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2001(2) Supreme 228
Supreme Court of India
G.B. Pattanaik, Umesh C. Banerjee & B.N. Agarwal, JJ.
M.C. Mehta —Petitioner
versus
Union of India & Ors. Re: M/s. Delhi Development Authority Respondent
I.A.No. 1254 in L.A. No. 22 in W.P.(C) No. 4677/1985
With
I.A.Nos. 153, 455, 1181, 451 and 441 in W.P. (C) No. 4677/1985
And
I.A.No. 1328 in I.A.No. 1254 in I.A.No. 129 in W.P. (C) No. 4677/85 Re: M/s. Swatantra Bharat Mills & DCM Silk Mills
I.A.No. 1329 in I.A.No. 1254 in I.A.No. 129 in W.P. (C) No. 4677/85 Re: Birla Textiles
Decided on 1-3-2001
Counsel for the Parties :
For the Appearing Parties : K.N. Rawal, Additional Solicitor General, K.K. Venugopal, Gopal Subramanium, P.P. Tripathi, P.S. Mishra, C.S. Vaidyanathan, Shanti Bhushan, Sr. Advocates, V.B. Saharya, for M/s. Saharya & Co., Manmohan, M/s. O.P. Khaitan, S. Sukumaran, A.T. Patra, B.K. Khurana, Vimal Jad, for M/s. J.B.D. & Co., Rakesh K. Khanna, Vishnu Sharma, Surya Kant, M.S. Mishra, M.L. Lohoty, Paban K. Sharma, Himanshu Shekhar, Bimal Roy, Jad, Pankaj K. Singh, Ashok Kr. Gupta, Rarrukh Rasheed, Ms. Seema Midha, M/s. Krishan Mahajan, K.C. Kaushik, S.N. Terdol, M/s. C.V. Subba Rao, R.N. Verma, Ajay Sharma, C. Radhakrishnan, B.V. Balramdas, R.C. Verma, Vivek Vishnoi, Ms. Kiran Kapoor, Shakil Ahmed Syed, Ramesh Babu M.R., B.S. Banthia, Advocates, M.C. Mehta, Petitioner-in-Person, D.N. Goburdhun, Ms. Pinky Anand, Ms. Geeta Luthra, Ms. Sheil Sethi, Vijay Panjwani, R.C. Verma, Advocates, Ranjit Kumar, Sr. Advocate and Mukul Rohtagi, Additional Solicitor General, (N.P.).
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. So far as the second issue is concerned, 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. 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. 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. 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 equitable right of not surrendering. 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. (Para 27)
JUDGMENT
Banerjee, 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.
2. 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.
3. Before, however, proceeding with the matter further, a brief backgrounder seems to be rather indispensable having regard to the concept of sustainable development for the capital city.
4. 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.
5. 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.
6. The controversy as regards Development or Environment vis-a-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 Calcutta’s Wetlands in the Eastern fringe of the city of Calcutta (see AIR 1993 Cal 2151) 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 alter 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.....”
7. The Calcutta Wetland Judgment was pronou
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