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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. 952 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 954 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 955 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