# MIS PRP EXPORTS & ETC v. THE CHIEF SECRETARY, GOVERNMENT OF TAMIL NADU & ORS

- **Citation:** [2013] 16 S.C.R. 1107
- **Court:** Supreme Court of India
- **Decided:** 2013-12-13
- **Bench:** K.S. Radhakrishnan, A.K. Sikri
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mis-prp-exports-etc-v-the-chief-secretary-government-of-tamil-nadu-ors-29001
- **Pages:** 74

## Headnote

A
B
Mines and Minerals (Development and Regulation) Act,
1957 - ss. 4(1) and 4(1-A) -
Tamil Na du Minor Mineral C
Concession Rules, 1959 - rr. 36(4) and 36(1) -
Granite
Conservation and Development Rules, 1999 - s. 19(2) -
Suspension of quarrying operation.--Alleging unauthorized
quarrying - Single. Judge of High Court permitted continuation
of investigation of criminal cases against the petitioner, but D
permitted him to continue the quarry operations - Thereafter,
suspension orders were passed under 1999 rules and show
cause notices issued to the petitioners -
Writ appeal -
Division Bench allowed the appeal taking into consideration
the subsequent suspension order - Held: In view of the fact
E
that several writ petitions are pending for consideration before
High Court on the issue, and that in the present case, High
Court had issued some equitable directions, it would not be
appropriate to pronounce upon merit of the case.
Practice and Procedure -
Subsequent events -
Consideration of - Permissibility - Held: Courts should
examine subsequent events, in a case, where larger public
interest is involved.
F
Petitioner-a partnership firm was engaged in the
G
business of granite. 55 granite guarries in the District of
Madurai were leased in its favour. The respondent
officials suspended its quarrying operations in the 55
quarries, sealed the factory of the petitioner and seized
1107
H
1108
SUPREME COURT REPORT~
(2013] 16 S.C.R.
A its bank-accounts, on the allegation of illegal and
unauthorized quarrying.
The petitioner challenged the order, by filing writ
petition, and the same was disposed of by Single Judge
8 of the· High Court. The Court permitted to continue the
investigation of the criminal cases against the petitioner,
but directed the authority concerned to let the petitioner
continue the quarrying operation and run his business.
The respondent-State filed writ appeal. During
C pendency of the same, suspension orders dated
14.12.2012 were issued uls. 19(2) of Granite Conservation
and Development Rules, 1 ~99 and also show cause
notices dated nil. 12.12.2012. The Division Bench of High
Court allowed the writ appeal. However, it also gave
D certain equitable directions. Hence the present special
Leave Petitions.
Dismissing the petitions, the Court
HELD: 1. When a larger public interest is involved,
E the Court can always look into the subsequent events.
The Division Bench of the High Court was right in
examining the subsequent events. [Para 7] [1115-C]
All India Railway Recruitment Board vs. K. Shyam Kumar
F (201 O) 6 sec 614: 201 o (6) SCR 291 - relied on.
Mohinder Singh Gill vs. Chief Election Commissioner,
New Delhi and Ors. (1978) 1 SCC 405: 1978 (2) SCR 272 -
referred to.
G
2.1. The Government and the District Administration
received lot of complaints with regard to illegal quarrying
in the Madurai District, which led the State Government
directing the District Administration to verify the
complaints. After conducting a comprehensive and
H scientific survey, the Deputy Director and the Assistant
PRP EXPORTS & ETC. v. CHIEF SECRETARY,
1109
GOVT. OF TAMIL NADU
Director of Geology and Mining, submitted an Evaluation
A
Report on 23.11.2012 on 88 granite quarries. The Deputy
Director and the Assistant Director of Geology and Mining
· in their Evaluation Report dated 23.11.2012 reported that
the Petitioner firm has not carried out the quarrying
operations as per their mining plan and encroached upon
B
the adjoining roads, tanks, channels and water bodies
and illicitly quarried granites in the adjacent nonleasehold areas. Further, it was also pointed out that
there was a vast difference between the quantity
permitted by the District Mines office and the quantity c
quarried by the Petitioner firm. Consequently, it was
pointed out that they had violated Section 4-(1) and 4-(1A)
of the Mines and Minerals (Development and Regulation)
Act, 1957 and also violated the Rules 36(4) and 36(1) of
the Tamil Nadu Minor Mineral Concession Ru

## Text

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[2013] 16 S.C.R. 1107
MIS PRP EXPORTS & ETC.
v.
THE CHIEF SECRETARY, GOVERNMENT OF TAMIL
NADU & ORS.
(Special Leave Petition (C) Nos.18662-18663 of 2013)
DECEMBER 13, 2013
[K.S. RADHAKRISHNAN AND A.K. SIKRI, JJ.]
A
B
Mines and Minerals (Development and Regulation) Act,
1957 - ss. 4(1) and 4(1-A) -
Tamil Na du Minor Mineral C
Concession Rules, 1959 - rr. 36(4) and 36(1) -
Granite
Conservation and Development Rules, 1999 - s. 19(2) -
Suspension of quarrying operation.--Alleging unauthorized
quarrying - Single. Judge of High Court permitted continuation
of investigation of criminal cases against the petitioner, but D
permitted him to continue the quarry operations - Thereafter,
suspension orders were passed under 1999 rules and show
cause notices issued to the petitioners -
Writ appeal -
Division Bench allowed the appeal taking into consideration
the subsequent suspension order - Held: In view of the fact
E
that several writ petitions are pending for consideration before
High Court on the issue, and that in the present case, High
Court had issued some equitable directions, it would not be
appropriate to pronounce upon merit of the case.
Practice and Procedure -
Subsequent events -
Consideration of - Permissibility - Held: Courts should
examine subsequent events, in a case, where larger public
interest is involved.
F
Petitioner-a partnership firm was engaged in the
G
business of granite. 55 granite guarries in the District of
Madurai were leased in its favour. The respondent
officials suspended its quarrying operations in the 55
quarries, sealed the factory of the petitioner and seized
1107
H
1108
SUPREME COURT REPORT~
(2013] 16 S.C.R.
A its bank-accounts, on the allegation of illegal and
unauthorized quarrying.
The petitioner challenged the order, by filing writ
petition, and the same was disposed of by Single Judge
8 of the· High Court. The Court permitted to continue the
investigation of the criminal cases against the petitioner,
but directed the authority concerned to let the petitioner
continue the quarrying operation and run his business.
The respondent-State filed writ appeal. During
C pendency of the same, suspension orders dated
14.12.2012 were issued uls. 19(2) of Granite Conservation
and Development Rules, 1 ~99 and also show cause
notices dated nil. 12.12.2012. The Division Bench of High
Court allowed the writ appeal. However, it also gave
D certain equitable directions. Hence the present special
Leave Petitions.
Dismissing the petitions, the Court
HELD: 1. When a larger public interest is involved,
E the Court can always look into the subsequent events.
The Division Bench of the High Court was right in
examining the subsequent events. [Para 7] [1115-C]
All India Railway Recruitment Board vs. K. Shyam Kumar
F (201 O) 6 sec 614: 201 o (6) SCR 291 - relied on.
Mohinder Singh Gill vs. Chief Election Commissioner,
New Delhi and Ors. (1978) 1 SCC 405: 1978 (2) SCR 272 -
referred to.
G
2.1. The Government and the District Administration
received lot of complaints with regard to illegal quarrying
in the Madurai District, which led the State Government
directing the District Administration to verify the
complaints. After conducting a comprehensive and
H scientific survey, the Deputy Director and the Assistant
PRP EXPORTS & ETC. v. CHIEF SECRETARY,
1109
GOVT. OF TAMIL NADU
Director of Geology and Mining, submitted an Evaluation
A
Report on 23.11.2012 on 88 granite quarries. The Deputy
Director and the Assistant Director of Geology and Mining
· in their Evaluation Report dated 23.11.2012 reported that
the Petitioner firm has not carried out the quarrying
operations as per their mining plan and encroached upon
B
the adjoining roads, tanks, channels and water bodies
and illicitly quarried granites in the adjacent nonleasehold areas. Further, it was also pointed out that
there was a vast difference between the quantity
permitted by the District Mines office and the quantity c
quarried by the Petitioner firm. Consequently, it was
pointed out that they had violated Section 4-(1) and 4-(1A)
of the Mines and Minerals (Development and Regulation)
Act, 1957 and also violated the Rules 36(4) and 36(1) of
the Tamil Nadu Minor Mineral Concession Rules, 1959. It 0
was also pointed out that the Petitioner had not submitted
the Scheme of Mining as per Rules 15 and 18 of the
Granite Conservation and Development ·Rules, 1999 and
had not stored the over burden and waste materials as
earmarked. Various other violations were also pointed
out. [Paras 8 and 9] [1115-F-H; 1116-A-G]
E
2.2. In view of the report of the District Collector
dated 19.5.2012 as well as the report of the Deputy
Director of Geology and Mining dated 23.11.2012, the
petitioners cannot be allowed to operate the quarries in
F
accordance with the licences already granted. In the
affidavit filed by the third respondent, it was pointed out,
that the volume of illegal transportation from the
petitioners' 16 quarries was around 1207863.164 Cubic
Meters and show cause notices had been issued to the
G
Petitioner firm under Section 21(5) of the Mines and
Minerals (Development and Regulation) Act, 1957 for
recovery of the cost. It was stated that the value of the
illicit quarry in the 16 quarries alone came around 4124.14
crores. Further, it was also pointed out that other quarry
H
1110
SUPREME COURT REPORTS
(2013] 16 S.C.R.
A operators had also indulged in similar illegal quarry
operations and the total volume of illegal operations was
estimated around Rs.12390.460 crores. Further, it was
also pointed out that several criminal cases were also
pending for carrying on illegal quarrying operations in the
B government land. [Para 12] [1118-A-D]
2.3. Since several writ petitions were pend•ng
consideration before the High Court, at this stage, it
would not be appropriate to pronounce upon the merits
of the case, especially in the light of the materials leading
C to the issuance of the suspension orders dated
14.12.2012 and the show cause notices dated Nil.12.2012.
The Division Bench of ·the High Court has issued some
equitable directions taking into consideration the interest
of the workers and also for honouring some statutory
D obligations of the petitioner firm. Therefore, there is no
reason to interfere with the impugned judgment. [Para 13]
[1118-D-F]
E
F
Case Law Reference:
2010 (6) SCR 291
1978 (2) SCR 272
relied on
referred to
Para 7
Para 10
CIVIL APPELLATE JURISDICTION : Special Leave
Petition (C) No.18662-18663 of 2013.
From the Judgment and Order dated 15.02.2013 of the
Madurai Bench of Madras High Court in W.A. (MD) Nos. 906
and 907 of 2012.
G
Harish Salve, Mukul Rohatgi, C. A. Sundaram, V. Giri, K.
K. Mani, K. Ramakrishna Reddy, K. Kalapa Reddy, Abhishek
Krishna, Rohini Musa, R. Rakesh Sharma, Anand Sathyaselan,
B. Balaji, P. S. Sudheer, M. Purushothaman (for Santosh
Kumar Tripathi) G. Pugalendhi, GP, Sheelam, Sp.PP. for the
H Appearing Parties.
PRP EXPORTS & ETC. v. CHIEF SECRETARY,
1111
GOVT. OF TAMIL NADU
The Judgment of the Court was delivered by
A
/
K.S. RADHAKRISHNAN, J. 1. These Special Leave
Petitions arise out of a common judgment and order dated
15.2.2013 passed by the High Court of Judicature at Madras
in W.A. (MD) Nos.906 and 907 of 2012. The Petitioner is a
8
registered partnership firm, engaged in the manufacture of
·dimensional granite blocks, slabs, tiles, monuments etc. and
has set up its factory for cutting and polishing of granite in
Therkkutheru Village, Madurai District. The Petitioner firm, it is
stated, is 100% export oriented unit, recognized by the Madras
C
Export Processing Zone. The Petitioner firm is having 55
granite quarries leased in the Madurai District measuring about
584.83 acres.
2. Alleging that the Petitioner firm had indulged in
unauthorized quarrying, the Respondent officials as well as the
D
District Collector and Superintendent of Police took steps to
seal the Petitioners' factory premises, vehicles and instruments
so as to suspend the quarrying operations in respect of the
above-mentioned quarries. The Petitioners, therefore,
approached the Madras High Court by filing W.P. (MD)
E
Nos.12441 and 12442 of 2012, which were heard by a learned
Single Judge.
3. Before the learned Single Judge, the State also took
up the stand that the order of sealing dated 9.8.2012 was illegal
and could not be supported in law. Taking note of the stand
taken by the State, the learned Single Judge observed as
follows :-
F
"124. It is also admitted case of the respondents, that till
date, even show cause notice with regard to cancellation
G
of licences granted in favour of the petitioner has not been
issued, therefore, there is absolutely no justification with
the respondents, to stop the mining operation of the
petitioner over the mines leased out to the petitioner, and
thereby taking the right of livelihood of thousands of
H
1112
SUPREME COURT REPORTS
[2013] 16 S.C.R.
A
employees working in the firm."
B
c
D
E
F
G
H
4. After hearing all the parties, the learned Single Judge
disposed of the writ petitions on 2.11.2012. The operative
portion of the judgment reads as follows :
"130. However, at the same time, the fact cannot be lost
sight off that there are number of cases registered against
the partners of the petitioner firm, and there are serious
allegations of illegal mining worth of crores of rupees.
Further more, in the writ petitions, the positive stand of the
writ petitioner is, that the petitioners are willing to cooperate with the investigation of criminal cases in respect
of furnishing all documents, records, books of accounts
which are sealed by the authorities in their presence, and
has further undertaken not to tamper with any records, and
will not destroy any evidence whatsoever. The petitioner
has also undertaken not to threat any witnesses in the
investigation. Therefore, a blanket order to be passed in
favour of the petitioner may hamper the investigation, which
cannot be permissible in law.
131. Therefore, in order to settle equity, these writ petitions
are disposed of with the following directions:-
1. The respondents shall permit the petitioner to continue
the quarry operations over the leased property strictly in
terms of the lease, which is admittedly in force. It shall be,
however, open to the respondents to take appropriate
action by following due process of law under The Mines &
Minerals (Development & Regulation) Act, 1957 and the
Rules framed thereunder, if so advised ;
2. The respondents shall henceforth release the bank
accounts and to allow the petitioner to carry on his
business in accordance with law. However, it shall be the
duty of the petitioners to submit fortnightly Statement of
Accounts to the Investigating Officer;
PRP EXPORTS & ETC. v. CHIEF SECRETARY,
1113
GOVT. OF TAMIL NADU [K.S. RADHAKRISHNAN, J.]
3. That the order restraining the export and import by the
A
Investigating Officer is ordered to be quashed and it is
directed that the respondents shall not interfere in the
export and import on valid documents by the petitioner.
4. That the seal of the administrative building be opened,
8
after the Investigating Officer takes in possession of the
documents, the computers, hard discs, etc., required for
investigation. (As agreed between the parties, the
petitioner is directed to depute two persons along with an
expert, if so advised to be present at the administrative
C
building on 07.11.2012 (Wednesday) at 10.00 a.m., for
handing over the computers, hard discs, documents,
available in the sealed building, after transferring the datas
from computers and making copies of the documents,
which are required for running of business). It is made
D
clear that the petitioner will be entitled to get copies of the
documents lying within the premises and permit the
Investigating Officer to take away the Computers, Hard
discs and other documents, which are required for the
Investigation. This process shall be completed in three
E
days and it should be completed on S'r before 09.11.2012
(Friday).
5. The Investigating Officer shall permit the petitioner to
carry on their business.
6.
With regard to the vehicles, equipments and other
accessories seized by the authorities under the Motor
Vehicles Act, or in criminal cases, it shall be open to the
petitioner to take appropriate remedy in accordance with
law for reasons thereof.
No costs."
5. The State, aggrieved by the judgment of the learnecl
Single Judge, preferred Writ Appeal (MD) Nos. 906 and 907 ·
F
G
H
1114
SUPREME COURT REPORTS
[2013] 16 S.C.R.
A of 2012 before the Division Bench of the Madras High Court.
While dealing with various directions given by the learned Single
Judge, the State represented by the learned Advocate General,
pointed out that, during the pendency of the writ appeals,
suspension orders dated 14.12.2012 were issued under
B Section 19(2) of the Granite Conservation and Development
Rules, 1999 as well as Show Cause Notices dated nil.12.2012
were issued to the writ petitioners. Further, it was also pointed
out that the departmental proceedings as well as the criminal
proceedings initiated against the petitioners could not be
C hampered by granting permission to them to carry on quarrying
operations in their 56 quarries. The prayer made by the
Advocate General was opposed by counsel appearing for the
writ petitioners stating that any action taken by the Government
subsequent to the passing of the order by the learned Single
D Judge could not be the basis for testing the correctness, or
otherwise, of the directions given by the learned Single Judge.
In support of that contention, reliance was placed on the
judgment of this Court in Mohinder Singh Gill v. Chief Election
Commissioner, New. Delhi & Ors. [1978) 1 SCC 405].
E
F
G
H
6. The Division Bench of the Madras High Court formulated
two questions which read as follows :
"(1) Whether the appellants can place reliance on the
subsequent events, viz., passing of the suspension orders
dated 14.12.2012 and the issuance of the show cause
notice dated Nil.12.2012 to the respondents/writ
petitioners firm? and
(2) Whether the provisions under the Special Law viz. The
Mines and Minerals (Development and Regulation) Act,
1957 and other Rules, can override the General Law, viz.,
the penal provisions under the Indian Penal Code and the
provisions under the Code of Criminal Procedure in
respect of the initiation of parallel proceedings, viz.,
departmental proceedings and criminal proceedings?"
'
PRP EXPORT$ & ETC. v. CHIEF SECRETARY,
1115
GOVT. OF TAMIL NADU [K.S. RADHAKRISHNAN, J.]
7. Shri H.c:irish Salve, learned senior counsel appearing for
A
the !Petitioner, submitted that he is more concerned with the first
question and arguments were advanced by him as well as Shri
C. Sundaram, learned senior counsel appearing for the State,
on that point. In our view, the Division Bench of the High Court
is right in examining_ the subsequent events as well in a case
B
where larger public interest is involved. This Court in'A/J India
Railway Recruitment Board v. K. Sh yam Kumar [(2010) 6
SCC 614] distinguished Mohinder Singh Gill's case (supra),
stating when a larger public interest is involved, the Court can
always look into the subsequent events. Relevant paragraph of c
the judgment is extracted hereinbelow :-
"45. We are of the view that the decision-maker can always
rely upon subsequent materials to support the decision
already taken when larger public interest is involved. This
Court in Madhyamic Shiksha Manda/, M.P. v. Abhilash
D
Shiksha Prasar Samiti found no irregularity in placing
reliance on a subsequent report to sustain the cancellation
of the examination conducted where there were serious
allegations of mass copying. The principle laid ·down in
Mohinder Singh Gill case is not applicable where larger
E
public interest is involved and in such situations, additional
grounds can be looked into to examine the validity of an
order. The finding recorded by the High Court that the
report of CBI cannot be looked into to examine the validity
of the order dated 4-6-2004, cannot be sustained.
F
8. The Government and the District Administration
received lot of comr:;ilaints with regard to illegal quarrying in the
Madurai District, which led the State Government directing the
District Administration to verify the complaints. The District
G
Collector inspected various quarries and submitted a
preliminary report dated 19.5.2012. Subsequent to the
preliminary report, the Distri~t Administration decided to
conduct a comprehensive and scientific survey in all the 175
granite quarries functioning in the Madurai District. Considering
H
the vast area involved, the District Administration requested the
1116
SUPREME COURT REPORTS
[2013) 16 S.C.R.
A Commissioner of Geology and Mining to depute officers from
their department for carrying on the inspection. Consequently,
the Commissioner of Geology and Mining vide proceedings
dated 4.8.2012 deputed six Assistant Geologists, two
Surveyors and two Sub Inspectors of Survey from various other
B Districts to assist the inspection team constituted by the District
Administration. After conducting a comprehensive and scientific
survey, the Deputy Director and the Assistant Director of
Geology and Mining submitted an Evaluation Report on
23.11.2012 on 88 granite quarries. Among them, 16 quarries
c belonged to the Petitioner. The inspection could not be carried
out in 22 granite quarries due to water logging and among that
18 quarries belonged to the Petitioner.
9. The Deputy Director and the Assistant Director of
Geology and Mining in their Evaluation Report dated
D 23.11.2012 reported that the Petitioner firm has not carried out
the quarrying operations as per their mining plan and
encroached upon the adjoining roads, tanks, channels and
water bodies and illicitly quarried granites in the adjacent nonleasehold areas also. Further, it was also pointed out that there
E is a vast difference between the quantity permitted by the
District Mines office and the quantity quarried by the Petitioner
firm. Consequently, it was.pointed out that they have violated
Section 4-(1) and 4-(1A) of the Mines and Minerals
(Development and Regulation) Act, 1957. Further, it was also
F pointed out that theY have not maintained the boundary stones
and the safety distance and thus violated the Rules 36(4) and
.
36(1) of the Tamil Nadu Minor Mineral Concession Rules, 1959.
It was also pointed out that the Petitioner has not submitted the
Scheme of Mining as per Rules 15 and 18 of the Granite
G Conservation and Development Rules, 1999 and has not stored
the over burden and waste materials as earmarked. Various
other violations have also been pointed out.
10. The District Administration then forwarded the
Inspection cum Evaluation Report dated 23.11.2012 to the
H
PRP EXPORTS & ETC. v. CHIEF SECRETARY,
1117
GOVT. OF TAMIL NADU [K.S. RADHAKRISHNAN, J.]
Commissioner of Geology and Mining on 4.12.2012 and
A
pointed out that the lessees have not submitted the scheme of
mining as required under sub-rules (2) and (3) of Rule 18 of
the Granite Conservation and Development Rules, 1999 and
that the lessees have carried out large· scale unauthorized
quarrying in the leasehold area and the adjoining non-leasehold
B
area. The Commissioner of Geology and Mining vide its letter
dated 6 .. 12.2012 also recommended for further action.
Consequently, under Sub-Rule (2) of Rule 19 of the Granite
Conservation and Development Rules, 1999, the Government
suspended the mining operations in respect of 78 granite c
quarries of Madurai District and, among the same, 20 quarries
belong to the Petitioner firm were suspended on 14.12.2012
and the copies of the suspension orders were issued to the
Petitioner firm.
11. Shri Harish Salve, learned senior counsel appearing
D
for the Petitioners submitted that the Petitioner has already
challenged the suspension orders in the Madras High Court in
W.P. (MD) No.3829 of 2013 and the connected writ petitions
and the Court has granted stay of the suspension orders and
hence the Respondents should have permitted the Petitioners
E
to operate the granite quarries in the leasehold area. Shri Salve
also submitted that the show cause notices dated 25.2.2013
issued to the Petitioners are also under challenge in W.P. (MD)
No.3012 of 2013 and other connected cases before the
Madurai. Bench of the Madras High Court and the Court has
F
issued an interim order directing the District Collector not to
pass final orders, pursuant to the suspension orders. The Court
also has reserved its judgment. Learned senior counsel also
submitted that a series of writ petitions are also pending
· challenging the deemed lapse notices. In such circumstances,
G
learned senior counsel prayed that the Petitioners may be
allowed to operate the quarries in accordance with the licences
already granted.
12. We find it difficult to accede to that request made by
the senior counsel, at this stage, especially in the wake of the
H
1118
SUPREME COURT REPORTS
[2013] 16 S.C.R.
A report of the District Collector dated 19.5.2012 as well as the
report of the Deputy Director of Geology and Mining dated
23.11.2012. In the affidavit filed by the third respondent, it is
pointed out, that the volume of illegal transportation from the
petitioners' 16 quarries is around 1207863.164 Cubic Meters
B and show cause notices have been issued to the Petitioner firm
under Section 21 (5) of the Mines and· Minerals (Development
and Regulation) Act, 1957. for recovery of the cost. It is stated
that the value of the illicit quarry in the 16 quarries alone comes
around 4124.14 crores. Further, it was also pointed out that
C other quarry operators have also indulged in similar illegal
quarry operations and the total volume of illegal operations is
estimated around Rs.12390.460 crores. Further, it was also
pointed out that several criminal cases are also pending for
carrying on illegal quarrying operations in the government land.
D
13. We are of the view that, since several writ petitions are
p·ending consideration before the High Court, at this stage, it
would not be appropriate to pronounce upon the various
contentions raised by learned senior counsel on either side on
merits of the case, especially in the light of the materials leading
E to the issuance of the suspension orders dated 14. 12.2012 and
the show cause notices dated Nil.12.2012. We also notice that
the Division Bench of the High Court has issued some
equitable directions taking into consideration the interest of the
workers and also for honouring some statutory obligations of
F the petitioner firm. We, therefore, find no reason to interfere with
the impugned judgment dated 15.2.2013 and the special leave
petitions filed against those orders stand dismissed.
Kalpana K. Tripathy
SLPs dismissed.
[2013] 16 S.C.R. 1119
MUNICIPAL CORPORATION OF GREATER MUMBAI AND
A
ORS.
V.
KOHINOOR CTNL INFRASTRUCTURE COMPANY
PRIVATE LIMITED AND ANOTHER
(Civil Appeal No. 11150 of 2013)
B
DECEMBER 17, 2013
[H.L. GOKHALE AND J. CHELAMESWAR, JJ. ]
Urban Development:
c
Sanction for construction of high-rise building going upto
198. 50 meters - Provision for Public Parking Lot up to 13 floors
- During the construction work, decision of Government to
limit the height of Public Parking Lot to ground plus 4 upper D
floors - Competent authority directing the builder to restrict
the work of Public Parking upto ground plus 4 floors instead
of 13 floors - By further order, the authority allowed Public
Parking to the extent of already executed construction -:-- High
Court quashed the orders passed by the authorities as being
contrary to law - On appeal, settlement arrived at between the
parties -
The Court also noticed certain violations while
granting initial sanction in respect of the building in question
E
- Memorandum of Settlement taken on record and parties
directed to act strictly in accordance thereof - As regards other
violations it held: Minimum recreational space as laid down
F
under Development Control Regulation (OCR) 23, cannot be
reduced on the basis of OCR 38(34) - The second proviso
to OCR 43(1)(A) regarding fire protection requirements, is
discriminating as against occupants of the plots upto the size
of 600 sq. mtrs. and hence violative of Art. 14 of the G
Constitution - The provision is also violative of Article 21 as
it is likely to lead to hazardous situation - Suggestions given
regarding height of buildings vis-a-vis the adjoining roads and
1119
H
1120
SUPREME COURT REPORTS
[2013] 16 S.C.R.
A impact of additional FSI on the traffic situation -
State
Government, Development Plan Drafting Committee, and
appellant-Municipal Corporation directed to consider the
suggestions while framing the Development Plan for Greater ·
Mumbai -
'Technical Committee for High-Rise Buildings'
B reconstituted - Development Control Ri~gulations for Greater
Mumbai, 1991 - Maharashtra Regional and Town Planning
Act, 1966 - Constitution of India, 1950 - Articles 14 and 21.
Words and Phrases:
C
'Open space' and 'Site' - Meaning of, in the context of
urban development.
Respondent No.1 commenced construction work of
'A', 'B' and 'C' wings of a building, after due approval
0 from the competent authorities including the approval for
development of a multi-storied Public Parking Lot (PPL).
The appellant-Corporation issued a Circular on 22.6.2011
prescribing certain conditions un~er Clause 33(24) of
Development Control Regulation (DCR) limiting the
E height of PPL to ground plus 4 upper floors and 2
basements. In view of the circular, the appellantCorporation issued notice dated 29.11.2011 to
respondent No.1 under Maharashtra Regional and Town
Planning Act, 1966. Respondent No.1 in its reply pleaded
that amended clause 33(24) of the DCR could not be
F made applicable to its building, because substantial
construction had already been made. Thereafter stopwork Notice was issued on 22.12.2011 directing
respondent No.1 to restrict the work of PPL to 4 floors
instead of 13 floors. Competent Authority of appellantG Corporation passed ord~r dated 22.4.2012 holding that on
the part of the plot on which there was substantial
construction, PPL on that part shall be allowed to the
extent of already executed construction and in the
remaining portion of the plot, where there was no
H
MUNICIPAL COPRN. OF GREATER MUMBAI v. KOHINOOR CTNL 1121
INFRASTRUCTURE COMPANY PVf. LTD.
substantial construction, PPL shall be limited to ground
A
plus 4 floors.Petitioner No.1 challenged the Stop-work
notice as well as the order dated 27.4.2012. High Court
allowed the petition.
In appeal to this Court, the parties entered into
settlement, bringing about changes as desired by
appellant-Corporation, while taking care of interest of the
respondent. As per the settlement Public parking was to
B
be provided in the ground plus 4 upper floors in Wing 'C'
and also in the three level basements below Wings 'A',
'B' and 'C'. From 5th to 13th floors of Wing 'C' there would
C
be private parking.
This Court in its order dated 25.7.2013 took ton
record, the Memorandum of Settlement dated 18.4.2013
between the parties. This Court by order dated 25.7.2013,. D
apart from taking on record the settlement, also noticed
that the appellant-Corporation had not applied their mind
to some of the issues which, did arise in the matter of ·
grant of permission to the building complex in question,
viz. the recreational space available at the ground level
E
was reduced to only 7.7.% of the area of the plot as
against the required minimum of 15%; that a higher FSI
had been given in lieu of making a provision for Public
Parking, leading to a high-rise building; that impact of
Construction of high-rise buildings in the thickly
F
populated areas on the traffic in the city was not
considered; and that the issues regarding the firi;i
hazards were not considered.
Disposing of the appeal, the Court
HELD: 1. The memorandum of settlement dated
18.4.2013, concerning the Public Parking Lot (PPL) arrived
at between the appellant-Municipal Corporation of Greater
Mumbai and the respondents was taken on record, as
noted in Part-I order dat~ 25.7.2013, in the facts and
G
H
1122
SUPREME COURT REPORTS
[2013] 16 S.C.R.
A circumstances of the present case. Both the parties shall
act strictly in accordance with the same. It is clarified th!'lt
the Municipal circular dated 22.6.2011 is not in any way
held to be bad in law. [Para 60] [1179-0-F]
8
2.1. OCR 23 (1) (a), speaks of a lay-out or sub-division
of 'vacant land' and open spaces. Under sub-clause (f)
of OCR 23 there is a requirement of keeping the
recreational open space permanently open to the sky and
trees are to be grown in that space as laid down, i.e. five
trees per hundred square meters of the recreational
C space within.the plot. These provisions clearly show that
they are mandatory. OCR 2 (64) defines 'open space' to
mean an area forming an integral part of a site left open
to the sky. A 'site' is defined under OCR 2 (83) to mean a
parcel or piece of land enclosed by definite boundaries.
D These OCR's when read together, very much make it
clear that the recreational /amenity space has to be on
the land i.e. on ground level and it has got to be 15%, 20%
or 25% of the area depending upon its size. Podium is
permissible only on plots admeasuring 1500 sq. mts. or
E more. So this provision is not applicable to plots smaller
than 1500 sq. mts. The requirement of recreational space
on the podium under OCR 38 (34) (iv) is discretionary.
Besides, as clause (iii) lays down, podium shall be
basically used for parking. Besides Clause (iv) does not
F contain a non-obstante clause to over-ride the
requirement under OCR 23 making it mandatory to
provide recreational space on the ground-floor. That
being so, the provision under OCR 38 (34) cannot be read
in derogation of the requirement under OCR 23 or else it
G will result into serious erosion in the basic requirements
for a good life affecting the guarantee of righ~ to life, under
Article 21 of the Constitution of India. Therefore clause
(iv) of the OCR 38(34) has to be read down as
inapplicable and not excluding the mandatory provision
H under OCR 23. [Para 25] [1150-C-H; 1151-A, BJ
--·
MUNICIPAL COPRN. OF GREATER MUMBAI v. KOHINOOR CTNL 1123
INFRASTRUCTURE COMPANY PVT. LTD.
2.2. The development schemes under OCRs 33(7),
A
33(9) and 33(10) provide for lesser Recreational area I
Amenity spaces. Thus, under OCR 33(7) and 33(10)
reduction in the Amenity open space is permitted to make
the project viable, but still minimum 8 percent of the
project area is required to be maintained as Amenity
B
open space. Similarly, for the schemes under OCR 33(9)
minimum 10 percent of the plot area is required to be
retained as Recreational space. In other properties, where
there are no such constraints to make the development
schemes of rehabilitation or reconstruction of old c
buildings or slums viable, there is no reason why the
Amenity open space at the ground level should be read
as permissible to be reduced. The only ground being
given is to provide more parking and more
accommodation, meaning thereby more construction,
0
concretization and financial expediency. Such a purpose
cannot be read into the provisions as they presently
exist, nor is it desirable to do so from the point of view
of the requirement of minimum open spaces at the
ground level. [Para 26] [1151-B-E]
E
2.3. Besides, the requirement of having trees and
open land around them is necessary from an
environmental point of view, since there is already
excessive concretization, and a very serious reduction in
open spaces at the ground level. The right to a clean and
F
healthy environment is within the ambit of Article 21. The
right to a clean and pollution free environment, is also a
right under co'mmon-law jurisprudence. [Para 27] [1151F-G; 1152-B]
Court on its Own Motion vs. Union of India 2012 (12)
SCALE 307; Ve/lore Citizen's Welfare Forum vs. Union of
India and Ors. (1996) 5 SCC 647: 1996 (5) Suppl. SCR 241
- relied on.
G
2.4. Having 15%, 20% or 25% of the area (depending
H
1124
SUPREME COURT REPORTS
[2013] 16 S.C.R.
A upon the size of the lay-out) as the recreational/amenity
area at the ground level is a minimum requirement, and
it will have to be read as such. Therefore, issue no. 1 is
answered by holding that it is not permissible to reduce
the minimum recreational area provided under DCR 23 by
B relying upon DCR 38(34). However, if the developers wish
to provide recreational area on the podium, over and
above the minimum area mandated by DCR 23 at the
ground level, they can certainly provide such additional
recreational area. [Para 28] [1152-G-H; 1153-A-B]
c
3.1. Whereas the provisions regarding access for the
fire-engines are somewhat adequate for the mid-rise
buildings up to 13 floors, those beyond are required to
be strictly implemented from within as well. The
provisions for the refuge floor and various requirements
D from within have to be strictly scrutinized and insisted
upon. [Para 37] [1160-G-H]
3.2. The second proviso to DCR 43(1 )(A) cannot
stand scrutiny of minimum safety requirement. If the
E access of 6 meters is required from at least one side
within the property for the fire engine to enter and move
inside, in redevelopment proposals under DCR 33(7)
where the plot size is up to 600 sq. mts., open space of
1.5 meters, can not be said to be adequate. The buildings
F on such plots can also go up to 20 floors, depending
upon the number of flats for the occupants to be provided
for. If that is so, it is necessary to have an open space of
the width of 6 meters within the property for the fire
engine to enter the property at least from one side which
G is so provided for every other building. [Para 37] [1160H; 1161-A-C]
3.3. Not providing a minimum space of 6 meters
which makes room for the fire-engine to access the
building amounts to violation of the right to life and
H equality of the residents of these buildings, by not
MUNICIPAL COPRN. OF GREATER MUMBAI v. KOHINOOR CTNL 1125
INFRASTRUCTURE COMPANY PVT. LTD.
providing the same standard of safety to them which is
A
available to residents of all other buildings. It is true that
some of these plots under the OCR 33(7) schemes are
small plots and are in congested areas. But if that is so,
nothing prevents the State Government from taking over
such schemes for which it can finance from the overall
B
cess collection. In such cases, it may have to
accommodate only the existing occupants. This can also
be achieved by calling upon such occupants to partly
contribute towards the construction cost. But human life
cannot be made to suffer only on the ground that in the c
redevelopment scheme sufficient access cannot be
provided for the fire engine to enter within the plot even
from one side. [Para 38] [1161-E-H; 11162-A]
3.4. Therefore, the second proviso to OCR 43(1 )(A) is
discriminatory as against the occupants of the plots up
D
to the size of 600 sq. mts. and therefore violative of Article
14 of the Constitution of India. The provision is likely to
lead to a hazardous situation, affecting the life of the
occupants, and therefore violative of Article 21 of the
Constitution. Therefore, the provision is bad in law. [Para
E
39] [1162-B-C]
3.5. Even for redevelopment proposals of plots up to
the size of 600 sq. mts. under OCR 33(7), an open space
of the width of 6 meters within the property which is
accessible from the road on one side, will have to be
maintained unless the building abuts roads of 6 meters
or more on two sides, or another appropriate access of
F
6 meters to the building is available apart from the
abutting road. This will be subject to the decision of the
G
Chief Fire Officer in writing. Besides, it is also necessary
to direct that the fire department must insist from the
developer/society of all the buildings, to certify at least
once in six months that the access to the building, the
internal exits and the internal fire fighting arrangements
H
1126
SUPREME COURT REPORTS
[2013] 16 S.C.R.
A are maintained as per the expectations under the OCR,
the norms of the fire department, and must check them
periodically, on its own. [Para 39) [1162-0-G]
Jayant Achyut Sathe vs. Joseph Bain D'souza & Ors.
B 2008 (13) SCC 547: 2008 (13) SCR 31 - distinguished.
4. Although, provision under OCR 38 (34) cannot be
read in derogation to the one under OCR 23 with respect
to the recreational area, and also that the second proviso
to OCR 43(1)(A) on fire protection requirements is
C hazardous and discriminatory against the occupants of
the schemes under OCR 33 (7), any such declaration/
changes be implemented with prospective effect,
namely, where the commencement certificate (CC) has
yet not been granted. [Para 40) [1162-H; 1163-A, BJ
D
5.1. Issue No.2 regarding height of the buildings visa-vis the width of the adjoining road, and Issue No.3 on
the impact of additional FSI on the traffic situation are
issues requiring wider consideration and consultation
E amongst planners. [Para 41] [1163-0-E)
5.2. OCR 31(1) lays down that the height of a building
shall not exceed one and a half times the total of the
width of the street on which it abuts. In the present case,
a tower of the height of 195.90 meters is being
F constructed. This tower is bounded by four roads and
the height of the tower is disproportionately high, as
against the width of the adjoining roads. The first proviso
to OCR 31 (1) lays down that this restriction shall not be
applicable for construction of buildings undertaken
G under OCR section 33(7), 33(8) and 33(9). Though, these
OCR's are for the housing re-development schemes they
also add to the population in the particular area as well
as the vehicles. [Para 42) [1164-A-C]
H
5.3. The exemptions from OCR 31 (1) for schemes
MUNICiPAU:OPRN OF-GREATER MUMBAI v. KOHINOOR CTNl 1127
INFRASTRUCTURE COMPANY PVT. LTD.
under Section 33(7), 33(8) and 33(9), though apparently
A
meant for laudable purpose, are very often resulting into
extreme crowding, and traffic congestion. It is necessary
that while granting exemptions from OCR 31 (1 ), there
must be a scheme-wise approach, and there ought to be
a proper supervision of the construction. These
B
development schemes and the additional FSI thereunder,
should be examined locality-wise. The impact of such
high-rise buildings on the adjoining locality as well as on
the traffic, is required to be examined before granting
such permission. [Para 53] [1170-H; 1171-A-C]
c
5.4. There is a need to restrict the additional pressure
on existing infrastructure so that it does not affect the
quality of life. The existing social infrastructure like
educational institutions, open spaces, hospitals etc, and
physical infrastructure like water supply and drainage is
already over-burdened. Therefore, wherever possible,
the State Government, the planning authority, and the
committee entrusted with drafting of the new plan should
consider contribution by the existing occupants
themselves to a good extent towards the construction
cost, or the State should contribute through its agencies
or from the amount of cess-collected. This will result into
curtailing the number of additional entrants and will not
add to the density of the population. This approach
should particularly be examined where the plots are
small or are in congested areas, and particulatly where
the proposal is under OCR 33(7). [Para 54] [1171-C-F] .
D
E
F
5.5.