black spot in otherwise purely residential, semi urban area or whether they represent logical extension of existing industrial neighbourhood. It reiterated that the quality of life, environment and the rights of the residents have to be highlighted in forefront. E The question cannot be examined only from the angle of the industry or even those who are employed there in the said industries. It is imperative for the State Government, Delhi Development Authority as also the Government to address itself to the large question of not only legalizing blatant illegalities but as to what Delhi is intended to be left for the children and future generation by permitting industrialisation in residential areas. The facts demonstrate that the State Government and Delhi Development Authority have been wholly remiss of all its functions, duties and obligations. The Central Government, for the reasons which are not far to seek, has been shifting its stand. As against a definite and positive stand taken in the years 2000 and 200 I and affidavits filed in this Court, there is a shift in the stand in the affidavits filed in the years 2002 and 2003. As against the principled stand taken in the affidavits filed in the year 2000, now the stand in nutshell is that question would be considered when Master Plan for 2021 is finalized. There is no plal!sible answer to the question as to why in the meanwhile the illegality should continue without any action.

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In any case, as at present there is no regularization. The industrial activities A in residential/non-conforming zones are wholly illegal.

The Delhi Development Authority has to bear in mind that it has to perform its function in accord with the provisions of the Delhi Development Act, 1957 which was enacted to provide for the development of Delhi B according to the plan and for matters ancillary thereto. 'Amenity', as provided in Section 2(a), includes road, water supply, street lighting, drainage, sewerage, public works etc. 'Building', as provided in Section 2(b ), includes any structure or erection or part of a structure or erection which is intended to be used for residential, industrial, commercial or other purposes, whether in actual use or not. The obligation to prepare a Master C Plan is contained in Section 7 of the DD Act. The Master Plan is required to define the various zones into which Delhi may be divided for the purposes of development and indicate the manner in which the land in each zone is proposed to be used. The preparation of the zonal development plans has been provided for in Section 8. The said plans provide for the proposed land use. The Town Planners are supposed to examine various aspects before preparation of the Master Plan and Zonal Plan and providing the land use. The Act provides for a detailed procedure for modification of the Master Plan and the Zonal Development Plan (Section 11-A). Section 14 forbids use of land in contravention of the plans. It provides that no person shall use or permit to be used any land or building otherwise than in conformity with plan in a zone. Section 29(2) is a penal provision, inter alia, providing for the penalty on any person who uses any land or building in contravention of Section 14. Section 31-A is the power of the authority to seal unauthorizeq development. I F The illegal industrialization in residential/non-conforming area commenced and has continued and the Authority, the Governments and its agencies have been totally negligent in discharge of its functions and obligations under the provisions of the DD Act. G Regarding the non-setting up of Industrial Estates in Delhi what the position was in 1990, when the second Master Plan was enforced, is apparent from the affidavit dated 2nd February, 2001 filed by the Commissioner (Planning), Delhi Development Authority. Dealing with the question of relocation of non-conforming industries and the setting up of H

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A the industrial estate in Delhi, that affidavit states :

"Master Plan for Delhi 2001 (MP9-200 I), came in force on 1.8.1990, stipulates earmarking 6 to 7% of land in urban extension and thus the development of 16 new light industrial areas (1533 B ha.) and another 263 ha. for extensive industrial area to be mainly utilized for shifting of existing incompatible industrial units. As per MPD-2001 in 1981 there were about 46,000 industrial units out of which 800 were in non-conforming areas which were to be shifted. It was reassessed that about 24,000 industrial units will require shifting and by 2001 the total number of industrial units c will be round 93000. MPD-200 I clearly stipulates that, the action for shifting of polluting industries is to be taken by Delhi Administration, as cited below :

"Action shalt be taken by Delhi Administration to prepare D a list of individual noxious and hazardous industrial units to be shifted and depending on the polluting/hazard, administration they force these industrial units to shift within a maximum prescribed period of 3 years."

E It further stipulates the following policy guidelines :

Y The hazardous and noxious industrial units are not permitted in Delhi.

Y No new heavy and large industrial units shall be F permitted in Delhi.

Y No new acid, chemical and paints and varnish industrial units to be permitted.

G Y No new extensive industrial units shall be permitted except in existing identified extensive industrial areas. Existing non-conforming extensive industrial units shall be shifted to the extensive industrial use zone within a maximum period of 3 years after the allotment of H plots by various Government Agencies.

M. C. MEHTA v. U.0.1. [SABHARWAL, J.] 523 ~ Non-conforming light and service industrial units with A 20 or more workers shall be shifted to the industrial use zones within a maximum period of 3 years after the allotment of plots and by providing necessary incentives by the various Government agencies in conforming use zones." B

3. Delhi Administration vi de Chief Secretary's letter dated 17.9.1991 addressed to Vice Chairman, Delhi Development Authority conveyed that 'it is now the established policy of the Delhi Administration not to develop any new industrial C estates in the Union Territory of Delhi. All non-conforming ·light and extensive industrial units would have to close down/shift on their own to areas outside Delhi, as no more industrial areas are to be developed and (b) further, that in the additional 2% area being earmarked for service sectors/ establishments industrial activities contained in Annexure D III-A, III-B and IIIC of the revised Master Plan would be promoted'."

The affidavit further states that the matter was placed before the Authority in its meeting dated 7th July, 1992 and the proposal of the Delhi E Administration with certain conditions was approved. The ODA resolved that planning for industrial activity may continue as envisaged under the Master Plan of Delhi - 2001 at the rate of6 to 7% of urban ex.tension area. It further states that pending the said policy decision, no new industrial development was taken up and even the industrial area indicated in the F development plall ofDwarka (18lhectare) was reverted to commercial and other land uses.

In the light of the aforesaid, when even industrial area is reverted to commercial and other land use, we fail to understand : G I. Why no action was taken to enforce the Master Plan and for stoppage of the functioning of the industries in the residential/nonconforming areas;

2Copy pinpoint2. How the industries commenced continued their illegal H activity;

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3Copy pinpoint3. How can the State Government regularize the illegality even without existence and consideration of availability of infrastructure and in disregard to the rights of the residents on the ground of 70% concentration of industry in the concerned areas(s).

B Further, in the light of the letter of the Chief Secretary dated 17th September, 1991, it is not open to the State Government to argue that for want of acquisition of the land, the industrial estates could not be developed. They had themselves written to DDA not to develop any new industrial estate in the Union Territory of Delhi. Even existing industrial area, as above noted, was diverted. The State Government has been repeatedly taking time from the Court for the shifting of the offending industrial activity. If it was not the responsibility of the State Government to shift the industry, what was the purpose of filing IA 1206/99 seeking extension of time upto March 2004 and for seeking modification of the order dated 8th September, 1999 whereunder the industries were directed to be closed by 31st December 1999. Even at the cost of repetition, we may again note that for the present, we are examining the aspect of shifting of industries which have come up after 31st December, 1989 in residential/ non-conforming areas. The letter dated 17th September, 1999 also states that the MCD announced its ad hoc registration policy in 1989 with the prior approval of the Lt. Governor to grant ad hoc registration to units which had unauthorisedly established themselves in non-conforming areas till 31st December, 1989. In this situation, we see no reasons why those units which have come up after 31st December, 1989 shall not be closed and sternly dealt with. We are unable to find any equity in favour of such violators of law.

The regularization would also result in making the concept of NCR non-functional and inoperative.

The l'Jational Capital Region Planning Board Act, 1985 (for short, the G 'NCR Act') was enacted to provide for the constitution of a Planning Board for the preparation of a plan for the development of National Capital Region and for coordinating and monitoring the implementation of such plan and for evolving harmonized policies for the control of land uses and development of infrastructure in the National Capital Region so as to avoid H- any haphazard development of that region and for matters connected

M. C. MEHTA v. U.0.1. (SABHARWAL, J.] 525

therewith or incidental thereto. The areas within the National Capital A Region are specified in the Schedule to the NCR Act. National Capital Region comprises the area of the entire Delhi, certain districts of Hayana, Uttar Pradesh and Rajasthan as provided in the Schedule. 'Regional Plan' as provided in Section 20) means the plan prepared under the NCR Act for development of the National Capital Region and for the control ofland- B uses and the development of infrastructure in the National Capital Region. What the Regional Plan shall contain is provided in Section I 0. Section I 0(2) provides that the Regional Plan shall indicate the manner in which the land in the National Capital Region shall be used, whether by carrying out development thereon or by conservation or otherwise, and such other matters as are likely to have any important influence on the development of the National Capital Region and shall include the following elements needed to promote growth and balanced development of the National Capital Region, namely :

(a) the policy in relation to land-use and the allocation of land for different uses;

(b) the proposals for major urban settlement pattern;

( c) the proposals for providing suitable economic base for future growth; E

( d) the proposals regarding transport and communications including railways and arterial roads serving the National Capital Region;

( e) the proposals for the supply of drinking water and for drainage; F (f) indication of the areas which require immediate development as "priority areas"; and

(g) such other matters as may be included by the Board with the concurrence of the participating States and the Union territory for the G proper planning of the growth and balanced development of the National Capital Region.

Section 27 provides that the provisions of the NCR Act shall have effect notwithstanding anything inconsistent therewith contained in any H

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A other law for the time being in force or in any instrument having effect by virtue of any law other than the NCR Act; or in any decree or order of any Court, tribunal or other authority.

In exercise of power under Section I 0 of the NCR Act, the Government B of India has prepared a Regional Plan - 200 I for National Capital Region as approved by the National Capital Region Planning Board constituted under Section 3(1) of the NCR Act. Besides others, the Union Minister for Works and Housing as Chairman of the Board, the Chief Minister of Haryana, Rajasthan, Uttar Pradesh and Delhi are members of the said Board. Regional plan - 200 I recognises the unprecedented growth of Delhi C and notices that the planned growth of Delhi is possible only in a regional context. In fact, the need for regional approach was felt as early as 1959 when the draft Master Plan of 1962 recommended that a statutory National Capital Region Planning Board should be set up for ensuring balanced and harmonized development of the Region. D The aforesaid plan took into consideration the host of serious problems by which Delhi was besieged and the causes of those problems and the genesis of Delhi's growth on account of rapid urbanization and ability to offer wide opportunities for large scale employment through E specialization and increased productivity in manufacturing and supporting services. It noticed that till 1951, Delhi was essentially an administrative center with a population of 14.5 lakhs but, the expansion of industry, trade and commerce providing opportunities for economic development, in turn, began to transform its character from an administrative city to a F multifunctional city ~nd, exhibited a significant functional shift to industrial character in 1981 when its population size became 57.3 lakhs, recording a growth of about 300% since 1951. It also notices that as Delhi grows, its problems of land, housing transportation and management of essential infrastructure like water supply and sewerage become more acute. The city lacks reliance and adequate source of water, and thus, has to depend upon the adjoining States to meet its water supply requirements. The plan notices the need for the development policies, programmes and plans aiming to relieve Delhi from additional pressures and avoid adding new pressures. We may note that in the affidavit dated 29th September, 2000 filed by the Deputy Secretary of the Ministry of Urban Development, it was stated that those requiring plots of more than 250 sq. metres would be accommodated

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in the National Capital Region where plots of very large size are available with all necessary infrastructure facilities. Further, the documents filed along with another affidavit of the same officer dated 29th November, 2000 show the progress of certain items of work as notice in the meeting dated 21st September, 2000 of a cell that had been constituted by the Ministry of Urban Development which had been appointed as a nodal agency pursuant to the order of this Court dated 12th September, 2000 in respect of the National Capital Region. It states :

"V National Capital Region - Interface

An Interface amongst the industrialists of Delhi and those of c the three National Capital Region States has been organized by the Ministry of Urban Development, through the National Capital Region Planning Board on September 30, 2000 at Vigyan Bhawan from 10.00 a.m. onwards. The basis objective of this Interface is D to facilitate exchange of information amongst the industrialists of the National Capital Region and to acquaint them with the facilities that are available, including larger size of plots, lower cost of plots and availability of auxiliary infrastructure in the shape of residential plots and commercial plots. E The Delhi industrialists would be made aware of the fact that many big industrial houses like Sony, Daewoo Motors etc., arr: setting up their industries in the National Capital Region States and this would give rise to demand for ancillary industries. The representatives of Haryana State Industrial Development F Corporaton (HSIDC), UP State Industrial Development Corporation (UPSIDC) and Rajasthan State Industrial Development & Investment Corporation (RIICO) would also be attending the Interface and would indicate the loan facilities that would be made available. G

The National Capital Region Planning Board has facilitated development of 1,14,000 residential plots, 17,000 commercial plots/office space and I 0,000 industrial plots/sheds in the National Capital Region." H

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A In the affidavit dated 4th December, 2000 of the same officer, it has been stated as under :

"That at the said INTERFACE an exhibition was also organized, where the agencies of three State Governments - Haryana, Rajasthan and Uttar Pradesh - displayed their information in B respect ofavailability of plots as well as ofindustral infrastructure. It was indicated that over 6,000 industrial plots of various sizes, ranging from I 00 to I lakh Sq. Mtrs. were available for immediate allotment. Some of these plots were of very large sizes and they could be sub-divided to create a larger number of plots. c That, another meeting of senior officers of the State Governments of three National Capital Region States and their Resident Commissioners was called by the Union Urban Development Minister on November 30, 2000. In this meeting, the Government of Haryana indicated that besides vacant plots already developed in industrial estates it would, if required, develop 14,487 acres of land separately and make available as many as 80,000 plots of average size of 500 sq. mtrs. The necessary infrastructure is either available or can be made available in short time."

The material on record shows that the National Capital Regional Planning Board has been taking initiative to encourage the shifting of the industries to National Capital Region. It appears that in January 200 I, F number of plots were available in the States of Rajasthan, Haryana and Uttar Pradesh for industries to shift. The industry was also informed that large plots can be further sub-divided to accommodate more number of small units. It does not, however, appear that any significant interest was shown by the industry. We are not suggesting that there are no problems but the same are not insurmountable and can be sorted out. There is no obligation to provide alternative plots to those who illegally commenced . industrial activity. The second Master Plan stipulates to provide alternate plots only to those who had set up industrial units upto 3 lst December

1989. As already observed earlier, presently we are concerned with shifting of the industries which were set up from the year 1990 onwards contrary to the permissible use in the Master Plan. It is a matter for Government

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to decide if it wa'1ts to provide alternative industrial plots to those who A illegally commenced that activity but that cannot further delay the closing of continuing illegal industrial activity. In our view, lack of action and initiative by the authorities is the main reason for the industry merrily continuing illegal activity. These is total lack of enforcement of law by the concerned authorities. B Regarding the availability of alternate industrial plots, it may be useful to notice the plots that are available in the National Capital Region. The affidavit filed on 8th May, 2003 on behalf of the NCR Planning Board states that plots on 2433 .63 acres of land in the National Capital Region C were available. If there are teething problems, it is for the concerned authorities to sort out the same.

Laghu Udyog Bharti, an association of small scale industries, has taken the stand that the Government has been issuing ad hoc licences and collecting taxes from industrial units which would show that the industries D were working within the knowledge and consent of the Government. The stand taken is that since the industries were working with the consent of the Government, it cannot be said that the use by industries is non- conforming. The stand is wholly misconceived. An illegality would not become a legality on inaction or connivance of the Government authorities. E There cannot be any doubt that non-conforming industrial activities could not have commenced or continued at such a large scale in the capital of the country ifthe Government and the concerned authorities had performed their functions and obligations under various statutes. But such a situation cannot be permitted to continue forever so as to reach a point of no return, F where the chaotic situation in city has already reached. The law-breakers, namely, the industries cannot be absolved of the illegalities only on the ground of inaction by the authorities. It would be useful to note as to what is stated in the affidavit of the President of the aforesaid association. It reads : G "The chaotic situation existing today would not have developed had the authorities carried out their duties and taken steps to develop industrial areas as provided for in the MPD-62 as well as the MPD-2001. For the reasons best known to the authorities, the planned development of Delhi was never undertaken. On the H

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A other hand, they were busy in granting ad hoc licenses for non- confonning areas, electricity connections, water connections, collecting electricity, water, property tax at commercial rates, collection of Sales Tax and Excise from these industries, which were coming up. Had the concerned authorities discharged their B duties casted upon them by the two Master Plans, the legal and statutory document for the planned development of Delhi to which they were duty bound to perhaps the situation, which Delhi is in today, would not have arisen." (Emphasis has been supplied by us)

c The affidavit further states that

"That it is respectfully submitted that till today not only MCD, but also D.V.B., Water Department, Excise and Sales-tax Departments, Factory Department Provident Fund D and ESI Department have been recognizing the existence of the industries in the non-conforming areas and in total each industry is being visited by 53 departmental inspectors of the Government."

E From the facts noticed above, it is evident that a casual approach has adopted in recommending INSITU regularization.

A report of group of experts set up for detennining polluting industries amongst list of 54 'F' category industries under the MPD - 2001 F reported that the industrial processes involving or using electroplating, dyeing, pickling, anodizing, coal fired boilers, forging and casting are polluting in nature and recommended a list of 33 activities to be polluting. The report is filed along with the affidavit dated 5th February, 2001 of Commissioner of Industries of the Delhi Government. The proposal for JNSITU regularization, however, does not even exclude the industries carrying the said activities from regularization. Further the proposal does not state what manufacturing activities are being carried on in 24 areas where the regularization was contemplated. In fact, in respect of the areas where INSITU regularization is under contemplation, many manufacturing activities even going by the report of the group of experts, would be polluting. All this shows total non-application of mind.

M. C. MEHTA v. U.0.1. [SABHARWAL, J.] 531

In respect of a large number of unauthorized industrial activities in non-conforming areas, the Municipal Authorities have expressed helplessness in taking action on the apprehension of breakdown of law and order in areas. The Municipalities have constitutional responsibilities of town planning. Part IX-A was inserted by Constitution (74th Amendment) Act, 1992 w.e.f. !st June, 1993. Article 243W provides for the powers, authority and responsibilities of the Municipalities etc. Article 243W reads as under :

"243W. Powers, authority and responsibilities of Municipalities, etc. - Subject to the provisions of this Constitution, the Legislature C of a State may, by law, endow

(a) the Municipalities with such powers and authority as may be necessary to enable them to function as institutions of self-government and such law may contain provisions for the devolution of powers and D responsibilities upon Municipalities, subject to such conditions as may be specified therein, with respect to-

(i) · the preparation of plans for economic development and social justice; E

(ii) the performance of functions and the implementation of schemes as may be entrusted to them including those in relation to the matters listed in the Twelfth Schedule; F (b) the Committees with such powers and authority as may be necessary to enable them to carry out the responsibilities conferred upon them including those in relation to the matters listed in the Twelfth Schedule." G The Municipal Corporation has the responsibility in respect of matters enumerated in 12th Schedule of the Constitution of India, regulation of land use, public health, sanitation, conservancy, solid waste management being some of them. Section 345 of the MCD Act contains the power of the Commissioner to seal. Section 416(1) provides that no person shall,, H

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A without the previous pennission in writing of the Commissioner, establish in any premises, or materially alter, enlarge or extend, any factory, workshop or trade premises in which is intended to employ steam, electric, water or other mechanical power. Section 417( I) stipulates that no person shall use or pennit to be used premises for any of the following purposes B without or otherwise than in conformity with the tenns of a licence granted by the Commissioner in this behalf, namely :

(a) any of the purposes specified in Part l of the Eleventh Schedule;

c (b) any purpose which is, in the opinion of the Commissioner dangerous to life, health or property or likely to create a nuisance;

(c) keeping horses, cattle or other quardruped animals or birds for transportation, sale or hire or for sale of the produce hereof, or

D (d) storing any of the article specified in Part Il of the Eleventh Schedule except for domestic use of any of those articles.

Section 461 provides for punishment for certain offences. Part I of the 11th Schedule of the MCD Act provides the purposes for which the premises may not be used without a licence. The 12th Schedule provides for various penalties, i.e., fine and imprisonment which may be imposed on contravention of various provisions of the MCD Act. It does not lie in the mouth of the Corporation to plead helplessness to carry out responsibilities and obligations under the MCD Act. The sealing of the premises was done in two phases, i.e., on 7th January 2001 and in second phase as on 3rd March, 2001. Out of nearly 35,522, only 5,139 units were sealed. It has not been explained whether any sealing was done in the areas now under the contemplation for regularization on the ground of 70% industrial concentration. The Delhi Government and DDA have also not explained that while arriving at figure of 70% industrial concentration, the industries which were not operating or those premises which were lying vacant or those which were sealed in phase 1 and 2 were taken into consideration or not. These questions arise since the survey conducted by the MCD in some of the areas show that large number of premises were lying vacant and/or no industrial activity was going on. Further, the survey also shows that many industries were carrying on industrial activity which

M. C. MEHTA v. U.0.1. (SABHARWAL, J.] 533

was per se polluting. A In Virender Gaur & Ors. v. State of Haryana & Ors., [1995] 2 SCC 577, referring to principle No. I of Stockholm Declaration of United Nations on Human Environment, 1972 this Court observed that right to have living atmosphere congenial to human existence is a right to life. The B State has a duty in that behalf and to shed its extravagant unbridled sovereign power and to forge in its policy to maintain ecological balance and hygienic environment. Where in the Zonal plan, a land is marked out and reserved for park for recreational purpose, it cannot be allotted for building purpose though housing is a public purpose. Further it was observed that though the Government has power to give directions, that power should be used only to effectuate and further goals of the approved scheme. Zonal plans etc. and the land vested under the Scheme or reserved under the plan would not be directed to be used .for any other public purposes within the area envisaged thereunder. Dealing with the contention that two decades had passed, it was held that self-destructive argument to put a premium on inaction cannot be accepted.

In Ml Builders Pvt. Ltd. v. RadheyShyam Sahu & Ors., (1999] 6 SCC 464, this Court observed that no consideration should be shown to a builder or any other person where the construction is unauthorized. Judicial E discretion cannot be guided by expediency. Courts are not free from statutory fetters. Justice is to be rendered in accordance with law. Judicial discretion wherever it is required to be exercised has to be in accordance with law and set legal principles. Judicial review is permissible if the impugned action is against law or in violation of the prescribed procedure F or is unreasonable, irrational or ma/a fide. In para 73, this Court reiterated that in_ numerous decisions, it has been held that no consideration should be shown to the builder or any other person where construction is unauthorized. This dicta is now almost bordering the rule of law. A discretion which encourages illegality or perpetuates an illegality cannot be exercised. In Ml Builders Pvt. Ltd. v. Radhey Shyam Sahu & Ors., G [1999] 6 SCC 532, this Court declined to come to the aid of a law-violator.

In Administrator, Nagar Palika v. Bharat & Ors., [200 I] 9 SCC 232, this Court observed that public interest has to be understood and interpreted in the light of the entire scheme, purpose and object of the enactment. The H

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