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Supreme Court Of India
Y.K.SABHARWAL,B.N.AGRAWAL
M.C.Mehta - Appellant
Versus
Union of India - Respondent
Interlocutory Appln. No. 22 etc. in Writ Petn. (Civil) No. 4677 of 1985
Decided On : 05/07/2004
A. Delhi Development Act, 1957, Section 14 - The National Capital Region Planning Board Act, 1985- Unauthorized industrial activity in Delhi in residential area- The question was what should be done about continued unauthorized use contrary to Master Plan and Zonal Plan by remaining 'F' category and 'B' to 'E' category (light and service industries) and household industries ('A' category industries). Despite lapse of about 3 years, nothing significant, had been done-The second Master Plan of Delhi was enforced w.e.f. 1st August, 1990-In respect of 'F' category industries, it provided that no new industrial unit shall be permitted except in the existing identified extensive industrial areas-. The National Capital Region Planning Board Act, 1985 (for short, the 'NCR Act') was enacted to provide for the constitution of a Planning Board for the preparation of a plan for the development of National Capital Region- An illegality would not become a legality on inaction or connivance of the Government authorities-There couled not be any doubt that non-conforming industrial activities could not have commenced or continued at such a large scale in the capital of the country if the Government and the concerned authorities had performed their functions and obligations under various statutes. But such a situation cannot be permitted to continue forever so as to reach a point of no return, where the chaotic situation in city has already reached.-paras 28 to 35
S
B. Delhi Development Act, 1957, Section 14- Illegal Industrial activities - Residential/non-conforming zones - It WAS evident that the industry belonging to 'F' category in residential/non-conforming areas could not come up after 1st August, 1990 since even the existing 'F' category industry in non-conforming areas was required to be shifted to the permissible zone within a maximum period of three years after allotment of plot- The same is the position in respect of light and service industry belonging to 'B' to 'E' category except that depending upon number of workers employed, the Master Plan stipulates different time schedule for these industries to shift- Such non-conforming use must stop at least by those who commenced it from and after 1st August, 1990- The same directed to be closed down and stop operating as per the following schedule : [Paras 55 to, 60, 68 and 69]
C. Delhi Municipal Corporation Act, 1957, Section 14 - Violation of Master Plan - An enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an absolute and non-delegable duty to the community to ensure that no harm results to anyone on account of hazardous or inherently dangerous nature of the activity which it has undertaken-The enterprise must be held to be under an obligation to provide that the hazardous or inherently dangerous activity in which it is engaged must be conducted with the highest standards of safety and if any harm results on account of such activity, the enterprise must be absolutely liable to compensate for such harm and it should be no answer to the enterprise to say that it had taken all reasonable care and that the harm occurred without any negligence on its part ( Paras 45 TO 50.)
Judgement
Y. K. SABHARWAL, J. :- This case about unauthorized industrial activity in Delhi in residential area has a protracted background. The present examination is confined to the issue of industrial activity in residential/non-conforming areas to decide what directions may be issued to put an end to such illegal activity. As a result of orders passed from time to time, hazardous and noxious industries and heavy and large industries (H Category) have been shifted out of Delhi. Some of extensive industries (F category) have also been shifted out of Delhi. As per the State Government, non-polluting F category industries have not been yet shifted. The question is what should be done about continued unauthorized use contrary to Master Plan and Zonal Plan by remaining F category and B to E category (light and service industries) and household industries (A category industries). These industries are continuing in residential/non-conforming areas. Such activity is mostly in residential areas. It is not in dispute that most of continued industrial activity under consideration is in contravention of law except only few household industries which are continuing in residential areas. To decide the question, it is necessary to first briefly notice orders passed by this Court during last about one decade.
2. In the various orders passed in the year 1995, this Court noticed that a large number of industries were located in residential/non-conforming areas in violation of the Delhi Master Plan formulated under the Delhi Development Act, 1957 (for short, DD Act), Delhi Municipal Corporation Act, 1957 (for short, DMC Act) and other statutory provisions. Noticing that the Master Plan stipulates setting up of industries only in conforming areas, i.e. the industrial areas earmarked for that purpose, it was indicated that the industries in non-conforming areas have to stop functioning. The first concern of the Court was to stop the functioning of H category industries, since most of it were discharging highly toxic affluent. It was noticed that as per the affidavit filed by Mr. D. S. Negi, Secretary (Environment), Government of Delhi, it was estimated that there were 93,000 industries which were operating in Delhi and majority of these were in non-conforming use zones. Public notices by the Government invited all industries operating in non-conforming use zone to give option to shift to available industrial plots in the industrial estates. The response from the industry was very poor. The industries operating in Delhi were called upon by issue of public notices in newspapers to furnish, information in respect of the product manufactured, activity carried on, area, size, number of persons employed, power load, year of commencement etc. Out of 93,000 industries, only 513 industries and 382 persons responded. It was noticed that MCD was granting licences and registering various industrial units in non-conforming areas and permitting the industries to be set up in residential areas. Naturally, a surprise was expressed by this Court that on the one hand, the Court was issuing orders to reallocate the existing industries that were operating in the residential/non-conforming areas and on the other hand MCD was permitting setting up of new industries in residential areas. According to the MCD, it was done under the directions of the State Government. The MCD was directed not to register or grant licence to any industry in the non-conforming/residential area.
3. We may also make a brief reference to the orders that were passed in the year 1996. In the order dated 19th April, 1996, noticing the contention of Solicitor General for India that certain household industries can be permitted to operate not only in residential areas but in residential premises itself, the Court observed that the provisions of the Master Plan have to be complied with and in case any non-residential activity is permitted in residential area under the Master Plan that cannot to stopp
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