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CASE NO.: Writ Petition (civil) 4677  of  1985

PETITIONER: M.C. MEHTA

       Vs.

RESPONDENT: UNION OF INDI A & ORS.

DATE OF JUDGMENT:       01/03/2001

BENCH: G.B. Pattannaik, Umesh C. Banerjee & B.N. Agrawal

JUDGMENT:

With I.A.No. 1254 in I.A. No.22

I.A.NOS.153, 455, 1181, 451 & 441 in W.P.(C ) No.4677/1985

And

IA No.1328 in IA No.1254 in IA No.129 in WP© No.4677/85

Re: M/s. Swatnatra Bharat Mills & DCM Silk Mills

IA No.1329 in IA No.1254 in IA No.129 in WP© No.4677/85 Re: Birla Textiles

JUDGMENT

BANERJEE, J. L...I...T.......T.......T.......T.......T.......T.......T..J

   On  10th May, 1996, this Court on a petition filed as  a public  interest litigation directed surrender of plots upon relocation  of  H categories industries  More  than  four years  have  passed  since  the  date of  the  order    but regrettably  the  purpose of the order, to wit,  to  provide some  open  space  and green verge for the  benefit  of  the people  of  the  capital city, stands unfulfilled  and  thus resultantly  deprivation of lung space in the city.   Laws delay  in  this  sub-  continent  is  not  unknown  in   the adversarial  litigation,  but the situation should  not  and ought not to be similar in a public interest litigation more so  when  the  same concerns environmental  degradation:   A rather  sad  state of affairs.  It is on  this  perspective, however,  that  the present Interlocutory Application  taken out  by  the  DDA  for direction on  six  key  questions  as mentioned in the petition shall have to be considered.

   Incidentally,  some  entrepreneurs  also  moved  certain other  Interlocutory Applications, we do deem it fit however to  record that the entrepreneurs application or any  other matter  or  petition  pending shall await the  judgment  and order  in  DDA’s application.  Before,  however,  proceeding

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with  the  matter further, a brief backgrounder seems to  be rather  indispensable  having  regard  to  the  concept   of sustainable  development for the capital city.  Needless  to say  while  the Brundtland Report called out for  adaptation globally  of a strategy of sustainable development  defining it as development that meets the need of the present without compromising the ability of future generations to meet their own  needs, the initial linkage between the natural and  man made   environment  and  the   critical  relevance  of  both environment  and development is generally attributed to  the Stockholm  declaration  of  1972 which stands  restated  and reaffirmed  by  the  UN General Assembly in  December,  1986 specifying  therein  sustained  and  rapid  development  for developing nations.

   Prof.  Nico Schrijver of the Institute of Social Studies at  Hague,  in  his  paper on Legal  Aspect  of  Sustainable Development  and Protection of Environment has  high-lighted this  right  to development or sustainable  development  and indicated that the same includes a healthy environment.

   The  controversy  as regards Development or  Environment vis-  Ã -vis  the society however persists and it is in this context  a judgment of the Calcutta High Court, of which one of  us  (Banerjee, J.) was a party, in regard to  Calcuttas Wetlands  in the Eastern fringe of the city of Calcutta (see AIR  1993 Cal 215) may be noted:  Relevant extracts  whereof are  noted  hereinbelow:-  While  it  is  true  that  in  a developing  country there shall have to be developments, but that  development  shall  have  to be  in  closest  possible harmony  with  the environment, as otherwise there would  be development  but no environment, which would result in total devastation, though however, may not be felt in presenti but at some future point of time, but then, it would be too late in the day, however, to control and improve the environment. Nature  will  not tolerate us after a certain degree of  its destruction  and it will, in any event, have its toll on the lives  of the people.  Can the present-day society afford to have  such a state and allow the nature to have its toll  in future   the answer shall have to be in the negative.   The present-day   society  has  a  responsibility  towards   the posterity  for their proper growth and development so as  to allow  the  posterity  to  breathe normally and  live  in  a cleaner   environment   and  have    a   consequent   fuller development.   Time  has  now come therefore  to  check  and control the degradation of the environment and since the Law Courts  also have a duty towards the society for its  proper growth  and  further development, it is a plain exercise  of the  judicial power to see that there is no such degradation of  the society and there ought not to be any hesitation  in regard thereto..

   The  Calcutta  Wetland  Judgment was pronounced  on  the apprehended  danger of a severe bio-diversity crisis but the situation  in the capital city of Delhi is rather  pathetic: Non-  availability of even the lung space has resulted in  a very  high  degree of pollution  as a matter of fact,  this Court (vide:  1996 (4) SCC 351) while dealing with the issue at   the   instance   of  Mr.    Mehta,   the   lawyer   and social-activist had the following to state:

   7.   Delhi  is one of the most polluted cities  in  the world.  The quality of ambient air is so hazardous that lung and  respiratory diseases are on the increase.  The city has

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become a vast and unmanageable conglomeration of commercial, industrial, unauthorised colonies, resettlement colonies and unplanned  housing .  There is total lack of open spaces and green  areas.   Once a beautiful city Delhi now  presents  a chaotic  picture.   The  most vital community need  as  at present  is the conservation of the environment and reversal of  the  environmental degradation.  There are virtually  no lung  spaces  in the city.  The Master Plan indicates  the approximately  34 per cent of recreational areas have  been lost  to  other uses.  We are aware that the  housing,  the sports  activity and the recreational areas are also part of the  community need but the most important community  need which  is wholly deficient and needed urgently is to provide for  the lung spaces in the city of Delhi in the shape  of green  belts and open spaces.  We are therefore, of the view that totality of the land which is surrendered and dedicated to   the   community   by   the  owners/occupiers   of   the relocated/shifted   industries  should  be   used  for   the development of green belts and open spaces.

   The Court in discharge of its social duty and obligation as the guardian angel of the society further directed in the@@        JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ same decision as below:@@ JJJJJJJJJJJJJ

   9.  We, therefore, order and direct that the land which would  become available on account of shifting/relocation of hazardous/noxious/heavy  and large industries from the  city of Delhi shall be used in the following manner:-

   be  Sl.  Extent Percentage to be Percentage to by the  N@@                     IIIIIIIIIIIIIIIIIIIIIIIIIIIIII surrendered and developed Dedicated to the owner for his own@@ IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII benefit  in accordance DDA for Development of with the  user@@                        IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII perm  itted  Master  Plan Green belts and  under  the  other@@ IIII                      IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII spaces@@ IIIIII

 1            2                          3                                           4

1.    Up to 2000 sq. mts.                          -       100% to be developed       (including the first          by the       owner in                      2000 sq.mts. of the@@                     JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ       accordance with the       larger plot)                          zoning       regulations of

the Master Plan @@ IIIIIIIIIIIIIIII

2.      0.2 ha to 5 ha                57                43

3.      5 ha to 10 ha                 65                35

4.      over 10 ha                    68              32

   The  earlier  paragraphs  have been introduced  in  this

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judgment  as a backgrounder and to emphasize the sensitivity of  the issue since environmental degradation will have  its toll  and  there  cannot be any doubt  or  dispute  therein, though may not be felt in presenti.

   The directions as above in terms of the order dated 10th May,  1996 has however, led to some confusion at the time of@@       JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ execution  of this Courts order before the District  Judge,@@ JJJJJJJJJ Delhi  since none of the industrial units which were  closed down  by  the order of this Court, took any step  whatsoever for  surrendering  the land on the pretended pretext of  the order of this Court dated 4.12.1996.

   Significantly,  however,  the order dated 4th  December, 1996  of  this Court came to be passed in  an  Interlocutory Application  for directions filed by the Central  Government wherein  this Court was pleased to observe in paragraph 3 of the order as below (vide 1997 (11) SCC 327):

   3.   We see considerable force in the contention of the learned  Additional  Solicitor General on the  second  point also.  The existing hazardous industries having been closed, what  remains  is the plot, superstructure and the  workmen. The  occupants of the plots and the owners of the industries which  have  been closed down shall have to undertake  fresh procedure for setting up of a new industry.  Needless to say that  no industry can be set up which is not permitted under the Master Plan.  The procedure required for setting up of a new  industry  shall have to be followed in every case.   We make  it  clear that Government permission and  the  consent from  the  Pollution  Control Board/Committee,  if  required under  law, shall have to be obtained .  Even fresh electric connection and water connection shall have to be applied for and obtained in the changed circumstances.  We have no doubt when         approached                for         necessary permission/licence/water/electric      connections       the authorities   shall   expedite   in    dealing   with    the applications.

   The  order  of 4th December, 1996 though mainly  pertain however  to the compensation aspect to the workers of  those industries  which  are not re-locating and which  have  been closed  down but some variations were ordered having  regard to  the  setting up of industries in accordance with  Master Plan  of  Delhi.   The  order however was  clear  enough  to indicate  the  intent of the order.  In  this  Interlocutory Application,  however,  Delhi Development Authority said  to have  been  confronted  with various queries raised  by  the industries  and  upon  consideration   thereof  prayed   for issuance  of appropriate directions in regard to the  issues me ntioned hereinbelow:

   i) Land surrendered by the Industries as per order dated 10.5.1996 has to be on the total plot area in possession.@@           JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ

   ii)  Land  offered  for  surrender  should  be  directly approachable  from  the  road,  vacant  and  free  from  all encumbrances.

   iii)  From the land surrender cases in respect of  plots leased  by Delhi Development Authority, it is seen that  out of  14  Industrial Units requiring to surrender the land,  7

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have  a  plot  area  ranging between 8  sq.m  to  100  sq.m. Honble  Supreme  Court is requested to give directions  for minimum plot area to be surrendered by an Industrial Unit.

   iv)  Certain  units  have   restarted  their  industries removing/modifying   the  objectionable   use  process   and obtained  clearances  from  various departments.   Are  such industries   also   liable  to   surrender  land  to   Delhi Development  Authority  as  per   orders  dated   10.5.1996, 8.7.1996 and 4.12.1996?

   v)  There are certain industries which were closed prior to  the orders of Honble Supreme Court dated 10.5.1996  but their  names appear in the list of H category industries to be  closed  as  mentioned in the various orders  of  Honble Supreme  Court.   Are  such industries liable  to  surrender land?   There  are  other   industrial  units  which  closed pursuant  to  the  Honble   Supreme  Courts  orders  dated 10.5.1996  and restarted the activities as per orders  dated 4.12.1996 of Honble Supreme Court.  Suitable directions may be  given whether land surrender from such industries has to be effected.

   vi) There are certain units which were running in rented premises  from within plot located in an approved industrial area/non  conforming area and whose name is got included  in the  list  of  1328 industries released by  Honble  Supreme Court  from  time  to  time.  After the  orders  of  Honble Supreme  Court  dated 10.5.1996, the tenant has closed  down the  industry and has handed over the rented premises to the original  owner.   In  such  cases  is  the  original  owner required  to  surrender land if the total plot area is  more than 2000 sq.m.?

   Adverting  to the records at this juncture, be it  noted that  after the judgment of this Court on 10th May, 1996  as above, three Interlocutory Applications, having more or less similar prayers were dismissed:  Delhi Development Authority also  filed  the IA No.139 for clarification of order  dated 10.5.1996,  8.7.1996  and 4.12.1996 with a prayer  that  the units  required  to  surrender land are now closed  down  as being  a  hazardous large scale industry and do not wish  to relocate  but  to  start units which are  permitted  in  the Master  Plan  and in compliance with the  pollution  control norms.   This  Court  however  dismissed  the  Interlocutory Application on 1st October, 1997.

   Significantly,  the interlocutory application No.139 was filed  on  behalf  of Delhi Development  Authority  and  the prayer  therein not only bears a similarity with the  prayer in  this  application  but more or less the  same  has  been couched  in the exactly similar language and for convenience sake the same is set out hereinbelow:-

   (a)  Whether  the order dated 10.5.1996 passed  by  the Honble Court in so far as it require the units to surrender land would apply to such units which after having closed the hazardous large scale industries do not wish to relocate but to start units which are permitted under the Master Plan and which also comply with Pollution Control Rules.

   It  is  on  this prayer this Court passed  an  order  of dismissal though however without recording any reason.

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   Mr.   Ranjit Kumar, the learned amicus curiae  appearing in  the matter contended that by reason of rejection of such a  prayer,  resulting in the dismissal of  the  application, question  of  further  consideration  of  the  issue  as  is proposed  in  question No.IV hereinbefore would  not  arise. Undoubtedly,  there  is some substance in such a  contention but  the factum of non-availability of reasons in the  order has  rendered the situation slightly more flexible so as  to afford  a further opportunity to this court having regard to the  concept of justice to consider in some detail the order dated  4th  December,  1996  in I.A.   No.36  accepting  the contention of the learned Additional Solicitor General.  The clarificatory  order of 4th December, 1996 did in fact grant a  liberty  which  would  be  dealt  with  in  detail  while answering the issues raised in the application.

   Another redeeming feature which ought also to be noticed pertains to the desire of the Delhi Development Authority to move  the  Court once again after having failed in  such  an attempt earlier.  We are at a loss to find a further attempt on the part of the Delhi Development Authority.  The reasons obviously  there would be some:  but apparently nothing  was forthcoming.

   Subsequently,  Swatantra Bharat Mill and DCM Silk  Mills also moved I.A.No.425 with a prayer to direct DDA to acquire the land required to be surrendered under the DDA Act or the Land  Acquisition  Act  and to restrain DDA  for  trying  to expropriate  the land of the petitioner :  This prayer  also was  turned down by this Court and hence the application was dismissed as withdrawn.  Be it noted that the learned amicus curie  with  his  usual   eloquence  contended  that  review applications  against  the  order passed on 10th  May,  1996 numbered  36 in the year 1996, 55 in the year 1997, 3 in the year  1999 and 2 petitions in the year 2000, as the  records depict,  were all dismissed and on the wake of the same, Mr. Ranjit  Kumar  addressed  us  in  detail  that  the  present petition  said  to  be  for   clarification  cannot  but  be attributed  to  be a further attempt to review of the  order dated 10.5.1996 which, in fact, does not call for any review nor  does  it  call for any further order  substituting  the earlier order dated 10th May, 1996.

   Mr.   Rawal,  the learned Additional  Solicitor  General however,  contended  that  while submission of  Mr.   Ranjit Kumar  may have some substance pertaining to some of  issues as  raised  herein but that cannot said to be applicable  in regard to all the issues.  Mr.  Additional Solicitor General made  it quite categorical that the application as filed  by DDA  is not for circumvention of compliance of the order  of this  Court but only to act in terms therewith.  The instant petition,  Mr.   Rawal  contended has been  initiated  as  a necessity  and  DDA  had  to move  this  Court  for  certain clarification since there have been large scale unscrupulous withholding  of delivery of possession.  The necessity  also said  to  be by reason of proposed transfer  to  land-locked areas which cannot possibly be utilised even as a lung-space by  reason of non- availability of an entry thereto.  It has been contended further that since a large number of proposed surrender,  if  not in its entirety, are with  encumbrances, question  of obtaining possession thereof upon clearance  of the encumbrances by the DDA would not arise since that would foist an additional financial burden or liability beyond the capacity of the DDA to meet.

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   Mr.   Rawal  contended  that  transfer  also  should  be effected   without  any  superstructure  on  the   land   as otherwise,  it would be a near impossibility for DDA to take possession  thereof.  Be it noted that the order dated  10th May, 1996 specifically directed that H category industries are  required to surrender the land to the DDA.  We may note here  that  this order of surrender was passed by reason  of the fact that the pollution level has reached its optimum in the  city  of  Delhi  affecting the  entire  society    H category  industries  were  directed to close  down  and  to surrender  the land so as to make available some green  belt and  open space popularly ascribed to be lung space for  the city.  Industries might have closed in terms of the order of this  Court  and  the compliance to the order  was  to  this limited  extent only.  Structures are still lying there  and no  surrender has yet taken place.  Majesty of law  demanded compliance  in observance rather than in its breach  it  is for  the society only that this Court thought it fit to pass order to the extent as indicated above  the capital city of the country ought not to be termed as the most polluted city in  the  world:   It  is with this spirit  that  the  public interest litigation was filed and this Court also maintained the  same  by  directing  the   shifting  of  H   category industries   Five years have passed by and not one industry has  surrendered  though  of course,  by  reason  therefore, show-cause  notice  to these industries were issued  by  the order  dated 21st September, 1999 and the public notice  was directed  to be issued by an order dated 12th October, 1999. The  matters are pending in Court but there has not been any change  of situation.  Significantly by reason of a specific situation  this  Court in the case of Hindustan  Vegetables passed an order on7th December, 1999 directing the Hindustan Vegetables  Oil Corporation to hand over 2 acres of the land only  on  which the factory premises stood and not the  land measuring  about  1.20  acres belonging to the  factory  and situated  just  abutting the other side of the road:   As  a matter  of fact the land stands bifurcated by the road - one for  the  factory  use  and the other  for  the  residential purposes  and  it  is  by reason  of  the  peculiar  factual elements, that this Court passed an order directing only the factory area to be surrendered  Thus the order as passed on 7th  December, 1999 in Hindustan Vegetables case cannot  be termed  to  be of general application for surrender  of  all factory lands  Any interpretation which runs counter of the above  would also be opposed to the true spirit of the order and  there would be a total failure of the avowed objects of social  welfare  and social benefit which has prompted  this Court to pass the order dated 10th May, 1996.

   Mr.   Venugopal and Mr.  Shanti Bhushan, learned  Senior Counsels appearing for the entrepreneurs however, complained of  violation  of fundamental rights under Article 14.   Mr. Shanti  Bhushan contended that factum of surrender would not arise  since the industries which he represents are prepared to  restart and relocate the industries within the ambits of the  Master Plan and Zonal Development Plans and this  Court ought in the fitness of things grant necessary clarification in  regard thereto.  In the similar vein Mr.  Venugopal also submitted  that  light and service industries and  household industrial  units  stands permitted in terms of  the  Master Plan  for  Delhi  and the Zonal Development  Plan  does  not contain  any bar for their continuance in the event the same falls  within the ambit of the Master Plan.  Mr.   Venugopal contended that though hazardous and noxious industrial units are  not  permitted  in Delhi and existing heavy  and  large

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scale  industrial units both in terms of this Courts  order and in terms of the Master Plan are required to be relocated and  shifted  but the land which would become  available  on account  of such shifting ought to be used for making up the deficiency  as per the needs of the community based on norms given  in the Master Plan.  Mr.  Venugopal contended that as a  matter of fact in the event any land or part of the  land so vacated is not needed for the deficiency of the community service  the  Master Plan for Delhi itself records that  the same  would  be  used as per prescribed  land  use.   Strong emphasis has been laid on Master Plan for Delhi Perspective, 2001  in  particular the chapter on Work  Centres  industry. Relevant  extracts  of  which are set out herein  below  for ready reference:-

   Heavy and Large Industries     Refer Annexure III H(b)

   a.     b..

   (c)  The land which would become available on account of shifting  as  administered in (b) above, would be  used  for making up the deficiency, as per the needs of the community; based  on  norms given in the Master Plan;  if any  land  or part  of land so vacated is not needed for the deficiency of the  community  services, it will be used as per  prescribed land  use;   however  the land shall be used for  light  and service  industries,  even if the land use according to  the Master  Plan/Zonal  Development Plan is  extensive  industry (emphasis supplied).

   (d)  Modernisation  of heavy and large scale  industrial units   shall   be  permitted   subject  to  the   following conditions:

   (i) it will reduce pollution and traffic congestion.

   (ii)  Whenever  the unit is asked to shift according  to the  policies of the plan, no compensation shall be paid for assets attained because of modernisation.

   Much  emphasis  has been laid on the word however  (as emphasised  above) and relying thereon it has been contended that  user of land, in the event the same is not needed  for deficiency  of community services, can thus be had for light and  service  industries  even if the Master Plan  or  Zonal Development  Plan  depicts its user as  extensive  industry. Further  reliance  was also placed on paragraph (d)  of  the Master Plan that even modernisation of heavy and large scale industrial   units  is  permitted   though  subject  to  the conditions  specified in (i) and (ii) above.  It is in  this context  also  our  attention has been drawn  to  the  Zonal Development Plan in particular the existing land use and the proposed land use in sub-zone G.  In reference to the same Mr.   Venugopal  contended  that existing  land  use  totals 5456.32  hectare whereas the proposed land use is  identical in  area  No doubt the submission at the first blush  seems to  be  rather attractive but when read in the light of  the decision  of  this Court as recorded in the  judgment  dated 10th  May,  1996 we are afraid that the same pales into  its insignificance  since the submission cannot be  countenanced at  this juncture and after the expiry of five years.  There

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were altogether in the records of this Court 96 Applications for  Review  which had the fate of dismissal by  this  Court from time to time as detailed herein before in this judgment -  it is thus probably a bit too late in the day to  contend and  take recourse to the rules to avoid surrender of  land. This  Courts  order  has been categorical and  it  is  only expected that the entrepreneurs would act in terms therewith and  not  de hors the same.  Needless to dilate that in  the case  of  Swatantra  Bharat Mills and DCM  Silk  Mills,  the learned  District and Sessions Judge, Delhi recorded in  the order  dated  25th July, 2000 about the factum of filing  of objections  to  the  execution petitions pertaining  to  the surrender  of land.  The order of the learned Judge  records that the land in question has not been offered as yet and as such directed the industry to remove all the superstructures from  the land and also file an undertaking that it is  free from   all  encumbrances.   The   land  should  further   be accessible  from  the public road;  Be it recorded that  the two industries named above in which the learned District and Sessions  Judge  passed  the  directions   as  above  in  no uncertain  terms  submitted  that the land  to  be  offered, stands  free from all encumbrances and there is existing  no cloud on the title of the industry over the land which is to be surrendered.

   Mr.  Gopal Subramaniam, learned senior counsel appearing for  the entrepreneurs also contended in the same vein  that as  a  matter  of  fact,  the  Master  Plan  and  the  Zonal Development  Plans having statutory recognition in terms  of the  Delhi  Development Act, 1957, paragraphs © and  (d)  as noticed above under the title Work centres industry ought to be  given  its full play and the order of this  Court,  thus should  be modified to incorporate the same.   Incidentally, it  has been contended rather strongly that the Master  Plan being  the golden thread in the orders passed by this  Court from  time  to time, and since there is available under  the Master  Plan some relief the same ought to be made available to  the entrepreneurs.  In this context paragraph 11 of  the judgment  dated  10th May, 1996 (supra) may be  noticed  and which reads as below:-

   The DDA has suggested that it may be necessary to amend the Master Plan for regularising the land use as directed by us.   We do not agree with the suggestion.  The totality  of the   land   made   available   as    a   result   of    the relocation/shifting  of the industries is to be used for the community  needs.  The land surrendered by the owner has  to be  used for the development of green belt and open  spaces. The  land  left  with  the  owner  is  to  be  developed  in accordance  with  the user permitted under the Master  Plan. In either way the development is to meet the community needs which  is  in conformity with the provisions of  the  Master Plan.

   We would also deem it fit to quote paragraph 12 as below for  consideration  of this aspect of the matter:  We  are, therefore, of the view that it is not necessary to amend the Master Plan.

   While  it  is true that this Court has directed user  of land  left with the owner to be developed in accordance with the  user permitted under the Master Plan but the whole aim, object  and  spirit of the order was to meet  the  community need  and  it  is  in  this context  also  that  Mr.   Gopal Subramaniam  drew our attention to the Appendix to the Zonal

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Development  Plan  pertaining to area G.  We  are  however unable  to  accede to such a submission since time  has  not come  as  yet  in any event to assess the situation  in  its entirety.   The Zonal Development Plans produced before  the Court has not been finalised as yet since it is presently in the  draft  stage and as such no reliance can be  placed  by this  Court on the data and the materials available thereon. A  proposal cannot be said to be a final declaration of  the community   need.   We  are  thus   unable  to  record   our concurrence  therewith  for the reasons noticed above.   The order  of this Court dated 4th December, 1996 in the  matter in issue ( 1997 (11) SCC 327) was passed in an interlocutory application  for  directions  filed by the  Union  of  India wherein in paragraphs 2 and 3 this Court observed as below:

   2.   So  far  as  the first  contention  is  concerned, learned  Additional  Solicitor General has taken us  through the  order  of this Court in M.C.  Mehta v.  Union of  India (1996  (4) SCC 351) regarding land-use along with the  order dated  8.7.1996 (M.C.  Mehta v.  Union of India (1996) 4 SCC 750)  regarding relocation of 168 industries.  The intention of  this Court is clear that the order regarding land re-use was  both  for relocating industries as well as those  which decide  to  close  down  and  not  to  relocate.   (Emphasis supplied)  The  learned counsel for the industries have  not disputed  this  interpretation.  We, therefore,  accept  the contention of learned Additional Solicitor General.  Nothing more need be said on this point.

   3.   We see considerable force in the contention of  the learned  Additional  Solicitor General on the  second  point also.  The existing hazardous industries having been closed, what  remains  is the plot, superstructure and the  workmen. The  occupants of the plots and the owners of the industries which  have  been closed down shall have to undertake  fresh procedure for setting up of a new industry.  Needless to say that  no industry can be set up which is not permitted under the Master Plan.  The procedure required for setting up of a new  industry  shall have to be followed in every case.   We make  it  clear that Government permission and  the  consent from  the  Pollution  Control Board/Committee,  if  required under  law, shall have to be obtained.  Even fresh  electric connection and water connection shall have to be applied for and obtained in the changed circumstances.  We have no doubt when    approached    for    necessary   permission/licence/ water/electric connections the authorities shall expedite in dealing with the applications.

   The  order  as  above   thus  unmistakably  depicts  the intention of this Court to rely on its order dated 10th May, 1996 though with certain variations as noticed herein before in  this  judgment.  Setting up of industries was  expressly authorised,    upon   compliance     with   all   regulatory requirements,   unfortunately    however    though   certain advantages  has  been  made available, but not  one  of  the learned Advocates could respond in the affirmative even on a specific enquiry from the Court.

   The issues are long pending- the issues are urgent since the  entire society is impaired  no exception can be  taken to the legal battles involved in an adversarial litigation this is not one such instance:  It is a true public interest litigation  for the protection of the society and to avoid a deliberate  peril arising out of entrepreneurial failure and total  apathy  and non-concern for social good and  benefit.

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The  Delhi Development Act of 1957 envisaged preparation  of Master Plan for Delhi with a definite statutory direction to define various zones into which Delhi may be divided for the purposes  of development and the manner in which the land in each  zone  is proposed to be used and the stages  by  which such  development shall be carried out.  As a matter of fact the Master Plan came into existence in 1962 and H category industries  ought to have shifted out of the area  specified therein  by 1962 itself.  Then came the Master Plan of  1990 to  combat the existing situation with a specified period of shifting within three years i.e.  there was an obligation to the  H category industries to shift and relocate in  terms of  the Master Plan by the year 1993 and the social activist by  reason  of the failure of the entrepreneurs, moved  this Court   in  1995  whereupon   after  allowing  all  possible opportunities  to  all entrepreneurs and upon assessment  of the  situation  through the appointments of Commissions  and obtaining various reports on these aspects, passed the order on 10th May, 1996 which has till date not been complied with  an indeed a sorry state of affairs and a total neglect and apathy  towards  the society, new and novel submissions  are advanced  as in any adversarial litigation but unfortunately as  noticed  above  it  is too late in the  day  to  contend otherwise apart from what the order contains as of 10th May, 1996.   Needless  to record that as late as April last  year (28th  April,  2000)  this Court issued a direction  to  the affect  that  within one month all the industries which  are required  to  surrender land in terms of this Courts  order dated  10th May, 1996 should voluntarily surrender the  same to  the Delhi Development Authority and if the same has  not been  done the DDA will be duty bound to file an application for  execution  of  this Courts order before  the  District Judge,  Delhi and the District Judge shall thereupon execute this  Courts order and report compliance within four  weeks of  the  filing of the execution application.  Be  it  noted that by the order last referred, this Court further directed that  the execution application to be filed by DDA not later than  8 weeks from the date of the order  the entrepreneurs should  have some regard and sanctity for the orders of this Court rather than pleading anew before the Court for further clarification  [if  assuming  we  ascribe  the  same  to  be clarification rather than review]  can this be termed to be in  consonance with the law or is it a deliberate attempt to ridicule the Courts order?  We will not be very wrong if we answer  the same that probably the second alternative is the answer.   The  DDA also has raised certain inquiries  before this  Court again after the specific direction of this Court in  28th  April, 2000s order.  We are at a loss as  to  why after  the  specific  order of the  learned  District  Judge instead  of relying thereon, a further application has  been filed  before this Court in July, 2000.  DDA is expected  to act in terms of the order expeditiously rather than with the delayed  whip  in  its hands.  In any event  we  answer  the inquiries raised in the manner following:-

   Re (i)..  So far as the first issue is concerned, we make it clear that the order dated 7.12.1999, in the case of vegetable  oil was in the peculiar facts of that case and is not  of universal application, nor does it in any way dilute the  mandate  of  the order of this  Court  dated  10.5.1996 directing  surrender of entire land subject to the extent of availability  to  the  owner as per  order  dated  10.5.1996 reported in 1996 (4) Supreme Court Cases  351.

   Re  (ii).  So far as the second issue is  concerned,

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if  the  owner has the land which is approachable  from  the road,  then he must surrender with the approach, so that the surrendered  land  can be utilised for the  community.   If, however,  he is himself not the owner of the approach  road, then  question  of his providing an approach road  does  not arise  and  as  such surrender shall take effect on  as  is where  is  basis.   On the question as to the  land  to  be surrendered  should be free from encumbrance, we are of  the view, if the land is already encumbered, then a direction to release  it  from encumbrance and surrender will be a  great burden.   At  the same time, such land will be of no use  to the  society  unless  released  from  encumbrance.   In  the circumstances  we  direct that the owner cannot utilise  the land available to him by virtue of order of this Court dated 10.5.96,  until  he  releases   the  surrendered  land  from encumbrance.    Further  if  it  is   not  made  free   from encumbrance  within  five  years, then he will not  get  the benefit of the order dated 10.5.96 and after five years even the  land  which the owner was otherwise entitled to  retain would  stand vested with DDA for the use and the need of the society.

   Re(iii)  So  far  as the third issue  is  concerned, those  who  are  required to surrender upto 100  sq.   meter after  that  extent of land becomes available to them  under the  order  of  this  Court  dated  10.5.96  they  need  not surrender,  since such a tiny bit of land cannot be utilised for any need of the society.

   Re(iv)  So far as the fourth issue is concerned,  it is  to  be  noted that on the application of  the  Union  of India, this Court by order dated 4.12.96 in IA No.36 in Writ Petition  No.4677  of 1985, accepting the 2nd contention  of the  learned  Additional  Solicitor General, held  that  the occupants  of  the  plots and the owners of  the  industries which  have  been closed down shall have to undertake  fresh procedure for setting up of a new industry and such industry can  be  established if permissible under the  Master  Plan. The  Court also observed that when approached for  necessary permission/license/water/    electric     connections,   the authorities  shall  expedite  in dealing  the  applications. (See  1997  (11)  SCC   327).  In  view  of  the  aforesaid clarificatory  order of the Court on the application of  the Union  Government, it would not be necessary for those units who  have started new industries after obtaining  clearances from  various  departments,  provided that the  Master  Plan permits  establishment of such industries, to surrender  the land.   But those who have not started such industries  with appropriate  clearance  from the competent  authority,  they cannot  be  permitted to take the stand that they intend  to start  such  industry nor such a plea will entitle  them  to retain  the  land.   They  must  be  bound  by  the  earlier direction  of  the Court requiring them to surrender.   This will  apply to those industries which have not relocated the hazardous industries elsewhere.  But if they have relocated, they  cannot get the benefit, as has been held by the  Court in  the  order dated 28.4.2000, reported in 2000  (4)  SCALE 267,

   Re(v).   So far as the fifth issue is concerned,  if the  names  of  the  industries appear in the  list  of  H categories in various orders of the Court, and they have not appeared  or  put  any  objection,  then  it  would  not  be permissible for them to put up the plea that industries were closed  down  prior  to  order dated 10.5.96  and  claim  an

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equitable right of not surrendering.

   Re(vi) So far as the sixth issue is concerned, it is apparent that the order of the closure was on the industries which were found injurious, irrespective of the fact whether it  was  being  carried on by the owner of the land  or  the tenant.   This being the position, the subsequent  direction of  surrender also is in relation to the land on which  such industries  were  being  carried on and were ordered  to  be closed  down.   Consequently, it is irrelevant where  tenant after  closing down the industries, handed over the premises to  the owner.  The owner in such case would be bound by the order for surrender, and will have to surrender.

   Interlocutory  application filed by the DDA thus  stands disposed of as above.

   The other IAs.  Shall be dealt with separately.