Full Judgment Text
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PETITIONER:
UNION OF INDIA THROUGH SECRETARY, GOVERN-MENT OF INDIA, MINI
Vs.
RESPONDENT:
D.C.M. LIMITED AND ORS. ETC.
DATE OF JUDGMENT13/03/1990
BENCH:
PUNCHHI, M.M.
BENCH:
PUNCHHI, M.M.
MISRA RANGNATH
AGRAWAL, S.C. (J)
CITATION:
1990 SCR (1) 951 1990 SCC (2) 371
JT 1990 (1) 412 1990 SCALE (1)449
ACT:
Delhi Development Authority Act--D.C. Mills Ltd.--Shift-
ing Mill and redeveloping mill area for group housing and
flatted factories-Resolution No. 26--Implementation of.
HEADNOTE:
The respondent Delhi Cloth Mills has a complex over an
area of 63 acres at Bara Hindu Rao and Kishan Gnaj, Delhi,
which is a nonconforming area and the industry of the kind
in which the mill is engaged in was required to be shifted
consequent upon the enforcement of Master Plan prepared by
Delhi Development Authority under the Delhi Development Act,
1966, which plan amongst other things was to assign land
use. The Delhi Cloth Mills in September 1982, approached the
DDA and put forth a proposal for shifting the mill and for
redeveloping the Mill area for group housing and flatted
factories. The DDA by Resolution No. 26 agreed to the scheme
to be implemented in phases but it took care to examine the
matter further from Delhi’s economics point of view. In
September 1983, the DDA turned down the request of the
respondent for allotment of an alternate site in a conform-
ing area for shifting the mill. Thereupon the Mill applied
to the Secretary, Labour/Labour Commissioner, Delhi Adminis-
tration for permission to close down the Mill under Sec.
25(D) of the Industrial Disputes Act, on the ground that the
Mill could not be kept located in a non-coforming area as
otherwise penal consequences would follow. On April 15,
1985, the request of the Mill was turned down by the Secre-
tary, Labour/Labour Commissioner. Thereupon the Delhi Mill
filed a writ petition before the High Court for direction
that the DDA be directed to implement its resolution No. 26
dated Feb. 1, 1983. It may be mentioned here that during the
pendency of the writ petition before the High Court, DDA had
reviewed the situation and passed a fresh resolution No. 3
dated August 1, 1986 reviewing the earlier resolution dated
Feb. 1, 1983 recalling the grant of approval with regard to
the scheme propounded by the DCM. Thereafter DDA reiterated
its Resolution of August 1, 1986 by another resolution dated
November 3, 1986.
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The High Court quashed the two later resolutions and re-
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stored the resolution dated February 1, 1983. It took the
view that the Mill could not be kept working in a non-con-
forming area as otherwise it would attract penal action
under the law after the lapse of three years from Jan. 18,
1986. Both Union of India and DDA have filed appeals in this
Court by special leave against the High Court’s order.
In the meantime DCM filed a writ petition in the High
Court which was allowed by a Full Bench of the High Court on
March 1, 1989 ordering closure of the Mill. Delhi Adminis-
tration filed special leave petition in this Court against
the said order and the Mill filed another special leave
petition against the order of the High Court dated 3.3.1989
extending time for grant of permission by the Lt. Governor
for Closure of the factory till March 30, 1989. When these
matters reached hearing in this Court, DCM and its employees
had reached an agreement in the matter of closure of the
factory. The Special Leave Petitions were therefore dis-
missed by this Court; and on the file of this Court remained
these two appeals.
Dismissing the appeals with a direction, this Court,
HELD: The factory has been ordered to be closed and the
employer and the employees have entered a settlement. The
supposed basis for reviewing or recalling resolution dated
February 1, 1983 on the basis of its affectation to the
industry and economy of Delhi as also to the workmen has
vanished. On this footing and on the events which have come
by, the challenge to the judgment and order of the High
Court loses rigour. [956F-G]
Resolution No. 26 dated February 1, 1983, approving the
scheme is given by the DCM provided that the scheme had
taken all necessary safeguards and controls which would help
triggering re-development and rehabilitation in the congest-
ed areas of the central core of the capital.[956G]
Appeals dismissed conveying a direction that the DDA shall
grant the DCM conditional approval subject to removal of the
enumerated objections raised or such of them as are valid
and tenable in law after DCM is heard by the Municipal
Corporation of Delhi. The matter be formalised forthwith by
the DDA and other authorities connected therewith within
eight weeks so that the settlement between the workers and
the DCM and other matters connected do not stagnate and move
to the benefit of all concerned. [960G-H]
953
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1402 &
1401 of 1990.
From the Judgment and Order dated 22.5. 1987 of Delhi
High Court in C.W.P. No. 2687 of 1986.
N.S. Hegde, Additional Solicitor General, K. Swamy and
Ms. A. Subhashini for the Appellants.
G. Ramaswamy, Rajiv Sawnney, A.K. Verma, Sukumaran, V.B.
Saharya and S.D. Sharma for the Respondents.
T.C. Bhatia (In person) for the Intervener.
PUNCHHI, J. Special leave granted.
These two appeals respectively are directed by the Union
of India and the Delhi Development Authority (hereinafter
referred to as the DDA) against the full bench decision and
order of the Delhi High Court dated May 22, 1987 declaring
and by necessary implication directing that the DDA carry
out and implement its resolution number 26 dated February 1,
1983, which resolution was said to have been substituted by
it by a later resolution number 3 dated August 1, 1986
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reiterated by another resolution dated November 3, 1986.
These resolutions related to some affairs of the Delhi Cloth
Mills Limited (hereinafter referred to as the DCM), the writ
petitioner before the High Court, and the official reaction
thereon.
Some of the essential facts as culled out from the
judgment of the High Court, and others which have come by in
the meantime, would be necessary to be noticed. The Mill has
a complex over an area of about 63 acres at sites at Bara
Hindu Rao and Kishan Ganj at Delhi. The Delhi Development
Act, 1956 envisages preparation by the DDA of a Master Plan
for Delhi, which it did, and was enforced and one of its
attributes is to assign land use. Bara Hindu Rao is a non-
conforming area and the industry of the kind in which the
Mill is engaged in has to be shifted out to a conforming
area. 6 12 acres of land near about Narela was said to have
been ear-marked for conformed use of factories. The DCM in
September 1982 approached the DDA and putforth its proposal
for shifting the Mill and for re-developing the Mill area
for group housing and flatted factories. On February 1, 1983
the DDA by resolution number 26 agreed to the scheme as
propounded by DCM as feasible for implementation in phases.
But in passing it
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recorded a fact that the shifting of the Mill would involve
a lot of working population and consequently income and
products manufactured by the DCM would carefully need to be
looked into by the Delhi Administration and Ministry of
Industries in terms of its affectation to the economy of
Delhi. On the other hand in September 1983 the DDA turned
down the request of the DCM for allotment of an alternate
site measuring 150 to 200 acres of land in a conforming area
for shifting having regard to the kind of industry the DCM
was engaged in. The DCM then applied to the Secretary,
Labour/Labour Commissioner, Delhi Administration for permis-
sion to close down the Mill under the provisions of Section
25(O) of the Industrial Disputes Act. The reasons advanced
by the DCM inter alia were that the Mill could not be kept
located in a non-conforming area as otherwise penal conse-
quences would follow as also that it had run into tremendous
losses, the industry being unprofitable. On April 15, 1985,
the request of the DCM was turned down by the Secretary,
Labour/Labour Commissioner. In this state of affairs when
the DCM had been given no place to shift to and the closure
of the Mill had been declined, the DDA reviewed the situa-
tion and passed a fresh resolution No. 3 dated August 1,
1986 reviewing its earlier resolution dated February 1, 1983
recalling the grant of approval with regard to the scheme
propounded by the DCM. Further it felt justified in taking
such step as the Master Plan was under process of review
keeping the perspective of the year 200 1 AD in view. The
DDA even reiterated its resolution of August 1, 1986, by
another resolution dated November 3, 1986 during the penden-
cy of the writ petition in the High Court when asked to have
a fresh look into the matter. These two later resolutions,
as said before, were quashed by the High Court restoring the
earlier resolutions dated February 1, 1983 taking a broader
view that the mill could not be kept working in a non-con-
forming area as otherwise it would attract penal action
under the law after the lapse of three years from January
18, 1986, and that. the DDA could not justify its action as
even the proposals to modify the Master Plan with the
perspective of year 2001 AD in view did not contain any
proposal for change of land use of the site under the DCM,
and as of original, it was a site marked for group housing
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and flatted factories.
The reasons advanced by the Secretary, Labour/Labour
Commissioner declining request of the DCM for closure of the
Mill under section 25(0) of the Industrial Disputes Act as
recorded were as follows:
"The closure of the unit is not in public interest as this
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would render almost 6000 workers jobless and adversely
affect thousands of their families members. Besides, trade
and commercial activity associated with this Mill would be
adversely affected on account of the closure. It is in
public interest that the management makes all out efforts
towards the efficient functioning of this Mill. Finally, the
operations of this unit are not dangerous to the lives of
the Industrial workers and the people living around the
factory. The location of the Unit in a thickly populated
locality therefore does not involve any community risk."
The DCM filed Civil Writ No. 1281 of 1985 in the High Court
which was allowed by a Full Bench of the High Court on March
1, 1989 ordering closure of the Mill, though much after the
decision instantly appealed against. The Lt. Governor, Delhi
Administration sought special leave vide SLP (C) No. 3630 of
1989. Another sequential petition SLP (C) No. 3369 of 1989
was preferred’by the DCM against the order of the Full Bench
of the High Court passed two days later on March 3, 1989
extending time for grant of permission by the Lt. Governor
for closure of the factory till March 30, 1989. When these
matters were called in this Court along with the SLPs, now
appeals, it transpired that the DCM and its employees,
ranging about 6,000 in number, had fortunately reached an
agreement in the matter of closure of the factory. The High
Court also had come to the conclusion that indisputably the
location of the factory in Bara Hindu Rao, within the munic-
ipal limits of New Delhi was not congenial from the point of
view of sanitation and was otherwise hazardous. Keeping such
finding and the settlement between the DCM and its employees
in view, the Full Bench judgment of the High Court dated
March, 1, 1989 was left uninterfered with dismissing the
special leave petition no. 3630 of 1989 on March 27, 1989,
with a consequential direction:
"So far as the payment of statutory compensation which forms
part of the agreement, we direct that DCM shall credit the
amounts payable to the individual employees by opening an
account with a nationalised bank as per the time schedule
indicated in the agreement by making fixed deposits for an
initial period of 91 days. Payment into the account and
making over the fixed deposit receipt, so far as the dis-
bursement of the statutory compensation is concerned, shall
be taken to have been satisfied when such fixed deposit
receipt is made over to the respective employees."
956
Sequelly SLP No. 3369 of 1989 preferred by the DCM was also
dismissed on the same date.
What survived on March 27, 1989, were the instant two
special leave petitions, now appeals, and during the course
of their hearing Mr. Nariman appearing for DCM on his own
indicated that DCM was prepared to locate a community centre
and a hospital to serve the requirements of the employees as
also the residents of the locality. He further.submitted
that notwithstanding the pendency of those two petitions,
the Delhi Administration, should proceed to process the
application of DCM for requisite permission for locating the
proposed flatted factories and residential accommodation for
officers and workmen in accordance with the Master Plan,
subject to the result of these petitions. In these circum-
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stances, the Municipal Corporation of Delhi, which was not a
party to these proceedings (though later represented by
counsel), as well as the two petitioners, Union of India and
the DDA were given directions to process the applications
for permission and proceed with the same in accordance with
law pending disposal of the special leave petitions. This
order was later clarified on April 10, 1989 to say that
processing of the applications by the three aforementioned
functionaries did not include making of a final order and no
final order disposing of the applications be made until the
special leave petitions are finally disposed of. It was
further directed that in the matter of processing, the
Master Plan and the relevant law be kept in view.
The scope of these matters is now considerably reduced
and easily discernible. The factory has been ordered to be
closed and the employer and the employees have entered a
settlement. The supposed basis for reviewing or recalling
resolution dated February 1, 1983 on the basis of its affec-
tation to the industry and economy of Delhi as also to the
workmen has vanished. On this footing and on the events
which have come by, the challenge to the judgment and order
of the High Court loses vigour and this does not now at
least remain a case calling for interference under Article
136 of the Constitution except what we intend adding thereto
to further the cause of justice.
Resolution No. 26 dated February 1, 1983 approving the
scheme as given by the DCM provided that the scheme had
taken all necessary safeguards and controls which would help
triggering re-development and rehabilitation in the congest-
ed areas of the central core of the capital. The Technical
Committee of the DDA assisting in the matter was even of the
opinion that when permitting flatted factories, it could
957
be ensured that a reasonable percentage in the scheme is
reserved for rehabilitating small industrial units presently
functioning in the State in non-conforming areas and that
the scheme could only be implemented if it had the approval
of the Delhi Administration and the Government of India. To
further that object, during the course of these proceedings
upto date plans as prepared and submitted by the DCM to
Municipal Corporation of Delhi, together with the sanction
accorded thereon by the Standing Committee of the Municipal
Corporation of Delhi vide resolution No. 1136 and 1137 dated
November 24, 1989, were sent to the DDA for approval on
December 6, 1989. These had to be examined by the DDA in
accordance with the assurance given to this Court by Shri G.
Ramaswamy, its learned counsel and keeping in view the
Master Plan. These plans were examined vis-a-vis the plans
earlier submitted by the DCM in 1982-83. We have been con-
veyed that the objections as raised by the Municipal Corpo-
ration of Delhi within their own domain have been adopted by
the DDA as their own objections, which are extracted below:
1. FLATTED FACTORIES:
The scheme has been formulated on a piece of land
measuring 24.55 acres. This land is earmarked for flatted
factories in Delhi Master Plan and partly for widening of
road. The Master Plan provides on page 18 about the DCM site
as follows:
’The Delhi Cloth Mills have to move out of this
congested area to the extensive industrial districts accord-
ing to the time schedules given for non-conforming uses. The
present site should be developed for flatted factories in
gradual stages to relocate the industries now located in
Ahata Kidara and other areas.’
2. Therefore, this site after development in stages for
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flatted factories is to be utilised only for providing
accommodation to the existing units in the above referred
areas. The number of flatted factory units will depend
upon/be related to the units located/functioning in these
areas. Therefore, in the proposed scheme of flatted factory,
all these aspects have to be provided for and it should
fulfil these requirements. The Scheme has to be modified
accordingly as no such details provision are indicated in
the Scheme.
958
3. Regarding the No Objection Certificate from the land use
point of view, as required under bye-law No. 6.2.2 which has
come into force w.e.f. 2.6.83, DCM is required to obtain the
NOC from the land use point. of view from the DDA before the
plans can be approved by MCD. In the present case, no such
NOC under bye-law No. 6.2.2 has been applied for by the DCM.
4. The right of way of National Highway No. 10 as per Master
Plan for Delhi is 200 ft. whereas in the Scheme, it is shown
as 150 ft., the Scheme accordingly needs suitable modifica-
tion.
5. In the proposed scheme an entry/exit is provided from the
proposed National Highway No. 10 which would not be techni-
cally feasible because of the proposed road underbridge at
this point.
6. In the proposed scheme 2, basements have been provided
equivalent to 40% of the ground coverage whereas the base-
ment should be equivalent to the ground coverage, provided
in the scheme and should be used for essential services and
for parking. This condition has also been imposed in the NOC
issued by Commissioner (Slum) under the Slum Improvement and
Clearance Act, 1956.
II. GROUP HOUSING RESIDENTIAL COMPLEX AT KISHAN GANJ
1. The scheme on an area measuring 39.73 acres has been
formulated by the DCM in Kishan Ganj area comprising of (i)
free hold land of DCM, (ii) lease hold land with DCM where
Lessor is DDA measuring 11.98 acres and (iii) the DDA land
encroached by the DCM, measuring 5091 sq. mtrs. As per the
terms of lease, the lessee cannot use, without permission,
in writing, of the Lessor, land for any purpose other than
that for which it has been given by the Lessor. The Scheme,
therefore, needs modification to exclude the lease hold land
which has been included in this Scheme.
2. Land, measuring 5091 sq.-mtrs. has been illegally en-
croachedby DCM. This land belongs to DDA which has
959
not been given on leasehold basis to the DCM. This land has
been included in the re-development Scheme. Since the owner-
ship of the land is with the DDA, the Scheme will have to be
modified to exclude this land also. Therefore, lands leased
out and unauthorisedly occupied should be deleted and the
scheme should confine to the free hold land. The scheme
needs modification.
3. The scheme formulated is without any distinction of the
freehold, leasehold, and the unauthorisedly occupied land.
Therefore, the plan has to be modified to ensure that the
scheme on the lease hold land is a separate entity because
in the eventuality of permission being granted by the Lessor
to allow use of the land for group housing purposes, it
would be necessary as there may be occasion for determining
the lease for violation of the lease terms and this will be
possible only if the lease hold land has a separate identity
on the ground.
4. As per June, 1983, Municipal Building Bye laws, under the
byelaws 6.2.2 a ’no objection certificate from land use
point of view from DDA is required to develop this land for
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residential use. Therefore, the DCM had have to obtain ’No
objection Certificate’ from land use point of view from DDA
for the development of this land under the provisions of
this bye-law before their scheme could be considered and
sanctioned by the Municipal Corporation of Delhi.
5. In the Scheme formulated, it is observed that some of the
areas for facilities such as nursery school, shopping etc.
have been included for coverage and FAR calculations as part
of the group housing area; while as per Master Plan stipula-
tions, the area for community facilities within group.
housing scheme cannot be included for the purpose of calcu-
lations of coverages and EAR. These should be left as inde-
pendent plots for providing such facilities.
6. The present Master Plan Zoning regulations prescribe a
height of 80 ft. for residential group housing whereas the
height provided is more than that.
7. The present scheme has been formulated having some of the
blocks of 12 floors (ground plus 11 storeyes). The
960
Master Plan Zoning regulations provide a maximum height of
80 ft. i.e. ground plus 7 storeyes. Therefore, the scheme
needs notifications accordingly.
8. In the proposed scheme 2 basements have been provided for
parking, servicing and storage whereas the basement should
be provided equivalent to the ground coverage for essential
services and for parking which is also one of the conditions
imposed by the Commissioner (Slum) while granting NOC under
the Slum Improvement and Clearance Act, 1956.
1I1. GOVT. OF INDIA MIN. OF URBAN DEVELOPMENT COMMUNI-
CATION THIS REGARD.
Director (DD), Min of U.D. vide his letter No.
16021/3/87-DD II/VA date 11.12.89 has stated that the land
use and the proportion in which the land has to be developed
for various uses, the provisions of the Master Plan of 1962
and the proposals made in PDP 2001 will have to be borne in
mind. Further, it is mentioned that a view is to be taken
for the use for which the Nazul Land given on lease is to be
put. Thus, keeping in view the above communication from the
Ministry, the Scheme will require modifications in the light
of the proposals made in PDP 2001."
The DDA thus requires the aforesaid objections to be first
met before it could give its final approval. It is worthy of
record that under interim directions of this Court, afore
referred to, its approval shall proceed after the disposal
of these appeals. And we feel that time for that purpose has
arrived.
Having heard learned counsel for the parties and having
taken note of the objections above referred to, we take the
view that the appeals be dismissed conveying a direction
that the DDA shall grant to the DCM conditional approval
subject to removal of the above enumerated objections raised
or such of them as are valid and tenable in law after DCM is
heard by the Municipal Corporation of Delhi which the DDA
has adopted and the matter be formalised forthwith by the
DDA and other authorities connected therewith within eight
weeks from today so that the settlement between the workers
and the DCM and other matters connected do not stagnate and
rather move further to the benefit of all concerned. It
appears that to the 6,000
961
workmen the grant of such approval even though conditional,
would be beneficial; so are the terms of the settlement.
Saddling the order appealed against with the above
direction we dismiss these appeals. No Costs.
I.A. No. 1 of 1989 for intervention by a co-sharer named
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Tara Chand Bhatia voicing grievance that the DCM has under-
valued its property at Bara Hindu Rao etc. and that it
should be ordered to be revalued, is also dismissed as it
has no connection with the main issue.
Y. Lal Appeals
dismissed.
962