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

- **Citation:** [2006] 2 S.C.R. 920
- **Court:** Supreme Court of India
- **Decided:** 2006-03-07
- **Case number:** Civil Appeal No. 1519 of2006
- **Bench:** S.B. Sinha, P.P. Naolekar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bombay-dyeing-and-mfg-co-ltd-v-bombay-environmental-action-group-and-ors-21318
- **Pages:** 138

## Headnote

Maharashtra Regional and Town Planning Act, 1966 : Sections 2(7),
2(9), 2(9-A), 2(13AJ. 2(27), 14, 21, 22, 37, 38, 43, 45 and 159-Maharashtra
C Development Control Regulations. 1991-Regulations 2(28), 2(48), 3, 9, 21,
32, 34, 51, 56-58:
Closure of Collon Textile Mills in Bombay due to continued strike by
workers-Lands of such mil fr-- Development of-Amendment of Development
Regulation 58-Government !votijication clarifYing scope thereof-Validity
D of-Held, not ultra vires Section 37 of the 1966 Act-Nor violative of the
Constitution-Bo1h Regulation 58 and the clanficatory Notification not
contrary lo principles governing environmental aspects including principles
of sustainable and planned development vis-a-vis Article 21 of the
Constitution-Sick col/on mills taken over by NTC-Subsequently NTC itself
becoming sick-In terms of Rehabilitation Scheme framed by BIFR, NTC
E selling some of !he mills-Validity of--Sick lnriustrial Companies (Special
Provisions) Act, 1985---Sections 3(e), 15, 32-----Constitution of India, 1950,
Articles 14, 21 and 48A.
Maharashtra Development Control Regulations, 1991 :
F
Regulation 58--Judicial Review of the Regulations-Permissibility ofHeld, judicial review permissible against legislative policy----Constitution of
India, 1950, Article 226.
Constitution of India, 1950 :
G
Article 226--Writ petition-Filing of-Laches and delay-Held, writ
petition not to be dismissed only on ground of delay.
PIL--Scope of-Explained
H
920
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BOMBAY DYEING AND MFG. CO.LTD. v. BOMBAY ENVIRONMENTAL ACTION GROUP
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Interpretation of Statutes :
Interpretation of Act and Regulations made thereunder-Doctrine of
contemporaneous exposition-Discussed-Maharashtra Regional and Town
Planning Act, 1966 and Development Control Regulations made thereunder.
Doctrines: ·
Doctrine of contemporaneous exposition-Applicability of-Discussed.
The question involved in these appeals is whether any synthesis
between environmental aspects and building regulation vis-a-vis the scheme
floated by the Board of Industrial and Financial Reconstruction (BIFR)
in terms of the provisions of the Sick Industrial Companies (Special
Provisions) Act, 1985 (SICA) herein is possible.
'
On behalf of the Appellants and supporting respondents, it was
contended that Development Control Regulation 58 of 1991 (DCR 58), as
amended in 2001, would be applicable not only to a sick mill but also to a
closed mill being unviable which had opted for revival/ modernization/
shifting, the original DCR 58 being not invalid, the mere grant of
additional benefits would not make it ultra vires; that the State could not
be said to have ignored various conflicting objectives while carrying out
the amendment in DCR 58; that the High Court, in exercise of its
jurisdiction of judicial review, could not have interfered with a policy
decision of the State; that the High Court committed a manifest error in
holding that the amended version of DCR 58 vis-a-vis the term 'open space'
would have the same meaning as was contemplated under DCR 58of1991;
that the High Court failed to appreciate that reading down of DCR.58
was impermissible in law; that the High Court ought to have taken into
consideration the past experience of the State necessitating amendment
of DCR; that the High Court failed to take note of the fact that the
committees appointed by the State also made recommendations that the
mill owners would be allowed to develop their lands; that two different
interpretations of DCR 58 having been found by the High Court to be possible,
it could not have arrived at a conclusion that clarificatory notification dated
28.03.2003 amounted to an amendment of'the Regulation and, thus, void; that
the impugned judgment is wholly unsustainable as several irrelevant factors,
e.g. deluge in the city of Born bay in 2005, were taken into consideration for
the purpose of interpretation of DCR 58; that the findings of the High Court
would lead to a radical discrimination b

## Text

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A
BOMBAY DYEING AND MFG. CO.LTD.
v.
BOMBAY ENVIRONMENTAL ACTION GROUP AND ORS.
MARCH 7, 2006
B
[S.B. SINHA AND P.P. NAOLEKAR, JJ.]
Maharashtra Regional and Town Planning Act, 1966 : Sections 2(7),
2(9), 2(9-A), 2(13AJ. 2(27), 14, 21, 22, 37, 38, 43, 45 and 159-Maharashtra
C Development Control Regulations. 1991-Regulations 2(28), 2(48), 3, 9, 21,
32, 34, 51, 56-58:
Closure of Collon Textile Mills in Bombay due to continued strike by
workers-Lands of such mil fr-- Development of-Amendment of Development
Regulation 58-Government !votijication clarifYing scope thereof-Validity
D of-Held, not ultra vires Section 37 of the 1966 Act-Nor violative of the
Constitution-Bo1h Regulation 58 and the clanficatory Notification not
contrary lo principles governing environmental aspects including principles
of sustainable and planned development vis-a-vis Article 21 of the
Constitution-Sick col/on mills taken over by NTC-Subsequently NTC itself
becoming sick-In terms of Rehabilitation Scheme framed by BIFR, NTC
E selling some of !he mills-Validity of--Sick lnriustrial Companies (Special
Provisions) Act, 1985---Sections 3(e), 15, 32-----Constitution of India, 1950,
Articles 14, 21 and 48A.
Maharashtra Development Control Regulations, 1991 :
F
Regulation 58--Judicial Review of the Regulations-Permissibility ofHeld, judicial review permissible against legislative policy----Constitution of
India, 1950, Article 226.
Constitution of India, 1950 :
G
Article 226--Writ petition-Filing of-Laches and delay-Held, writ
petition not to be dismissed only on ground of delay.
PIL--Scope of-Explained
H
920
•
• ..
-
• •
1~
'
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••
,.l.
> '
t'
BOMBAY DYEING AND MFG. CO.LTD. v. BOMBAY ENVIRONMENTAL ACTION GROUP
92 J
Interpretation of Statutes :
Interpretation of Act and Regulations made thereunder-Doctrine of
contemporaneous exposition-Discussed-Maharashtra Regional and Town
Planning Act, 1966 and Development Control Regulations made thereunder.
Doctrines: ·
Doctrine of contemporaneous exposition-Applicability of-Discussed.
The question involved in these appeals is whether any synthesis
between environmental aspects and building regulation vis-a-vis the scheme
floated by the Board of Industrial and Financial Reconstruction (BIFR)
in terms of the provisions of the Sick Industrial Companies (Special
Provisions) Act, 1985 (SICA) herein is possible.
'
On behalf of the Appellants and supporting respondents, it was
contended that Development Control Regulation 58 of 1991 (DCR 58), as
amended in 2001, would be applicable not only to a sick mill but also to a
closed mill being unviable which had opted for revival/ modernization/
shifting, the original DCR 58 being not invalid, the mere grant of
additional benefits would not make it ultra vires; that the State could not
be said to have ignored various conflicting objectives while carrying out
the amendment in DCR 58; that the High Court, in exercise of its
jurisdiction of judicial review, could not have interfered with a policy
decision of the State; that the High Court committed a manifest error in
holding that the amended version of DCR 58 vis-a-vis the term 'open space'
would have the same meaning as was contemplated under DCR 58of1991;
that the High Court failed to appreciate that reading down of DCR.58
was impermissible in law; that the High Court ought to have taken into
consideration the past experience of the State necessitating amendment
of DCR; that the High Court failed to take note of the fact that the
committees appointed by the State also made recommendations that the
mill owners would be allowed to develop their lands; that two different
interpretations of DCR 58 having been found by the High Court to be possible,
it could not have arrived at a conclusion that clarificatory notification dated
28.03.2003 amounted to an amendment of'the Regulation and, thus, void; that
the impugned judgment is wholly unsustainable as several irrelevant factors,
e.g. deluge in the city of Born bay in 2005, were taken into consideration for
the purpose of interpretation of DCR 58; that the findings of the High Court
would lead to a radical discrimination between cotton textile mills and other
A
B
c
D
E
F
G
H
922
SUPREME COURT REPORTS
[2006) 2 S.C.R.
A industries which being not based on any rational criteria renders it
unconstitutional being violative of Article 14 of the Constitution of India; that
the High Court failed to take into consideration the fact that equity was in
favour of the appellants as they having already demolished the building as
having created third party interests, should not have been asked to go back to
the same position as was obtaining in the year 1991; that if the impugned
B judgment is upheld, several provisions of DCR 58, like clause (6) thereof
would become otiose and redundant and, thus, interpretation of the High Court
in respect of DCR 58 is unsustainable; that no foundational fact having been
laid in the writ petition to show as to how the clarification amounts to
amendment of DCR 58, the High Court committed a manifest error in arriving
C at a finding that the said Regulations are ultra vires Section 37 of the Act
and/or Article 21 of the Constitution of India; that the Respondent-writ
petitioners were guilty of serious delay and laches in filing the writ petition;
that the High Court in granting relief in favour of the writ petitioners
failed to take into consideration relevant factors and based its decision
on irrelevant factors and, thus, misdirected itself in law; that the judgment
D in Bombay Dyeing & Manufacturing Co. Ltd. v. Bombay Environmental Action
Group and Ors. (20051 5 SCC 61 being final and binding on the parties,
the High Court committed a serious illegality in interfering therewith; and
that BIFR scheme had wrongly been taken recourse to for the purpose of
construction of the Regulation.
E
On behalf of Respondents 1 and 2, it was contended that DCR
broadly lays down a scheme of land uses and zoning, Clause 58 thereof as
amended in 200 I should be read in conformity with the provisions of the
MRTP Act; that the expression 'open land' as contained in DCR 58 must
be in!erpreted in such a manner as to enable the concerned authorities to
F sanction a building plan in terms of the extant regulations; that on a plain
construction of OCR 58 of2001, it has rightly been held by the High Court
that the intention of the State evidently was to give only double FSI and
not to diminish the stake of MCGM and MHADA in the mill land; that
interpretation of OCR 58 by the State has defeated the purport and object
G of the Act; that for the purpose of upholding the constitutionality ofDCR 58,
the same was required to be read down, failing which it is rendered
unconstitutional; that the effect and purpose of DCR 58 as clarified by the
state only having come to the notice of the writ petitioners in 2005 and as the
writ petition was filed by them immediately thereafter, the same was not liable
to be dismissed on the ground of delay and laches on their part; that in view
H of the subsequent events, this Court may lay down the principles for the
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BOMBAY DYEING AND MFG. CO. LTD."· BOMBAY ENVIRONMENT AL ACTION GROUP
923
· . purpose of moulding the reliefs and remit the matter to the High Court for A
consideration of the matter afresh; that MHADA and the MCGM having taken
different stands before the High Court, they should not be permitted to support
the State; and that all applications for grant of permission for development/
redevelopment were required to be considered having regard to the nature of
the land as would be existing after demolition of the existing structures.
Allowing the appeals, the Court
B
HELD: 1.1. While entertaining a public interest litigation of this
nature several aspects of public interest being involved, the Court should
find out as to how greater public interest should be subserved and for the C
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 D
closed industry; and (g) schemes framed by BIFR for revival of the
company. [973-F, GI
1.2. The courts in doing so would have to take into consideration a large
number of factors, some of which may be found to be competing with each
other. It may not be proper to give undue importance to one at the cost of the E
other which may ultimately be found to be vital and give effect to the intent
and purport for which the legislation was made. [973-H; 974-AI
Raunaq International Ltd. v. /. V.R. Constructions Ltd. & Ors., (1999] l
SCC 492; Ashok Lanka v. Rishi Dixit, [2005] 5 SCC 598; Guruvayoor
Devaswom Managing Committee v. C.K. Rajan, 12003] 7 SCC 546; Shivajirao F
Nilangekar Patil v. Dr. Mahesh Madhav Gosavi, (1987) 1SCC227; Chairman
& MD, BPL Ltd. v. S.P. Gururaja and Ors., 120031 8 SCC 567; KK. Bhalla
v. State of M.P. & Ors., (2006) 1 SCALE 238; Dr. B. Singh v. Union of India
and Ors., (2004) 3 SCC 363; Ashok Kumar Thakur v. State of Bihar & Ors.,
( 1995) 5 SCC 403 and T.N. Godavarman Thirumu/pad v. Union of India and
Ors., (2006) 1 sec 10, relied on.
G
1.3. Public interest litigations, have been entertained more frequently
where a question of violation of the provisions of the statutes governing
the environment or ecology of the country has been brought to its notice in
the matter of depletion of forest a·reas and/or when the executive while H
924
SUPREME COURT REPORTS
(2006] 2 S.C.R.
A exercising its administrative functions or making subordinate legislations
has interfered with the ecological balance with impunity. In the instant
case, the High Court of Bombay, therefore, cannot be faulted with for
entertaining the writ petition as a public interest litigation. [975-D, El
2. I. It is well-settled principle of law that in the absence of any
B context indicating a contrary intention, the same meaning would be
attached to the word used in the latter as is given to them in the earlier
statute. It is trite that the words or expression used in a statute before
and after amendment should be given the same meaning. When the
legislature uses the same words in a similar connection, it is to be presumed
C that in the absence of any context indicating a contrary intention, the same
meaning should attach to the words. [978-E, F)
2.2. It is well-known that when the statute makes a distinction
between the two phrases and one of the two is expressly deleted, it is
contrary to the cardinal principle of statutory construction to hold that
D what is deleted is brought back into the statute and finds place in words
which were already there in the first place. It is also a wellcsettled principle
of law that common sense construction rule should be taken recourse to
in certain cases. (979-B, DI
Compack (P) Ltd. v. CC£. [20051 8 SCC 300; Gurudevdatta VKSSS
E Maryadit v. State of Maharashtra, [200II 4 SCC 534; Dayal Singh v. Union
of India, 120031 2 SCC 593; Swedish Match AB v. Securities and Exchange
Board, India, (2004) I I SCC 641; Commr. Of Income-tax/Excess Profits Tax,
Bombay City v. Messrs. Bhogilal Laherchand including Batliboi and Co.,
Bombay, AIR (I954) SC 155; The Mangalore Electric Supply Co. Ltd. v. The
F Commissioner of Income Tax, West Bengal, (197813 SCC 248; His Holiness
Kesavananda Bharati Sripadaga/varu v. State of Kera/a and Anr., [I973J 4
SCC 225 and Mis. Onkarla/ Nandlal v. State of Rajasthan and Anr .. [I9851
4 sec 404, relied on.
K.L. Gupta & Ors. v. The Bombay Municipal Corporation and Ors ..
G (1968) I SCR 274; Maruti Udyog Ltd. v. Ram Lal and Ors .. (20051 2 SCC
638; Reserve Bank of India v. Peerless General Finance and Investment Co.
Ltd., [I987) I SCC 424; Punjab Land Development and Reclamation Corpn.
Ltd v. Presiding Officer, Labour Court, Chandigarh, [I99013 SCC 682; High
Court of Gujarat v. Gujarat Kishan Mazdoor Panchayat, (200314 SCC 712;
Indian Handicrafts Emporium and Ors. v. Union of India and Ors .. (20031 7
H
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BOMBAY DYEING AND MFG. CO.LTD.'· BOMBAY ENVIRONMENT AL ACTION GROUP
925
SCC 589; Deepal Girishbhai Soni and Ors. v. United India Insurance Co. A
Ltd., Baroda, 120041 5 SCC 385; Bairam Kumawat v. Union of India and Ors.,
12003] 7 SCC 628; Pratap Singh v. State of Jharkhand andAnr., 120051 3
SCC 551; P.S. Sathappan (Dead) By LRS. v. Andhra Bank Ltd. and Ors.,
f2004J 11 SCC 672 and Venkata Subamma and Anr. v. Ramayya and Ors.,
AIR (1932) PC 92, referred to.
B
Charles Bradlaugh v. Henry Lewis Clarke, (1883) 8 AC 354, referred
to.
\
1
Francis Bennion 's Statutory Interpretation; Interpretation and
'
I-!
J.
~-
Application of Statutes: Reed Dickerson, p. I 35 and Hals bury 's Laws of C
England (Fourth Edition) Volume 44(/) (Re-issue), referred to.
3.1. A statute, it is well known, is to be read as a whole. Subordinate
legislation indisputably has to be read in the light of the provisions of the
Act whereunder it has been made. It, however, must be read having regard
to the purpose and object for which the statute is made.
D
3.2. 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 11 town planning officer who possesses
requisite qualification. The MRTP Act lays down the matters which are E
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 F
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 G
plan subject, of course, to the condition that the same shall not change the
character of such development plan.1980-A-El
3.3. Section 22 of the MRTP Act provides for the contents of the
development plan, i.e., to be divided into several areas for allocating the use of
land for the purposes as, for example, residential or commercial, proposals H
926
SUPREME COURT REPORTS
[2006] 2 S.C.R.
A 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
B
reservation of land for community facilities and services. Whereas designation
and/ or reservation of areas for certain public purposes would vary from place
to place, it must take care of not only the public purposes but also several
others including open spaces. Water supply, drainage, sewerage, and other
public utilities including electricity and gas or highways or waterways,
schools, etc., however, would be considered to be equally important A planning
c authority, therefore, must take into consideration all the relevant factors,
although in a given case, one gets priority over the other. Ordinarily, it
would not be for the court to substitute its decision to that of the planning
authority unless an appropriate case is made out therefor. When, however,
question of public interest comes up, the court indisputably would try to
D
delicately balance the different factors, if possible. (980-E-H; 981-A(
3.4. Both open space as also the other factors relevant for making
the regulation would be in public interest. The question would, however,
be as to which is of greater public interest. Public interest, thus, would be
' '
a relevant factor also for interpretation of the statute. Public interest so
E far as maintenance of ecology is concerned pertains to a constitutional
scheme comprising of Articles 14, 21, 48A and SIA(g) of the Constitution
of India, the other factors are no less significant. (981-B-C)
3.5. The amendment in 2001, therefore, must be interpreted having
regard to the provisions of the MRTP Act which professed increase in the
F ecological interest by providing more open space and not decreasing the same.
The amendments in the regulation must be construed in furtherance of the
"
legislative policy and not in derogation thereof. But, while doing so, the past
experience of the State which paved the necessities for modifying the earlier
regulation should not be forgotten. (981-E-GI
G
3.6. A statutory scheme also by way of Section 22 clearly speaks
about open spaces. The Legislative Act confers guidelines which advocates
the necessity of environmental impact assessment. The State, when it
exercises its power under Section 37 of the MRTP Act is required to act
'•
within the four-corners of the Act. Any modification or amendment must
H address the environmental consequences together with other relevant factors.
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BOMBAY DYEING AND MFG. CO.LTD. v. BOMBAY ENVIRONMENT AL ACTION GROUP
927
)1"
As a logical corollary, it must also be determined as to whether the A
amendments amounted to a minor modification or substantive one. Literal
interpretation of the Act and the Rules would give rise to many anomalies. It
would not advance the object and purport of the Act. It would also create
difficulties in implementing the statutory scheme. [981-G, H; 982-A, BJ
T.N. Godavarman Thiruma/pad v. Union of India and Ors., (2002) 10 B
SCC 606; N.D. Jayal and Anr. v. Union of India and Ors., (2004) 9 SCC
t.
362 and Ve/lore Citizens' Welfare Forum v. Union of India and Ors., (1996)
5 sec 647, relied on.
4.1. A policy decision, as is well known, should not be lightly c
interfered with. By reason of any legislation whether enacted by the
. legislature or by way of subordinate legislation, the State gives effect to
its legislative policy. Such legislation, however, must not be ultra vires the
Constitution. A subordinate legislation apart from being intra vires the
Constitution, should not also be ultra vires the parent Act under which it
has been made. A subordinate legislation, it is trite, must be reasonable D
')..
and in consonance with the legislative policy as also give effect to the
.
)
purport and object of the Act and in good faith. [982-C-E)
4.2. The parameters of judicial review in relation to a policy decision
would depend upon the nature as also the scope and object of the E
legislation. No hard and fast rule can be laid down therefor. The court
normally would not, however, interfere with a policy decision which has
been made by experts in view of the fact that it does not possess such
expertise. [983-C-D)
4.3. However, this Court is not at all dealing with an economic policy F
_._
of the State, but a special planning statute of which economic factor is
~
only one of the components. Even then, it has no bearing with the economic
policy affecting the State or general public. DCR 58 deals with only a class
of people - who owned and possessed cotton textile mills and want revivaV
rehabilitation of their sick or closed textile mills or intend to modernize
or shift their mills. (984-D-E]
G
v
4.4. 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 H
928
SUPREME COURT REPORTS
[2006] 2 S.C.R.
A validity and/or interpretation of a legislation must be resorted to within the
. ,..
parameters of judicial review, but it is difficult to accept the contention that it
is totally excluded. [984-G, H; 985-AI
4.5. Unreasonableness is certainly a ground of striking down a
B
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. [985-A-B)
4.6. Interpretation and application of constitutional and human
c rights had never been limited by this Court only to the black letter of law.
Expansive meaning of such rights had all along been given by the Courts
by taking recourse to creative interpretation which lead to creation of new
rights. (985-G)
4.7. In cases where constitutionality and/or interpretation of any
D legislation, be it made by the Parliament or an executive authority by way
of delegated legislation, is in question, it would be idle to contend that a
court of superior jurisdiction cannot exercise the power of judicial review.
(
A distinction must be made between an executive decision laying down a
·~
policy and executive decision in exercise of its legislation making power. A
E legislation be it made by the 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-a-vis the constitutional
provisions and other relevant factors. (986-C-FJ
F
PJ. Irani v. The State of Madras, (1962) 2 SCR 169; Mis. Punjab Tin
Supply Co., Chandigarh and Ors. v. Central Government and Ors., (1984) l
SCC 206; Secretary, Ministry a/Chemicals & Fertilizers, Government of India
v. Cipla Ltd & Ors., (20031 7 SCC l; Manager. Reserve Bank of India,
G
Bangalore v. S. Mani and Ors., (2005) 5 SCC 100; Sonepat Cooperative Sugar
Mills Ltd. v. Ajit Singh. [2005) .3 SCC 232; Cho/an Roadways Ltd v. G.
Thirugnanasambandam, (2005) 3 SCC 241; Anil Kumar Jha v. Union of India,
(2005) 3 SCC 150; Rameswar Prasad & Ors. v. Union of India & Anr., (2006)
l SCALE 385; Vineet Narain and Ors. v. Union of India and Anr., (1996) 2
..
SCC 199; Union of India and Anr. v. C. Dinakar, JPS and Ors., (20041 6
H SCC ll8; Kapila Hingorani v. State of Bihar. (20031 6 SCC l and Motor
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BOMBAY DYEING AND MFG. CO. LTD.'· BOMBAY ENVIRONMENTAL ACTION GROUP
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General Traders and Anr. v. State of Andhra Pradesh and Ors., (1984) 1 SCC A
222 and John Vallamattom v. Union of India, {2003] 6 SCC 611, relied on.
Maharashtra State Board of Secondary and Higher Secondary Education
and Anr. v. Paritosh Bhupesh Kumar Sheth and Ors., (1984) 4 SCC 27; R.K
Garg v. Union of India & Ors., (1981) 4 SCC 675; Ba/co Employees Union
v. Union of India, (2002] 2 SCC 333; State of Rajasthan & Ors. v. Basant B
Nahata, AIR (2005) SC 3401 and The Trustees of the Port of Madras v. Ml
s Aminchand Pyarelal and Ors., (1976( 3 SCC 167, referred to.
Huang and Ors. v. Secretary of State for the Home Department, (2005)
3 All. ER 435 and R. v. Secretary of State of the Home Department, ex. P C
Daly, (2001) 3 All ER 433, referred to.
5.1. Both the phrases "open lands" as also "balance FSI" contained
in DCR 58(l)(b) play significant role. The word "balance" is crucial which
would naturally mean FSI which is available to be utilized upon open land.
Such balance FSI must be apart from the existing FSI. Indisputably, the D
built-up area had consumed some FSI and, thus, when the expression
"balance FSI" is used, the same would mean additional built-up area. It
contemplates that where the entire plot has been used by existing builtup areas and some open land has been left out on the remaining non-built
up area of the plot additionally unconsumed FSI could be used. It is in
that sense separate. It is true that DCR 58(1) uses the word entire land · E
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 F
only in that sense that the State intended to give additional protection to
the mill owners. If open land is given its natural or dictionary meaning,
no distinction could be made in between DCR 58(1)(a) and DCR 58(1)(b),
.which ex facie would lead to an anomaly. (993-D-Gf
5.2. In view of the fact that the built up area was to be pr~tected in G
terms of sub-regulation (1) of DCR 58, a 'fortiori the ·land colnponent
thereof could be protected under clause (b) thereof. Thus, the same land
which was protected under clause (a) could not become shareable under
clause (b) which would render the distinction between the said provisions
otiose. Balance FSI on open lands or otherwise had also been used in subregulation (5) of OCR 58. It also, thus, gives a significant clue to find out H
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[2006] 2 S.C.R.
A the meaning of balance FSI. Additional reason for the aforementioned
conclusion is that development or redevelopment of entire open land and
built up area of the premises referred to in DCR 58(1), in the event, the
findings of the High Court are accepted, there would not be any necessity
for the State to use two different words "open land" and "built-up area"
B separately and distinctly. 1993-H; 994-A-CI
5.3. The words "built-up area" find its source from the definition of
existing building. The existing built-up area was not to be shared and the
same if read with the word "existing'', it may be contrasted with a builtup area additionally but separate and distinct from the old existing builtC up area. The existing built-up area, thus, was sought to be protected which
would mean that they were sought to be protected from non-shareable land
component thereof. It is thus possible to come to the conclusion that the
obligation to share was intended to be absent only so long as no additional
built-up area was created. 1994-C-E)
D
5.4. In a case where the existing structure is demolished in part, the
balance FSI would be available but in relation to the entire open lands,
FSI has to be calculated taking into account the area of open land
appurtenant to the existing structures. Thus, no basic change had been
· ~
effected in drafting the regulation to segregate newly built-up areas from
E existing built-up areas. It cannot be denied that the State intended to give
more benefits to the mill owners by reason of 2001 Regulations and, thus,
if after demolition of the entire structure the whole plot is treated to be
open land and FSI is calculated on the basis thereof the purport and object
of the amendment will be defoated. The fact that the State intended to
consider the matter relating to amendment having regard to the fact that
F there had hardly been any takers for the 1991 Scheme as it failed to
provide sufficient incentives, cannot be ignored. (994-E-G)
•
5.5. The amendments carried out in the MRTP Act from time to time
and clearly the provisions of Sub-section (2) of Section 26 of the MRTP
Act point out that the State had been leaning towards environmental
G aspects but that was not the sole objective. The title of the regulation reads
as a modification to DCR 58. It was, therefore, not in substitution of the
resolution of 1991 nor was it framed by way of recasting thereof.
(994-H; 995-A-B)
5.6. In the marginal note, the expression "development or
H redevelopment" of land of cotton textile mills has been mentioned. What,
-'t.. ..
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BOMBAY DYEING AND MFG. CO.LTD.>. BOMBAY ENVIRONMENT AL ACTION GROUP
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therefore, in focus was the land of cotton textile mills. The expression. A
"land", thus, plays an important role. Although a marginal note may not
be determinative of the content of the provision, it may act as an intrinsic
aid to construction. (995-B-C)
5.7. The amendment of 1994 appears to be clarificatory in nature,
B
having regard to the fact that prior thereto the land owners could carry
on demolition without prior intimation and/ or obtaining permission from
the corporation. The High Court, therefore, in its judgment wrongly laid
undue emphasis thereupon. Furthermore, in DCR 58 the word
redevelopment had all along been used. By reason of the said amendment,
no different meaning which would not be in consonance with the object c
should be attributed. Whatever that may mean, redevelopment
contemplates in its ordinary parlance a renewal or substitution of
development and involves pulling down of the structures. Development by
way of demolition cannot mean that DCR 58(1) would permit not just tbe
retention of the structure (shell) but also demolition of structure (shell).
The purpose for introducing the said amendment, therefore, was for a D
different purpose and could not have been used for the purpose of
construction of DCR 58. [995-C-H; 996-A]
5.8. It is true that the lands of different mills had different built-up
areas. Balance FSI was required to be calculated on the basis thereof. The
E
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 comparativ~ly less than the case of land belonging to other mills, the
same by itself cannot be a ground for construing DCR 58 differently. F
Furthermore, in Note (iv) of DCR 58(1)(b) itself, it is categorically stated
that land would become open by demolishing the existing structure which
also points to the fact that the contentions of the Respondents - Writ
Petitioners are not correct in view of the fact that if the land after
demolition was already subsumed under open land, it was not necessary
G
to deal with the same subject specifically with land which had become open
on demolition. It is also interesting to note that in DCR 58(6)(a) the words
"reconstruction after demolition of existing structures limited to the extent
cf the built up area of the demolished structure ... " have been used with
reference to "development/ redevelopment of the entire open land and/
or built up area of premises ... " It is, thus, clear that the expression "open H
932
SUPREME COURT REPORTS
[2006] 2 S.C.R.
A lands" is meant to connote lands other than lands available after
demolition of existing structures. (997-F-H; 998-A-CJ
5.9. The extent of open land to be shared by the owners with MCGM
and MHAOA would depend upon the built up area of the structure which
existed on site. The share of MCGM and MHAOA, therefore, would vary
B from case to case and, thus, one cannot determine the question keeping
in view only the case of one mill and not the others. This Court does not
agree with the approach of the High Court in interpreting the
aforementioned provisions having regard to certain other factors, namely,
deluge in Bombay in the year 2005 as also the requirements of the entire
C population of Bombay from environmental aspect. Such factors cannot be
taken into consideration for interpretation of a statute. One cannot look
to a statute with a coloured glass, but has to consider the provisions as
the legislature thought. The same should be subject, of course, to the
constitutional and other limitations. (1001-E-HJ
D
Smt. Nandini Satpathy v. P.L. Dani and Anr. AIR (1978) SC 1025,
referred to.
Lennon v. Gibson, (1919) AC 709 at 7ll, referred to.
Craies on Statute law. Seventh Edn. p.141 and G.P. Singh's Principles
E of Statutory Interpretation, Ninth Edn. p.258, referred to.
6.1. If it is to be construed that a scheme made by BIFR is the
condition precedent for applicability of OCR 58 by reason whereof the
benefit conferred thereunder would not be availa'ble in like cases for no
apparent reasons whatsoever particularly when it was the intention of the
F State that all categories of the m.ills which require rehabilitation, revival
or modernization should be brought within the purview of OCR 58.
[1003-0-EJ
6.2. Indisputably, there may be closed mills which have not been
referred to BIFR or otherwise not capable of being referred to. The spirit
G of making OCR 58 was for revival and/or rehabilitation of the cotton
textile mills. Revival of closed mill was also, thus, a component part of
the scheme behind framing of OCR 58. It may be true that in terms of
sub-regulation (l) of OCR 58 recommendation of the BIFR is contemplated
but recommendation of BIFR would be necessary where it is otherwise
H available. If it is insisted that the recommendation by BIFR was mandatory
...
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BOMBAY DYEING AND MFG. CO.LTD.'· BOMBAY ENVIRONMENTAL ACTION GROUP
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even for closed mill, much of the significance for using the words 'and/or A
closed' after the word 'sick' is lost. A closed mill would mean a mill in
respect whereof closure has been effected in accordance with law. Such
closure can be effected in accordance with law in terms of the provisions
of the Industrial Disputes Act. Before effecting a closure under the
Industrial Disputes Act, notice has to be given to the State and in certain B
cases its prior permission is also required to be obtained. Thus, all cases,
which entail closure of an industry; would be within the knowledge of the
-t,.
State. The State through its machinery can furthermore verify the
genuineness or otherwise of such closure. In such a case, even in terms of
the provisions of the Industrial Disputes Act having regard to the purport
and object for which the same had been enacted, the authorities thereunder c
as also for the State a duty is cast to restore back the industrial peace.
[1003-F-H; 1004-A-B)
~·
State of Rajasthan & Anr. v. Mohammed Ayub Naz, (2006) 1 SCALE
79, relied on.
Halsbury's laws of England (Fourth Edition) Vol. (44) I (Re-issue), D
~-
referred to.
~ .
7. DCR 58(6) is adjunct to the other provisions. Although on some
occasions, OCR 58(2) may apply without DCR 58(6), yet there is no such
..
machinery so far as sick mills are concerned. It is, therefore, difficult to
comprehend that those mills which are sick but not referred to BIFR also E.
can take advantage of sub-regulation (6). How an industrial undertaking
belonging to a company which is sick should be determined to be so as
laid down under the provisions of SICA. Only in a case \\'.here a company
is sick in terms of the 1985 Act, an industrial undertaking belonging to it
..._
may be subject matter of the provisions thereof. The State forthat matter F
,l
neither has any statutory power or competence to deal with sick
undertakings. Furthermore, the extent to which such sick company
requires protection to the extent of the sickness of the industrial
undertaking cannot also be gone into by the State or for that matter by
any other authority apart from BIFR. (1005-B-DJ
G
8. For the purpose of change of user of the lands, previous approval
-(
of the Commissioner to a layout plan in accordance with the Scheme
ap.p.roved by the Government is necessary. In terms of the said provision,
Clause (a) of sub-regulation (1) thereto shall apply as regard utilization
of the built-""p area and clause (b) shall apply in relation to development H
__,)
of open lands and balance FSI exceeds 30% of the open land and for
934
SUPREME COURT REPORTS
[2006] 2 S.C.R.
t:-
A balance FSI clause (b) of sub·-regulation (1) shall apply. Sub-regulation
~ -
(3) applies in respect of the cotton textile mills which intend to shift with
the permission of the competent authorities and in accordance with the
scheme approved by the Government. In terms of the said provision also,
•
Clauses (a) and (b) of sub-regulation (I) of DCR 58 would apply in regard
B
to the development or redevelopment of its land after shifting. SubRegulation ( 4) provides that in case of modernization and shifting,
recommendation by BIFR would not be mandatory which implies that such
-
recommendation shall be mandatory. DCR 58(3) provides fof shifting.
Shifting of industries outside the town is encouraged.
( 1006-G-H; 1007-A-B(
c
9.1. Both in Regulations 56 and 57 cotton textile mills had expressly
been excluded from a general power to convert the user into a residential
or commercial purpose. If such a provision was required to be made in
making an exception in relation to the cotton textile mill, it was not
necessary for the State to frame the regulation in its present form. SubD regulation (6) specifically refers to sick and/ or closed or requiring
modernization on the same land. Such cases would, thus, bring within its
purview only closed mills which had not been referred to BIFR but the
•
change of user, must be confined to DCR 58 itself and not under DCR 56.
Such a construction does not cause any injustice to any party. If an
E
industrial undertaking is really sick within the provisions of the 1985 Act,
-
for the purpose of availing the benefits under DCR 58, it can refer the
question to BIFR and once a scheme is framed as regard revival and/or
rehabilitation, the owner of the mill can take recourse thereto. The lands
of the cotton textile mills, thus, although become open lands available but
therefor they cannot be used for purposes specified in 1-2 Zone. SubF regulation (6) of DCR 58 must be read in sharp contrast to Sub-regulation
(3)(c) of Regulation 56 and Sub-regulation 4(c) of Regulation 57 which
permits a change of user to industrial lands other than lands of cotton
textile mills. Sub-regulation (6) of DCR 58 although contains no power to
change of user but the same had been provided in other clauses. If it is
G
not held that sub-regulation (6) contains the power to change user in
respect of existing structures, a 'fortiori it may not be possible to give effect
thereto as there would be no power to user of change of land under existing
structures. [1007-H; 1008-A-El
-..
9.2. So far as NTC mills are concerned, development had taken place
H
as a package of measure recommended by BIFR. Indisputably, the same
would come within the purview of sub-regulation (l) of OCR 58 but in
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BOMBAY DYEING AND MFG. CO.LTD.'· BOMBAY ENVIRONMENT AL ACTION GROUP
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certain cases sub-regulation (6).also may be attracted. Each of the relevant A
sub-regulations of DCR 58 confers regulatory power upon the
Commissioner of the State. Development or redevelopment in terms of subregulations (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 B
safeguard, namely, prior approval of the Commissioner, all the mill owners
irrespective of the fact that they fall in different categories in terms of
+
the regulations would, thus, be entitled to take benefit of clause (6) subject
"
to strict compliance of other provisions. [1008-E-G)
10.1. It is no doubt true that Articles 14, 21, 48-A of the Constitution c
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.