Delhi High Court
Swatantra Bharat Mills And Dcm ... vs Delhi Development Authority on 6 March, 2018
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IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on : 20th February, 2018
Decided on : 6th March, 2018
+ CM (M) 1173/2010
SWATANTRA BHARAT MILLS AND
DCM SILK MILLS LTD. ..... Petitioner
Through: Mr. Rajiv Nayyar, Sr. Adv.
with Ms. Meghna Mishra, Mr.
Bimal Roy Jad, Mr. Varun
Kumar, Mr. Saurabh Seth, Ms.
Avshreya Rudy & Ms. Nandini
Singh, Advs.
versus
DELHI DEVELOPMENT AUTHORITY ..... Respondent
Through: Mr. Rajiv Bansal, Sr. Adv. with
Ms. Rukhmini Bobde & Ms.
Vidhi Gupta, Advs.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
ORDER
1. The petition at hand filed invoking the jurisdiction of this Court
under Article 227 of the Constitution of India sought to assail the
order dated 25.03.2010 of the executing court (District Judge) passed
on the file of miscellaneous execution case (no. 80/10/03) whereby the
application dated 08.08.2003 of DCM Shriram Consolidated Limited,
owners of Swatantra Bharat Mills ("SBM") and DCM Silk Mills
("DCM") for review of earlier order dated 18.07.2003 under Order
XLVII Rule 1 read with Section 151 of the Code of Civil Procedure,
1908 (CPC) was dismissed, the prime issue being as to whether SBM
and DCM are entitled, as two separate units, to retain and develop, for
their own benefit, 2000 square metres each of land while surrendering
the remaining land to the use of the community at large in terms of
directions of the Supreme Court by orders dated 10.05.96, 08.07.96,
04.12.96 and 28.04.2000 in Writ Petition (Civil) 4677/1985 titled as
M.C. Mehta vs. Union of India and Others, the said decisions having
been reported as (1996) 4 SCC 351; (1996) 4 SCC 750; (1997) 11
SCC 327 and (2000) 5 SCC 525.
2. Before adverting to the issues raised, it is proper to take note of
the background facts.
3. Taking note of the facts that Delhi is one of the most polluted
cities in the world, quality of ambient air here having become so
hazardous that lung and respiratory diseases have been on the
increase, it having become a fast and unmanageable conglomeration of
commercial, industrial unauthorized colonies, resettlement colonies
and unplanned housing, with total lack of open spaces or green areas,
the most vital "community need" being the conservation of the
environment and reversal of the environmental degradation by
urgently providing for "lung spaces" in the shape of green belts and
open area, the Supreme Court, by its order dated 10.05.96 in the case
of M.C. Mehta vs. Union of India and Others [(1996) 4 SCC 351]
approved a scheme, as proposed, for relocation/shifting of certain
industries from Delhi and the surrender of the land used by such
industries by their owners so that it could be developed and be put to
use for the community at large, the owners having been given the
liberty to retain, to an extent, part of such land.
4. The relevant portion of the observations and directions to above
effect as appearing in the order dated 10.05.96 may be quoted as
under:-
"8. The core question for consideration, however, is how
much of the total land which would become available
from each of the industrialists is to be taken away by the
community for its use and how much is to be left in the
hands of the industrialists for the community use. The
suggestions given by Alphons Committee in this respect
have been noted by us in the earlier part of the order. Mr
Omesh Sehgal, Mr P.C. Jain and Justice Khanna by and
large agree with the suggestions of the Alphons
Committee. We are of the view that no useful purpose
would be served by maintaining two categories as
suggested by Alphons Committee in columns 3 and 4.
After leaving a part of the land with the owner for
developing the same in accordance with the permissible
land use under the Master Plan the remaining land
should be surrendered to the Delhi Development
Authority (DDA) for developing the same to meet the
community needs. When the Master Plan permits the use
of the land only to meet the community needs, it
obviously means that the land has to be surrendered and
dedicated to the community. While meeting the
community needs it is necessary to make a suitable
provision for the owner to enable him to meet the
expenses of relocating/shifting the industry. It would,
therefore, be in conformity with the broader concept of
"community need" under the Master Plan, to permit the
owner to develop part of the land for his own benefit and
surrender the remaining land to the use of the community
at large.
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:
"Sl. Extent Percentage to Percentage to be
be developed by the
No.
surrendered owner for his
and dedicated own benefit in
to the DDA accordance with
for the user
development permitted under
of green belts the Master Plan
and other
spaces
1. Up to 2000 sq. - 100% to be
mts. (including developed by the
the first 2000 owner in
sq. mts. of the accordance with
larger plot the zoning
regulations of
the Master Plan
ha
ha
10. We do not agree with the learned counsel for the
industrialists that Floor Area Ratio (FAR) be permitted
to them on the total area of the plot. We however, direct
that on the percentage of land as shown in column 4 the
owners at Serial Nos. 2, 3 and 4 shall be entitled to one
and a half times of the permissible FAR under the Master
Plan".
(emphasis supplied)
5. In the wake of directions given by the Supreme Court by
various orders in the matter of M.C. Mehta vs. Union of India and
Others (supra), certain authorities entrusted with the task made reports
before the Supreme Court, upon consideration of which, by order
dated 08.07.96 [(1996) 4 SCC 750], the Supreme Court held that 168
industries which had been identified were
"hazardous/noxious/heavy/large industries" setting out their
particulars in the list (in para 26), it including SBM and DCM (at
serial no. 39 & 40 respectively), with further conclusion (in para 27)
that "these industries cannot operate in the city of Delhi". The Court
gave the following directions with regard to the above-mentioned 168
industries - that included SBM and DCM - (in para 28) as under:
"28. We, therefore, hold and direct as under:
(1) The above-listed 168 industries cannot be permitted
to operate and function in Delhi. These industries may
relocate/shift themselves to any other industrial estate in
the NCR. We direct that the 168 industries listed above
shall stop functioning and operating in the city of Delhi
with effect from 30-11-1996. These industries shall close
down and stop functioning in Delhi with effect from the
said date.
(2) The Deputy Commissioner of Police concerned shall,
as directed by us, effect the closure of the above
industrial units with effect from 30-11-1996 and file
compliance report in this Court within 15 days
thereafter.
(3) The National Capital Region Planning Board shall
render all assistance to the industries in the process of
relocation. This direction shall go to the Board through
its Secretary. The National Capital Territory, Delhi
Administration, through its Chief Secretary and
Secretary, Industries, State of Haryana through its Chief
Secretary and Secretary, Industries, State of Rajasthan
through its Chief Secretary and Secretary, Industries and
the State of Uttar Pradesh through its Chief Secretary
and Secretary, Industries shall provide all assistance,
help and necessary facilities to the industries which
intend to relocate themselves in the industrial estates
situated in their respective territories.
(4) The allotment of plots, construction of factory
buildings, etc., and issuance of any licences/permissions
etc. shall be expedited and granted on priority basis.
(5) In order to facilitate shifting of industries from Delhi,
all the four States constituting the NCR shall set up
unified single agency consisting of all the participating
States to act as a nodal agency to sort out all the
problems of such industries. The single window facility
shall be set up by the four States within one month from
today. This direction to the four States is through the
Chief Secretaries of the States concerned. The Registry
shall convey this direction separately to the Chief
Secretaries along with a copy of this judgment. We make
it clear that no further time shall be allowed to set up the
single window facility.
(6) The use of the land which would become available on
account of shifting/relocation of the industries shall be
permitted in terms of the orders of this Court dated 10-5-
1996 in M.C. Mehta [(1996) 4 SCC 351] .
(7) The shifting industries on their relocation in the new
industrial estates shall be given incentives in terms of the
provisions of the Master Plan and also the incentives
which are normally extended to new industries in new
industrial estates.
(8) The closure order with effect from 30-11-1996 shall
be unconditional. Even if the relocation of industries is
not complete they shall stop functioning in Delhi with
effect from 30-11-1996.
(9) The workmen employed in the above-mentioned 168
industries shall be entitled to the rights and benefits as
indicated hereunder:
(a) The workmen shall have continuity of employment at
the new town and place where the industry is shifted. The
terms and conditions of their employment shall not be
altered to their detriment;
(b) The period between the closure of the industry in
Delhi and its restart at the place of relocation shall be
treated as active employment and the workmen shall be
paid their full wages with continuity of service;
(c) All those workmen who agree to shift with the
industry shall be given one year's wages as "shifting
bonus" to help them settle at the new location;
(d) The workmen employed in the industries which fail to
relocate and the workmen who are not willing to shift
along with the relocated industries, shall be deemed to
have been retrenched with effect from 30-11-1996
provided they have been in continuous service (as
defined in Section 25-B of the Industrial Disputes Act,
1947) for not less than one year in the industries
concerned before the said date. They shall be paid
compensation in terms of Section 25-F(b) of the
Industrial Disputes Act, 1947. These workmen shall also
be paid, in addition, one year's wages as additional
compensation;
(e) The "shifting bonus" and the compensation payable
to the workmen in terms of this judgment shall be paid by
the management before 31-12-1996.
(f) The gratuity amount payable to any workmen shall be
paid in addition".
(emphasis supplied)
6. Certain clarifications were given with regard to the directions in
the order dated 10.05.96 and 08.07.96, on the basis of interlocutory
applications filed by the Union of India, by order dated 04.12.96
[(1997) 11 SCC 327].
7. The matter came up before the Supreme Court again on the
application of the writ petitioner that though the industries had been
closed, a large number of it had not surrendered the excess land to
DDA, the main prayer being for the order dated 10.05.96 "to be
implemented". Against this backdrop, the Supreme Court gave, inter
alia, the following directions (in para 10) by order dated 28.04.2000
[(2000) 5 SCC 525]:-
"10.Coming to the prayers of Mr M.C. Mehta, we hereby
direct that within one month, all the industries which are
required to surrender the land in terms of this Court's
order dated 10-5-1996 should voluntarily surrender the
same to the Delhi Development Authority. If this is not
done, DDA will be dutybound to file application(s) for
execution of this Court's order before the District Judge,
Delhi and the District Judge, Delhi shall thereupon
execute this Court's order dated 10-5-1996 and report
compliance within four weeks of the filing of the
execution application(s). The execution application(s)
should be filed by DDA not later than eight weeks from
today."
(emphasis supplied)
8. Delhi Development Authority (DDA) presented an execution
application dated 23.06.2000 before the executing court (District
Judge) praying for execution of the orders dated 10.05.96 and
28.04.2000 of the Supreme Court against such units as had failed to
make the voluntary surrender of the land inspite of a public notice,
published in newspapers, the time requisite therefor having lapsed,
including against 24 units which though having approached DDA for
surrender having "not made a proper surrender", such offer being
either conditional or without compliance with the other necessary
surrender requirements.
9. As per the documents filed by the petitioners, SBM and DCM
jointly submitted objections (Annexure P-9) in July 2000 before the
District Judge, inter alia, pleading that each of them were factories
duly registered - separately - under the Factories Act, they having
been "closed down in Delhi" with effect from 30.11.96 in terms of
directions of the Supreme Court in the order dated 08.07.96. It was
further pleaded that the SBM and DCM were "owned by DCM
Shriram Consolidated Ltd.", the said company i.e. the DCM Shriram
Consolidated Ltd. being "the objector". It was submitted in the
objection petition that the objector had been in correspondence with
DDA in respect of both the said units - SBM and DCM - regarding
surrender of land in terms of order dated 10.05.96 and had submitted a
plan for use of the sites as per the Master Plan for Delhi 2001 - (MPD
- 2001) as well as respecting the "retainable land to be redeveloped
by the objector". The objection petition, inter alia, pleaded thus:-
"The total extent of free hold land owned by the Objector
Company at Shivaji Marg, (Najafgarh Road), New Delhi
- 11 0015, is 45.43 hectors (112.26 acres). As per
Municipal records this land is situated on Plot Nos. 119
and 120-21-521/577/82 (120, 621/6, 571/1 to 571/3),
Najafgarh Road, New Delhi -110015. The manufacturing
activities were carried out on Plot No. 119, Najafgarh
Road, New Delhi. It is submitted that 63.49 acres (26.69
Hac.) of land was being used for
industrial/manufacturing activities by both the above
industries.
Admittedly, there is residential complex, it is
submitted that the residential complex, a regular
approved colony under MPD-2001 and MCD interalia
comprising of Houses, Shops and recreational activities,
including Senior Secondary School, Drama Stage,
Library, Swimming Pool and Play Ground etc. are on
Plot No. 120-121-521/577/82 (120, 621/1 to 621/6, 571/1
to 571/3)."
10. The objection petition pleaded that the execution petition was
not maintainable vis-à-vis the objector since it had made voluntary
surrender of land to DDA. The objection petition was considered by
the District Judge leading to the order dated 25.07.2000 being passed
whereby the objector was called upon to take certain further steps
including compliance with the requirement of removal of the
superstructure and an undertaking to be given that it was free from all
encumbrances.
11. The matter continued to linger before the executing court
(District Judge) till 21.05.2001 when DDA submitted an application
under Section 151 CPC, inter alia, seeking directions to certain
industrial units to submit site plan showing the area proposed for
surrender as per orders dated 10.05.96 and 01.03.2001 of the Supreme
Court, such industrial units (as per annexure -II to the application)
including SBM and DCM mentioned at serial no. 1 and 2. In
response, DCM Shriram Consolidated Ltd. (the objector) submitted a
reply "for and on behalf of" its units (SBM and DCM) on 30.05.2001,
inter alia, pleading that "the objector is the owner of 45.43 hectares
(112.26 acres) of land at Najafgarh Road, New Delhi, it being the
land situate on two plots at Najafgarh Road, New Delhi", the
industrial manufacturing activities of both the said units having been
carried out from plot no. 119, Najafgarh Road, New Delhi. By the
said reply directions to DDA were sought for measuring the land as
per the ownership and revenue records and having offered the
possession of the surrendered land in terms of the offer made by the
objector, the encroachments existing being not in its control.
12. Against the aforementioned backdrop, the District Judge by his
order dated 18.07.2003 overruled the objections and granted warrant
of possession for the lands in the control of the two industrial units as
prayed for by its applications dated 18.05.2001 and 22.08.2001.
13. The petitioner filed a review application under Order XLVII
Rule 1 CPC on 13.08.2003 against aforesaid order. While the said
review application was pending, the petitioner submitted before the
District Judge on 27.09.2004 its readiness to surrender the land in
terms of the approved site plan without prejudice to the review
petition.
14. It is stated that on 31.03.2005 in compliance with the order
dated 18.07.2003, the petitioner surrendered land admeasuring 30.078
hectares (or 74.33 acres). On 08.12.2006, DDA informed the District
Judge that it had taken possession of the land in terms of the orders of
the Supreme Court.
15. The review petition was eventually dismissed by the District
Judge by order dated 25.03.2010 drawing curtain on the proceedings.
It is the correctness of the said order dated 25.03.2010 which is
brought in question by the petition at hand.
16. It is noted that for deciding on the review petition, the District
Judge had framed two issues for consideration, the same reading as
under:-
"1) Whether Swantantra Bharat Mills and DCM Silk
Mills are two separate units and the table as given in the
Supreme Court's order has to be applied separately to
each factory while calculating the surrender and
retainable land? If so, whether the benefit of first 2000
sq. metres is also to be given to both the units?
2) Whether surrender is required only from Industrial
land and not from residential complex of the respondent
/industry, as per the order of the then District Judge
dated 25/7/2000?"
17. It may be mentioned here that while arguing on the petition at
hand submissions were made restricted to the conclusions reached by
the District Judge only on the first of the aforementioned two issues,
no argument or contention having been pressed with regard to the
objection before the District Judge as to there being no obligation to
surrender the lands which were in use of the industries for "residential
complex" as formed the subject matter of the second above-mentioned
issue.
18. The submissions before the District Judge on the first issue and
the conclusions reached thereupon by the order dated 25.03.2010, as
indeed the reasons set out for such decision, may be extracted as
under:-
"3. It has been urged by the learned counsel for the
applicants that as per the case of the DDA itself, SBM
and DCM are two separate industries and to that extent,
the order dated 18/07/2003 passed by the District Judge
is liable to be reviewed and the applicants are entitled to
be given back land measuring 2000 sq. metres as the
benefit of only 2000 sq. mtrs. was given to the applicants,
treating SBM and DCM as one unit, instead of two units.
4. Ld. Counsel for the applicants has referred to MC
Mehta vs.UOI AIR 2001 SC 1544, wherein in para 24 of
the report, it has been referred that SBM and DCM are
two separate industries. I would like to extract the
portions of para 24 of the judgment hereunder for ready
reference:-
"...... Needless to dilate that in the case of
Swantantra Bharat Mills and DCM Silk Mills, the
learned District & 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
superstructure 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 tile of the industry over the land
which is to be surrendered...:"
(emphasis supplied)
5. A perusal of the above stated paragraph would
show and otherwise also it has not been disputed by the
DDA that SBM and DCM were two separate industries.
The question for consideration however, is whether SBM
and DCM are entitled to the benefit of another 2000 sq.
mtrs. of land on this ground. I may mention that total
area of the land was about 45.43 hectares and the
applicant was required to surrender 68 per cent of the
land as per the criteria fixed by the Hon'ble Supreme
Court of India in MC Mehta vs. UOI (1996) 4 SCC 351.
I really wonder whether the applicant really wants
additional 2000 sq. mtrs of land or there is some other
motive behind this application as the applicant has
already got retention of 32 per cent of 45.43 hectares i.e.
1,45,376 sq. metres of land. Admittedly, these two
industries are owned by the same company i.e. DCM
Shriram Consolidated Ltd. The purpose of the order
dated 10/05/1996 of the Hon'ble Supreme Court was that
because of hazardous and noxious industries being run
within the city of Delhi, the ambient air has become too
much polluted which has resulted into lung and
respiratory diseases and disorders. The Hon'ble
Supreme Court had felt the need to provide for the lung
spaces for the city of Delhi in the shape of green belt and
open spaces. The polluting industries were therefore,
required to surrender certain percentage of land,
depending upon the size of the land on which the industry
was being run. For this surrender a concession was also
extended to such industries that the industries were to be
relocated elsewhere and the residue and i.e. after
surrender of the land to the DDA for the purpose
aforesaid, was to be used by the owners of the industries
in accordance with the purpose as stipulated in the
Master Plan. The industries were further allowed to have
1.5 times of the FAR for development of the such land,
which by any means was a big concession. Since the
owners of both industries was one, in my view, the owner
will get only one exemption of 2000 sq. mtrs., as given in
the order dated 10.05.1996. If I take any other view, the
result would be disastrous. For instance, there may be a
owner running five industries in a piece of land
measuring 12000 sq. metres of land, he will get flat
exemption of 10,000 sq. metres of land and in addition,
he will be required to surrender only 57 per cent of
remaining 2000 sq. metres of land and will get FAR of
1.5 times on the entire residual land i.e. approx. 11000
sq. metres of land. So I do not find any merit in the
contention raised on behalf of the applicant. First issue
is accordingly decided against the applicant/objector."
19. The learned senior counsel arguing for the petitioners submitted
that the executing court has fallen in error by going "behind the
decree". His submission was that the applications of DDA as
submitted before the executing court clearly showed that SBM and
DCM were two independent units, as was also noted by the Supreme
Court in the list of 168 industries particulars whereof were set out in
the order dated 08.07.96 (supra). His arguments were that the District
Judge as the executing forum was not vested with any jurisdiction to
club the two industries so as to treat them as one. He placed reliance
on the judgments of the Supreme Court in Regional Provident Fund
Commissioner & Anr. vs. Dharamsi Morari Chemical Co. Ltd. (1998)
2 SCC 446 and Vodafone International Holdings BV vs. Union of
India & Anr. (2012) 6 SCC 613 to submit that a company is a separate
legal persona and the fact that all its shares are owned by one person
or by the parent company has nothing to do with its separate legal
existence.
20. In the considered opinion of this Court, there is no error or
infirmity in the approach of or view taken by the trial court in the
impugned order. There is nothing in the order which can be construed
as the executing court going behind the order under execution.
Rather, the executing court was duty-bound to construe the order and
enforce it in letter and spirit as has been done.
21. The reliance on the cases referred to above in the present
context is wholly misplaced. As noted above, it has been the admitted
position of the petitioners that SBM and DCM have been two
industrial units which were operating till they relocated to District
Kota in Rajasthan as facilitated by concerned authorities in terms of
the directions of the Supreme Court in M.C. Mehta vs. Union of India
and Others (supra), both continuing to be owned and controlled by
DCM Shriram Consolidated Ltd. (the objector). Given this admitted
position, the contention that each of the said industrial units was
entitled to retain independently 2000 square metres of land cannot be
accepted. As quoted earlier, the directions of the Supreme Court were
for the "owner" to retain specified part of the land used by the industry
and surrender the remaining to the use of the community at large.
There is nothing in any of the orders of the Supreme Court from which
it could be inferred that each industry was entitled to retention of land
in its own rights. The right of retention of the specified part of the
land and the obligation to surrender the remaining were not of the
industry (which itself would not be a legal entity) but of "the owner"
of the industry. It having been admitted case of the objector that SBM
and DCM have been industrial units owned by DCM Shriram
Consolidated Ltd., the arguments in above nature do not cut any ice.
22. Thus, the petition is found to be wholly devoid of substance or
merit. It is dismissed.
23. Needless to add, if any compliance with the directions of the
Supreme Court by various orders in the case of M.C. Mehta vs. Union
of India and Others (supra) remains outstanding, DDA has the liberty
to approach the District Judge in such regard.
R.K.GAUBA, J.
MARCH 06, 2018
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