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

- **Citation:** [2004] Supp. 2 S.C.R. 504
- **Court:** Supreme Court of India
- **Decided:** 2004-05-07
- **Bench:** Y.K. Sabharwal, B.N. Agrawal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/m-c-mehta-v-union-of-india-and-ors-20091
- **Pages:** 45

## Headnote

Environmental Law:
C
Pollution-Industries located in residential and non-conforming areas
in Delhi contrary to the Master Plan and law-Directions by Supreme
Court in 1999 to close or shift such industries out of Delhi by 31.12.1999Application by State Government seeking time and for regularisation of
industries where concentration of industry is 70% or more in a residential
area (INS/TU Regularisation)-Thereafter, no steps were taken to comply
D with the orders-Held, on the basis of the materials on record and the
inactions and the casual approach of the State Government and various
Government authorities, such INSITU regularisation cannot be permitted
as it has taken into account the pollution angle-Directions issued to close
down various categories of industries with time frame-Delhi Development
E Act, !957-Delhi Municipal Corporation Act, 1957-National Capital
Region Planning Board Act, 1985-Constitution of India-Articles 21 &
243W
A large number of hazardous and noxious industries and heavy
F and large industries (categories A to F) came into existence in residential
and non-conforming areas of the Delhi State contrary to the Master
Plan and Zonal Plan of the State. Public interest litigation petitions
were filed before Supreme Court challenging the existence of such
industries in violation of the Delhi Master Plan under the Delhi
Development Act, 1957, Delhi Municipal Corporation Act, 1957 and
G other statutory provisions. This Court passed orders from time to time
over a decade directing various categories of industries situated in
residential/ non-conforming areas to be shifted out of Delhi. Despite the
directions, the State Government failed to take any action and a large
number of industries continued to be operated in residential/nonH conforming areas in violation of law.
504
M. C. MEHTA v. U.0.1.
505
This Court issued an order on 8.9.1999 directing the State A
Government to close down all the industries situated in residential
areas by 31.12.1999. On 10.12.1999, the State Government filed an
application seeking extension of time to close down the industries till
March 2004 and seeking INSITU regularisation of industrial units
where concentration of industry is 70% or more in a residential area. B
The Municipal Corporation of Delhi, National Regional Board
and the Central Pollution Control Board vehemently opposed the
continued unauthorised use for industrial activity of residential/nonconforming areas and the proposal of INSITU regularisation.
The National Regional Board contended that such industries
should be immediately closed down or shifted; that such regularisation
would defeat the very purpose of the National Capital Region Board
Act, 1985 under which NCR was established to decongest the city of
c
~L
D
The Central Pollution Control Board contended that the
regularisation would further result in air and water pollution and
would also affect the underground water.
Disposing the matters, the Court
HELD : 1.1. INSITU regularisation cannot be done if it results
in violation of right of life enshrined in Article 21 of the Constitution
E
of India. The question will have to be considered not only from the F
angle of those who have set up industrial units in violation of the
Master Plan but also who are residents and using their premises as
allowed by law. Further, the regularisation affects not only the
remaining 30% residents of the areas wherein regularisation may be
in contemplation but has effect on the entire area, particularly with
respect to infrastructure available. (518-G-H; 519-A)
G
1.2 The facts demonstrate that the State Government and the
Delhi Development Authority have been wholly remiss of all its
functions, duties and obligations. The Central Government, for the
reasons which are not far to seek, has been shifting its stand. There H
506
SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R.
A is no plausible answer to the question as to why in the meanwhile the
illegality should conti1rne without any action. I

## Text

_Characters 0–39,656 of 104,700. This is a partial read: ask again with offset=39656 for what follows._

A
M.C. MEHTA
V.
UNION OF INDIA AND ORS.
MAY 7, 2004
B
[Y.K. SABHARWAL AND B.N. AGRAWAL, JJ.]
Environmental Law:
C
Pollution-Industries located in residential and non-conforming areas
in Delhi contrary to the Master Plan and law-Directions by Supreme
Court in 1999 to close or shift such industries out of Delhi by 31.12.1999Application by State Government seeking time and for regularisation of
industries where concentration of industry is 70% or more in a residential
area (INS/TU Regularisation)-Thereafter, no steps were taken to comply
D with the orders-Held, on the basis of the materials on record and the
inactions and the casual approach of the State Government and various
Government authorities, such INSITU regularisation cannot be permitted
as it has taken into account the pollution angle-Directions issued to close
down various categories of industries with time frame-Delhi Development
E Act, !957-Delhi Municipal Corporation Act, 1957-National Capital
Region Planning Board Act, 1985-Constitution of India-Articles 21 &
243W
A large number of hazardous and noxious industries and heavy
F and large industries (categories A to F) came into existence in residential
and non-conforming areas of the Delhi State contrary to the Master
Plan and Zonal Plan of the State. Public interest litigation petitions
were filed before Supreme Court challenging the existence of such
industries in violation of the Delhi Master Plan under the Delhi
Development Act, 1957, Delhi Municipal Corporation Act, 1957 and
G other statutory provisions. This Court passed orders from time to time
over a decade directing various categories of industries situated in
residential/ non-conforming areas to be shifted out of Delhi. Despite the
directions, the State Government failed to take any action and a large
number of industries continued to be operated in residential/nonH conforming areas in violation of law.
504
M. C. MEHTA v. U.0.1.
505
This Court issued an order on 8.9.1999 directing the State A
Government to close down all the industries situated in residential
areas by 31.12.1999. On 10.12.1999, the State Government filed an
application seeking extension of time to close down the industries till
March 2004 and seeking INSITU regularisation of industrial units
where concentration of industry is 70% or more in a residential area. B
The Municipal Corporation of Delhi, National Regional Board
and the Central Pollution Control Board vehemently opposed the
continued unauthorised use for industrial activity of residential/nonconforming areas and the proposal of INSITU regularisation.
The National Regional Board contended that such industries
should be immediately closed down or shifted; that such regularisation
would defeat the very purpose of the National Capital Region Board
Act, 1985 under which NCR was established to decongest the city of
c
~L
D
The Central Pollution Control Board contended that the
regularisation would further result in air and water pollution and
would also affect the underground water.
Disposing the matters, the Court
HELD : 1.1. INSITU regularisation cannot be done if it results
in violation of right of life enshrined in Article 21 of the Constitution
E
of India. The question will have to be considered not only from the F
angle of those who have set up industrial units in violation of the
Master Plan but also who are residents and using their premises as
allowed by law. Further, the regularisation affects not only the
remaining 30% residents of the areas wherein regularisation may be
in contemplation but has effect on the entire area, particularly with
respect to infrastructure available. (518-G-H; 519-A)
G
1.2 The facts demonstrate that the State Government and the
Delhi Development Authority have been wholly remiss of all its
functions, duties and obligations. The Central Government, for the
reasons which are not far to seek, has been shifting its stand. There H
506
SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R.
A is no plausible answer to the question as to why in the meanwhile the
illegality should conti1rne without any action. In any case, as at present
there is no regularisation. The industrial activities in residential/ nonconforming zones are wholly illegal. The illegal. industrialisation in
residential/non-conforming area commenced and has continued and
B the Authority, the Governments and their agencies have been totally
negligent in discharge of the functions and obligations under the
provisions of the Delhi Development Act, 1957. [520-F-H; 521-A, F)
1.3. Dealing with the question of relocation of non-conforming
C industries and the setting up of the industrial estate in Delhi, in the light
of the facts brought before the Court, it is not open to the State
Government to argue that for want of acquisition of the land, the
industrial estates could not be developed. They had themselves written
to DDA not to develop any new industrial estate in the Union Territory
of Delhi. The State Government has been repeatedly taking time from
D the Court for the shifting of the offending industrial activity. If it was
not the responsibility of the State Government to shift the industry,
what was the purpose of filing an Application seeking extension of time
upto March 2004 and for seeking modification of the order dated
8.9.1999 whereunder the industries were directed to be closed by
E 31.12.1999. In this situation, there is no reason why those uaits which
have come up after 31.12.1999 shall not be closed and sternly dealt
with. The Court is unable to find any equity in favour of such violators
of law. The regularisation would also result in making the concept of
NCR non-functional and inoperative. (521-G-H; 524-B-FJ
F
2.1 The material on record shows that National Capital Regional
Planning Board has been taking initiative to encourage the shifting of
the industries to National Capital Region. It does not however, appear
that any significant interest was shown by the industry. The problems
are not insurmountable and can be sorted out. There is no obligation
G to provide alternative plots to those who illegally 'commenced industrial
activity. It is a matter for Government to decide if it wants to provide
alternative industrial plots to those who illegally commenced that
activity but that cannot further delay the closing of continuing illegal
industrial activity. The lack of action and initiative by the authorities
H is the main reason for the industry merrily continuing illegal activity.
M. C. MEHTA v. U.0.1.
507
There is total lack of enforcement of law by the concerned authorities. A
(528-E-H; 529-A-BJ
2.2 An illegality would not become a legality on inaction or
connivance of the Government authorities. There cannot be any doubt
that non-conforming industrial activities could not have commenced or B
continued at such a large scale in the capital of the country if the
Government and the concerned authorities had performed their
functions and obligations under various statutes. But such a situation
cannot be permitted to continue for ever so as to reach a point of no
return, where the chaotic situation in city has already reached. The C
lawbreakers, namely, the industries cannot be absolved of the illegalities
only on the ground of inaction by the authorities. From the facts, it
is evident that a casual approach was adopted in recommending
INSITU regularisation. (529-D-F; 530-E)
3. The growth of illegal manufacturing activity in residential D
areas has been without any check and hindrance from the authorities.
The manner in which such large scale violations have commenced and
continued leaves no manner of doubt that it was not possible without
the connivance of those who are required to ensure compliance of law
and reasons are obvious. Such activities result in putting on extra load E
on infrastructures. The entire planning has gone totally haywire. The
law abiders are sufferers. All this has happened at the cost of health
and decent living of the residents of the city violating their constitutional
rights enshrined under Article 21 of the Constitution of India. The
lawmakers repose confidence in the authorities that they will ensure F
implementation of the laws made by them. If the authorities breach
that confidence and act in dereliction of their duties, then the plea
that the observance of law will now have an adverse effect on the
industry or the workers cannot be allowed. Within the framework of
Jaw, keeping in view the norms of environment, health and safety, the
Government and its agencies, if there was genuine will, could help the G
industry .and workers by relocating industries by taking appropriate
steps in the last about" 15 years. [538-E-H; 539-A)
Virender Gaur & Ors. v. State of Haryana & Ors., (1995) 2 SCC 577;
Ml Builders Pvt. Ltd. v. Radhey Shyam Sahu & Ors., (1999) 6 SCC 464; H
508
SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R.
A Administrator, Nagar Palika v. Bharat & Ors., 120011 9 sec 232; Faqir
Chand & Anr. v. Shri Ram Rattan Bhannot & Anr., 11973) l SCC 572;
Dr. K. Madan v. Krishnawati (Smt.) & Anr., 11996) 6 SC 707; Punjab
National Bankv.Arjun Dev Arora & Ors., 1198614 SCC 660; V.M Kurien
v. State of Kera/a & Ors., (200114 SCC 215; Indian Council/or EnviroB Legal Action & Ors. v. Union of India & Ors., (l 9961 3 SCC 212 and M
C. Mehta v. Union of India, (1987] l SCC 395, referred to.
c
4.1. All Industrial Units that have come up in residential/nonconforming areas in Delhi on or after lst August, 1990 shall close down
and stop operating as the following schedule:
(a) Industrial units pertaining to extensive industries (F Category)
within a period of four months.
(b) Industrial Units pertaining to light and service industries
D (categories B to F) within five months.
(c) Impermissible household industries (category A) within 6
months.
(c) 6000 industrial units on waiting list for allotment of industrial
E plots within 18 months. [546-D-GI
F
4.2. The Central Government is directed to finalise a list of
permissible household industries falling in category A within a period
of three months. [546-HI
4.3. 6000 industrial units on waiting list shall be allotted industrial
plots within one year. [547-AI
4.4. The Delhi Government may announce a policy within six
weeks giving such incentives as it may deem fit and proper to those
G industrial units which came to be established after 1st August, 1990
and may close down on their own before the expiry of the time fixed
in this order. The non-announcement of incentives by the Government
shall not, however, delay the closure process. [547-BJ
H
4.5. The water and electricity connection of the industrial units
M. C. MEHTA v. U.0.l.
509
found operating after the due date of closure shall be disconnected A
forthwith and in any case not later than a month of the date fixed for
closure in Direction No. 1 above. If the industrial activity still continues,
the premises shall be sealed within a period of not later than another
one month. The seal shall be removed and water and electricity
connection restored only after filing of an undertaking by the industrial B
unit not to recommence any sort of industrial activity before an officer
nominated for the purpose by the Delhi State. [547-C-E)
4.6. The Central Government is directed to finalise within six
months appropriate steps to be taken for making NCR region a success
for industrial activity by removing the hurdles pointed out by the C
industry. The Governments of the adjoining States of U.P., Rajasthan
and Haryana are directed to extend full cooperation. [547-E-F]
4. 7. The Municipal Corporation of Delhi shall consider within
three months the aspect of withdrawal of exemption notification as D
suggested in the affidavit of its Town Planner filed on 28th October,
2002. [547-F-G)
4.8. A Monitoring Committee would comprise (i) Chief Secretary
of Delhi (ii) Commissioner of Police, Delhi (iii) Commissioner, Municipal E
Corporation of Delhi and (iv) Vice Chairman of Delhi Development
Authority. This Committee would be responsible for stoppage of illegal
industrial activity. It would, however, be open to the aforesaid m~mbers
of the Monitoring Committee to appoint responsible officers subordinate
to them to oversee and ensure compliance of the directions contained F
in the judgment. (547-G-H; 548-A]
ORIGINAL CIVIL JURISDICTION : Interlocutory Application No.
22.
IN
G
Writ Petition (Civil) No. 4677 of 1985
Under Article 32 of the constitution of India.
WITH
H
510
SUPREME COURT REPORTS (2004] SUPP. 2 S.C.R.
A
I.A. Nos. 1206, 1204, 1205, 1224 in WP (C) No. 4677/85, IA No.
1322 in IA No. 22 in WP (C) 4677/85, WP (C) No. 98/2000, IA No. 1367
IN IA No. 22 in WP (C) 4677/85 IA No. 1815 in WP (C) No. 4677/85,
IA No. 1527 in No. IA 22 in WP (C) No. 4677/85.
B
Mukul Rohtagi, Raju Ramachandran, Additional Solicitor Generals
(N.P.), Kailash Vasdev. Ranjit Kumar (A.C.), P.C. Jain (N.P.), M.C. Mehta,
K.L. Mehta, Rakesh K. Khanna, Mrs. Rashmi Khanna, Reetesh Singh,
Shashank Shekhar. Surya Kant. Mohd. Arif, M.A. Chinnasamy, K.K.
Rohtagi, Praveen Jain, Gopal Jain, Ms. Bina Gupta, Ms. Nina Gupta, Ms.
C Vanita Bhargava, Kirpal Singh, Debasis Mishra, S. Sukumaran, Ms. Divya
Nair, K. Rajeev, Manoj Swarup, Anubhav Kumar, Mrs. Manik Karanjawala,
Sushi! Kumar Jain, Naresh Khanna, P.N. Puri, Harpreet Singh, P. Venugopal,
P.S. Sudheer, Vijay Kumar, Atul Sharma, B.K. Sharma, Vishwajit Singh,
Vijay Panwani, Mrs. Indra Sawhney, V.B. Saharya, D.N. Goburdhan, R.C.
Verma, Manish Shanker, Mrs. Pinky Anand, Ms. Geeta Luthra, K.C.
D Kaushik, T.A. Khan, Mrs. Varuna Bhandari Gugnani for D.S. Mehra,
S.W.A. Qadri, Mrs. Anil Katiyar (N.P.), B.V.fl. Das (N.P.), S.N. Terdol
(N.P.), Y.P. Mahajan, TA. Khan, P. Parmeswaran (N.P.), Mrs. Varuna
Bhandari Gugnani for Mrs. Kavita Wadia, Kamalendra Mishra, Mukesh
Verma, Rajeev Kumar Dubey, Mrs. Sheil Sethi, Suresh C. Tripathi, Rakesh
E K. Sharma and R.S. Suri (N.P.), for the appearing parties.
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/
M. C. MEHTA v. U.O.l. [SABHARWAL, J.]
511
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 D
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 E
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
512
SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R.
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 :
D
E
F
"We .make it clear and direct that no industry in any residential
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.
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
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/nonG 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
M. C. MEHTA v. U.O.I. [SABHARWAL, J.]
513
December, 1996. The Government was, however, directed to file progress A
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 B
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.
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
D
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.
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.
G
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
E 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/
F
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
G 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
H 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, A
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 B
made to the observations in the order dated 8th February, 2001 that there
was an unexplained figure of more than 32,000 industries in nonconforming 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 C
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 D
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 E
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 F
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
A
B
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'
(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
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 nonconforming areas, the Master Plan provides that the said industrial units
shall be shifted to the permissible industrial use zone within a maximum
D 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
E 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
F 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
H 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 A
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 B
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 of health, habitation and environment or reward the illegal E
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 F
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
518
SUPREME COURT REPORTS [2004) SUPP. 2 S.C.R.
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
E 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
F 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
H 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 A
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.
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.
At first instance, a proposal for INSITU regularization in 15 areas was
\
considered. Now 24 areas are sought to be regularized. None of the
B
c
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 F
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 G
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
B 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
C 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
D 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.