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BOMBAY ENVIRONMENTAL ACTION GROUP & ANOTHER V/S THE STATE OF MAHARASHTRA THROUGH THE SECRETARY & OTHERS , decided on Monday, October 17, 2005.
[ In the High Court of Bombay, PIL WRIT PETITION NO. 482 OF 2005 . ] 17/10/2005
Judge(s) : DR. S. RADHAKRISHNAN & S.C. DHARMADHIKARI
Advocate(s) : The I.M.Chagla, S.H.Doctor, N.H.Seervai, Sr., G.S.Patel, R.I.Chagla, J.C.Perreira, S.H.Jagtiani, D.A.Mohta, Shrikant Doijode & Parag Kabadi, , i/b. Doijode Associates. The G.E. Vahanwati, Solicitor General of India, Ravi Kadam, General and R.M. Sawant, G.P., K.K. Singhvi, Sr. , K. Setalwad, Shobha Ajitkumar, Mukul Rohatgi, Senior , Meena Doshi, A. Sayed, Janak Dwarkadas, Sr., Hatoxi Tavadia i/b. Mahesh Thorat, J.J. Bhatt, Sr. with V.R. Dhond, Shyam Mehta i/b. Federal Rashmikant, V.R. Manohar, Sr. , Pesi Mody, Zia Mody, J.P. Sen, Dr.A.M.Singhvi, Rajan Karanjawala & Percy Ghandy with S. Kanthawala and Mr.Amit Bhandari.
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  "2005 (6) BCR 574"  







judgment - Dr. S. Radhakrishnan J.1. The above Petition has been filed in larger public interest to protect the interests of residents of Mumbai and to improve the quality of life in Mumbai which has drastically deteriorated during the last fifteen years. The above Petition is prevent further serious damage to the town Planning and ecology so as to avoid an irretrievable breakdown of the city. Recent deluge during the last week of July this year exposed as to how the city’s sewerage and drainage system was unable to cope up and for almost a week the entire city was completely crippled. 2. The first Petitioner Bombay Environmental Action Group is a public charitable trust duly registered and also a registered society. Its aims and objects are inter alia to look after the environment in all aspects. On a number of occasions the above Petitioner has initiated and/or participated in matters of environmental importance for the preservation and improvement of the environment in furtherance of the public interest in this Court. The second Petitioner is a citizen of India and the Honorary Secretary of the first Petitioner and has served on various environmental committees appointed by both Central and State Governments as also by this Hon’ble Coeurt.3. Mr. Chagla the learned Senior Counsel for the Petitioner emphasised that the main thrust of the Petition is ensure Open Spaces for the city and to provide the crying need of space for public housing. In that behalf he referred to People United for Better Living in Calcutta v. State of W.B. U.C. Banerjee J. (then a Judge of the Calcutta High Court) held: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 present 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 toil 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 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 and more so by reason of definite legislations in regard thereto as noted hereinafter 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 thereto4. The above observations have been quoted with approval by the Hon’ble Supreme Court in M.C. Mehta v. Union of India (2001) 4 SCC at paragraph 6. Mr. Chagla pointed out that the tragic events in Mumbai in the last week of July 2005 have shown that the environmental degradation in Mumbai has crossed nature’s degree of tolerance.5. Mr. Chagla the learned Senior Counsel pointed out that the main legal issue in the above Petition is the true meaning and correct interpretation of Development Control Regulation No. 58 as amended in 2001 the said Regulation reads as under:-58. Development or redevelopment of lands of cotton textile mills;(1) Lands of sick and/or closed cotton textile mills. -- With the previous approval of the Commissioner to a layout prepared for development or redevelopment of the entire open land built-up area of the premises of a sick and/or closed cotton textile mill and on such conditions deemed appropriate and specified by him and as a part of a package of measures recommended by the Financial Institutions and Commissioner ate of Industries for the evival/rehabilitation of a potentially viable sick and/or closed mill the Commissioner may allow;(a) The existing built-up areas to be utilised-(i) for the same cotton textile or related user subject to observance of all other Regulations;(ii) for diversified industrial users in accordance with the industrial location policy with office space only ancillary to and required for such users subject to and observance of all other Regulations;(iii) for commercial purposes as permitted under these Regulations;(b) Open lands and balance FSI shall be used as in the Table below:-Note(i) In addition to the land to be earmarked for reation ground/garden/play ground or any other open user as in column (3) of the above Table open spaces public amenities and utilities for the lands shown in columns (4) and (5) of the above Table as otherwise required under these Regulations shall also be provided.(ii) Segregating distance as required under these Regulations shall be provided within the lands intended to be used for residential/commercial users.(iii) The owner of the land will be entitled to Development Rights in accordance with the Regulations for grant of Transferable Development Rights as in Appendix VII in respect of the lands earmarked and handed over as per column (4) of the above Table. Notwithstanding anything contained in these Regulations Development Rights in respect of the land earmarked and handed over as per column (3) shall be available to the owner of land for utilization in the land as per column (5) or as Transferable Development Rights as aforesaid. (iv) Where FSI is in balance but open land is not available for the purposes of column (3) and (4) of the above Table land will be made open by demolishing the existing structures to the extent necessary and made available accordingly.(v) Where the lands accruing as per columns (3) and (4) are in the opinion of the Commissioner of such small sizes that they do not admit of separate specific uses provided for in the said columns he may with the prior approval of Government earmark the said lands for use as provided in column (3). (vi) It shall be permissible for the owners of the land to submit a composite scheme for the development or redevelopment of lands of different cotton textile mills whether under common ownership or otherwise upon which the lands comprised in the scheme shall be considered by the Commissioner in an integrated manner.(2) Lands of cotton textile mills for purpose of modernization:- With the previous approval of theCommissioner to a layout prepared for development or redevelopment of the entire open land and/or built-up area of the premises of a cotton textile mill which is not sick or closed but requiring modernization on the same land as approved by the competent authorities such development or redevelopment shall be permitted by the Commissioner subject to the condition that it shall also be in accordance with scheme approved by Government provided that with regard to the utilisation of built-up area the provisions of clause (a) of Sub-Regulation (1) of this Regulation shall apply and if the development of open lands and balance FSI exceeds 30 per cent of the open land and balance FSI the provisions of clause (b) of sub-regulation (1) of this Regulation shall apply.(i) The exemption of 30 per cent as specified above may be availed of in phases provided that taking into account all phases it is not exceeded in aggregate.(ii) In the case of more than one cotton textile mill owned by the same company the exemption of 30 per cent as specified above may be permitted to be consolidated and implemented on any of the said cotton textile mill lands within Mumbai provided and to the extent FSI is in balance in the receiving mill land.(3) Lands of cotton textile mills after shifting:- If a cotton textile mill is to be shifted out side Greater Bombay but within the State with due permission of the competent authorities and in accordance with a scheme approved by Government the provisions of sub-clauses (a) and (b) of sub-regulation (1) of its Regulation shall also apply in regard to the development or redevelopment of its land after shifting.(4) The condition of recommendation by the Board of Industrial and Financial Reconstruction (BIFR) shall not be mandatory in the case of the type referred to in sub-regulations (2) and (3) above. (5) Notwithstanding anything contained above the Commissioner may allow additional development to the extent of the balance FSI on open lands or otherwise by the cotton textile mill itself for the same cotton textile or related user.(6) With the previous approval of the Commissioner to a layout prepared for development or redevelopment of the entire open land and/or built up area of the premises of a cotton textile mill which is either sick and/or closed or requiring modernisation on the same land the Commissioner may allow :-(a) Reconstruction after demolition of existing structures limited to the extent of the built up area of the demolished structures including by aggregating in one or more structures the built up areas of the demolished structures; (b) Multi-mills aggregation of the built up areas of existing structures where an integrated scheme for demolition and reconstruction of the existing structures of more than one mill whether under common ownership or otherwise is duly submitted provided that FSI is in balance in the receiving mill land.(7) Notwithstanding anything contained above-(a) if and when the built up areas of a cotton textile mill occupied for residential purposes as on the 1st of January 2000 developed or redeveloped it shall be obligatory on the part of the land owner to provide to the occupants in lieu of each tenement covered by the development or redevelopment scheme free of cost an alternative tenement of the size of 225 sq. ft. carpet area; (b) if and when a cotton textile mill is shifted or the mill owner establishes a diversified industry he shall offer on priority in the relocated mill or the diversified industry as the case may be employment to the worker or at least one member of the family of the worker in the employ of the mill on the 1st January 2000 who possesses the requisite qualification or skills for the job; (c) for the purpose of clause (b) above the cotton textile mill owner shall undertake and complete training of candidates for employment before the recruitment of personnel and starting of the relocated mill or diversified industry takes place.8 (a) Funds accruing to a sick and/or closed cotton textile mill or a cotton textile mill requiring modernization or a cotton textile mill to be shifted from the utilisation of built up areas as per clause (a) of sub-regulation (1) and as per clauses (a) and (b) of sub-regulation (6) or from the sale of Transferable Development Rights in respect of the land as per columns (3) and (4) of the Table contained in clause (b) of sub-regulation (1) or from the development by the owner of the land as per column (5) together with FSI on account of the land as per column (3) shall be credited to an escrow account to be operated as hereinafter provided. (b) The funds credited to the escrow account shall be utilised only for the revival/rehabilitation or modernisation or shifting of the cotton textile mill as the case may be provided that the said funds may also be utilised for payment of worker’s dues payments under Voluntary Retirement Schemes (VRS) repayment of loans of banks and financial institution taken for the revival/rehabilitation or modernisation of the cotton textile mill or for its shifting outside Greater Mumbai but within the State.9(a) In order to oversee the due implementation of the package of measure recommended by the Board of Industrial and Financial Reconstruction (BIFR) for the revival/rehabilitation of a potentially sick and/or closed textile mill or schemes approved by Government for the modernisation or shifting of cotton textile mills and the permissions for development or redevelopment of lands of cotton textile mills granted by the Commissioner under this Regulation the Government shall appoint a Monitoring Committee under the chairmanship of a retired High Court Judge with one representative each of the cotton textile mill owners recognized trade union of cotton textile mill workers the Commissioner and the Government as members. (b) The Commissioner shall provide to the Monitoring Committee the services of a Secretary and other required staff and also the necessary facilities for its functioning. (c) Without prejudiced to the generality of the functions provided for in clause (a) of this sub-regulation the Monitoring Committee shall -- (i) lay down guidelines for the transparent disposal by sale otherwise of built up space open lands and balance FSI by the cotton textile mills; (ii) lay down guidelines for the opening operation and closure of escrow accounts;(iii) approve proposals for the withdrawal and application of funds from the escrow accounts;(iv) monitor the implementation of the provisions of this Regulation as regards housing alternative employment and related training of cotton textile mill workers.(d) The Monitoring Committee shall have the powers issuing and enforcing notices and attendance in the manner of a Civil Court. (e) Every direction or decision of the Monitoring Committee shall be final and conclusive and binding on all concerned.(f) The Monitoring Committee shall determine for itself the procedures and modalities of its functioning.6. The lands of the 58 textile mills in Mumbai occupy a substantial area of approximately 602 acres in the heart of the city. The area comprising just 8 mills known as the Golden Triangle is approximately 8.5 times the size of Nariman Point. Mr. Chagla fairly stated that this Petition does not seek a freeze on all development in the mill lands. By this Petition the Petitioner is seeking the intervention of this Court to ensure that the principles of sustainable development balanced development sound town planning based on relevant socio-economic considerations and the improvement of the living and working conditions and environment as enshrined in Article 21 of the Constitution of India are followed with regard to all development/redevelopment on the mill lands so as to protect the interests of the residents of Mumbai. 7. The core issues raised in the above Petition are as follows:-a) The true meaning and correct interpretation of DCR 58 as amended in 2001.b) Assuming that the Petitioners interpretation is accepted then whether the clarification dated 28th March 2003 effects an amendment to amended DCR 58 which is not permissible under DCR 62(3)?c) Assuming the Respondents interpretation is correct and the clarification does no more than reiterate what amended DCR 58 means then whether the amendment to DCR 58 is permissible under Section 37 of the MRTP Act?d) Assuming the amendment to DCR 58 was permissible under Section 37 then whether the same is not ultra vires the MRTP Act contrary to the mandate of Article 48A and in violation of the Petitioners’ rights under Article 21 of the Constitution?e) Whether in any view of the matter the Respondents or any of them were entitled to commence construction without prior sanction of the Ministry of Environment and Forests in view of the Notification dated 27th January 1994 read with 7th July 2004?f) What is the area of land which NTC is permitted to sell and the area of land which NTC must surrender to MCGM and MHADA in accordance with the terms of the scheme sanctioned by BIFR as directed by the Hon’ble Supreme Court in its orders of 27th September 2002 and 11th may 2005?8. Mr. Chagla the learned Senior Counsel took us through the salient features of the Maharashtra Regional and Town Planning Act 1966 (hereinafter referred to as the MRTP Act ) which was enacted inter alia to make better provisions for the preparation of Development plans with a view to ensuring that town planning schemes are made in a proper manner and their execution is made effective.9. He brought to our notice the judgment of the Supreme Court in Prakash Amichand Shah v. State of Gujarat (1986) 1 SC 581 at paragraph 6 a Constitution Bench while considering the provisions of the Bombay Town Planning Act 1954 stated as follows:6. The principal object of any town planning legislation generally are to provide for planning the development and control of the use of land and to confer on public authorities such as City Municipalities Municipal Boroughs Town Municipalities Town Panchayats etc. powers in respect of the acquisition and development of land for planning and other purposes. Such laws generally provide for the preparation of schemes that might be made in respect of the land with the general object of controlling its development securing proper sanitary conditions amenities and conveniences such as public parks play-grounds hospital areas etc. preserving existing buildings or other objects of architectural historic or artistic interest and places of natural interest or beauty and generally of protecting existing amenities. The Act is one such piece of legislation. 10. Mr. Chagla pointed out that harmonious with the abovementioned objects of town planning legislations the provisions of the MRTP Act lay down a clear legislative policy and guidelines for the Government and the Planning Authority to regulate the exercise of their powers thereunder including framing of subordinate legislation. The legislative policy of the MRTP Act inter alia includes the provision for and protection of public open spaces. Section 22 of the MRTP Act which provides for the contents of a development plan requires inter alia provision of (c) proposals for designation of areas for open spaces playgrounds stadia zoological gardens green belts nature reserves sanctuaries and dairies.The open spaces referred to in the said sub-section (c) of Section 22 of the MRTP Act are public open spaces and are distinct from the private open spaces required to be maintained around buildings and within layouts as provided elsewhere in the MRTP Act. 11. The learned Senior Counsel emphasised that conscious of the shortage of open spaces in the city of Mumbai and in furtherance of the said legislative policy the State Government has stipulated as the planning norm the provision of 0.2 hectare(approximately 0.5 acre) of open space per 1000 population as stated in the State Government’s affidavit dated 22nd March 2005. It is the undisputed position that presently the existing open spaces in the city are 0.03 acre (or less) per 1000 population (i.e. approximately 6% of the above planning norm). He said that the provision for open spaces under DCR 58 (as set out hereunder) although not strictly designations on the drawn plan are certainly provisions forming part of the sanctioned development plan aimed towards securing open spaces for the attainment of the aforesaid planning norm. Section 3 of the Bombay Town Planning Act 1915 (the first town planning legislation in respect of the city now known as Mumbai) and Section 7 of the Bombay Town Planning Act 1954 contained similar provisions regarding open spaces playgrounds etc.12. Mr. Chagla contended that the importance of provision for and protection of open spaces parks and playgrounds as a fundamental objective of town planning has been highlighted by Mr. Claude Hamilton Archer Hill in his address to the Legislative Council of the Governor of Bombay at its meeting on 17th December 1913 while moving the first reading of Bill No. V of 1913 (which subsequently became the Bombay Town Planning Act 1915). Mr. Hill inter alia stated ‘Well Sir ‘Well Sir ‘Well Sir before sitting down I would like with Your before sitting down I would like with Your before sitting down I would like with Your Excellency’s permission to read an extract from one of the greatest living authorities on the subject of Town Planning Raymond Unwin not with a view to commending the detailed provision of this bill to this council but because I think that what he writes here will impress upon the honourable members of this council that what you are undertaking to do and what I hope will be carried through before long is not merely an Act of Municipal legislation of the ordinary type providing for sanitation and cleanliness but that it goes a little beyond that and I want his remarks as I am sure they will to raise the level of discussion on this measure somewhat above that of merely Municipal politics; The truth is that in this work we have neglected the amenities of life. We have forgotten that endless rows of brick - boxes looking cut upon dreary streets and squalid backyards are not really homes for people and can never become such however complete maybe the drainage system however pure the water supply or however detailed the bye-laws under which they are built. Important as all these provisions for man’s material needs and sanitary existence are they do not suffice. There is needed vivifying touch of Art which would give completeness and increase their value tenfold; there is needed just that imaginative treatment which could transform the whole. Professor Letha by has well said ‘Art is a well doing of what needs doing’. We have in a certain niggardly way done what needed doing but much that we have done has lacked the insight of imagination and generosity of treatment which would have constituted the work well done; and it is from this well doing that beauty springs. It is the lack of beauty of the amenities of life more than anything else which obliges us to admit that our work of town building in the past century has not been well done. Not even the poor man can live by bread alone; and substantial as are the material boons which maybe derived from such powers for the control of town development as we hope our Municipalities will soon possess the force which is behind this movement is derived far more from the desire for something beyond derived these boons from the hope that through them something of beauty maybe restored to town life. We shall of indeed need to carry much further the good work begun by our building bye-laws. We shall need to secure still more open ground air-space and sun-light for each dwelling; we shall need to make proper provision for parts and playgrounds to control our streets to plain their direction their width and their character so that may in the best possible way minister to the convenience of the community. We shall need power to reserve suitable areas for factories where they will have everything convenience for their work and cause the minimum of nuisance to their neighbours. All practical advantages and much more maybe secured by the exercise of powers for Town Planning; but above all we need to infuse the spirit of the artist into our work. The artist is not content with the least that will do; his desire is for the best the utmost he can achieve. It is the small margin which makes all the difference between a thing scamped and a thing well done to which attention must be directed. From this margin of well doing beauty will spring. (emphasis supplied) 13. Mr. Chagla drew our attention to Maneklal Chhotalal v. M.G.Makwana - AIR 1967 SC 1373 wherein a Constitution Bench of the Supreme Court dealt with a challenge to the constitutional validity of the Bombay Town Planning Act 1954 including a contention that the State Legislature was not competent under the Seventh Schedule to the Constitution to pass the said Act. While highlighting the socio-economic aspect of town planning the importance of parts and open spaces as a fundamental element of town planning is also evident from paragraph 42 of the judgment.(42) We are further satisfied that the competency of the State Legislature can also be rested under Entry No. 20 of List III which is as follows:- 20. Economic and social planning. In principles of Town & Country Planning by Lewis Keepl the scope of planning has been stated thus:- Planning has both social and economic aims. Socially successful Planning tends to make people’s lives happier because it results in a physical environment which conduces to health which allows convenient and safe passage from place to place which facilitates social intercourse and which has visual attractiveness. The economic results of good Planning also of course conduce to increased happiness but not quite so directly. A proper spatial relationship between the communities in a region and the constituent parts of a town compactness of development and an efficient arrangement of communication routes all result in human activities being carried on more efficiently and less wastefully and thus increase wealth; In Corpus Juris Secundum Vol. 70 the word planning is stated to mean: In connection with municipalities the term connects a systematic development contrived to promote the common interest in matters embraced within the police power with particular reference to the location character and extent of streets squares parks and to kindred mapping and charting. In Encyclopadeia Britannica Vol. 5 p. 815 City Planning is stated to mean: the guidance of the growth and change of urban areas. As such it is aimed at fulfilling social and economic objectives which go beyond the physical form and arrangement of buildings streets parks utilities and other parts of the urban environment. City planning takes effect largely through the operations of government and requires the application of specialized techniques of survey analysis forecasting and design. Thus city planning may be described as a movement as a governmental function or as a technical profession. Each aspect has its own concepts history and theories. Together they fuse into the effort of modern society to shape and improve the environment within which increasing proportions of humanity spend their lives: the city. 14. Then he referred to K.L. Gupte v. Corporation Greater Bombay (AIR 1968 SC 303) wherein a Constitution Bench of the Supreme Court dealt with a challenge to the validity of certain sections of the Bombay Town Planning Act 1954. In paragraph 9 of the judgment the Hon’ble Supreme Court set out the rationale behind the said Act including the need for provision of parks and places of public resort and public utility.9. Before examining the contentions the points of law raised in this case it is necessary to appreciate what the Act sought to achieve and why it was brought on the statute book. In order to do this it is necessary to be take stock of the position at the time of its enactment so that attention may be focused on the situation calling for a remedy and how the legislature sought to tackle it. It is common knowledge that for a number of years past all over India there has been and is continuing a great influx of people from the villages to towns and cities for the purpose of residence and employment. Besides this the whole of the country is in the grip of a population explosion. Another circumstance to be reckoned with is that industrial development is taking place in and around about many cities which in its turn is attracting people from outside. Most of our towns and cities have grown up without any planning with the result that public amenities therein are now being found to be wholly inadequate for the already enlarged and still expanding population. The roads are too narrow for modern vehicular traffic. The drainage system such as it obtains in most of the towns and cities is hopelessly inadequate to cope with the requirements of an already overgrown population. In most of the towns and cities there is no room for expansion of public amenities like hospitals schools colleges and libraries or parks. Some improvement has been sought to be made to Town Improvement Acts enacted in the different States. In order that the suburbs and the surroundings of towns and cities be developed properly and not allowed to grow haphazard the Legislature of Bombay felt that towns should be allowed to grow only on palled schemes formulated on the basis of a development plan. All local areas which may be equated roughly with municipalities were to have development plans so that an overall picture might be taken of the needs of the expanding town or city and provision made for planned development with regard to roads and streets sanitary arrangements like drainage and water supply places of public utility industrial development etc. The legislature was well aware of the practical difficulties and the magnitude of the task. A development plan for a huge area like greater Bombay could not be formulated within a space of weeks or months. A survey had to be made of the area under the local authority to take note of the existing conditions and the plan prepared keeping in mind the facilities available and those which might be had in the foreseeable future. Sections of the area have to be set apart in the different localities for industrial and commercial development for private housing for the purpose of the Union of the Union or the State for educational and other institutions as also for parks and places for public resort. The authority responsible for the drawing up of the plan had to have regard to the wishes and suggestions of the public and in particular architects engineers industrialists and public bodies. Of necessity a skeleton plan had to be sketched at first which could be given a final shape after considerable deliberation following the suggestions of the parties interested and the recommendations received. Let us now see how the Legislature of Bombay sought to tackle this huge problem. (emphasis supplied).15. Counsel drew our attention to Padma v. Hiralal Motilal Desarda - (2002) 7 SCC 564 wherein at paragraphs 31 to 33 the Hon’ble Supreme Court held:31. Laws dealing with development planning are indispensable to sanitation and healthy urbanization. Development planning comprehensively takes care of statutory manual administrative and land-use laws hand in hand with architectural creativity. In the words of a well-known architect development planning is the DNA of urbanization -- the generic code that determines what will get built. A development plan is essential to aesthetics of urban society. American Jurisprudence 2nd (Volume 82 at page 388) states: Planning’ as that term is used in connection with community development is a generic term rather than a word of art and has no fixed meaning. Broadly speaking however the term connotes the systematic development of a community or an area with particular reference to the location character and extent of streets squares and parks and to kindred mapping and charting. Planning has in view the physical development of the community and its environs in relation to its social and economic well-being for the fulfillment of the rightful common destiny according to a master plan based on careful and comprehensive surveys and studies of present conditions and the prospects of futures growth of the municipality and embodying scientific teachings and creative experience. 32. The significance of a development planning cannot therefore be denied. Planned development is the crucial zone that strikes a balance between the needs of large-scale urbanization and individual buildings. It is the science and aesthetics of urbanization as it saves the development from chaos and uglification. A departure from planning may result in disfiguration of the beauty of an upcoming city and may pose a threat for the ecological balance and environmental safeguards. From the statement of the Supreme Court in paragraph 33 of the judgment it is clear that private greens do not meet the community need for open spaces and green areas. It is clear that public open spaces are essential notwithstanding the existence of large private green areas.33. The High Court has rightly observed in its judgment that some public institutions who were allotted large pieces of land have developed parks and gardens but they are not open for free access by people generally. The local residents and children must have place enough to be used as parks gardens and for entertainment which not only act as lungs and ventilators for suffocating growth of population but also add lustre and beauty to the township. The utility of such pieces of land acting as buffer for maintaining ecological balance and environmental demands needs no emphasis. We entirely agree with the reasons of the High Court and the observations made by it while recording its strong disapproval of bulk sale. 16. Thus Mr. Chagla contended that the consistent policy of town planning legislations has been the provision for and protection of public open spaces. The legislative policy of the MRTP Act is to be determined in the light of the Directive Principles of State Policy and harmonious with International Treaties to the extent possible. 17. Mr. Chagla very strongly contended that for the survival of the residents of Mumbai and especially for the future generations there is an absolute necessity to provide sufficient open spaces as the lungs of the city. He referred to the case of M.C. Mehta v. Union of India reported in 1996 (4) SCC 351 wherein the Hon’ble Supreme Court was concerned with the relocation of hazardous industries situated in Delhi. One of the questions for consideration was how and in what manner was the land made available as a result of such relocation to be used. a) While prioritizing the need for open spaces and green belts ahead of housing and other amenities the Hon’ble Supreme Court stated that: 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 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 that approximately 34 percent 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 greenbelts and open spaces. We are therefore of the view that spaces. 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 greenbelts and open spaces. The aforesaid observations regarding lack of open spaces were made by the Hon’ble Supreme Court although Delhi has 3 to 4 acres of open space per 1000 population as compared to a mere 0.03 acrs (or less) of open space per 1000 population in Mumbai. By compelling the surrender of large areas of land for public open spaces in a city which has vast private green areas this judgment also highlights the importance of public open spaces as opposed to private green areas.(b) Mr. Chagla then referred to Bangalore Medical Trust v. B.S. Muddappa (1991) 4 SCC 54 at paragraphs 24 to 28 Volume I Item 7 wherein the Hon’ble Supreme Court emphasised the need and importance of open spaces playgrounds etc. stating as follows: 24. Protection of the environment open spaces for recreation and fresh air play grounds for children promenade for the residents and other conveniences or amenities are matters of great public concern and of vital interest to be taken care of a development scheme. It is that public interest which is sought to be promoted by the Act by establishing the BDA. The public interest in the reservation and preservation of open spaces for parks and play grounds cannot be sacrificed by leasing or selling such sites to private persons for conversion to some other user. Any such act would be contrary to the legislative intent and inconsistent with the statutory requirements. Furthermore it would be in direct conflict with the constitutional mandate to ensure that any State action is inspired by the basic values of individual freedom and dignity and addressed to the attainment of a quality of life which makes the guaranteed rights a reality for all the citizens. 25. Reservation of open spaces for parks and play grounds is universally recognised as a legitimate exercise of statutory power rationally related to the protection of the residents of the locality from the ill-effects of urbanisation. 28. Any reasonable legislative attempt bearing a rational relationship to a permissible state objective in economic and social planning will be respected by the Courts. A duly approved scheme prepared in accordance with the provisions of the Act is a legitimate attempt on the part of the Government and the statutory authorities to ensure a quiet place free of dust and din where children can run about and the aged and the infirm can rest breath fresh air and enjoy the beauty of nature. These provisions are meant to guarantee a quiet and healthy atmosphere to suit family needs of persons of all stations. Any action which tends to defeat that object is invalid. As stated by the U.S. Supreme Court in Village of Belle Terre v. Bruce Boraas (974) 39 Law Ed 2d 787 : 416 US 1:- ... The police power is not confined to elimination of filth stench and unhealthy places. It is ample to lay out zones where family values youth values and the blessings of quiet seclusion and clean air make the area a sanctuary for people The importance of public open spaces is emphasised in paragraph 36 of the judgment in the following manner:-36. Public park as a place reserved for beauty and recreation was developed in 19th and 20th century and is associated with growth of the concept of equality and recognition of importance of common man. Earlier it was a prerogative of the artistocracy and the affluent either as a result of royal grant or as a place reserved for private pleasure. Free and healthy air in beautiful surroundings was privilege of few. But now it is a gift from people to themselves’. Its importance has multiplied with emphasis on environment and pollution. In modern planning and development it occupies an important place in social ecology. A private nursing home on the other hand is essentially a commercial venture a profit oriented industry. Service may be its motto but earning is the objective. Its utility may not be undermined but a park is a necessity not a mere amenity. 18. Mr. Chagla referred to Friends Colony Development Committee v. State of Orissa (2004) 8 SCC 733 wherein at paragraph 23 the Hon’ble Supreme Court held that Zoning and building regulations are also legitimized from the point of view of the control of community development the prevention of overcrowding of land the furnishing of recreational facilities like parks and playgrounds and the availability of adequate water sewerage and other governmental or utility services. (emphasis supplied)19. Mr. Chagla pointed out that Chinappa Reddy J. lamented over the ill-effects of unchecked urbanization on the city of Bangalore in B.K. Srinivasan v. State of Karnataka - (1987) 1 SCC 658 wherein at paragraph 1 the learned Judge stated as follows:Bangalore was a beautiful city once. It was a city with magic and charm with elegant avenues gorgeous flowers lovely gardens and plentiful spaces. Not now. That was before the invasion of concrete and steel of soot and smoke of high-rise and the fast buck. Gone are the flowers gone are the trees gone are the avenues gone are the spaces. We are now greeted with tall puffing chimneys and monstrous high rise buildings both designed to hurt the eye the environment and the man. But they are though by many as symbols of progress and modernity. They have come to stay. Perhaps they are necessary. Nostaligc sentiments we suppose must yield to modern societal requirements. Smoking chimneys produce much needed goods. High-rise buildings save much-scare space. They have a place in the scheme of things. But where how to what extent at what cost are the questions raised by some aggrieved citizens of Bangalore. They want congestion to be prevented population density to be controlled lung spaces to be provided where people can breathe existing recreational facilities to be preserved and improved pollution and health hazards to be removed civic and social amenities to be provided etc. All these require a balanced use of available land. It is with that object that the Mysore Town and Country Planning Act was enacted in 1961 and it is with the interpretation of some of the provisions of that Act that we concerned in these appeals. 20. Mr. Chagla the learned Senior Counsel strongly contended that the Environment Law of the Country is enshrined in Articles 21 and 48A of the Constitution and the Principle of Sustainable Development including the Precautionary Principle can be derived therefrom:- (a) Article 48A of the Constitution provides that:The State shall endeavour to protect and improve the environment and safeguard the forests and wildlife of the country. (emphasis supplied) (b) The Stockholm Declaration of 1972 introduced the concept of sustainable development a concept accepted and upheld by the Supreme Court on innumerable occasions. It is imperative in the light of the law laid down by the Supreme Court and by this Hon’ble Court that all activities including town planning that have a material impact on the environment—(i) Conform to the new-accepted principles of environment law viz. polluter pays and the precautionary principle;(ii) Be undertaken only when the impacts of the activities particularly those that have a potentially deleterious effect on the environment have been duly evaluated and the benefits found to equal or outweigh the costs; (iii) When inevitable be undertaken in a manner that is least harmful; and (iv) Until such time as the implication of such acts are fully evaluated and weighed against the benefits no act that is likely to be deleterious to the environment be undertaken.21. Mr. Chagla then strongly relied on Virendra Gaur v. State of Haryana (1995) 2 SCC 577 wherein the Hon’ble Supreme Court inter alia held:7. Article 48-A in Part IV (Directive Principles) brought by the Constitution 42nd Amendment Act 1976 enjoins that the State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country. Article 47 further imposes the duty on the State to improve public health as its primary duty. Article 51-A(g) imposes a fundamental duty on every citizen of India to protect and improve the natural environment including forests lakes rivers and wild life and to have compassion for living creatures. The word ’environment’ is of broad spectrum which brings within its ambit hygienic atmosphere and ecological balance. It is therefore not only the duty of the State but also the duty of every citizen to maintain hygienic environment. The State in particular has duty in that behalf and to shed its extravagant unbriddled sovereign power and to forge in its policy to maintain ecological balance and hygienic environment. Article 21 protects right to life as a fundamental right. Enjoyment of life and its attainment including their right to life with human dignity encompasses within its ambit the protection and preservation of environment ecological balance free from pollution of air and water sanitation without which life cannot be enjoyed. Any contra acts or actions would cause environmental pollution. Environmental ecological air water pollution etc. should be regarded as amounting to violation of Article 21. Therefore hygienic environment is an integral facet of right to healthy life and it would be impossible to live with human dignity without a humane and healthy environment. Environmental protection therefore has now become a matter of grave concern for human existence. Promoting environmental protection implies maintenance of the environment as a whole comprising the man-made and environment the natural environment. Therefore there is a constitutional imperative on the State Government and the municipalities not injure to ensure and safe-guard proper environment but also an imperative duty to take adequate measures to promote protect and improve both the man-made and the natural environment. (emphasis supplied) 22. The learned counsel referred to the concept of sustainable development as elucidated by the Hon’ble Supreme Court in Vellore Citizens Welfare Forum v. Union of India - (AIR 1996 SC 2715) wherein it was held as follows:10. The traditional concept that development and ecology are opposed to each other is no longer acceptable. Sustainable Development is the answer. In the International sphere Sustainable Development as a concept came to be known for the first time in the Stockholm Declaration of 1972. Thereafter in 1987 the concept was given a definite shape by the World Commission on Environment and Development in its report called Our Common Future. The Commission was chaired by the then Prime Minister of Norway Ms. G. H. Brundtland and as such the report is popularly known as Brundtland Report. In 1991 the World Conservation Union United Nations Environment Programme and World Wide Fund for Nature jointly came out with a document called Caring for the Earth which is a strategy for sustainable living. Finally came the Earth Summit held in June 1992 at Rio which saw the largest gathering of world leaders ever in the largest history - deliberating and chalking out a blue print for the survival of the planet. Among the tangible achievements of the Rio Conference was the signing of two conventions one on biological diversity and another on climate change. These conventions were signed by 153 nations. The delegates also approved by consensus three non-hiding documents namely a Statement on Forestry Principles a declaration of principles on environmental policy and development initiatives and Agenda 21 a programme of action into the next century in areas like poverty population and pollution. During the two decades from Stockholm to Rio Sustainable Development has come to be accepted as a viable concept to eradicate poverty and improve the quality of human life while living within the carrying capacity of the supporting eco-systems. Sustainable Development as defined by the Brundt land Report means Development that meets the needs of the present without comprising the ability of the future generations to meet their own needs. We have no hesitation in holding that Sustainable Development as a balancing concept between ecology and development has been accepted as a part of the Customary International law though its salient features have yet to be finalised by the International law Jurists.11. Some of the salient principles of Sustainable Development as called-out from Brundtland Report and other international documents are Inter Generational Equity. Use and Conservation of Natural Resources Environmental Protection the Precautionary Principle Polluter Pays principle Obligation to assist and co-operate. Eradication of Poverty and Financial Assistance to the developing countries. We are however of the view that The Precautionary Principle and The Polluter Pays principle are essential features of Sustainable Development. The Precautionary Principle in the context of the municipal law means: (i) Environmental measures - by the State Government and the statutory authorities -- must anticipate prevent and attack the causes of environmental degradation.(ii) Where there are threats of serious and irreversible damage lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation. (iii) The Onus of proof is on the actor or the developer/industrialist to show that his action is environmentally benign. 23. The importance of the same has been reiterated in T.N.Godavarman Thirumalpad v. Union of India - (2002) 10 SCC 606 10 SCC 606 10 SCC 606 wherein at paragraph 17 the Hon’ble Supreme Court held:17. Article 48-A in Part IV (Directive Principles) of the Constitution of India 1950 brought by the Constitution (Forty-second Amendment) Act 1976 enjoins that State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country. Article 47 further imposes the duty on the State to improve public health as its primary duty. Article 51-A(g) imposes a fundamental duty on every citizen of India to protect and improve the natural environment including forests lakes rivers and wildlife and to have compassion for living creatures. The word environment is of broad spectrum which brings within its ambit hygienic atmosphere and ecological balance. It is therefore not only the duty of the State but also the duty of every citizen to maintain hygienic environment. The State in particular has a duty in that behalf and to shed its extravagant unbridled sovereign power and to forge in its policy to maintain ecological balance and hygienic environment. Article 21 protects right to life as a fundamental right. Enjoyment of life and its attainment including the right to life with human dignity encompasses within its ambit the protection and preservation of environment ecological balance free from pollution of air and water sanitation without which life cannot be enjoyed. Any contra acts or actions would cause environmental pollution. Therefore hygienic environment is an integral facet of right to healthy life and it would be impossible to live with human dignity without a humane and healthy environment. Environmental protection therefore has now become a matter of grave concern for human existence. Promoting environmental protection implies maintenance of the environment as a whole comprising the man-made and the natural environment. Therefore there is constitutional imperative on the Central Government State imperative on the Governments and bodies like municipalities not only to ensure and safeguard proper environment but also an imperative duty to take adequate measures to promote protect and improve the man-made environment and natural environment. 40. Sustainable development is essentially a policy and strategy for continued economic and social development without detriment to the environment and natural resources on the quality of which continued activity and further development depend. Therefore while thinking of the developmental measures the needs of the present and the ability of the future to meet its own needs and requirements have to be kept in view. While thinking of the present the future should not be forgotten. We owe a duty to future generations and for a bright today a bleak tomorrow cannot be countenanced. We must learn from our experiences of the past to make both the present and the further brighter. We learn from our experiences mistakes from the past so that they can be rectified for a better present and the future. It cannot be lost sight of that while today is yesterday’s tomorrow it is tomorrow’s yesterday. 43. Duty is cast upon the Government under Article 21 of the Constitution of India to protect the environment and the two salutory principles which govern the law of environment are: (i) the principles of sustainable development and (ii) the precautionary principle. It needs to be highlighted that the Convention on Biological Diversity has been acceded to by our country and therefore it has to implement the same. As was observed by this court in Vishaka v. State of Rajasthan in the absence of any inconsistency between the domestic law and the international conventions the rule of judicial construction is that regard must be had to international conventions and norms even in construing the domestic law. It is therefore necessary for the Government to keep in view the international obligations while exercising discretionary powers under the Conservation Act unless there are compelling reasons to depart therefrom. 24. Again in N.D. Jayal v. Union of India (2004) 9 SCC 362 the Hon’ble Supreme Court held that adherence to the principle of sustainable development is a sine qua non for maintaining the balance between the rights to environment and development.21. Before adverting to other issues certain aspects pertaining to the preservation of ecology and development have to be noticed. In Vellore Citizens Welfare Forum v. Union of India and in M.C. Mehta v. Union of India 2002 (4) SCC 353 it was observed that the balance between environmental protection and developmental activities could only be maintained by strictly following the principle of ‘sustainable development’. This is a development strategy that caters the needs of the present without negotiating the ability of upcoming generations to satisfy their needs. The strict observance of sustainable development will put us on a path that ensures development while protecting the environment a path that works for all peoples and for all generations. It is a guarantee to the present and a bequeath to the future. All environmental related developmental activities should benefit more people while maintaining the environmental balance. This could be ensured only by the strict adherence of sustainable development without which life of coming generations will be in jeopardy. 22. In a catena of cases we have reiterated that right to clean environment is a guaranteed fundamental right May be in different context the right to development is also declared as a component of Article 21 in cases like Samanta v. State of Andhra Pradesh and in Madhu Kishore v. State of Bihar. 23. The right to development cannot be treated as a mere right to economic betterment or cannot be limited to as a misnomer to simple construction activities. The right to development encompasses much more than economic well being and includes within its definition the guarantee of fundamental human rights. The ’development’ is not related only to the growth of GNP in the classic work -‘Development As Freedom’ the Nobel prize winner Amartya Sen pointed out that ‘the issue of development cannot be separated from the conceptual framework of human right’. This idea is also part of the UN Declaration on the Right to Development. The right to development includes the whole spectrum of civil cultural economic political and social process for the improvement of peoples’ well being and realization of their full potential. It is an integral part of human right. Of course integral part of human right. construction of a dam or a mega project is definitely an attempt to achieve the goal of wholesome development. Such works could very well be treated as integral component for development. 24. Therefore the adherence of sustainable development principle as a sine qua non for the maintenance of the symbiotic balance between the rights to environment and development. Right to environment is a fundamental right. On the other hand right to development is also one. Here the right to ‘sustainable development’ cannot be singled out. Therefore the concept of ‘sustainable development’ is to be treated an integral part of ‘life’ under Article 21. The weighty concepts like intergenerational equity (State of Himachal Pradesh v. Ganesh Wood Products) public trust doctrine (M.C. Mehta v. Kamal Nath) and precautionary principle (Vellore Citizens) which we declared as inseparable ingredients of our environmental jurisprudence could only be murtured by ensuring sustainable development. 25. Mr. Chagla then analysed to how Public interest prevailed over Private Interest:-(a) Private interests can never as a matter of constitutional law outweigh the public interest. The same principles apply to all town planning statutes where private interests must stand subordinated to socio-economic objectives like providing low-cost public housing (including mill workers’ housing) and the protection and improvement of the environment.(b) While considering inter alia the need for and importance of planned development in Friends Colony Development Committee v. State of Orissa (2004) 8 SCC 733) at paragraph 22 the Hon’ble Supreme Court held as follows:-22. In all developed and developing there is emphasis on planned development of cities which is sought to be achieved by zoning planning and regulating building construction activity. Such planning though highly complex is a matter based on scientific research study and experience leading to rationalization of laws by way of legislative enactments and rules and regulations framed thereunder. Zoning and planning do result in hardship to individual property owners as their freedom to use their property in the way they like is subjected to regulation and control. The private owners are to some extent prevented from making the most profitable use of their property. But for this reason alone the controlling regulations cannot be termed as arbitrary or unreasonable. The private interest stands subordinated to the public good. It can be stated in a way that power to plan development of city and to regulate the building activity therein flows from the police power of the State. The exercise of such governmental power justified on account of its being reasonably necessary for the public health safety morals or general welfare and ecological considerations; though an unnecessary or unreasonable intermeddling with the private ownership of the property may not be justified. 26. Mr. Chagla contended that Development Control Regulations forms part of Development Plan and he discussed the scope of challenge with regard delegated legislation like Development Control Regulations. a) The Development Control Regulations for Greater Bombay 1991 are subordinate/delegated legislation framed under the MRTP Act. They are an integral part of the Development Plan for Mumbai. He referred to paragraph 11 of the unreported judgment dated 16th April 1991 of a Division Bench of this Hon’ble Court in Writ Petition No. 963 of 1991 (Nivara Hakk Suraksha Samiti & Ors. v. State of Maharashtra & Anr.) and other related Writ Petitions. He also referred to Nariman Point Association v. State of Maharashtra (2003 (5) Bom. C.R. 273 at paragraph 11.(b) It is settled law that in the case of delegated legislation the delegation is only valid when the legislative policy and guidelines to implement it are adequately laid down and the delegate is only empowered to carry out the policy within the guidelines laid down by the legislature. Thus in framing the DCRs the State Government and the MCGM are only empowered to carry out and implement the legislative policy of the MRTP Act and cannot formulate any policy of their own outside the guidelines of that Act contended Mr. Chagla.27. The learned Senior Counsel referred to Kishan Prakash Sharma v. Union of India - (2001) 5 SCC 212 wherein while discussing the principles of law regarding the validity of delegated legislation a Constitution Bench held: 18. So far as the delegated legislation is concerned the case law will throw light as to the manner in which the same has to be understood and in each given case we have to understand the scope of the provisions and no uniform rule could be laid down. The legislatures in India have been held to possess wide power of legislation subject however to certain limitations such as the legislature cannot delegate essential legislative functions which consist in the determination or choosing of the legislative policy and of formally enacting that policy into a binding rule of conduct. The Legislature cannot delegate uncanalised and uncontrolled power. The Legislature must set the limits of the power delegated by declaring the policy of the law and by laying down standards for guidance of those on whom the power to execute the law is conferred. Thus the delegation is valid only when the legislative policy and guidelines to implement it are adequately laid down and the delegate is only empowered to carry out the policy within the guidelines laid down by the Legislature may after laying down the legislative policy confer discretion on an administrative agency as to the execution of the policy and leave it to the agency to work out the details within the framework of the policy. When the Constitution entrusts the duty of law-making to Parliament and the Legislatures of States it impliedly prohibits them to throw away that responsibility on the shoulders of some other authority. 28. Mr. Chagla the learned Senior Counsel gave a broad overview of Development Regulations’ 1991 as follows:-I. The Development Control Regulations (DCRs) are as their title proclaims intended to control all development within the jurisdiction of the BMC. DCR 4 requires the prior permission of the Municipal Commissioner (MC) before any development or redevelopment is undertaken.II. Part II prescribes the uses of all lands designated for certain purposes in the Development Plan (DP)III. Part IV prescribes the uses that will be permitted in each of the zones in the DP.IV. The DCRs are the charter for and determine the uses to which any land may be put. In other words the MC cannot grant permission for development or redevelopment of any land except for the uses permitted. Wherever the MC is authorised to permit a use other than that contemplated by the land uses in Part IV the DCRs expressly so provide. V. The lands of cotton textile mills (mill lands) are in the I-2 I-3 zones. These zones generally are regulated by DCR 56 and 57. Both DCR 56 and 57 expressly confer upon the MC (provided the guidelines contained therein are satisfied) the power to permit the use of such lands for inter alia residential or commercial purposes (See DCR 56(3) and DCR 57(4))VI. Significantly the mill lands are expressly excluded from the purview of these Regulations and an independent Regulation i.e. DCR 58 exclusively provides for the development of such lands. VII. DCR 58 is therefore a complete and self-contained code that regulates the development of mill lands. VIII. DCR 58 was introduced not to permit the development of such lands for residential or commercial purposes but essentially for the revival of the textile mills and only when such revival was impossible then for the development of such lands for other non-mill uses. IX. It cannot be over-emphasised that DCR 58 was not intended for the commercial exploitation of mill lands but it was a measure to revive closed or sick mills or to modernise mills in the manner provided therein. This was the primary object and the relaxation from industrial use was the exception rather than the rule. In fact the State Government in its Affidavit dated 22nd March 2005 has stated:I say that deteriorating condition of textile units and need to have sites for public purpose and public housing prompted Government to have a policy which threw open these lands for development or redevelopment to facilitate revival and modernisation of mills. X. The original DCR 58 contemplated the utilisation of a part of these mill lands for commercial use as permitted under the DCRs. DCR 58(1)(b) specified that only a certain portion of land would be available for development by the owner and the balance would have to be surrendered for public open spaces and for public housing or housing of public sector undertakings. Under original DCR 58(1)(b) every textile mill applying for redevelopment had to surrender to the MCGM 33% of the total area for public open spaces and 27% to 37% (depending upon the total plot area) for housing to MHADA and PSUs. The owner of the land was only entitled to Transferable Development Rights (TDR) in respect of the lands earmarked for both open spaces and public housing which TDR could only be used outside the island city of Mumbai (i.e. north of Mahim/Sion and in the suburbs). The space to be made available for open areas and public housing was calculated on the basis of Open lands and lands after demolition of existing structures. Under original DCR 58 approximately 200 acres would have become available for public open spaces and approximately 162 to 222 acres for affordable housing. Despite the requirement to surrender about two-thirds of the total area the original DCR 58 was not challenged by the mill owners. The mill owners accepted such surrender as a legitimate pre-condition for the right to develop/re-develop the mill lands.29. Mr. Chagla then referred to the Charles Correa Study Group’s suggestions:-(a) By an order dated 29th February 1996 (Exhibit B to the Petition 161) the State Government stated that it was necessary to avoid piecemeal and isolated development of the mill lands and that an integrated development plan for these lands should be prepared inter alia on the principles of the environmental and heritage aspects to be maintained/brought about in these areas. By the said order (i) a Study Group headed by the eminent architect and urban planner Charles Correa was constituted to prepare an integrated development plan for the lands of cotton textile mills in Mumbai within a period of 60 days. (ii) the State Government prohibited the Municipal Commissioner from giving any building permissions in respect of such lands unless the same conformed to an integrated development plan to be prepared by the said study group. (b) In August 1996 the Correa Study Group submitted its report and an integrated development plan in respect of the NTC mill lands. The Correa Committee report indicates that the study group was unable to prepare an integrated development plan in respect of the lands of private mills as the study group was not granted access to such mills.(c) According to the State Government the prohibition on development of mill lands was challenged before the Hon’ble Bombay High Court by five mills viz. Standard Morarjee Ruby Crown and Bombay Dyeing. These mills sought and were granted permission to redevelop their lands under the original DCR 58. 30. Mr. Chagla the learned counsel their referred to the Ranjit Deshmukh Committee report and pointed out as under:- (a) It is stated in paragraph 5(f) of the affidavit of Shri Ramanand Tiwari dated 22nd March 2005 (Volume II: page 202) that DCR 58 was modified to give effect to a Cabinet decision dated 11th October 2000 of a committee appointed on 27th March 2000 under the chairmanship of Shri Ranjit Deshmukh the then Minister of Textiles. (b) The Ranjit Deshmukh Committee comprised the Cabinet Ministers for Textile Industry and Labour and the Ministers of State for Textile and Urban Development. The operational area and jurisdiction of the said Committee included a) recommending the policy to be adopted for disposing of excess land with the textile mills in Mumbai; and b) holding discussions about the demands of mill owners and mill workers while deciding the policy and making recommendations accordingly.(c) The procedure to be followed by the committee included a) studying the provisions of the DCRs of 1991; b) studying the recommendations of the earlier constituted committee (Correa Committee); c) studying the comprehensive policy prepared by the Urban Development Department pursuant to the recommendations of the Correa Committee which policy had been placed before Cabinet earlier; d) holding discussions with the Mill Workers Association mill owners and their association and officers of NTC; and e) studying the housing and salary issues of the mill workers and making recommendations in this regard.(d) The said Committee held a total of five meetings at which the above issues were considered and discussed including with senior management of NTC mill owners representatives of mill workers concerned MPs and MLAs. Certain mills were also inspected by the said Committee. The recommendations of the said Committee are contained in its report dated 6th July 2000. As stated below these recommendations were accepted vide Cabinet decision dated 11th October 2000.31. Mr. Chagla then went into the core issue in the Petition i.e. The True Meaning And Interpretation Of Amended Dcr 58 as under:-(a) By a Notification dated 20th March 2001 (Ex C to the Petition at page 163) published in the Official Gazette the State Government in purported exercise of its powers under Section 37 of the MRTP Act amended the original DCR 58. By an Order dated 10th April 2001 (Ex D to the Petition at page 170) the State Government lifted the 1996 prohibition on development of mill lands and stated that the Municipal Commissioner was free to grant development/re-development permissions strictly as per the modified provisions of DCR 58.(b) One of the significant amendments to DCR 58 was that the mill owner could now avail of FSI in situ in respect of the land surrendered to MCGM and the same was no longer available only as TDR as provided in original DCR 58. Both the Correa Committee and the Ranjit Deshmukh Committee were of the considered view that this incentive would be sufficient compensation to mill owners in respect of the land surrendered by them and would make development more financially viable. As stated above the Ranjit Deshmukh Committee held discussions with senior management of NTC mill owners representatives of mill workers and concerned MPs and MLAs and then submitted its report.(c) Further amendments included the introduction of a scheme for mill workers as contained in the newly introduced sub-regulations (7) (8) and (9) in order to give effect to the recommendations of the Ranjit Deshmukh Committee. In the unreported judgment dated 16th April 1991 in Writ Petition 963 of 1991 (Nivara Hakk Suraksha Samiti & Ors. v. State of Maharashtra & Anr.) and other related Writ Petition a Division Bench of this Hon’ble Court considered challenges to the Development Control Regulations 1991. The challenges to original DCR 58 are dealt with in paras 47 to 52 of the judgment. In paragraph 51 of the judgment while dealing with a challenge to original DCR 58 on the ground that it did not provide any scheme for protection of workers this Hon’ble Court held as follows:51. It is submitted on behalf of the petitioners that these regulations do not prescribe any scheme for the protection of workers of such mills which for example may be shifted outside Bombay. Similarly there is no protection of workers of sick mills when the lands of such mills are utilised under a package scheme evolved by B.I.F.R. Financial Institutions etc. But the Development Control Regulations are basically Regulations for the development of land under the Maharashtra Regional and Town Planning Act. These by their very nature cannot propound any scheme for workers. Appropriate legislation in this connection can only be industrial legislation. Such legislation would be out of place in Development Control Regulations framed under the Maharashtra Regional and Town Planning Act. Notwithstanding the above as a socio-economic measure the State Government provided a scheme for workers in amended DCR 58. The Petitioners herein are not challenging the above socio-economic measures for workers.Amended DCR 58(1)(b)(d) Another amendment to DCR 58 was in the language of DCR 58 (1) (b). The principal challenge in the present Writ Petition is to this amendment to DCR 58(1)(b) which now provides that Open lands and balance FSI shall be used as in the Table below. The phrase lands after demolition of existing structures in case of a re-development scheme in original DCR 58(1)(b) was substituted by the phrase and balance FSI 32. Mr. Chagla the learned counsel in depth analysed the amended DCR 58 in the following manner:-A. The permissible uses are expressly provided for by the DCR 58 itself and no power or discretion is conferred upon the Municipal Commissioner (MC) (unlike in DCR 56 and 57) to permit any change of use: in other words the use of mill lands is that of industrial use for cotton textile mills and continues to be so. And any change of land can be in the manner prescribed in DCR 58 or not at all.B. As will be apparent from the analysis below change of use is permitted in only 4 cases:1. as a package of measures recommended by the BIFR for the revival/rehabilitation of a potentially viable sick and/or closed mill (Regulation 58(1)); 2. for the modernisation of a mill on the same land and in accordance with a scheme approved by the government (Regulation 58(2)); 3. where a textile mill is required to be shifted outside Greater Bombay but within the State with (a) due permission of the competent authorities and (b) in accordance with a scheme approved by the government (Regulation 58(3)); and N.B. : It is expressly provided that in cases 2 and 3 above BIFR recommendation shall not be mandatory (Regulation 58(4)).4. where the MC is expressly permitted to allow utilisation of balance FSI for the same textile or related user (Regulation 58(5)). Such related user has in accordance with the recommendation of the Ranjit Deshmukh Committee Report been clarified to mean all processes mentioned in two digit cotton textile code No. 23 published in NIC Code. C. DCR 58 discloses the clear underlying policies viz.1. the continuation of the cotton textile mills;2. the development which is sustainable in that it expressly provides for open spaces; and3. a social policy viz. the provision of low income housing (including for mill workers) and tenements for the existing occupants of mill lands. The interpretation canvassed by the Petitioners clearly advances the above policy whilst that contended for by the Respondents is destructive of the same.58(1)The condition precedent to the applicability of 58(1)(a) and 1(b) is the previous approval of the Municipal Commissioner to a lay out and as a part of a package of measures recommended by BIFR for the revival/rehabilitation of a potentially viable sick and/or closed mill. In other words it is not open to any mill owner to seek the approval of the Commissioner to a lay out under 58(1) on his own but the same can be done only as part of a scheme of BIFR. 58(1)(a)This provision applies only to the existing structures and not to any newly built up area (whether after demolition or otherwise). (This was also the intention of the amendments to this provision proposed by the Ranjit Deshmukh Committee and it is not the case of any party that the proposed amendments to DCR 58(1)(a) do not form part of the amended provision) The change of user under 58(1)(a) is permissible only as a part of a package of measures recommended by BIFR. The Commissioner may allow the existing structure to be utilised for the users specified in clauses (i) to (iii) thereof.58(1)(b) This provision specifies the user permissible as a part of a package of measures recommended by BIFR in respect of open lands and balance FSI open lands and balance FSI open lands and balance FSI on condition that the same is shared in the manner envisaged thereunder.Significantly the State Government intended to delete the requirement of a BIFR scheme vide Notification dated 8th January 2002 but the same was allowed to lapse. Instead there was issued the clarification dated 28th March 2003.(a) The term open lands is to be given its natural unrestricted meaning i.e. lands which are presently vacant and/or lands which become vacant at any time upon demolition of the structures thereon.(b) Clause (1)(b) of Original DCR 58 used the phrase Open lands and lands after demolition of existing structures because at the time Original DCR 58 came into force (25th March 1991) the definition of development in Section 2(7) of the MRTP Act did not expressly include demolition of existing structures. This was introduced into the definition of development in 1994 [vide Section 2(b) of Mah. Act 10 of 1994]. The Statement of Objects and Reasons for the Bill stated inter alia that In the course of time along with other changing concepts the concept of ‘development’ and ‘development rights’ with reference to lands and buildings in the urban areas has undergone radical changes necessitating incorporation of such new radical changes concepts by defining or re-defining certain expressions in the Act. Hence prior to the said amendment when demolition of the existing structure was contemplated under original (1)(b) it was necessary to expressly provide for the same in view of the definition of development as it then stood.(c) Therefore in March 2001 when amended DCR 58 was brought into force the term development expressly included demolition of existing structures and there was no longer any need to expressly provide for demolition of existing structures in 1(b) in order to give effect to the natural meaning of the term open lands (which included lands becoming vacant upon demolition). Thus the deletion of the phrase lands after demolition of existing structures was intentional as the amended definition of ‘development’ made the said phrase otiose and tautologous.(d) The deletion of the said phrase was not to restrict the plain and natural meaning of the term open lands only to lands which are presently vacant and exclude those which become vacant subsequently. To give such a restricted meaning would require reading the said term as existing open lands which is not permissible. The word existing which appears in (1)(a) is intentionally omitted in (1)(b).DCR 58(2) Textile mills requiring modernisation Lands belonging to such mills may be developed or redeveloped for the purpose of modernisation subject o 2 conditions viz. (1) approval by the competent authorities and (2) in accordance with a scheme approved by the Government. When these are satisfied then the Commissioner is empowered to approve a lay out which may permit a change of user both in respect of the user of built area and/or development of open lands and balance FSI. Utilisation of built up area as provided under 58(1)(a) and development of open lands and balance FSI (when the same exceeds 30% of the open lands and balance FSI) as provided in 58(1)(b). In other words provided the pre-conditions are satisfied a change of user is expressly permitted by incorporation by reference of clauses (a) and (b) of sub-reg.(1). DCR 58(3)Lands of textile mills after shifting A cotton textile mill may be shifted outside Greater Bombay but within the State again subject to 2 conditions viz. (1) approval of the competent authorities and (2) in accordance with a scheme approved by the Government. In such a scheme the development or re-development of the land after shifting may be in accordance with sub-clause (a) and (b) of sub-reg. (1). In other words a change of user is expressly permitted by incorporation by reference of sub-clauses (a) and (b) of sub-reg.(1).Both 58(2) and 58(3) mandate the continuance of the mill.DCR 58(4) This clarifies that the recommendation of BIFR is not mandatory in the case of sub-reg. (2) and (3).DCR 58(5) The Commissioner is expressly empowered to allow additional development to the extent of balance FSI on open lands or otherwise for the same cotton textile or related user. This provision expressly empowers the Commissioner to allow a change of user viz. for a related user.DCR 58(6) a) This provision contemplates demolition of existing structures and reconstruction to the extent of the built up area of such structures as also aggregation of the built up areas of different mills for such demolition and reconstruction. b) As DCR 58 primarily seeks to promote the revival of cotton textile mills sub-regulation (6) allows for reconstruction of the same up to the extent of the existing built up area without any surrender of land which would otherwise be required. Sub-regulation (6) contemplates no surrender of land as it does not permit or contemplate any change of user and hence the reconstructed structure/s can only be for use as cotton textile mills.c) It is ex-facie evident that sub-regulation (6) does not contemplate or provide for any change of user. Under DCR 58 change of user is expressly provided for only under clause (a) and clause (b) of sub-regulation (1) and 58(5).d) Wherever a change of user is sought to be permitted elsewhere in DCr 58 viz. under sub-regulation (2) and sub-regulation (3) this is done by express incorporation by reference of the provisions of clause (a) and clause (b) of sub-regulation (1). It is by reason of this express incorporation by reference that a change of user as provided in clause (a) and clause (b) of sub-regulation (1) is permitted under sub-regulations (2) and (3) without the same being a part of a package of measures approved by BIFR. e) Unlike sub-regulations (2) and (3) sub-regulation (6) does not refer to or incorporate the provisions of clause 9(a) and/or (b) of sub-regulation (1). Accordingly so far as development/re-development is concerned sub-regulation (6) is a stand alone provision for demolition and reconstruction without change of user and accordingly requires a separate layout approval by the Commissioner. f) It cannot be contended that since sub-regulation (6) does not prohibit a change in user nor expressly stipulate that same user shall continue it implies that any change of user is permissible with the permission of the Commissioner for the following reasons:1) The Commissioner may permit a change of user only where he is expressly empowered to do so and in such cases the new users which the Commissioner may permit are also expressly provided; no such provision is found in sub-regulation (6). This may be contrasted with DCR 56(3) and DCR 57(4). Both the said provisions expressly provide for change of user with the permission of the Commissioner as also the new user which the Commissioner may permit. The said provisions (other than clause (a) of DCR 56(3) and clause (a) of DCR 57(4)) although relating to General Industrial Zone (I-2) and Special Industrial Zone (I-3) expressly exclude lands of cotton textile mills from the scope of their applicability.2) It has been submitted by the Respondents that the deliberate omission in 58(6) of the words for the same for the same for the same cotton textile or related user cotton textile or related user cotton textile or related user which appear in Sub-regulation (5) is significant and indicates that a change of user is contemplated.3) The omission of those words is on the contrary clearly indicative of the position that no change of user whatsoever (not even related user) is contemplated in such regulation (6). To hold otherwise would permit the Commissioner a carte blanche carte blanche carte blanche to permit any change of user entirely at his own whim and fancy. Such an interpretation would render the provision ex facie ex facie ex facie ultra vires and unconstitutional.4) Such an interpretation would negate the very basis of town planning and the development plan viz. the regulation of the use of land. The said contention is repugnant to the scheme and the legislative policy of the MRTP Act. The said contention is repugnant to Section 22 in particular clause (a) thereof of the MRTP Act. Such alleged unrestricted and unregulated change of use of vast quantities of built up area is wholly incompatible with the provisions of a town planning legislation and is only to be stated to be rejected. Even so the State Government which is the sanctioning authority under the MRTP Act has chosen to advance such a contention. 5) It is significant that the State Government by virtue of the clarification dated 28.3.2003 accepted that sub-regulation (6) does not permit a change of user. The said ‘clarification’ seeks to read sub-regulation (6) with clause (a)(iii) of sub-regulation (1) purportedly permitting a change in user under the latter provision after demolition and reconstruction under the former. As stated above sub-regulation (6) is a stand alone provision so far as development/re-development is concerned and cannot be read with sub-regulation (1).6) Assuming while denying that sub-regulation (6) can be read with sub-regulation (1) then sub-regulation (1) would have to be applied in its entirety. Accordingly the change of user under sub-regulation (6) read with clause (a)(iii) of sub-regulation (1) would have to be part of a package of measures recommended by BIFR. Further clause (a) of sub-regulation (1) only contemplates an existing structure and once the existing structure is demolished clause (a) can have no application whatsoever.As stated above the State Government intended to delete the requirement of a BIFR scheme vide Notification dated 8th January 2002 but the same was allowed to lapse. Instead the State Government issued the clarification dated 28th March 2003. 7) It is contended by the Respondents that the provisions of Sub-regulations (8) and (9) of DCR 58 indicate that Sub-regulation (6) contemplates a change of user. The Petitioners submit that the operation of sub-regulation (6) cannot be controlled by sub-regulations (8) and/or (9) in the absence of an express provision in this regard. A change of user under Sub-regulation (6) which is ex-facie absent therein cannot be introduced by an alleged indicator in Sub-regulation (8) or (9).Clause (a) of sub-regulation (8) provides that funds accruing inter alia from the utilisation of built up areas as per clause (a) of sub-Regulation (1) and as per clauses (a) and (b) of sub-Regulation (6) shall be credited to an escrow account. It is contended by the Respondents that the aforesaid implies sale of such built up area and that as it is unlikely that the sale of textile mills is contemplated it is an indicator that sub-regulation (6) contemplates a change of user from that of cotton textile mills. The Respondents contention overlooks the use of the word utilisation in relation to clauses (a) and (b) of sub-regulation (6) as contrasted with the word sale used elsewhere in the same provision.Accordingly the Petitioners submit that clause (a) of sub-regulation (8) contemplates inter alia inter alia inter alia that funds accruing from the running reconstructed cotton textile mills under sub-regulation (6) shall be credited to an escrow account to be utilised as provided in clause (b) of sub-regulation (8) and does not indicate that change of user is permissible under sub-regulation (6).It is clear that funds accruing from utilisation of the built up areas as per clause (a) of sub-Regulation (1) are also to be credited to an escrow account. This includes funds accruing from use of the existing structure for the same cotton textile or related user under clause (a)(i) of sub-Regulation (1). Hence it cannot be contended that clause (a) of sub-regulation (8) only contemplates funds accruing from sale of built up area and not funds accruing from a running cotton textile mill.The Respondents contend that the requirement under DCR 58(9)(c)(i) that the Monitoring Committee lay down guidelines for the transparent disposal by sale or otherwise of built up space open lands and balance FSI by the cotton textile mills indicates that sub-regulation (6) contemplates a change of user and sale of built up area. The Petitioners submit that the aforesaid requirement is to provide for regulation only where sale is contemplated and cannot be construed to impose a mandatory obligation for sale of all built up area open lands and balance FSI of cotton textile mills which allegedly indicates that change of user is permissible under sub-regulation (6). Accordingly the said guidelines will apply in relation to sub-regulation (6) only in the event that the reconstructed mill is proposed to be sold. 33. Mr. Chagla also contended that in addition the Petitioners’ above interpretation of the term Open lands in DCR 58(1)(b) is also in accord with the recommendations of the Ranjit Deshmukh Committee in this regard. The said Committee’s recommendations also contemplate sharing even of those lands which become vacant upon demolition of existing structures. As there was to be no reduction in land to become available for open spaces and public/mill workers’ housing the said Committee suggested that the modification be effected under Section 37 of the MRTP Act. 34. Mr. Chagla pointed out that in paragraph 5(f) of the affidavit of Shri Ramanand Tiwari dated 22nd March 2005 it is stated that DCR 58 was modified to give effect to a Cabinet decision dated 11th October 2000 approving the recommendations dated 6th July 2000 of a committee appointed on 27th March 2000 under the chairmanship of Shri Ranjit Deshmukh then Minister of Textiles. By an affidavit dated 10th August 2005 Shri Ramanand Tiwari had stated that I say that as stated in my earlier affidavit dated 22.3.2005 the State Government has culled out certain recommendations of the Correa Committee as also certain recommendations of the Ranjit Deshmukh Committee whilst coming to a conclusion the need of and thereafter incorporating suitable amendments to the said DCR 58. 35. It may be noted here that at 4:45 p.m. on the second day of the Petitioners’ arguments (17th August 2005) the learned Counsel for the State Government tendered a further affidavit of Shri Ramanand Tiwari dated 17th August 2005. This affidavit was filed purportedly to state that the Ranjit Deshmukh Committee’s recommendations on DCR 58(1)(b) were not accepted by the State Cabinet but that a contrary view of the Urban Development Department was accepted. Significantly though this issue was directly in controversy nowhere in the said affidavit does Shri Tiwari state that the Ranjit Deshmukh Committee’s recommendations on DCR 58(1)(b) were not accepted by the State Cabinet not does Shri Tiwari state that the view of the Urban Development Department was accepted. The State Government purports to rely on an ambiguous averment that DCR 58 in essence reflects the Cabinet decision and the same has been clarified vide our clarification dated March 28 2003. The said view of the Urban Development Department finds no mention whatsoever in the earlier affidavits of Shri Tiwari and the affidavit dated 17th August 2005 offers no explanation why such view was never referred to before.36. Mr. Chagla the learned Senior Counsel strongly contended that the State Government’s initial interpretation and understanding of the term Open lands under amended DCR 58(1)(b) was that Open lands included those lands which become open upon demolition of the existing structure(s). The orders of the BIFR dated 25th July 2002 pertaining to NTC (North) clearly record the State Government’s submission before the BIFR (at the hearing held on 28 February 2002 i.e. after the impugned amendment) that the sale of the NTC mill lands in the State of Maharashtra would have to be in accordance with the DCR 58 which required that two-thirds of the surplus land be reserved and made available for open spaces and low income housing as was the case under the original DCR 58. It is clear from the said order read with the sanctioned scheme that the term surplus land meant all land not required for running of the textile mill whether presently built-upon or not. Further it was subject to this division of mill lands of NTC that the BIFR sanctioned the schemes. Thus the State Government initially construed and understood the term Open lands as including those lands which become open upon demolition of the existing structure(s). Hence it is clear that even 18 months after the amendment to DCR 58 was effected the State Government’s understanding (in July 2002) of amended DCR 58 was vastly different from the interpretation it propounded later. 37. Mr. Chagla points out that the State Government and the contesting Respondents now contend that the term Open lands in DCR 58(1)(b) is restricted to the existing open lands appurtenant to the existing structures and doe snot include land which becomes open or vacant upon demolition of existing structures. The effect of construing the term Open lands in this manner is that by reason of the amendment land to be surrendered to MCGM is reduced from 200 acres (under original DCR 58) to a mere 32 acres; and land to be surrendered to MHADA is reduced from 162/222 acres (under original DCR 58) to a mere 25 acres. i) Such a construction of the term Open lands is contrary to the plain meaning thereof and is otherwise untenable and would not be accepted by this Hon’ble Court.ii) The amendment so construed changes the character of the development plan and renders the amendment beyond the scope and ambit of Section 37 of the MRTP Act (as set out hereunder) and ultra vires the said provision.iii) The amendment so construed is also contrary to the legislative policy of the MRTP Act and is ultra vires the provisions of the said Act.iv) The amendment so construed is also contrary to and violative of Articles 21 and 48A of the Constitution as also the environment law of the country (as set out hereinabove).v) The amendment so construed will have to be struck down by this Hon’ble Court. 38. Mr. Chagla the learned Senior Counsel submitted that the Petitioners’ interpretation of amended DCR 58 which inter alia commends the plain meaning of the term Open lands (as set out hereinabove) is the only reasonable and sustainable interpretation thereof. Notwithstanding the aforesaid it is submitted that where more than one interpretation of a provision is canvassed the Court will prefer the interpretation which is intra vires harmonious with the legislative policy the Directive Principles of State Policy international treaties and which is not ultra vires the provisions of the Constitution. The Court will adopt the interpretation which is more reasonable and just and will not construe such provision in a manner which defeats its manifest purpose. 39. In this context the learned counsel relied on B.P. Khemka Pvt. Ltd. v. Birendra K.Bhowmick - (1987) 2 SCC 407 wherein the Hon’ble Supreme Court quoted with approval the following passage from its judgment in Madhav Rao Scindia v. Union of India- (1971) 1 SCC 85:-The court will interpret a statute as far as possible agreeably to justice and reason and that in case of two or more interpretations one which is more reasonable and just will be adopted for there is always a presumption against the law maker intending injustice and unreason ... The provision in a statute will not be construed to defeat its manifest purpose and general values which animate its structure. It is submitted that keeping in mind the above principles the interpretation of DCR 58 as canvassed by the Petitioners is the only reasonable just and sustainable interpretation and must therefore be accepted by this Court.40. Mr. Chagla then referred to D.S. Nakara v. Union of India - (1983) 1 SCC 305 wherein a Constitution Bench while reading down the provisions of the impugned memoranda excluded the words who were in service on March 31 1979 and retiring from service on or after that date occurring therein in order to uphold the constitutional validity of the impugned memoranda. In paragraph 59 of the judgment the Court observed as follows: In reading down the memoranda is this Court legislating? Of course ‘not’. When we delete (sic) basis of classification as violative of Article 14 we merely set at naught the unconstitutional portion retaining the constitutional portion. 41. Similarly in Ahmedabad Municipal Corpn v. Nilaybhai R. Thakore (1999) 8 SCC 139 at paragraphs 10 and 14 the Hon’ble Supreme Court read the words includes a permanent resident of the Ahmedabad Municipality who acquires the above qualifications from any of the high schools or colleges situated within the Ahmedabad Urban Development Area into the impugned rule in order to save the same from offending Article 14. The Court did so with a view to iron out the creases in the impugned rule which offends Article 14. The Court relied on the famous and oft-quoted principle relied on by Lord Denning in the case of Seaford Court Estates Ltd. v. Asher (1949) 2 All ER 155 (CA) wherein Lord Denning held When a defect appears a Judge cannot simply fold his hands and blame the draftsman. He mush set to work on the constructive task of finding the intention of the Parliament and then he must supplement the written word so as to give ‘force and life’ to the intention of the legislature. A Judge should ask himself the question how if the makers of the Act had themselves come across this ruck in the texture of it they would have straightened it out? He must then do as they would have done. A Judge must not alter the material of which the Act is woven but he can and should iron out the creases. 42. Mr. Chagla contended that ex-facie the purported clarification dated 28th March’ 2003 is clearly illegal and bad for the following reasons:-On 28th August 2001 the Municipal Commissioner wrote to the State Government seeking a clarification inter alia regarding the interpretation of DCR 58(1)(b). It was not till eighteen months later that by an Order dated 28th March 2003 in response to the Municipal Commissioner’s aforesaid letter that State Government issued a purported ‘clarification’ to amended DCR 58.The said purported clarification was never published notified or publicized. The State Government ‘clarified’ that lands which became open upon demolition of existing structures were not to be taken into account for sharing between MCGM MHADA and the owner thereby radically departing from its own initial understanding and interpretation of the term Open lands. Such lands are sought to be excluded from the requirement of sharing by providing that sub-regulation (6) is to be read with sub-regulation (1)(a)(iii). As stated above this is impermissible and would amount to an amendment of amended DCR 58. 43. Mr. Chagla also alternatively contended that in the event that this Court accepts the Petitioners’ contention that the term Open lands in amended DCR 58(1)(b) is to be given its plain unrestricted meaning then the clarification (which purports to exclude lands becoming open upon demolition of existing structures) amounts to a further amendment of amended DCR 58(1)(b). In the above circumstances the clarification would result in a substantial reduction in the land to be surrendered to MCGM for open spaces and to MHADA for public/mill workers’ housing. As stated by Counsel for NTC the total area covered by existing structures in NTC mills alone is 111 acres. This vast area would not be required to be shared with MCGM and MHADA. Accordingly the clarification would be liable to be struck down as:i) being an amendment to amended DCR 58 and ultra vires DCR 62(3)ii) without authority of law having by-passed the discipline of the MRTP Act (viz. publication of any modification and inviting suggestions and objections) and ultra vires the provisions of the said Act. iii) being prejudicial to the environment and ultra vires Articles 21 and 48A of the Constitution and the environment law of the country.44. Mr. Chagla then contended that in the event that this Court accepts the State Government’s contention that Open lands in amended DCR 58(1)(b) is restricted to existing open lands appurtenant to existing structures the clarification amounts to an amendment thereof. According to the clarification Open lands does not even mean existing open lands but the area to be worked out by deducting the land component at FSI 1.33 in city and 1.00 in suburbs required for existing built up from total plot area. The effect of the same is evident from the layouts relied on by the State Government which are stated to be approved by the State Government.In the case of MILL-1 by deducting the existing plinth area (22 950.58 sq.m.) from the plot area (47 730.28 sq. m.) the existing open land amounts to 24 779.70 sq. m. According to the clarification the open land is 12 298.99 sq. m. (less than half the existing open land). MCGM’s 33% share is reduced from 8 177.30 sq.m. to 4 058.67 sq.m. and MHADA’s 27% share is reduced from 6 690.50 sq.m. to 3 320.72 sq.m. On the Petitioners’ interpretation of the term Open lands MCGM would be entitled to 19 921.25 sq.m. and MHADA would be entitled to 15 783.75 sq.m.Thus if the quantum of existing built up area consumes an FSI of 1.33 or more on the plot area then no land would have to be shared regardless of the amount of existing open land. Accordingly the clarification is liable to be struck down as:a) being an amendment to amended DCR 58 and ultra vires DCR 62(3) b) without authority of law having by-passed the discipline of the MRTP Act (viz. publication of any modification and inviting suggestions and objections) and ultra vires the provisions of the said Act c) contrary to the legislative policy of the MRTP Act and ultra vires the provisions thereof d) being prejudicial to the environment and ultra vires Articles 21 and 48A of the Constitution and the environment law of the country.45. Mr. Chagla then strongly contended that the purported clarification went further and without the authority of law sought to further amend/modify DCR 58. Under original DCR 58 as also amended DCR 58 residential user is only permitted under sub-regulation 58(1)(b) on the portion of the land retained by the owner after surrendering the prescribed areas for public open spaces and public housing. The purported clarification issued under DCR 62(3) seeks to supersede amended DCR 58 by permitting residential user to the extent of the existing built-up area under DCR 58(1)(a)(iii) viz without surrendering any land for public open spaces and public housing. Permitting residential user as aforesaid is contrary even to amended DCR 58 and amounts to a modification thereof and not a clarification. By purporting to allow residential user without the corresponding surrender of land for public open spaces and public housing under sub-regulation 58(1)(b) the purported clarification has substantially reduced the quantity of land which would have become available for public open spaces and public housing. From the Affidavits now filed in this Hon’ble Court by the mill owners and developers it is clear that a significant amount of the total mill land is proposed to be used for residential user and consequently a significant amount of land would have to be surrendered under sub-regulation 58(1)(b) for public open spaces and public housing . Accordingly the clarification is liable to be struck down as:i) being an amendment to amended DCR 58 and ultra vires DCR 62(3)ii) without authority of law having by-passed the discipline of the MRTP Act (viz. publication of any modification and inviting suggestions and objections) and ultra vires the provisions of the said Act iii) contrary to the legislative policy of the MRTP Act and ultra vires the provisions thereof iv) being prejudicial to the environment and ultra vires Articles 21 and 48A of the Constitution and the environment law of the country.46. The learned Senior Counsel then pointed out that in some of the Affidavits in Reply to the Petition filed by mill owners it has been alleged that the purported clarification does not seek to permit residential user under amended DCR 58(1)(a)(iii) but presupposes that such user is already permitted. Reliance is placed on an order dated 10th April 2001 issued by the State Government purportedly clarifying that the term commercial purposes in DCR 58(1)(a)(iii) includes all users permissible in a residential or commercial zone. A copy of the said order dated 10th April 2001 which was never published or notified has been brought on record for the first time in June 2005 after the Petitioners filed Chamber Summons No. 128 of 2005 to amend the Petition inter alia to impugn the purported clarification of 28th March 2003. The DCRs being framed under a town planning statute commercial purpose/user would necessarily be distinct from and would not include residential or industrial user; and to introduce residential user under DCR 58(1)(a)(iii) would amount to an amendment of the said provision. To accept the mill owners’ submission that commercial purposes includes residential user would amount to accepting that the said term includes any and all types of user so lang as the motive is commercial i.e. the property is to be disposed of for consideration and not gratis. This would be contrary to the most basic principles of town planning. The said order dated 10th April 2001 if construed as permitting residential user under DCR 58(1)(a)(iii) would amount to a further amendment of amended DCR 58 and would suffer from the same vice and would be liable to be struck down on the same grounds as the purported clarification dated 28th March 2003. 47. Mr. Chagla the learned counsel submitted that if the interpretation of Open lands in the amended DCR 58 as sought to be contended by the State Government and Mill owners were to be accepted then it would amount to change of character of the Development Plan; and contrary to Section 37 of the MRTP Act. Section 37 of the MRTP Act provides as follows:37. Modification of final Development Plan (1) Where a modification of any part of or any proposal made in a final Development plan is of such a nature that it will not change the character of such Development plan the Planning Authority may or when so directed by the State Government shall within sixty days from the date of such direction publish a notice in the official gazette and in such other manner as maybe determined by it inviting objections and suggestions from any person with respect to the proposed modification not later than one month from the date of such notice; and shall also serve notice on all persons affected by the proposed modification and after giving a hearing to any such persons submit the proposed modification (with amendments if any) to the State Government for sanction. (1-A) If the Planning Authority fails to issue the notice as directed by the State Government the State Government shall issue the notice and thereupon the provisions of sub-section (1) shall apply as they apply in relation to a notice to be published by a Planning Authority. (1-AA)(a) Notwithstanding anything contained in sub-sections (1) (1A) and (2) where the State Government is satisfied that in the Public Interest it is necessary to carry out urgently a modification of any part of or any proposal made in a final Development plan of such a nature that it will not change the character of such Development plan the State Government may on its own publish a notice in the official gazette and in such other manner as maybe determined by it inviting objections and suggestions from any person with respect to the proposed modification not later than one month from the date of such notice and shall also serve notice on all persons affected by the proposed modification and the Planning Authority. (b) The State Government shall after the specified period forward a copy of all such objections and suggestions to the Planning Authority for its consideration. The Planning Authority shall thereupon submit its say to the Government within a period of one month from the receipt of the copies of such objections and suggestions from the Government. (c) The State Government shall after giving hearing to the affected persons and the Planning Authority and after making such inquiry as it may consider necessary and consulting the Director of Town Planning by notification in the official gazette publish the approved modification with or without changes and subject to such conditions as it may deem fit or may decide not to carry out such modification. On the publication of the modification in the official gazette the final Development plan shall be deemed to have been modified accordingly. (1-B) Notwithstanding anything contained in sub-section (1) if the Slum Rehabilitation Authority appointed under section 3A of the Maharashtra Slum Areas (Improvement Clearance and Redevelopment) Act 1971 is satisfied that a modification of any part of or any proposal made in a Final Development Plan is required to be made for implementation of the Slum Rehabilitation Scheme declared under the said Act then it may publish a notice in the official gazette and in such other manner as maybe determined by it inviting objections and suggestions from any person with respect to the proposed modification not later than one month from the date of such notice; and shall also serve notice on all persons affected by the proposed modification and after giving hearing to any such persons submit the proposed modifications (with amendments if any) to the State Government to sanction. (2) The Government may make such enquiry as it may consider necessary and after consulting the Director of Town Planning by notification in the official gazette sanction the modification with or without such changes and subject to such conditions as it may deem fit or refuse to accord sanction. If a modification is sanctioned the final Development plan shall be deemed to have been modified accordingly.Prior to 17th August 1994 the heading of the above Section read as Minor Modification of final Development Plan. However the substantive provision as to the nature of the modification permitted in a final development plan remained unchanged. Sub-section (1-AA) was introduced on 9th October 2000 by an ordinance promulgated by the Governor of Maharashtra.48. The learned counsel submitted that once a development plan has been sanctioned under Section 31 of the MRTP Act the only modifications permitted thereto under Section 37 are minor modifications which will not change the character of the development plan. Any modification which is not minor and within the limits of the development plan is not permissible in a sanctioned development plan. Modifications of such nature to a sanctioned development plan can only be made by a revision of the development plan under Section 38 of the Act or by resort to Section 33 which provides preparation of plans for an area or areas of comprehensive development.49. Mr. Chagla relied on Pune Municipal Coprn. v. Promoters and Builders Assn. - (2004) 10 SCC 796 wherein at paragraph 4 the Hon’ble Supreme Court considered the scope and ambit of Section 37 of the MRTP Act including the ambit of the State Government’s power to make changes under sub-section (2) thereof. While construing sub-section (1) the Hon’ble Supreme Court held that The main limitation for the Government is made under clause (1) that no authority can propose an amendment so as to change the basic character of the development plan. The proposed amendment could only be minor within the limits of the development plan. And for such minor changes it is only normal for the Government to exercise a wide discretion by keeping various relevant factors in mind (emphasis supplied). From the judgment it is clear that the Hon’ble Supreme Court considered Section 37 after the omission of the word minor from the heading thereof but nevertheless came to the conclusion that only minor modifications which do not change the character of the development plan are permissible thereunder.50. The learned counsel also referred to Balakrishna H. Sawant v. Sangli Miraj & Kupwad City Municipal Corpn. - (2005) 3 SCC 61 wherein at paragraph 4 the Hon’ble Supreme Court noted that Under the Maharashtra Regional and Two Planning Act 1966 a modification of the final development plan of a minor nature can be made by the planning authority. (emphasis supplied). 51. The learned counsel also referred to M.A. Panshikar v. State of Maharashtra - (2002 (5) Bom. C.R. 318 wherein at paragraph 47 a Division Bench of this Court considered inter alia whether an increase in permissible F.S.I. in certain cases of re-construction/re-development was a permissible modification under Section 37 to the sanctioned development plan. The Court was of the view that such modification was permissible and held that Since the benefit of increased F.S.I. will be available only to a very few structures it cannot be said that the grant of additional F.S.I. limited to only such structures changes the character of the plan (emphasis supplied). Thus it is clear that any modification unless it is very limited in its applicability would change the character of the development plan and would be impermissible under Section 37. The effect of construing the term Open lands in DCR 58(1)(b) to mean only existing open lands appurtenant to existing structures is that the land to be surrendered to MCGM is reduced from 200 acres (under original DCR 58) to a mere 32 acres; and land to be surrendered to MHADA is reduced from 162/222 acres (under original DCR 58) to a mere 25 acres. The substantial reduction is not a minor modification within the limits of the development plan and is one therefore that changes the character of the development plan and renders the amendment beyond the scope and ambit of Section 37 and ultra vires the said provision.52. Mr. Chagla submitted that if the interpretation of State Government and Mill owners were to be accepted then there would be a substantial reduction in the area of open spaces and Public Mill Workers housing as under:-(a) From the above it is clear that while ostensibly retaining unchanged the inter-se allocation rations for (i) open spaces; (ii) mass housing and (iii) commercial and residential development the total area available for such inter-se allocation has been substantially reduced.(b) It is impossible to overstate the importance of public open spaces in the overpopulated city of Mumbai or for that matter the need for low income housing. The Petitioners verily believe that the area which would have become available for public open spaces under original DCR 58 has been reduced to a mere 32 acres from approximately 200 acres and the area which would have become available for affordable housing under original DCR 58 has been reduced to a mere 25 acres from 162-222 acres.(c) The substantial reduction in the area for open spaces and affordable housing has been brought to the attention of the State Government by a letter dated 24th July 2003 (Ex J to the Petition page 187) (viz. post-clarification) addressed by the Vice President and CEO of MHADA (the authority responsible for providing affordable housing) stating that the amendment to DCr 58.has resulted into tremendous loss to MHADA as very little area is left after deducting the built up area from the total area of the mill lands The said letter also expressed an apprehension that private mill owners are likely to manipulate the position to show a higher built up area in order to leave a smaller component to be shared with MCGM and MHADA.(d) The substantial reduction in areas for open spaces has been recognised by the MCGM (which is also the Planning Authority for the city of Mumbai) vide a Notice of Motion dated 27th August 2003 (Ex I to the Petition at page 185) (viz. post-clarification) moved in the Corporation and passed on 9th October 2003. The said Notice of Motion records the open space available in Mumbai is only 0.03 acres per 1000 population as opposed to 3-4 acres per 1000 population in other cities like Delhi Kolkata and Chennai. The said Notice of Motion records that the Corporation is of the considered opinion that the State Government be requested to revoke the amendment to DCr 58 restore the original provision and if feasible revoke permissions which were granted to textile mills after amending DCR 58. (e) The above objection of the MCGM has been raised consistent with the duties of the MCGM under the Mumbai Municipal Corporation Act 1888. Section 61 of the said Act provides that It shall be incumbent on the corporation to make adequate provision by any means or measures which it is lawfully competent to them to use or to take for each of the following matters namely:-...(aa) planning for economic and social development;(ab) urban forestry protection of environment and promotion of ecological aspects;...Section 63 of the said Act provides that The Corporation may in their discretion provide from time to time either wholly or partly for all or any of the following matters namely:-...(d) the laying out or the maintenance of public parks gardens or recreation grounds;...Section 63B of the Act provides that the The Commissioner shall before the 31st day of July every year place before the Corporation a report on the status of the environment within Brihan Mumbai in respect of the last preceding financial year covering such matters and in such manner as may be specified by the State Government from time to time. (f) Further the State Government itself has stated in its said affidavit dated 22nd March 2005 that the planning norm for open spaces in Mumbai in the development plan is 0.2 hectare (approximately 0.5 acre) per 1000 population. As aforesaid Mumbai has open spaces of only 0.03 acre (or less) per 1000 population viz. a mere 6% of the open space as required by the said planning norms. (g) By a Government Resolution dated 25th January 2005 (Ex F to the Petition page 175) the State Government stated that under amended DCR 58—the lands after demolition of the existing structure would not become available for sharing due to which are available for sharing for MCGM and MHADA gets substantially reduced as compared to that which would have been otherwise available under original Regulation No. 58 (emphasis supplied). (h) Expressly recognising the substantial reduction in land which would become available under amended DCR 58 for open spaces and affordable housing the State Government appointed a study group headed by Shri Deepak Parkeh (Chairman HDFC) to—(i) examine the feasibility of an integrated development plan of mill lands; and(ii) study the existing DCR and suggest ways so that enough land is made available for open use/public housing without jeopardising workers/financial institutions interests.(i) The Resolution further stated that-- After examining the report of Study Group Government shall take appropriate decision to amend the Regulation 58 if necessary after following due process of law .(j) However notwithstanding the express admission of the substantial prejudicial impact of amended DCR 58 the State Government chose not to freeze development pending the report of the said Study Group. This was in direct contrast to the State Government’s action in 1996 when while appointing the Correa Study Group the State Government froze all development on mill lands till such time as the Correa Study Group’s recommendations were acted on. This freeze on development continued for as long as five years from 1996 till 2001 although the said recommendations of the Correa Study Group were never acted on. (k) It has now become clear why despite the aforesaid precedent the State Government chose not to freeze development on mill lands while appointing the Deepak Parekh Study Group: on 4th May 2005 during the course of arguments in the Hon’ble Supreme Court of India at the hearing of Special leave Petitions filed against this Court’s orders of 1st April 2005 the State Government made a statement to the Court that it was not extending the Deepak Parekh Study Group’s term which expired on 25 April 2005. The learned counsel submitted that the appointment of the Deepak Parekh Study Group was a mere eyewash. The real intention was to stifle public criticism of the State Government’s complete abandonment of all considerations of public interest balanced development town planning environmental considerations regarding open/green space desperately required by the city in relation to the mill lands while allowing development to continue unabated under the impugned DCR.53. Mr. Chagla the learned Senior Counsel contended that the sale of lands by National Textile Corporation are contrary to Supreme Court orders for the following reasons:-(a) As regards NTC-MN and NTC-SM the order of the Hon’ble Supreme Court dated 11th May 2005 reads thus:So far as transactions relating to the seven mills belonging to the National Textile Corporation are concerned including sale of Jupiter Mills it is not in dispute that transactions have reached a final stage. The purchasers of Jupiter Mills have already paid Rs.16crores and a sum of Rs.376crores would pass hands if the transaction is completed. If the transactions in respect of the mills are not allowed to be completed the scheme the scheme the scheme framed by the BIFR would come to a standstill resulting in accrual of interest payable by the National Textile Corporation to the financial institutions besides other hardships which may be caused to various other persons including the workers. We therefore having regard to the facts and circumstances of this case as also the law operating in the field are of the opinion that interest of justice would be sub-served if the National Textile Corporation is permitted to complete the transactions in terms of the scheme framed by the BIFR but the same shall be subject to the conditions that in the event the writ petition ultimately succeeds the vacant land available from other mills if necessary shall be offered by way of adjustment. (emphasis supplied)(b) The said order dated 11th May 2005 clearly requires that every sale after the said order (i.e. excluding the sale of Jupiter Mills which occurred prior to the said Order) by the MTC-MN and NTC-SM would be only in terms of the scheme framed by the BIFR. NTC-MN and NTC-SM had earlier relied on an order dated 27th September 2002 of the Hon’ble Supreme Court directing that the BIFR Scheme be implemented. Thus the sale of Jupiter Mills also was required to be only in terms of the scheme framed by the BIFR.(c) The sale of Jupiter Mills does not appear to be in terms of the scheme framed by the BIFR. Further it appears that contrary to the said orders since 11th May 2005 NTC-MN and NTC-SM have sold four Mills (Apollo Textile Mills (SM) Mumbai Textile Mills (SM) Elphinstone Mills (SM) and Kohinoor Mill No. 3 (MN) by tender process. Every one of these sales appears to be contrary to the sanctioned scheme framed by the BIFR and is thus violative of the order of the Hon’ble Supreme Court.(d) Case No. 505 of 1993 before the BIFR pertained to NTC-SM. At that time NTC-SM was administrating 17 mills 12 of which were/are in Mumbai. A draft rehabilitation scheme was circulated by the BIFR on 23rd October 2001 after considering the proposals of IDBI the Operating Agency appointed by the BIFR. Suggestions and objections were heard on 28th February 2002. After these hearings the BIFR noticed that the Government of Maharashtra had not given clearance to sell the surplus lands of the mills. The Government stated that one third of the land (viz. the surplus land) had to be given to the BMC one third to MHADA not only the balance one-third could be sold by NTC-SM. This is specifically noted in terms in para 13 of the BIFR order dated 25th July 2005 in respect of NTC-SM and paragraph 1.15 of the sanctioned rehabilitation scheme. A similar scheme was sanctioned by the BIFR in respect of NTC-MN by another order also dated 25th July 2002 in Case No. 536/92. A computation of the surplus land and its value is set out in Table C to the sanctioned Rehabilitation Scheme of NTC-SM captioned Mill wise details of surplus land and its estimated valuation and under a similar caption in Table D to the sanctioned Rehabilitation Scheme of NTC-MN. (e) The aforementioned submission by the Government of Maharashtra was made after the impugned amendment to DCR 58 on 20th March 2001; but before the clarification issued by the Government of Maharashtra on 28th March 2003. In other words even after the impugned amendment of 2001 the Government of Maharashtra and the BIFR were of the view that the surrender of the said 1/3rd share of land to the BMC and MHADA respectively was to be out of the total land not required for textile purposes which was to be sold including land on which structures existed. The said land was termed surplus land. It was not the understanding of the State Government and/or the BIFR that surplus land meant only that land upon which no structures existed. Indeed the BIFR order sanctioning the rehabilitation scheme makes it clear that despite requests from the BIFR the Government of Maharashtra maintained its abovementioned stand. Accordingly the rehabilitation schemes were sanctioned on 25th July 2002 on the basis that out of the surplus land one third was to be surrendered to the BMC and one third to MHADA.(f) That the entire surplus land including land under existing structures is to be shared with MCGM and MHADA is also clear from the draft rehabilitation schemes (DRS) in respect of NTC-MN and NTC-SM prepared by IDBI (the Operating Agency) copies of which are annexed to the affidavit dated 12th September 2005 of Deodatt B. Pandit filed by NTC pursuant to the order passed by this Hon’ble Court dated 5th September 2005. In the DRS in respect of NTC-MN paragraph (d) (page 37 of the affidavit) states that:The Mumbai mills are located in prime locations (Dadar and Parel). NTC (MN) proposes to dispose off the surplus land and other assets available with the mills proposed for revival and all assets of the mills proposed for closure. The Government of Maharashtra has since modified the Regulation 58 of Development Control Regulations of Greater Mumbai 1991 under Section 37 of the Maharashtra Regional Town Planning Act 1966 that would facilitate sale of land of textile mills of NTC (MN) Ltd. As per the modified regulations NTC is allowed to use the surplus land as under: 1) 33% of the land would be allowed to be utilised by the NTC for residential/commercial purposes. 2) 33% to be surrendered to Bombay Municipal Corporation against which equal FSI would be given to NTC in city at the location of the Mill where the land is surrendered. 3) 34% to be surrendered to MHADA against which Transferable Development Rights (TDR) would be given to NTC in suburbs.b) With these modifications NTC (MN) is expected to realise approximately 72% of the total value of land calculated on the basis of the rates recorded with the Registration Department Govt. of Maharashtra.c) The details of the total land surplus land available for sale and valuation of land is given at Table-D (at for page 33). Table D (at page 49 of the said affidavit) is identical to Table D of the sanctioned scheme. A similar paragraph (d) (page 76 of the said affidavit) is contained in the DRS in respect of NTC-SM. Table C (at page 87 of the said affidavit) in the DRS in respect of NTC-SM is identical to Table C of the sanctioned scheme. (g) In the case of Jupiter Mills (NTC-SM) Table C notes that the entire 10.91 acres i.e. approximately 44 149.72 sq. mtrs. (i.e. 10.91 Acres) of Jupiter Mills lands is surplus land. Therefore in terms of the sanctioned rehabilitation scheme the entire land of Jupiter Mills would have to be divided into three equal lots one-third each to BMC MHADA and NTC-SM. However instead of receiving approximately 14 716.57 sq. mtrs. (3.64 Acres) of land each in terms of the tender document the BMC is to receive a mere 1 484.75 sq. mtrs. (0.37 Acres) and MHADA is to receive a mere 1 664.72 sq. mtrs (0.41 Acres). Even this limited area is to be surrendered on the land of other mills of NTC-SM and not Jupiter Mills. The reduction in surrender of land to MCGM and MHADA in respect of the sales of surplus land of Apollo Textile Mills (SM) Mumbai Textile Mills (SM) Elphinstone Mills (SM) and Kohinoor Mill No. 3 (MN) contrary to the sanctioned scheme is set out in the Petitioners’ affidavit dated 12th July 2005.(h) The sanctioned scheme of the BIFR clearly provides that the surrender of land to MCGM and MHADA in respect of each mill shall be out of the land of such mill itself and not out of the land of some other mill. Thus the integrated scheme in respect of 7 mills approved by MCGM on 27th October 2004 (which provides for aggregation of land to be surrendered to MCGM and MHADA in respect of the five mills sold on two other mills) is contrary to the sanctioned scheme which clearly does not contemplate any such integration. (i) In paragraph 5 of the affidavit dated 12th September 2005 filed by NTC it is expressly admitted that the integrated development scheme submitted to MCGM is a modification of the sanctioned scheme of BIFR. It is stated that a proposal for modification of the sanctioned scheme has been made to BIFR about a year ago. It is submitted by the Petitioners that this application for sanction of the BIFR to such modifications was made in view of the direction of the Supreme Court dated 27th September 2002 Let the scheme as sanctioned by BIFR be implemented. It is stated in the said affidavit of NTC that The sanction of BIFR is awaited and Respondent Nos. 3 and 4 will implement the same after approval of BIFR. However contrary to the aforesaid statement and in breach of the orders of the Hon’ble Supreme Court NTC has sold five mills under the integrated development scheme approved by MCGM without the approval of the BIFR to the modifications in the sanctioned scheme. (j) It is submitted that the aforementioned sales are not in terms of the sanctioned rehabilitation scheme of the BIFR and are therefore illegal and void. It is submitted that in view of the aforesaid the above sales are liable to be set aside. 54. Mr. Chagla pointed out that none of the Respondents who have started construction of residential/commercial premises have obtained the mandatory clearance from the Ministry of Environment and Forests prior to starting any development:-(a) By the present Writ Petition the Petitioners are also seeking to enforce compliance with a notification dated 27th January 1994 (as amended on 7th July 2004) issued by the Ministry of Environment and Forests (MoEF) under the provisions of the Environment Protection Act 1986 and the rules thereunder. The said Notification dated 27th January 1994 (Exhibit L-2 to the Petition page 192B) directed that on and from the aforesaid date no new project or expansion or modernization of any activity (if the pollution load is to exceed the existing load) listed in Schedule I to the said notification shall be undertaken in any part of India unless it has been accorded environmental clearance by the MoEF in accordance with the procedure prescribed in the said notification. The said notification inter alia requires an application to be made accompanied by a project report which shall include an Environmental Impact Assessment Report Environmental Management Plan and details of public hearing as specified in Schedule IV to the said notification. Clause 3 of the said notification contains the exemptions from the applicability of the said notification. The said notification dated 27th January 1994 was amended from time to time. The MoEF issued a further notification dated 7th July 2004 marking certain amendments in the original notification dated 27th January 1994. These amendments inter alia included the introduction of New construction projects as item no. 31 in Schedule I to the original notification. Under this amendment new townships industrial townships settlement colonies commercial complexes hotel complexes hospitals industrial estates and office complexes for 1 000 persons or more or discharging sewage of 50 thousand litres per day or more with an investment of Rs. 50 crore or more would be required to obtain environmental clearance from Central Government as required under EIA Notification 1994. It was also clarified that all new construction projects where construction work had not come up to plinth level as on 7th July 2004 would require clearance under the notification. Annexed to the Petition is a copy of the Press Note issued by the MoEF regarding the aforesaid Notifications (Exhibit L-1 to the Petition) (b) It became apparent during the hearing of the above Petition that despite the publicity given by the Maharashtra Pollution Control Board (MPCB) to the EIA Notification not a single application was made for clearance until after the issue was raised in the Petition. Even thereafter only 5 applications for clearance have been received by MPCB in respect of development in the mill lands. MCGM did not concern itself with compliance with the EIA Notification when granting development permissions. (c) The said notification dated 27th January 1994 (as amended on 7th July 2004) is applicable to most if not all of the development/re-development projects in respect of the mill lands. The investment in such construction projects which would include the cost of land would almost certainly exceed Rs. 50 crores and the other parameters stipulated in the notification would also be exceeded. By an affidavit of Petitioner No. 2 dated 14th march 2005 the Petitioners sought details of compliance with the said notification (including holding of public hearings) in respect of the development/re-development of the mill lands. (d) The MoEF has written as recently as 16th June 2005 to the Chief Secretary of the Maharashtra Government asking for a report of compliance with the EIA Notification in respect of the mill lands. By that letter the MoEF stated that it is apparent that the development of such prime urban lands will have serious implications on the provision of community facilities open spaces transport networks and infrastructural services. It is stated that some of these constructions have already commenced. The MoEF pointed out that some 15 textile mills are proposing to take up large communication from the MoEF to the Government of Maharashtra drawing attention to the EIA Notification of 7th July 2004 said this Notification would also cover construction projects which were undertaken without obtaining environment clearance under this notification where construction work has not reached upto plinth level on the date of notification. The MoEF asked to be informed of the actions proposed to be taken by the State Government for compliance of EIA Notification and requested a reply within a fortnight. The State Government has stated in its affidavit dated 10th August 2005 that it has replied to the MoEF by a letter dated 17th June 2005. (e) It is only pursuant to the directions of this Court during the hearing of the Petition that the MPCB initiated action regarding compliance with the EIA Notification and filed a report to this Hon’ble Court.(f) No project to which the EIA Notification applies can be commenced or continued without obtaining environmental clearance thereunder (including holding of public hearings). The EIA Notification is founded on the principles of sustainable development and public participation in the planning process and has been issued in the public interest and the interest of the environment. Any violation of the said notification would be contrary to public interest would amount to an illegality and a violation of the Petitioners’ rights under Article 21 of the Constitution. The MoEF and the MPCB must enforce compliance with the EIA Notification.The importance of environment impact assessment reports has been recognised by the Hon’ble Supreme Court in T.N. Godavarman Thirumalpad v. Union of India - (2002) SCC 606 wherein at paragraph 36 the Court stated:36. In this background the environment impact assessment reports are of great importance. The Council of European Economic Committee in their directive to the member States highlighted objectives of such assessments as follows: The effect of a project on the environment must be assessed in order to take action of the concerns to protect human health to contribute by means of a better environment to the quality of life to ensure maintenance of the diversity of species and to maintain the reproductive capacity of the ecosystem as a basic resource of life. 55. Mr. Chagla strongly submitted that the present Petition ought not to be dismissed on the ground of delay and laches on the following grounds:-a) The effect of the impugned amendment and the manner in which amended DCR 58 was being operated/interpreted were not apparent till very recently. It is obvious that the position was not even clear to the authorities in that the MCGM was required to seek a clarification that was ultimately given in March 2003 even the State Government’s understanding of amended DCR 58 vastly differed from the interpretation propounded later. As stated above the MCGM and MHADA protested against the impugned amendment only in late 2003.b) For the first time the substantial reduction in areas for open spaces and public housing was expressly acknowledged by the State Government only as recently as 25th January 2005 in its resolution of that date. c) From the affidavit dated 11th March 2005 filed by MCGM in Notice of Motion No. 111 of 2005 in this Writ Petition it is clear that from the date of the impugned amendment (20th March 2001) till the date of the purported clarification (28th March 2003) except in the case of New Great Eastern Spinning & Weaving and Phoenix Mills no layout in respect of any mill land was sanctioned under amended DCR 58. Further the purported clarification dated 28th March 2003 was never published or notified.d) Most importantly no permissions have been obtained from the MoEF under the EIA Notification. No development could commence without such prior clearance. All construction undertaken without such clearance is wholly unauthorised and illegal. e) Astonishingly the State has in its affidavit dated 22nd March 2005 stated that a challenge to amended DCR 58 (as clarified) would upset vested interests and third party rights. The State in a brazen attempt to plead equities on behalf of the private developers has taken a stand on Affidavit that is not borne out by the facts on record. The alleged equities pleaded by the mill owners have been dealt with in the Affidavits in Rejoinder filed by the Petitioners. It is submitted that the alleged equities pleaded by the mill owners (summarised in the form of a Table tendered by Counsel for Respondent No.11 - Bombay Dyeing) cannot be accepted as the same have deliberately not been co-related to amended DCR 58. According to the said Table Respondent No. 9 (Morarjee Realties) has paid Rs.150.95 crores towards VRS payments pursuant to amended DCR 58. However in its affidavit Respondent No. 9 has stated that the said sum has been paid between 1995 and 2004. Thus even payments made in the years 1995 to 2000 are alleged to have been paid pursuant to amended DCR 58. Relevant details have not been provided but only large amounts are mentioned in an effort to overawe this Court. f) In any event under the order of 11th May 2005 of the Hon’ble Supreme Court the Court has ordered that any further constructions and/or creation of third party rights by the mill owners will be at their own risk wherefor they would not claim any equity whatsoever and furthermore the same shall be subject to the orders of the Court. g) This Petition is filed bona fide in the public interest. Other prominent public-spirited citizens organisations such as AGNI and Citispace have on their application been joined in the said Writ Petition in support of the Petitioners therein. Although some of the Respondents in affidavits filed by them alleged malafides on the part of the Petitioners no such argument was made at the hearing of the Petition. In any event the said allegations have been dealt with in the affidavits filed by the Petitioners. h) The fact that the Petitioners did not file any objections/suggestions at the time the impugned amendment was proposed would not preclude them from challenging the same when it is clearly ultra vires the MRTP Act and the Constitution. Further delay and/or acquiescence cannot render intra vires any delegated legislation which is otherwise ultra vires. In M/s.Lohia Machines v. Union of India - AIR 1985 SC 421 at paragraph 13 a Constitution Bench considered whether Rule 19-A of the Income Tax Rules 1962 was ultra vires the provisions of the Income Tax Act 1961. It was held in the opinion of the majority that It is undoubtedly true that merely because for a long period of 19 years the validity of the exclusion of borrowed moneys in computing the ‘capital employed’ was not challenged that cannot be a ground for negativing such challenge if it is otherwise well-founded. It is settled law that acquiescence in an earlier exercise of rule-making power which was beyond the jurisdiction of the rule-making authority cannot make such exercise of rule-making power or a similar exercise of rule-making power at a subsequent date valid. If a rule made by a rule-making authority is outside the scope of its power it is void and it is not at all relevant that its validity has not been questioned for a long period of time : if a rule is void it remains void whether it has been acquiesced in or not. In this regard the judgment referred to Proprietary Articles Trade Association and others v. Attorney General of Canada and others (1931) All ER 277 and Attorney General of the Commonwealth of Australia v. The Queen (95 C.L.R. 529). i) The Privy Council in Proprietary Articles Trade Association and others v. Attorney General of Canada and others - (1931) All ER 277 All ER 277 at page 280 stated that Their Lordships entertain no doubt that time alone will not validate an Act which when challenged is found to be ultra vires nor will a history of a gradual series of advances till this boundary is finally crossed avail to protect the ultimate encroachment. j) In Attorney General of the Commonwealth of Australia v. The Queen - 95 C.L.R. 529 at pages 546 to 548 the Privy Council dismissed appeals against an order of the High Court of Australia which declared certain provisions of the Conciliation and Arbitration Act 1904-1952 as ultra vires and invalid notwithstanding that such provisions had not been challenged for a quarter of a century and in a series of cases it was assumed without question that such provisions were valid. The Privy Council while considering this aspect of the case which has been in the forefront of the appellants’ arguments observed that It is clear from the majority judgment that the learned Chief Justice and the judges who shared his opinion were heavily pressed by this consideration. It could not be otherwise. Yet they were impelled to their conclusion by the clear conviction that consistently with the Constitution the validity of the impugned provisions could not be sustained. k) Without prejudice to the submission of the Petitioners that there is no unexplained delay in the present case it is submitted that where the subject matter of the writ petition is of importance and concern particularly where rights under Article 21 of the Constitution are involved especially when it means the quality of lives of millions of residents of Mumbai the Court would while bearing in mind the delay dispose of the writ petition on merits. The seriousness and importance of the issues raised in the present Writ Petition including those involving Article 21 of the Constitution cannot be overstated and certainly warrant a disposal of the present Writ Petition on merits while taking into account the alleged delay. In this regard the learned Counsel referred to the judgment of the Supreme Court in the case of Narmada Bachao Andolan v. Union of India - JT 2000 (Supp 2) SC 6 at paragraph 49 where conscious of a large delay in challenging a public infrastructure project the Supreme Court nevertheless considered the matter on merits in view of the apprehension of violation of rights under Article 21 of the Constitution. l) The Respondents have from time to time raised various irrelevant and technical objections particularly in relation to the pleadings in an attempt to divert the Courts attention from the merits of the matter. Only to counter the same the Petitioners have pointed out averments in the Respondents affidavits which are contrary to the Respondents arguments on interpretation of DCR 58. In Padma v. Hiralal Motilal Desarda (supra) - (2002) 7 SCC 564 at paragraph 11 the Hon’ble Supreme Court commended the following approach on the part of the Court particularly in a public interest litigation: While hearing a public interest litigation the constitutional court acts as the sentinel on the qui vive discharging its obligation as custodian of the constitutional morals ethics and code of conduct -- well defined by series of judicial pronouncements. The Court is obliged to see while scrutinizing the conduct and activities of a public body constituted with the avowed object of serving the society to see that its activities bear no colour except being transparent are guided with the object of public good and are within the four corners of law governing the same. The holder of every public office hold a trust for public good and therefore his actions should all be above board. Whatever may have been the grievance raised in the writ petition filed by the original writ petitioner vide its order dated 28.4.2000 the High Court framed the following four questions laying down the scope of hearing before it: The Hon’ble Supreme Court further held that In public interest litigation jurisdiction of the Constitutional Court is mobilized and acts for redressal of public injury enforcement of public duty protection of social rights and upholding constitutional and democratic values. Technicalities do not deter the Court in wielding its power to do justice enforcing the law and balancing the equities. We are unhesitatingly of the opinion that the appellants before us cannot raise any grievance on the ground of want of necessary pleadings. In Mohd. Aslam v. Union of India (2003) 4 SCC 1 at paragraphs 9 and 10 while recording the objections raised by the respondents therein the Hon’ble Supreme Court held as follows:9. The Union of India and Others submit that the interim relief granted by this Court earlier goes beyond the scope of the decision rendered by this Court in M. Ismail Faruqui’s case (1994) 6 SCC 360 and the petition filed by the petitioner should be dismissed straightaway because he had filed a writ petition before the High Court of Allahabad which came to be dismissed and in this petition there is hardly any proper foundation laid for granting any relief. It is also pleaded that the allegations made in the petition are vague and do not contain the necessary details to appreciate the various contentions urged before the Court and several of the prayers made in the petition have already become infructuous. 10. On several occasions this Court has treated letters telegrams or post cards or news reports as writ petitions. In such petitions on the basis of pleadings that emerge in the case after notice to different parties relief has been given or refused. Therefore this Court would not approach matters where public interest is involved in a technical or a narrow manner. Particularly when this Court has entertained this petition issued notice to different parties new parties have been impleaded and interim order has also been granted it would not be appropriate for this Court to dispose of the petition on that ground. m) With regard to the Respondents’ submission that this Hon’ble Court would not ordinarily consider the constitutional validity of legislation in a public interest litigation it should be noted that in Prof Yashpal v. State of Chattisgarh - 2005 (2) Supreme 322 the Supreme Court itself has in a PIL struck down and declared ultra vires sections 5 and 6 of the Chattisgarh Private Sector Universities (Establishment & Regulation) Act 2002. The said submission of the Respondents fails to supply an explanation why allegedly this Hon’ble Court’s wide powers under Article 226 of the Constitution would be curbed in a public interest litigation. The said submission is based on the decision of the Hon’ble Supreme Court in Guruvayoor Devaswom Managing Committee v. C.K. Rajan - (2003) 7 SCC 546 at paragraph 51 (cited by the Counsel for the State Government) wherein the Court observed that (xi) Ordinarily the High Court should not entertain a writ petition by way of a public interest litigation questioning the constitutionality or validity of a statute or a statutory rule. However in paragraph 55 of the judgment the Court stated We do not intend to lay down any strict rule as to the scope and extent of a public interest litigation as each case has to be judged on its own merits. Furthermore different problems may have to be dealt with differently. n) In Jamshed N. Guzdar v. State of Maharashtra (2005) 2 SCC 591 a Constitution Bench considered inter alia Civil Appeal No. 2452 of 1992 directed against an order of a Division Bench of this Hon’ble Court dismissing Writ Petition No. 738 of 1992. The appellant filed the said writ petition by way of a public interest litigation challenging inter alia the constitutional validity of the Bombay City Civil Court and Bombay Court of Small Causes (Enhancement of Pecuniary Jurisdiction and Amendment) Act 1986. The Hon’ble Supreme Court disposed of the said Civil Appeal on merits including the challenge to the constitutional validity of the said Act. G.P. Mathur J. was a party to the said decision of the Hon’ble Supreme Court as also a party to the earlier decision in Guruvayuoor Devaswom Managing Committee v. C.K. Rajan (supra). Nevertheless the Hon’ble Supreme Court did not dismiss the said Civil Appeal on the ground that the same arose out of a writ petition filed in the High Court in public interest which challenged the constitutional validity of a statute. In R.K. Garg v. Union of India (1981) 4 SCC 675 at paragraph 20 the Hon’ble Supreme Court considered the constitutional validity of a statute in a public interest litigation. o) Counsel for Respondent no. 11 tendered a note containing submissions that this Court also has the power in relation to a legislation which is ultra vires to overrule the same prospectively. While not disputing the power of this Court to mould the relief where necessary it is submitted that the correct position in law is that unlike the Hon’ble Supreme Court (in exercise of its power under Article 142 of the Constitution) High Courts cannot utilise the doctrine of prospective overruling. In this regard the judgment of a Constitution Bench of the Hon’ble Supreme Court in State of H.P. v. Nurpur Private Bus Operators’ Union (1999) 9 SCC 559 at paragraph 10 clearly holds that the High Court cannot utilise the doctrine of prospective overruling.SUBMISSIONS ON BEHALF OF STATE OF MAHARASHTRA: 56. The learned Advocate General for the State has divided his submissions in four parts; firstly with regard to the true and correct interpretation of DCR 58 as amended in 2001 secondly whether the 2001 amendment to DCR 58 or the 2003 Clarification is ultra vires the provisions of Section 37 of the MRTP Act and/or contrary to the policy of the MRTP Act thirdly whether the 2001 amendment to DCR 58 or the 2003 clarification are contrary to the Articles 14 21 and 48-A of the Constitution of India and fourthly with regard to the delay in filing the Petition.57. Before dealing with the first submission with regard to the true and correct interpretation of amended DCR 58 the learned Advocate General submitted that a few fundamental concepts need to be noted at the outset which are as under:-(a) The Development Contral Regulations are Regulations framed under Section 22(m) of the MRTP Act for controlling and regulating the use and development of land (b) The Development Control Regulations and Regulation 58 in particular are not provisions for the compulsory acquisition of land (c) DCR 58 is also not a provision for making a reservation in a Development Plan or even a designation in the plan. There is an elaborate and independent scheme in the MRTP Act for reservations. Even as far as this scheme is concerned it is clear that a ‘reservation’ ultimately entails an obligation to acquire land and that the authority concerned should not make a reservation unless it will be able to acquire the land so reserved.58. The learned Advocate General has submitted that the old Regulation 58 dealt with four different concepts i.e. (i) Existing built up areas (ii) Newly built up areas (iii) Open land and (iv) Lands after demolition of existing structures in the case of a redevelopment scheme in Regulation 58 (1)(b). According to the learned Advocate General the reference to newly built up areas i.e. built up by using balance FSI of Plot covers only cases where areas were newly built up by utilizing the balance FSI of the plot. As far as existing built up areas is concerned there were three permitted users the third of which was user for commercial purposes as may be permitted under the Development Control Regulations.59. The learned Advocate General has submitted that under the old Regulation 58 a Mill Owner had the following options:-Option 1: Continue existing cotton textile mill user.Option 2: Under Regulation 58(1)(a) redevelop the existing structures without changing its shell and without changing the plinth and without touching open land. In such a scenario there was no handing over or sharing anything.Option 3: Retain existing structures (shell) and develop the open land. In such a case Mill Owner was required to share only 2/3rd of the open land used. Option 4: Demolish the existing structures and develop the entire land i.e.(open land and land available after demolition of existing structures). Only in such a case was there to be sharing of the entire land.60. The learned Advocate General has submitted that indeed there is no manner of doubt that under Old Regulation 58 the owners of mills could retain the existing built up areas of their mills and use them for commercial purposes without having any obligation to surrender any land whatsoever for open spaces or public housing. In practice therefore having regard to the fact that demolition of existing structures brought regulation 58(1)(b) into operation and entailed surrender of 2/3rd of their lands the owners had no option but to retain the existing structures and put them to permissible users which included commercial purposes. The learned Advocate General has further submitted that there was a logical contradiction between Regulation 58(1)(a) and 58(1)(b). If the mills could retain existing built up areas under Regulation 58(1)(a) and use the same for a commercial purpose or as permitted under the Regulations it did not stand to reason that if they were to demolish the existing structures they should have to part with two thirds of the lands available after demolition of the existing structures which lands belonged to them in the first place. Looked at differently the contradiction was that the existing built up area was theirs and continued to be theirs if used or exploited one way yet if used or exploited in another way they lost 2/3rd of their land.61. The learned Advocate General has submitted that the end result of Regulation 58 (old) was that save and except the case of 3 mills none of the other 55 textile mills in Mumbai came forward to surrender or share their land. According to him the most textile mills simply continued with the status quo the closed mills remained closed the workers were not paid their wages and the Banks and institutions were not paid their dues. The outstandings of workers banks institutions and statutory dues and taxes continued to mount. The structures themselves became more dilapidated. This state continued for close to 10 years. According to the learned Advocate General in the case of Phoenix Mills the mill owners retained more than 100 year old shell and glassed it up and inside malls super markets night clubs restaurants were put in which ultimately resulted in collapsing of the wall of the old structures where a bowling alley was set up. According to him this was unplanned and unregulated development. The learned Advocate General has submitted that consequently no land was freed nobody benefited and even the cause of orderly planning also suffered. The learned Advocate General has pointed out that the aforesaid position has been set out in detail in the affidavit dated 22nd March 2005 filed Mr.Ramanand Tiwari the Principal Secretary Urban Development Department. It is pointed out by the learned Advocate General that the Principal Secretary in his affidavit whilst setting out the background to the introduction of DCR 58-2001 has stated that on account of the problems faced by various cotton textile mills during the last two decades of the previous century in the city of Mumbai these mills began to get closed and a large number of them became sick; these mills were saddled with huge liabilities to banks workers and the State; the workers were not paid for the past several years; the lands of these mills became a huge non-performing asset on account of the deteriorating condition of the textile units. It is further stated that in order to unlock these lands for development or redevelopment and in order to facilitate the revival and/or modernization of these mills as also to have sites for public open spaces and public housing DCR 58-1991 was introduced for the first time however since DCR 58-1991 required the sharing of more than 2/3rd of the land after demolition of existing structures by the owners with the BMC for open spaces and with MHADA for public housing and use of TDR given in consideration for the surrender of more than 2/3rd of the land being permitted only in the suburbs very few mills came forward for development of their lands under DCR 58-1991 and thus the object and purpose of the scheme of DCR 58-1991 was not achieved.62. While dealing with the policy & object of amended DCR 58 the learned Advocate General has submitted that in order to overcome the shortcomings of DCR 58 (old) so far observed in the period of 10 years of its implementation the State Government sanctioned and brought into force amended DCR 58 with effect from 23rd March 2001. According to him the predominant purpose/object of DCR 58-2001 was to allow the development/redevelopment of the entire open land and built-up area of the premises of these sick and/or closed textile mills so that the funds occurring therefrom could be utilized inter alia for the payment of workers dues payment under Voluntary Retirement Schemes repayment of loans of Banks and Financial Institutions discharge of statutory and other dues/liabilities etc. The learned Advocate General submitted that amended DCR 58 was therefore a bold initiative in planning in its wider sense encompassing the social and economic aspects of life. It sought to revive and resurrect neighbourhoods foster development regenerate lands which had become sterile encourage the shifting of textile mills (thereby reducing the attendant strain that industrial activity places on civic amenities) and pay off chronic arrears and dues of workers banks institutions statutory dues etc. In its operation and implementation amended DCR 58 would also unlock large real estate and make it available to residents. Having regard to the fact that the city can only expand linearly that too northwards and that there is a dearth of office space and people have to commute for several hours every day on account of shortage of land the unlocking of large lands which had been sterile also served an important public purpose. 63. While analyzing amended DCR 58 vis-à-vis Petitioners’ argument the learned Advocate General for the State has submitted as under:-(a) that the amended DCR 58 makes an intentional conscious and deliberate departure from DCR 58 (Old) in several respects. According to him in the first place it may be noticed that the expression newly built up areas was specifically deleted from Regulation 58(1)(a). Similarly the words lands after demolition of existing structures in case of redevelopment scheme were specifically deleted from Regulation 58(1)(b). The expression open lands was ratained as it is and the expression newly built up area in 58(1)(a) was introduced into 58(1)(b) as balance FSI and required to be shared; (b) that the deletion of the words land after demolition of existing structures in the case of redevelopment scheme must be given effect to. As a matter of pure construction this deletion is entirely in conformity with the provisions of Regulation 58(1)(a) which provide that existing built up areas continue to be fully enjoyable by the owners without any restriction whatsoever;(c) that the petitioners argument that after amendment of Regulation 58 the words open lands must include ‘land after demolition of the existing structures’ violates every known principle of construction. In the first place the old Regulation 58(1)(b) clearly made a distinction between open lands which were not built upon and lands which became vacant after demolition of existing structures. To suggest that the phrase open lands should now include lands after demolition of existing structures does violence to the language is against logic and goes against every known principle of construction. When the statute made a distinction between two phrases and one of the two is expressly deleted it is contrary to first principles of construction to suggest that what is deleted is brought back into the statute and forms part of words which were already there in the first place and continue unchanged; (d) that the ordinary rule of construction is that the word in a statute if used more than once must have the same meaning. In this context the learned Advocate General has referred to the judgment of the Privy Council in the case of Lennon V/s. Gibson Ltd. (1919) AC 709 where the Privy Council has observed that where the Legislature uses the same words in similar connection it is to be presumed that in the absence of any context indicating a contrary intention the same meaning should attach to the words. In the present case the old Regulation 58 used the words open lands in contradistinction to the words lands after demolition of existing structure in case of redevelopment scheme. It is therefore chear that the expression open lands is meant to connote lands other than lands available after demolition of existing structures;(e) that the Petitioners’ argument therefore ignores the fact that the words lands after demolition of existing structures have been deleted. To accept the Petitioners’ argument that they resurface in the expression open lands at the very place and in the very context from which they were deleted is to not only ignore the deletion but to defeat the legislative intent behind the amendment and to reintroduce by a process of judicial construction the very mischief which the statute set out to remedy; (f) that the other basic and fundamental proposition of construction is that deletion of words must be given effect to. According to the learned Advocate General the following judgments are relevant in this context:- (i) AIR 1954 SC 155 CIT V/s.Bhogilal Lalchand In this case certain words were deleted from Section 42(1) of the Income-tax Act 1922. Notwithstanding the deletion it was still sought to be contended that having regard to the marginal note the Section only applied to non-residents. The Supreme Court held (para 14 at page 158) that the deletion had to be given effect to and observed that the only purpose in deleting these words could be to bring residents within the ambit of the Section. There is no reason whatsoever for not giving effect to the plain words of the Section the meaning that on the face of it they bear.(ii) (1978) 3 SCC 248 - Mangalore Electric Supply Co.V/s.CIT (Paragraphs 10 and 11).In this case Section 12B of Income Tax Act 1922 had been amended and an exception carved out by the proviso in favour of transfer of capital assets by reason of compulsory acquisition was deleted. The Supreme Court observed that the deletion had to be given effect to because it contained an indelible indication of the true legislative intent which was to include transfer of capital assets by reason of compulsory acquisition. (iii) (1973) 4 SCC 225 - Keshavananda Bharati’s case.In this case one of the questions which came up for consideration was the amendment to Article 31 and the substitution of the word compensation with the word amount. It was categorically held that the effect of the substitution had to be given effect to and it was not possible to construe the expression amount with reference to principles pertaining to the expression compensation.(g) that on a plain reading of Regulation 58 (New) and even more particularly when viewed in the background of Regulation 58(Old) the expression open lands and balance FSI can never include lands which become available after demolition of existing structures. (h) that in the arguments in rejoinder the Petitioners attempted to explain the absence of the words lands which became available after demolition of existing structures. The Petitioners submitted that these words were necessary and used in Regulation 58 (Old) because the definition of the expression development in Section 2(7) of the MRTP Act did not include demolition of a structure. In 1994 the definition was expanded by including demolition of structures. The Petitioners therefore contended that when Regulation 58(New) was brought in the words lands which became available after demolition of existing structures were deleted because of tautology and/or because their retention as no longer necessary. This explanation is fundamentally flawed for the reasons given below:-(i) The amendment of 1994 was clarificatory and any argument to the contrary would be absurd. To contend that prior to 1994 development did not include demolition of existing structures would be to urge that prior to 1994 no building or structure in Mumbai could have been pulled down as a part of a development activity. The DC Regulations govern all building activity in the City and the definition of development therein would govern all development in the City.(ii) the argument overlooks that Regulation 58 always used the word re-development. It is axiomatic that redevelopment contemplates a renewal or substitution of development and involves pulling down.(iii) If the Petitioners argument is accepted then the concept of demolition of an existing structure would come in even in Regulation 58(1)(a) since the word development is in the prefatory part of Regulation 58. Hence on the Petitioners’ argument Regulation 58(1)(a) would permit not just the retention of the structure (shell) but also the demolition of the structure and reconstruction of the same (to the extent of built up area used earlier) and its use for commercial purposes. All this without sharing. 64. With regard to the provision of Regulation 58(6) the learned Advocate General has submitted that the said Regulation 58(6) is not a stand alone provision. According to him the submission of the other side that the Regulation 58(6) is limited to cases without change of user and that it is a stand alone provision is entirely misconceived. In support of this contention the learned Advocate General has submitted as follows:-(a) Regulation 58(6) does not contain any such words of limitation;(b) It overlooks the fact that Regulation 58(5) and 58(1)(a) specifically deal with a case of development of lands by a cotton textile mill for the same cotton textile mill or related user. The construction suggested by the Petitioners thus makes Regulation 58(5) redundant. Where the legislature considered it necessary to restrict or limit user or change of user it expressly so provided. Regulation 58(6) contains no such limitation. This is because none was intended. To artificially read into 58(6) words of such limitation would be to ‘legislate’ that too contrary to the legislative intent. (c) It also completely overlooks the provisions of Regulation 58(8) and Regulation 58(9). Regulation 58(8)(a) refers to funds accruing to sick and/or closed textile mills including from Schemes under Regulation 58(6)(a) and (b). Such funds are required to be credited to an Escrow Account. The Escrow Account is to be used for various purposes including payments under Voluntary Retirement Schemes and repayment of loans of banks and financial institutions. It is absurd to suggest that the workers are to be voluntarily retired yet the mill must continue.(d) Regulation 58(9) is a complete answer to the Petitioners’ contention. It deals with three different contingencies viz. (i) BIFR Package-58(1) (ii) Government Scheme - 58(2) and (iii) permissions for development or redevelopment of land of cotton textile mills granted by the Commissioner under the Regulations. So far as Item (iii) above it is relatable only to Regulation 58(6). More importantly Regulation 59(9)(c) makes the intention absolutely clear when it says that such funds can be permitted to be utilized by the Monitoring Committee in accordance with the Guidelines laid down. The first Guideline is for transparent disposal by sale or otherwise of built-up space or open land. Hence there is the clearest indication of the legislative intent that mill land will be sold to fund the discharge of liabilities. Since this is expressly permitted it can never be intended that all that can be done under 58(6) is to revive and continue cotton textile mill. The sale of built-up space or of open land shows the clear intention of the Legislature. Further as far as workers are concerned funds can be utilized for alternative employment and related training of cotton textile mill workers. This also additionally shows that it was intended that there will be alternative employment for the mill workers after the mill has closed down for which they will have to be trained. 65. The learned Advocate General for the State has submitted that with regard to the interpretation of Regulation 58 the Petitioners’ interpretation looks at only one view point and ignores and excludes all others. It is submitted that the amended Regulation 58 is a self-contained Scheme and is an attempt to balance various interests. Regulation 58 cannot be looked at only from one point of view viz. compulsory provision of open spaces. According to him in its original form the Regulation 58 had failed to work. He submits that the Legislature was therefore required to look at various interests including the fact that workers had not been paid that there were huge financial loans outstanding large statutory and tax dues remained to be paid and there were large creditors of the sick or closed textile mills and these aspects cannot be lost sight of. He has further submitted that in any exercise relating to planning it is well settled that there has to be a broad overview of all the interests including social and economic interests. The judgment of the Hon’ble Supreme Court of India in the case of Maneklal V/s. Chotalal - AIR 1967 SC 1373 para 42-page 1882 clearly lays down that social and economic planning forms an integral part of town planning. Regulation 58 as amended is eminently reasonable and the true test of reasonableness is what is laid down in Justice Dharmadhikari’s judgment in Omprakash V/s.State of UP - (2004) 3 SCC 492 Para 32- pages 413 & 414. As has been felicitously observed in the said judgment the learned Advocate General for the State submits that the true test of reasonableness is not substantially different from social engineering balancing of interests and other formulae which modern sociological theories suggest as an answer. According to the learned Advocate General unamended DCR 58 had no requirement for workers to be paid off and this would have enabled mill owners to exploit land and yet not provide VRS to the workers. The learned Advocate General submits that the amended DCR 58 on the other hand now permits unlocking of the property value for the mill owners which would ensure payment of various creditors (through a controlled and regulated escrow process) and the additional benefits and spin offs. According to him this would make available real estate in Central Mumbai jump start growth and development in general and provide employment and would aid in generation of higher property taxes water taxes electricity dues income tax (as and when they become profitable) stamp duty for the State etc. According to him the funds which can now be generated by the BMC can be utilized inter alia to acquire reserved lands for open spaces etc. The learned Advocate General has further submitted that the interest of workers is properly protected under the amended DCR 58. According to him the order of priority set out in DCR 58(8) as clarified on October 20 2001 makes it clear that monies received from development will be used for payment of workers dues VRS repayment of loans of banks and financial institutions repayment of working capital loans and payment of statutory dues and thereafter for the use of the mills. The learned Advocate General therefore submits that the Regulation 58(New) is therefore a step in social engineering and promotes all aspects of town planning. According to him the Petitioners on the other hand have a single view point which does not even recognize let alone appreciate the existence and merit of other points of view. The State while making a law has to balance conflicting interests and cannot satisfy every section of the community. Regulation 58(New) is such an exercise. 66. The learned Advocate General has submitted that for interpretation of Regulation 58 the stand or understanding of some persons including the Textile Department is irrelevant. According to him the submission of the other side that the State of Maharashtra had interpreted Regulation 58 (New) to include land becoming vacant after demolition of existing structures in the phrase open lands in its representations to the BIFR is both incorrect and irrelevant. The learned Advocate General submits that it is a settled law as laid down by the Hon’ble Supreme Court in the case of Asstt. Custodian of Enemy Property V/s Brij Kishore Agarwal - AIR 1974 SC 2325 that there is no principle of law that either a Minister or any subordinate officer can be bound by the views expressed by any other department or other officer of the Government. He further submits that similar is the view expressed by the Hon’ble Supreme Court in the case of Balraj K.Garad V/s Nashik Merchant Co-op Bank Ltd. - AIR 1984 SC 192 wherein the Supreme Court has observed that with respect we find it difficult to subscribe to this untenable approach that the view of law or a legal provision expressed by a Government officer can afford reliable basis or even guidance in the matter of construction on a legislative measure. It is the function of the Court to construe legislative measures and giving the correct meaning to a legislative provision. The opinion of the executive branch is irrelevant nor can the Court abdicate its duty in favour of such opinion. 67. The learned Advocate General has submitted that the Petitioners by misreading and/or construing them out of context (i) the statement of an official of the State of Maharashtra before the BIFR (ii) the affidavits of Mr.Ramanand Tiwari Principal Secretary Urban Development Department (where a reference is made to the Report of the Ranjit Deshmush Sub-Committee) and (iii) the said Report itself it has been suggested by the by the Petitioners that the State Government’s interpretation of Regulation 58(New) was the same as that advanced by the Petitioners and that the State has changed its stand after the disclosure of the Ranjit Deshmukh Committee Report during the course of the hearing and to effectuate this filed the further affidavit of Mr.Tiwari. Thus according to the learned Advocate General prejudice is sought to be created by the Petitioners about the affidavits of Mr.Tiwari regarding (i) the Ranjit Deshmukh Committee Report and (ii) the statement of an officer of the Government as recorded in the BIFR Order. He submits that this is incorrect besides being legally irrelevant. Referring to the judgment of the Apex Court in the case of Balraji K.Garad’s case (AIR 1984 SC 192) the learned Advocate General has pointed out that the Court is not concerned with who understood a legal provision how. These considerations do not enter the judicial domain. The Court has to interpret the provision itself and determine the true and correct interpretation and meaning. In view thereof the learned Advocate General submits that the submissions made by the Petitioners are legally irrelevant and need not be gone into at all. According to the learned Advocate General the statement recorded in the BIFR Order is of an official of the Textile Department who may or may not have been aware of the new Regulations framed by the Urban Development Department. It would not be correct to say that there should be an estoppel against the State from asserting the correct legal interpretation because the views of one officer from the Textile Department as recorded in the BIFR order appear to be to the contrary. He further submits that there is no inconsistency in the affidavits filed by Ramand Tiwari Principal Secretary Urban Development Department on hehalf of the State of Maharashtra. According to him a conjoint reading of the said affidavits will reveal that the process which led to the modification of Regulation 58 in 2001 has been disclosed in detail. It was submited that the Sub Committee headed by Ranjit Deshmukh Minister of Textiles submitted a Report on 6th July 2000. This Report together with the entirety of relevant material was placed before the Cabinet. Mr.Ranjit Deshmukh was a member of the Cabinet. The material placed before the Cabinet also included the view of the Urban Development Department as detailed in the Affidavit dated 17th August 2005. All this formed part of the Cabinet Note which was approved by the Cabinet. It is after considering all this that the Regulation 58 (New) was prepared. The learned Advocate General therefore submits that to suggest that the Cabinet only looked at the Report and nothing else is an over simplification and overlooks the way Government works. He submits that the Report of the Rajnit Deshmukh Committee was accepted by the Government and part of its recommendations were culled out and implemented and form part of Regulation 58(New). He therefore submits that the Petitioners are however deliberately misreading sections of Shri.Tiwari’s affidavit. According to him what is ignored is the categorical assertion in the affidavit that Regulation 58 was modified in accordance with the decision of the Cabinet. The learned Advocate General has further submitted that it is to completely and conclusively dispel even a vestige of doubt that the State Government even waived privilege over the Cabinet Note and placed the same for the perusal of this Court. However this Court did not consider it proper to peruse the same in view of the judgment of the Apex Court in Doypack’s case and the Courts view that greater public interest required that it not be looked at. 68. With regard to the issue of Judicial Review of the State Policy the learned Advocate General for the State has submitted that as has been clearly stated by this Court it was not for this Court to examine the wisdom or correctness of the Government’s policy. He has submitted that it has repeatedly been held by the Courts that the wisdom and advisability of policy decision of the Government are not amenable to judicial review. According to him it is not for the Court to consider the relevant merits of different policies. Referring to the decision in the case of Balco Employees Union (Regd.) V/s.Union of India (Paragraphs 32 to 46) the learned Advocate General submits that whether a policy decision is wise or otherwise is an exercise which must be left to the discretion of the executive and Legislative authorities. He has also referred to the decision of the Hon’ble Supreme Court in the case of Narmada Bachao Andolan V/s.Union of India - AIR 2000 SC 3751 wherein the Supreme Court has held that it would not transgress in the field of policy decision in exercise of its powers of judicial review. Thereafter he referred to the decision of the Apex Court in the case of Otis Elevator Employees Union V/s Union of India - 2003 12 SCC 68 wherein the Apex Court has held that unless legislation which is a manifestation of the policy decision of the State is patently arbitrary Court will not interfere in the implementation of such a policy. The learned Advocate General thereafter referred to another decision of the Hon’ble Supreme Court in the case of Krishnan Kakkanth - 1997 (9) SCC 495 wherein the Supreme Court has held that it is not necessary to enter upon any exercise for finding out the wisdom in a policy decision of the Government and it is immaterial whether better or more comprehensive policy decision has been taken. It is equally immaterial if it can be demonstrated that the policy decision is unwise and is likely to defeat the purpose for which such a decision has been taken unless the policy decision is demonstrably capricious or arbitrary and not informed by any reason whatsoever or discriminative or violative of statute or constitution the same cannot be struck down. It should be borne in mind that except for the limited purposes of testing the public policy in the context of illegality and unconstitutionality the Court should avoid embarking on unchartered ocean of public policy. Referring to the decision of the Hon’ble Supreme Court in the case of Omprakash V/s. State of Uttar Pradesh - 2004 3 SCC 402 the learned Advocate General has pointed out that the Hon’ble Supreme Court has reiterated its view that the Court should be slow to interfere with byelaws made by public representative bodies unless they are manifestly partial and unequal or unjust malafide or effect unjustifiable interference with principal. Referring and relying upon the aforesaid decisions of the Apex Court on the issue of Judicial Review of the State Policy the learned Advocate General for the State has submitted that the Regulation 58(New) reflecting the considered policy of the Government and being in the nature of delegated legislation ought not to be interfered with in judicial review unless compelling reasons exit. It is the settled practice of Courts in such matters to exercise circumspection and self imposed restraint. 69. Dealing with the changed approach of the Petitioners’ arguments in rejoinder the learned Advocate General for the State has submitted that the said arguments of the Petitioners in rejoinder were marked by a complete shift of focus on the interpretation of Regulation 58. According to him in rejoinder great emphasis was placed by the Petitioners on the argument that Regulation 58 was a regulation for revival or rehabilitation of textile mills. According to him the argument on behalf of the Petitioners in rejoinder that the mandate of Regulation 58 was to revive and rehabilitate textile mills and only such sale would be permitted as would be absolutely necessary for securing such revival that too as a part of a BIFR Scheme marks a complete turn around of the arguments in the Petition and in the opening. He submits that the thrust of the Petitioners arguments in the petition was to maximize the availability of land for the needs of the city i.e. BMC and MHADA and the argument made by the Petitioners in the rejoinder would defeat this stated purpose since even the extended concept of sharing (which the Petition advocates) would not be available to a large number of mills. According to the learned Advocate General for the State the argument of the Petitioners in rejoinder will reduce the availability of land than from making more lands available to the City. The learned Advocate General further submits that even those mills (non-sick) wanting to share their lands would be first required to incur losses mill owning companies would have to become sick go to BIFR get schemes sanctioned and only then sharing would be permitted according to the Petitioners. 70. So far as the second part of his submissions as to whether the 2001 amendment to DCR 58 or the 2003 clarification is ultra vires the provisions of Section 37 of the MRTP Act and/or contrary to the policy of the MRTP Act the learned Advocate General for the State has submitted that the amended Regulations 58 is neither violative of the provisions of Section 37 of the MRTP Act not contrary to the policy of the MRTP Act.71. With regard to the plea of the Petitioners that the Regulation 58(New) is ultra vires of Section 37 of the MRTP Act the learned Advocate General for the State has submitted that Section 37 expressly permits modification of any part of a final plan. The word modification cannot be lost sight of and is unqualified. In support of his submissions the learned Advocate General has referred to the Division Bench judgment of this Court in the case of Nivara Hakk Samiti (unreported) wherein it has been observed that the word modification though somewhat indefinite in its ambit must be distinguished from a radical alteration. The word modification shows the continued existence of the original entity. It ceases to be a modification only if there is a wholesale rejection and replacement. According to the learned Advocate General in the present case Regulation 58 has been modified in a reasonable manner. Its character has not been changed at all. It continues to deal with development or redevelopment of land of Cotton Textile Mills. An unworkable scheme has been made workable. Lands which would never have been available for development or for open spaces will now be made available for development and for open spaces. He further submits that merely by reason of the fact that to make the Scheme viable alterations had to be made of the different percentages of land does not change the character of Regulation 58. On the contrary the new Regulation 58 is a self-contained scheme in the larger interest of all concerned stakeholders parties including financial institutions creditors workers shareholders of the units whilst making provision for release of open spaces. Apart from that it also brings about a new concept of aggregation and integrated development. According to the learned Advocate General the amended Regulation 58 thus far from altering the character of the plan enhances/improves the character of the plan. He submits that in dealing with matters of planning one cannot lose sight of the fact that the development plan cannot remain static or frozen forever. Referring and relying upon the decision of this Court reported in 1980 BCR 590 - The State of Maharashtra V/s.Shri.Mahadeo Pandharinath Dhole and Ors. the learned Advocate General has brought to our notice the following observations of this Court:- 14. It will thus be seen from the aforesaid four provisions (sections 38 50 127 and 128) of the 1966 Act itself that changes and variations in the Development Plan are very much contemplated. It is also seen that even a lapse of reservation is contemplated. It is also seen that even change of one public purpose to another public purpose is contemplated. Different situations are provided for in the 1966 Act itself. Property reserved for one particular purpose therefore may not continue to remain reserved for all times for the same purpose. It can be acquired for any other purpose. The reservation can be revised. The reservation can also lapse. The reservation can also be deleted. The emerging situation is indeed one as should exist. As indicated if progress and development is to take place if changing situations have to be met with changing remedies and if there is not to be a total halt to the award march law must make provisions for changed situations and in this case law has made such provisions. Conclusion of the Tribunal however leads to the result that once a reservation for a particular purpose always a reservation for the same purpose. Such a conclusion can well hinder implementation of various welfare schemes by the State and would also compel various State authorities public bodies and the society at large to meekly accept and submit to the status quo irrespective of anything else. 72. The learned Advocate General therefore submits that the development plan is an organic document which is to be adapted and adjusted to changing situations and the exigencies of the times as and when the same arise. According to him the whole fallacy in the argument of the Petitioners is that it proceeds on the basis that a reservation has been changed. He submits how fallacious this can be is seen from the concession made during the arguments of the Petitioners that there is indeed no reservation but something similar to a reservation or what was described as a conditional reservation. There is no such thing as a conditional reservation known to the MRTP Act. The fact that a mill could continue to hold its existing structures and use the same for commercial purposes as provided under the DCR would have resulted in no lands being made available whatsoever for development or for open spaces or public housing. It is trite to say that the Government ought to have taken steps to check situations like what happened in Phoenix Mill. There was no way in which a situation could have been dealt with except by amending Regulation 58 and making it workable. The learned Advocate General has submitted that Section 37 of the MRTP Act speaks of Change in the character of a Plan. In other words two conditions are absolutely necessary (i) Change of such a nature that the character is altered; and (ii) the alteration of character must be of the plan. A change of character is a change in the very essence or the basic structure itself. Modifications on how development of textile mill land is to take place is not a change of character at all. Moreover the change of character must be of the entire Development Plan i.e. of the entire plan as a whole viewed in totality. The actual calculations and figures on record show that the textile mills form only a small portion (fraction) of lands in a ward. The learned Advocate General therefore submits that there is no change of character of even a ward let alone the whole plan. Referring to the decision of the Division Bench of this Court in the case of Nivara Hakk (supra) the learned Advocate General submits that the observations of the Division Bench in the said decision concludes the issue. In the said case the introduction of Regulation 58 (in its entirety) was challenged on the ground that the insertion of the entire Regulation 58 (which was not in the draft DC Regulations) was violative of Section 37 since it changed the character of the plan. After a considered discussion of Regulation 58 this challenge was repelled. If therefore the introduction of Regulation 58 (in its entirety) does not change the character of the Plan a mere tinkering around with a condition in the Regulation can hardly be said to be a change in the character. The learned Advocate General for the State has submitted that the Petitioners’ suggestion that a modification under Section 37 of the MRTP Act can only be minor based on the two Supreme Court judgments cited by the Petitioners is unacceptable for several reasons. He submitted that it is clear that in both the cases viz. Pune Municipal Corporation’s case - (2004) 10 SCC 796 as well as Balakrishna Sawant Case - (2005) 3 SCC 61 the reference to the expression minor modification is a mere passing observation. According to him it is a settled law that if the Supreme Court makes a passing or casual observation it cannot be said to be law declared under Article 141 of the Constitution. In support of his contention he has referred to the Full Bench Judgment of this Court reported in AIR 1955 Bom.220 (Kaikhusroo Phirozshah Doctor V/s.State of Bombay) and the judgment of the Supreme Court reported in (1989) 1 SCC 101 (Municipal Corporation of Delhi V/s.Gurnam Kaur). According to the learned Advocate General a statement made in a Supreme Court judgment without reference to the provisions of an enactment cannot be said to be law declared. As a matter of fact he submits that in both the judgments the amendment made to Section 37 of the MRTP Act in 1994 has not even been noticed. The learned Advocate General further submits that as has been held by Chagla CJ in the aforesaid case of Kaikhusroo Phirozshah Doctor’s case (AIR 1955 Bom.220) in a situation of this kind where there is a detailed judgment given by a Division Bench of the High Court after considering all the relevant provisions of law and which is not even referred to or overruled by the Supreme Court the said Division Bench judgment continues to be binding on the High Court. He therefore submits that the judgment of the Division Bench of this Court in the case of M.A. Panshikar V/s.State of of Maharashtra - 2002 (5) BCR 318 is binding on this Court. The learned Advocate General further submits that the other fallacy in the approach of the Petitioners is the assumption that mill lands have been reserved as for textile mill user. According to him this is not so. On the contrary the user shown is I-3 (Industrial User) which is covered by Regulation 57.73. While dealing with the plea of the Petitioners that the amended Regulation 58 is ultra vires the policy of the MRTP Act the learned Advocate General for the State has submitted that the petitioners’ submission that the amendment is ultra-vires the policy of MRTP Act only needs to be stated to be rejected. According to him in the first instance this is based on a complete misconception relating to delegated legislation. Right from the judgment of the Supreme Court in the case reported in 1951 SCR 747 with regard to Delhi Laws’s Act 1912 what the Supreme Court has said is that for allegation of legislative powers to be valid and not violative of Article 14 there must be sufficient guidelines and policy direction given to the delegate. There is no principle of law which states that general policy is a fetter on the exercise of power. What the Supreme Court has said is that there cannot be unfettered or unbridled power to make delegated legislation. On the contrary it is the policy of the MRTP Act that the DP is not a statute document frozen into rigidity for 20 years till the next plan is prepared. The learned Advocate General has submitted that in so far as the MRTP Act is concerned it is true that Section 22 provides for proposals for designation of areas for open spaces playgrounds gardens greenbelts etc. It is equally true that the policy of the Act is to make such proposals through proper reservation and designations because any other way of doing this amounts to a deprivation of property without the authority of law. That is why Section 149 makes detailed provisions for the obligation to acquire land in specified cases including designation in the plan for a particular purpose. He further submits that Chapter VII of the Act provides for land acquisition. Section 125 provides that land which is required reserved or designated in a plan shall be deemed to be needed for a public purpose within the meaning of the Land Acquisition Act 1894. Section 126 provides three alternative modes of acquisition. The two modes specified in Section 126(1) (a) and (b) are by agreement and on a voluntary basis. If such acquisition is not possible it is to be acquired under the provisions of the Land Acquisition Act 1894. This is the Scheme and policy of the Act. As mentioned in the Government’s Affidavit para 12 at page 214 it was never the intention to expropriate mill lands for open spaces and public houses. Referring to paragraphs 12 at pages 214 and 215 of the affidavit the learned Advocate General states that there is no proper response to the same in the Rejoinder filed by the Petitioners. The learned Advocate General submits that the rejoinder filed by the petitioners at page 302 weakly asserts that all mill lands are on freehold lands and that the Petitioners believe that many are on leasehold lands and that in some cases the leases have expired and not been renewed. It is further asserted that in such cases no question of expropriation arises. As a matter of fact 43 mills are on private lands 3 are exclusively on Government lands and 12 are partly on Government lands partly on Municipal lands and partly on private lands. The lease has expired only in relation to one mill i.e. Simplex Mill. The learned Advocate General has submitted that the Policy of the Act can also to be seen from Section 31(5) of the MRTP Act. It is the policy of the Act that property should not be put under restriction and owners should not be deprived of the full use of their property unless there is proper consideration of the need for a planning and the ability on the part of the planning authority or appropriate authority to acquire property within a period of 10 years. According to the learned Advocate General it is an undeniable fact that the planning authority and the appropriate authority do not have the funds to go in for such large scale acquisition. Section 126 of the Act was amended in 1991 to provide for TDR as an alternate mode of acquisition by agreement. It is not correct for the Petitioners to assert that the State ought to make funds available for acquisition of lands for open spaces. This is a matter for the Legislature. It is the State Legislature which approves the Budget and makes the necessary allocations to different departments. On the contrary the policy of the MRTP Act is to confer upon the authorities concerned the power to introduce changes in the plan. The policy of the MRTP Act even permits wholesale reduction of reservations (despite a reservation being of a higher order as compared to conditions for development). Sections 29 and 31 permit and recognize such changes at the stage of a draft plan. Section 22-A permits a reduction of more than fifty percent of the area of reservation provided in clauses (b) to (i) of Section 22. The policy is therefore to permit change. If 50% of reservation can be altered a modification of a condition for development can never be said to be violative of the policy of the MRTP Act. 74. So far as third part of his submissions as to whether 2001 amendment to DCR 58 or the 2003 Clarification are contrary to the Articles 14 21 and 48-A of the Constitution of India the learned Advocate General for the State has submitted that the Regulation 58(New) does not violate the mandate of Articles 14 21 and 48-A.75. While dealing with the Petitioners’ plea that amended Regulation 58 violates the mandate of Article 21 of the Constitution of India the learned Advocate General has submitted that such an argument of the Petitioners is not even a state able one. According to him Article 21 on a plain reading and construed and interpreted liberally in its most expanded form is only a guarantee that a person’s life or liberty will not be taken away except according to procedure established by law. He submits that the Hon’ble Supreme Court of India through various judicial decisions rendered over 4 decades has expanded the definition of life and liberty. Life now includes a large number of aspects which extend to the beneficial enjoyment of life i.e. the quality of life factors. These include the right to travel abroad right to privacy and the right to a clean environment. On this proposition there can be no dispute. Every single judgment cited by the Petitioners on environmental pollution sustainable development etc. which relate to Article 21 deals with this aspect - namely that the right to a clean environment has been recognized as a fundamental right. He submits that even the Respondents do not dispute this at all. According to him the Petitioners argument however completely ignores the latter part of Article 21 viz. the words except according to procedure established by law. In other words the learned Advocate General states that Article 21 provides no absolute immunity but only protection where the procedure established by law is not followed. The learned Advocate General further submits that the Petitioners have fairly and expressly conceded that Regulation 58(New) was enacted after following the procedure established by law. There is admittedly no challenge on procedural irregularity or invalidity and this ipso facto is a complete answer to the challenge founded on Article 21. The learned Advocate General has submitted that in none of the cases cited by the Petitioners was there a challenge to legislation. All judgments cited related to executive action - that too action in violation of law or not in accordance with the procedure prescribed and therefore these judgments will be of no assistance in the present case. 76. While dealing with the Petitioners’ plea that Regulation 58(New) violates the mandate of Article 14 of the Constriction the learned Advocate General for the State has submitted that such an argument of the Petitioners cannot be accepted because Regulation 58(New) is not violative of the mandate under Article 14 of the Constitution. He submits that the modification of Regulation 58 was after following the statutory public consultative process and is neither arbitrary nor unreasonable. Regulation 58 is a part of the DCR which are delegated legislation under the MRTP Act 1966. The tests of arbitrary action applicable to executive action do not necessarily apply to delegated legislation. In support of his submissions the learned Advocate General referred to and relied upon the decision of the Hon’ble Supreme Court in the case of Sharma Transport V/s. Government of Andhra Pradesh - 2002 (2) SCC 188 wherein it is observed that in order to strike down the delegated legislation as arbitrary it is to be established that there is manifest arbitrariness. In order to describe it as arbitrary it must be shown that it was not reasonable or was manifestly arbitrary. The expression ‘arbitrary’ means unreasonable manner as fixed or done capriciously or compulsorily without adequate determinative principle not found out in the nature of things or not done or acting according to reason or judgment depending on the will alone. The very fact that the amendment to Regulation 58 was done 10 years after the original DCR 58 was introduced after following due consultative process under Section 37 (which involves suggestions and objections from public and the Corporation consideration of the same by Dr. Director of Town Planning) and thereafter promulgation of the same in the form of direct regulation establishes ex-facie that the same cannot be said to be arbitrary or capricious much less manifestly so. The learned Advocate General for the State has also referred to another decision of the Supreme Court in the case of Khoday Distillery V/s. State of Karnataka - (1996) 10 SCC 304 wherein it has been observed that in order that delegated legislative can be spelt out as arbitrary such a legislation must be manifestly arbitrary: a law which could not be reasonably expected to emanate from an authority delegated with a law making power. Hence accordingly to the learned Advocate General merely because a different view is taken from that taken earlier and such view is tempered by the experience of the unworkable nature of the existing policy regulation the action of amending the same cannot be said to be unreasonable much less manifestly unreasonable arbitrary or such that no reasonable authority could have ever taken. Referring to the decision of Hon’ble Supreme Court in the case of Otis Elevators - 2003(12) SCC 68 the learned Advocate General for the State has pointed out the observations of the Supreme Court that if the legislation is not patently arbitrary this Court will not monitor implementation of such policy unless the same is discriminatory or arbitrary. The Hon’ble Supreme Court endorsed the view of the High Court that it was not for the Court to weigh the golden scale and to impose the view of the Court that the scheme as prepared is not on a proper hypothesis. Thereafter the learned Advocate General has referred to the decision of the Hon’ble Supreme Court in the case of Omprakash V/s.State of U.P. - (2004) 3 SCC 402 wherein similar view is expressed by the Supreme Court that though the concept of reasonable advise is defined it means the application of the underlying principles of social policy and morality of individual case. The Supreme Court has felicitously observed that the true test of reasonableness is nothing substantially different from social engineering balancing of interests or any other formulae which modern sociological theories suggest as an answer to the problem of judicial interference. The learned Advocate General therefore submits that Regulation 58 (New) is an exercise in socio-economic engineering. 77. On the aspect of Judicial Review the learned Advocate General referred to and relied upon the decision of the Hon’ble Supreme Court in the case of Maharashtra State Board of Secondary and Higher Secondary Education and Anr. V/s.Paritosh Bhupeshkumar Sheth and Ors. - (1994) 4 SCC 27 wherein the Hon’ble Supreme Court has declared the parameters of judicial review while considering the vires of a delegated legislation. The Supreme Court has observed thus:- The legal position is now well-established that even a bye-law cannot be struck down by the Court on the ground of unreasonableness merely because the Court thinks that it goes further than is necessary or that it does not incorporate certain provisions which in the opinion of the Court would have been fair and wholesome. The Court cannot say that a bye-law is unreasonable merely because the Judges do not approve of it. Unless it can be said that a bye-law is manifestly unjust capricious inequitable or partial in its operation it cannot be invalidated by the Court on the ground of unreasonableness. The responsible representative body entrusted with the power to make bye-laws must ordinarily be presumed to know what is necessary reasonable just and fair. In this connection we may usefully extract the following oft-quoted observations of Lord Russel of Killowen in Kruse V/s. Johnson (quoted in Trustees of the Port of Madras v. Aminchand Pyarelal - SCC P.178 para 23).When the Court is called upon to consider the bye-laws of public representative bodies clothed with the ample authority which I have described accompanied by the checks and safeguards which I have mentioned I think the consideration of such bye-laws ought to be approached from a different standpoint. They ought to be supported if possible. They ought to be as has been said ‘benevolently interpreted’ and credit ought to be given to those who have to administer them that they will be reasonably administered. The learned Chief Justice said further that there may be cases in which it would be the duty of the court to condemn bye-lays made under such authority as these were made (by a county council) as invalid because unreasonable. But unreasonable in what sense? If for instance they were found to be partial and unequal in their operation as between different classes; if they were manifestly unjust if they disclosed bad faith; if they involved such oppressive or gratuitous interference with the rights of those subjects to them as could find no justification in the minds of reasonable men the Court might well say Parliament never intended to give authority to make such rules; they are unreasonable and ultra vires. But it is in this and in this sense only as I conceive that the question of reasonableness or unreasonableness can properly be regarded. A bye-law is not unreasonable merely because particular Judges may think that it goes further than is prudent or necessary or convenient or because it is not accompanied by an exception which some Judges may think ought to be there. We may also refer with advantage to the well-known decision of the Privy council in Slattery v. Naylor where it has been laid down that when considering whether a bye-law is reasonable or not the Court would need a strong case to be made against it and would decline to determine whether it would have been wiser or more prudent to make the bye-law less absolute or will it hold the bye-law to be unreasonable because considerations which the Court would itself have regarded by its framing such a bye-law have been overlooked or rejected by its framers. The principles laid down as aforesaid in Kruse v. Johnson and Slattery v. Naylor have been cited with approval and applied by this Court in Trustees of the Port of Madras v. Aminchand Pyarelal.78. The learned Advocate General for the State thereafter referred to the decision of the Supreme Court in the case of M.C.Mehta V/s.Kamal Nath - (1997) 1 SCC 388 wherein the Supreme Court has expressly clarified the settled judicial policy in matters pertaining to the environment. The observations of the Apex Court in the specific context of what the Court described as the ‘classic struggle’ between those members of the public who would preserve our rivers forests parks and open lands in their pristine purity and those charged with administrative responsibilities who under the pressures of the changing needs of an increasingly complex society find it necessary to encroach to some extent upon open lands hitherto before considered inviolate to change are extremely instructive and offer invaluable guidance on the judicial approach when considered conflicting public interests. These are quoted below:- We are fully aware that the issues presented in this case illustrate the classic struggle between those members of the public who would preserve our rivers forests parks and open lands in their pristine purity and those charged with administrative responsibilities who under the pressures of the changing needs of an increasingly complex society find it necessary to encroach to some extent upon open lands heretofore considered inviolative to change. The resolution of this conflict in any given case is for the legislature and not the courts. If there is a law made by Parliament or the State Legislatures the Courts can serve as an instrument of determining legislative intent in the exercise of its powers of judicial review under the Constitution. But in the absence of any legislation the executive acting under the doctrine of public trust cannot abdicate the natural resources and convert them into private ownership or for commercial use. The learned Advocate General has further submitted that the aforesaid judgment in the case of M.C. Mehta V/s. Kamal Nath (supra) lays down the following three important criteria:-(a) The resolution of the classic struggle or conflict between those who consider open lands inviolate and those who pragmatically recognize that due to the pressures of the changing needs of an increasingly developed and complex urban environment some encroachment thereon is necessary is for the legislature and not the courts;(b) Whether the legislature has stepped in and made a law: the function of the Courts is to serve as instruments for determining legislative intent in the exercise of powers of judicial law;(C) Whether there is no legislation: as subject to the standards and scope of judicial review are very different. The executive actions are subject to the doctrine of public trust. The learned Advocate General has submitted that the Petitioner’s arguments seek to obliterate the distinction between (b) and (c) above and at the same time involve the Court in the resolution of conflicts which is the province of the legislature and which the legislature has in fact sought to resolve. It is therefore submitted by the learned Advocate General that this Court should not do so.79. While dealing with the Petitioners’ arguments that amended Regulation 58 is not in consonance with the policy of Article 48-A of the Constitution of India the learned Advocate General for the State has submitted that it is a settled law that Article 48-A and the Directive Principles of State Policy can never be a basis for invalidating legislation. The learned Advocate General therefore submits that conscious of this fact the Petitioners have therefore sought to inter-weave the policy of Article 48-A into the judicial review considerations in Articles 14 and 21. The learned Advocate General further submits that a reference to the guiding policy of Article 48-A cannot invalidate that which is constitutionally valid. 80. So far as fourth part of his submissions regarding ‘Delay’ the learned Advocate General for the State has submitted that the interpretation of amended/modified Regulation 58 is very clear and as stated in paragraph 23 of the Petition obvious at all points of time right from March 2001. Against this there is a gross and unexplained delay and laches on the part of the Petitioners in approaching this Court. The learned Advocate General has submitted that the faint attempt is made by the Petitioners to explain the gross and unexplained delay in para 59 of the Petition (page 41) that the effect of modified Regulation 58 and the manner of its being operated/interpreted was not apparent till very recently. It is submitted that the detailed chronology set out in paragraph 3(2) of the Reply of Ramanand Tiwari [Page 196 Vol.2 para 3 (ii)] shows that the Petitioners had every conceivable opportunity to object to the said regulation whilst the same was in the process of being formulated and finalized. The Petitioners failed and neglected to participate in the statutory public consultative process and have now sought to raise objection after lapse of four years. The learned Advocate General submits that the State Policy is reflected in Regulation 58 and this policy has been acted upon by the mill owners NTC workers banks financial institutions and individual flat purchasers. According to him the individual affidavits filed by NTC mill owners and the recognized textile workers union set out the relevant facts and figures and the monumental public-debt burden that the textile mills are labouring under. It is the submission of the learned Advocate General for the State that a challenge of the Petitioners to such a Regulation at a belated stage would play havoc with the interest of the aforesaid parties all of whom except perhaps the mill owners are innocent third parties who are not or have no private motive out of the entire transaction. The grant of the reliefs sought by the Petitioners would cause considerable prejudice to affected parties including workers banks and financial institutions flat purchasers mill owners the city itself since under Regulation 58(old) little or no land was actually surrendered. He therefore submits that as a responsible State the Government of Maharashtra opposes such a belated challenge which affects the interest of a large number of persons. The learned Advocate General submits that it is a settled law that the Courts do not entertain Public Interest Litigations belatedly filed and in support of this contention he has invited our attention to the cases reported in (i) AIR 2000 SC 3751 - Narmada Bachao Andolan V/s Union of India & Ors. (ii) 2001 (4) MH.L.J.260 - Bombay Environmental Action Group and Another V/s. State of Maharashtra & Ors. and (iii) (2005) 3 SCC 91 - R & M Trust V/s. Karamangala Residents Vigilance Group & Ors. SUBMISSIONS ON BEHALF OF MUNICIPAL CORPORATION: 81. Mr.Singhvi the learned Senior Counsel for Municipal Corporation of Greater Mumbai submitted with regard to the Constitutional validity of amended D.C. Regulation No.58 as follows:-(a) The D.C.R.58 has been challenged on the ground of it being ultra vires the articles 21 and Article 14 of the Constitution of India. the averments regarding Article 21 are contained in Paragraph 54 of the petition whereas averments regarding Article 14 are contained in paragraph 55 of the petition. Paragraph 54 deals with violation of article 21 based on the ground that the right to clean and healthy environment cannot be taken away except in accordance with the provisions of law. In support thereof it is contended that the procedure mentioned in Section 37 of the M.R.T.P.Act has not been followed. It is respectfully submitted that the Petitioners admit that the procedure required for modification of the D.C.R. has been followed in enacting the amended Rule 58. However it is the contention of the Petitioners that the modification could not have been done under section 37 since the said modification would change the character of the Plan. Since substantial arguments as to whether the amendment of D.C.R.58 changes the character of the Plan or not has been taken up separately this contention will be dealt with in that context. Thus in substance there is no constitutional challenge based on Article 21 of the Constitution of India. (b) D.C.R.58 has been challenged on the ground being violative of Article 14 of the Constitution of India in paragraph 55 of the petition on the ground that the amended D.C.R.58 benefits a small community of the Mill Owners and Developers who are recipients of largesse in an arbitrary and unjust manner.These respondents submit that this is not a sufficient averments of violation of Article 14 of the Constitution of India simply because it is beneficial to the Mill Owners and Developers it cannot be said that it is largesse given by the State to them and that the same is distributed in an arbitrary manner. The D.C.R.58 applies to all Mill owners/Developers in a uniform manner. The State does not contribute even one Naya Paise from its coffers. It cannot therefore be contended that the said amended D.C.R.58 is arbitrary or violative of Article 14 of the Constitution of India. In this connection Mr.Singhvi relied on the following Judgments of the Hon’ble Supreme Court:-1. (1996)-3 SCC 709 - State of Maharashtra V/s. Mcdowell & Commissioner & Ors.Page 738 -Para 43. 2. (1996)-10 SCC 304 - Khoday Distillaries Ltd. & Ors V/s.State of Karnataka & Others. Paragraph 13 - Page 314 and Para 19 - Page 316.3. (1997)-2 SCC 453 - State of Bihar V/s.Bihar Distilleries & Ors. Paragraph 18 - Page 466 and Paragraph 19 - Page 467. 4. (2002)-2 SCC 188 - Sharma Transport V/s. Government & Others. Paragraph 25 - Page 203 & 204. 5. (1974)-4 SCC 415 - The Amalgamated Tea Estate Co.Ltd. & Ors. V/s.State of Kerala. Paragraphs 10 11 & 14 - Page 419-420. 6. AIR 1958 (SC) 538 - Ramkrishna Dalamiya V/s.Justice Tendolkar. Paragraph 11 & 12- Page 547-549. 82. Mr. Singhvi the learned Senior Counsel submitted as under with regard to amended D.C.R.58 as ultra vires of Section 37 of M.R.T.P. Act as it alters the character of the Development Plan:-This contention is made in Paragraph 34 at Page 25 of the petition. There is no averment in the petition as to how the amended DCR 58 alters the character of the Development Plan. Earlier the unamended DCR 58 related to the Development or Redevelopment of the Mill lands. The amended DCR 58 also relates to same subject. The earlier D.C.R. required the Mill owners to share open land which becomes available after demolition of the existing structures with the BMC & the MHADA. The amended DCR 58 now permits the Mill Owners not to share the land with the BMC & MHADA which becomes available after demolition of the existing structures such a change does not in any way alters the character of the Development Plan. In our submission the Character of the Plans would change only where the modification changes the identity of the original Development Plan which is not the case here. Hence there is no substance in the contention that the amended DCR 58 is ultra vires of the Section 37 of the M.R.T.P. Act.83. Mr.Singhvi the learned Senior Counsel submitted as under with regard to the proper construction and true meaning of DCR 58:-(a) It may be pointed out that even according to the Petitioners the amended D.C.R.58 does not require the Mill Owners to share the land becoming vacant after demolition of the existing structures whereas under the earlier DCR 58 mill owners were obliged to share such open land with BMC & MHADA. In para 23 of the petition it is stated that Open land and balance FSI of the land available for redevelopment under DCR 58 is limited only to the land on which no structure exist at the time when the application is submitted. Thus all built up areas including those under encroachment by illegal construction are excluded from the available area computation. While earlier scheme included not only the open land but also the land with the existing structures ...........(b) The Petitioners have in their petition relied upon the Municipal Corporation’s Resolution whereby the Mayor was requested to forward the letter of Shri.Gunvant Sheth dated 22.8.2003 to the State Government in terms of opinion expressed in the letter. Paragraph 5 of the letter states that the recent amendment to Regulation 58 of DCR Regulations state that in the calculation of the land to be surrendered the built up area has to be excluded though the built up area would be demolished for such construction resulting in deprivation to the citizens of Mumbai for over 120 R.G.Potential ......... this letter is annexed as Exhibit ‘I’ to the Petition.(c) The Petitioners have further relied upon the letter of U.P.S.Madan the then Vice President & C.E.O. of the MHADA dated 25.7.2003 addressed to Mr.Suresh Joshi Principal Secretary to the Housing Department Mantralaya. This is annexed as Exhibit ‘J’ to the petition at Pages 187-189. The letter inter-alia states:Till about 2 years back DCR 59 provided for sharing the entire land of the Textile Mills in the ratio of 1/3rd each between the Mills BMC & the MHADA. As an amendment was made to the said DCR 2 years back whereby the Mill Owners was allowed to deduct the existing built-up area on such land and share only the vacant area with BMC & MHADA. This has resulted into a tremendous loss to the MHADA as a very little area is left after deducting the built up area from the total area of the Mill land. Being fully aware of the fact that under the amended DCR 58 the land made available after demolition of the existing structures could not be shared with BMC & MHADA the Petitioners in Paragraph 56 A of the petition (Rider‘F’) has requested this Court to construe the term Open Land in Reg.58 1(b) as including those lands which become open upon demolition of the existing structure as such a construction would result in substantial area of land becoming available for public open spaces and public housing under Regulation 1(b). (d) It is therefore respectfully submitted that even according to the Petitioners under the amended DCR 58 the land becoming available after demolition of the existing structure would not be shared by the Mill Owners with the BMC & MHADA. We accept the said interpretation. Therefore there is no question of this Court construing the said Regulation in any other way. (e) Without prejudice to the aforesaid submission it is respectfully submitted that the proper construction of amended Rule 58 is as under:- (i) Under the DCR 58 (1) (a) the existing built up area may be utilised for commercial purposes as permitted under these Regulations for development or redevelopment of the entire open land and the built up area of the sick and/or closed cotton textile mills for the revival/rehabilitation at a potential viable and/or closed sick mill. (ii) Under DCR 58 (1)(b) open land and the balance FSI of the Mill are to be utilized as indicated in the Table. In other words open land & balance FSI will have to be shared by the Mill Owners with BMC & MHADA. Since the words land after demolition of existing structures in case of redevelopment schemes in the earlier DCR 58 has been deleted it becomes clear that the open land mentioned in clause (b) would not include the land available after demolition of the existing structure. (iii) DCR 58 (6) permits the Commissioner to approve a layout prepared for development or redevelopment of the entire open land and/or built-up area of the premises of the cotton textile mills which is either sick and/or closed or requiring modernization on the same land for reconstruction after demolition of existing structure limited to the extent of the built-up area of the demolished structure. This clause also supports the view that the land becoming available after demolition of the existing structure is not to be shared by the Mill Owners with BMC & MHADA. 84. Mr.Singhvi the learned Senior Counsel has pointed out that the Petitioners have also challenged the amended Rule 58 on the grould of being against public interest and against the spirit of MRTP Act. In that context the learned Counsel submitted that the legislation or the delegated legislation can be challenged only on two grounds firstly on the competence to enact a law and secondly for violation of fundamental rights. The learned Senior Counsel also submitted that the legislation cannot be challenged on the ground that it is against the public interest. On the contrary there is a presumption that every law is enacted in public interest. Similarly the law cannot be challenged on the ground that it is against the spirit of the Act. If the Legislature is competent to enact a law and if the law does not contravene any fundamental right or any other Constitutional right the law has to be upheld. Thus the Counsel submitted that there is no substance in the contention of the Petitioners that the said amended DCR 58 is against the public interest or is against the spirit of the M.R.T.P. Act.85. Mr.Singhvi pointed out that the Petitioners have by the amended prayer (c-2) sought a direction restraining these respondents from permitting any development/redevelopment of Mill lands in contravention of the Notification dated 27th January 1994 Exh.L-2 hereto as amended by the Notification dated 7th July 2004 Exhibit L-3. The learned Senior Counsel stated that these Respondents have no objection if such a direction is issued by this Court.86. Mr.Singhvi submitted that these Respondents were under the belief that the Mill Owners/Developer could produce the required permission from M.O.E.F. before submitting Completion Certificate and obtaining Occupation Certificate did allow development in certain cases by issuing IOD and Commencement Certificate but subsequently on being so advised have issued stop work notices in all such cases during the hearing of this petition and have stopped all further construction until the aforesaid Environmental Clearance is obtained. SUBMISSIONS OF NATIONAL TEXTILE CORPORATION: 87. Mr.Rohatgi the learned Senior Counsel on behalf of National Textile Corporation submitted that the Petitioners have alleged that the sale of 5 mills effected so far by these Respondents is in violation of the Supreme Court order inasmuch as the said order of the Hon’ble Supreme Court of India dated 11.5.2005 was made in respect of an interlocutory order made by this Court. The said order was made in the SLP filed by these Respondents being SLP No.7405 of 2005 wherein interlocutory orders dated 1st April 2005 were made by this Court in the present Writ Petition. It was submitted by the learned Counsel that the alleged breach of the BIFR Schemes/ Order of the Supreme Court cannot form subject matter of this Writ Petition. 88. The learned Senior Counsel contended that the scheme submitted by these Respondents is under the modified DCR 58 of 2001 i.e. DCR 58 (1) (b) read with 58(6). It is submitted that these Respondents have proceeded with the sale of land in accordance with the BIFR scheme as also as per the Supreme Court order dated 11.5.2005. It is further submitted that the sale has been approved by the Assets Sale Committee constituted pursuant to the directions of the BIFR. The said Assets Sale Committee consists of members as noted in Order dated 19.11.2001 as per Exhibit ‘F’ to Affidavit of these Respondents dated 12.9.2005. 89. Mr.Rohatgi submitted that in view of what is stated hereinabove this Court be pleased to consider the scope of Petition as being restricted to the determination of the constitutional validity of DCR 58 of 2001 at Exhibit-C and the clarification dated 28th March 2003 at Exhibit-E to the Petition. 90. With regard to amended DCR 58 Mr.Rohatgi submitted as under:- (a) The averments made in paragraph Nos.33 to 35 show that the Petitioners have proceeded on the basis that the DCR 58 itself results in a drastic reduction in the area available for development and consequently less area will be available for sharing with MCGM and MHADA. The area specified in paragraph 33 and paragraph 35 of the Writ Petition proceeds on the premise that (i) the development if any that would have occurred in respect of cotton textile mill land under DCR 1991 would have been under the old DCR 58 (1) (b) i.e. all mill owners would have submitted proposals for development under this Regulation which would then result in 200 acres of land being made available to MHADA for public housing and 200 acres of land being made available for open spaces and greens for the city; (ii) that under the Modified DC Regulation 2001 all development activity of the Cotton Textile Mill would be under 58 (1) (a) as modified and/or 58 (1) (b) whereunder a reduction occurs in the proportion of sharing on account of the phrase used in the Modified DC Regulation 58 (1) (b) open land and balance FSI; (iii) that DCR 58 (6) is in no way connected with 58 (1) (a) or 58 (1) (b) and does not permit change of user. This contention is nowhere to be found in the Writ Petition or in the affidavits filed thereafter by the Petitioners and has been raised for the first time when the Petitioners were rejoining to the submissions made by the Respondents.(b) The Petitioners proceed on an assumption that the public has a vested right to this 400 acres. The Petitioners have further erroneously proceeded to compare the figure of 400 acres with the Modified DC Regulation 58 of 2001. In the event of this Court concluding that the Modified DC Regulation 2001 is validly enacted as per the procedure prescribed under Section 37 of the MRTP Act the said Modified DC Regulation of 2001 has to be viewed independently and cannot be compared with the old DCR Regulation 58 of 1991. The said DC Regulation of 1991 has since been repealed. This Court is therefore required to only construe the DCR 58 of 2001. If there is no ambiguity in the said DCR 58 2001 then the averments made in the Petition and the arguments advanced with regard to construction of DCR 58 by the Petitioner would necessarily fail. It is submitted that the policy of the Act and the intention of the Government to amend DCR 58 2001 is clear. Effect has to be given by this Court to the said amended DCR 58 of 2001.(c) It is submitted that the Petition ignores the fact that development of cotton textile mill land is at the option of the owner of the mill land and there is no statutory obligation cast on the owner that all development of mill land should be only under DCR 58 (1)(b). The owner has a choice of submitting a development proposal under either DCR 58(1)(a) 58(1)(b) or 58(2) or 58(3) or 58(5) or 58(6)(a) and 58(6)(b). Depending upon the choice exercised by the owner land may or may not be shared with MCGM and MHADA. It is but a surmise or a conjecture that how much land would be shared with MCGM and/or MHADA on account of the modification to DCR 58.(d) This case of the Petitioner is apparent from the averments made in the Petition particularly paragraph 35 read with paragraph 41 of Writ Petition. The Petitioner further submits that based on the above data the amended DCR 58 would result in approximately a 61% reduction of mill land that would otherwise be available for open and green space and approximately 69% reduction of mill land otherwise available for housing. Further the averments made in paragraph 8 of the petition on page 5 are also relevant. Under the original DCR 58 the total land that would have been released to open space utilization was about 200 acres. Under the amended DCR 58 which is being applied by the Respondent this will come down to a paltry 17 acres. Similarly the area available for housing that was potential 158.35 acres under the original DCR and would have accommodated 28422 families (at 30 sq. metres per family) is reduced to 17.78 acres.(e). Initially an attempt was made by the petitioner to contend that the open space and the public housing which would be available to the city was in the nature of a reservation (though no reservation in the strictest sense). Attempt was also made to take the support for this argument by reference to the provisions contained in Chapter VII particularly Section 126 of the Act. However this submission of the Petitioner was not pressed later on.(f) It is submitted that in view of the foregoing submissions the Petitioner is not entitled to any reliefs as the entire sub stratum of the case of the Petitioner is based on erroneous assumptions or conjunctures. 91. As regards the Constitutional validity of amended DCR 58 the learned Senior Counsel submitted as under:-A. Challenge under Article 14 of the Constitution of India: The Petitioners have contended that the modified DCR 58 is ultra vires MRTP Act as also ultra vires Article 14 and 21 of the Constitution of India. In so far as Article 14 is concerned it is contended that the amended DCR 58 benefits a small community of Mill owners and Developers and are recipients of largesse in an arbitrary and unjust manner. It is submitted that apart from alleging infringement or violation of Article 14 of the Constitution there is no arbitrariness shown so as to strike down the present DCR 58 2001. No case has been made out that the amended DCR favours a distinct category of people at the expense of the broader social interest. The said DCR 58 applies uniformly to all lands of Cotton Textile Mills.B. Challenge under Article 21 of the Constitution of India:In so far as Article 21 is concerned it is the case of the Petitioner that the procedure adopted for enacting the said DCR 2001 is not permissible and that rights of the citizens have been deprived except in accordance with the procedure adopted by law. This case is also not made out by the petitioners.92. Mr.Rohatgi the learned Senior Counsel strongly disputed that the DCR 58 is violative of Section 37 of MRTP Act for the following reasons:- (a) The Petitioners have contended that the 2001 amendment would not have been made by taking recourse to the provisions contained in Section 37 of the Act. Such an amendment as the Petitioner would contend can only be done by taking recourse to the provisions contained in section 33 or under section 38 of the Act.(b) The Petitioners have also contended that the amended DCR 58 2001 is ultra vires as the provisions contained in section 22 (a) and (c) of the Act. In support of this aforementioned two contentions the Petitioners have in fact also alleged that the amended DCR is arbitrary and unreasonable in view of the provisions contained in Section 33 of the Act. (c) The aforementioned challenge cannot survive in view of the case made out by the State Government i.e. the Respondent No.1 herein. In its affidavit dated 22.3.2005 and the affidavit dated 17.8.2005 the said issue has also been dealt with by these Respondents in their affidavits in reply to Writ Petition dated 28th March 2005. 93. Similarly Mr.Rohatgi the learned Senior Counsel also submitted that the amended DCR 58 does amount to change of character of the Plan for the following reasons:-(a) The Petitioners have in fact proceeded in the Writ Petition on the basis that the said modified DC Regulations of 2001 amounts to substantial nature as specified in Section 22A of the Act. The said Section refers to modifications envisaged in Section 29 or 31 of the Act. The Petitioner has made submissions before this Court which is not set out in the Petition with regard to the change in the character in the final development plan. (b) It is submitted that the modifications envisaged under Section 29 and 31 are at the draft development plan stage whereas 37 provides for the modifications in the final development plan subject to the condition that the said modifications cannot bring about a change in the character of final plan. It can be demonstrated amply from the record that Section 22A has no applicability to the present petition. Further the change effected in DCR 2001 is only quantitative change and not qualitative change. In fact the reduction results on account of the amendment made to DCR 58 in 2001 whereby the phrase ‘open land and balance FSI’ which has been substituted for the words open land and land after demolition of existing structure in case of a redevelopment scheme. The intention of the legislature was to exclude all land component used by existing built up structures for the purpose and computation of sharing of land at the time of development. The said proposal was published by the Respondent No.1. Objections were invited from public. No objections were filed by the Petitioners at that stage.(c) The basis on which the Petitioner proceeds is erroneous in as much as the Petitioners are treating the contingent possibility as even more than a reservation effected under Section 22(b) and (c) of the Act. It is submitted that DCR 58 is a Regulation under Section 22(m) of the Act and not a reservation under Section 22(c). It is further submitted that even if the reservation was made under Section 22(b) such reservation would not create any enforceable right in favour of any citizen to compel the planning authority to acquire the land or keeping them open or use the same for public housing. It is further submitted that an amendment to the said regulation relating to additional development of land of cotton textile mills does not amount to a change in the character of the plan. It is further submitted that reduction of open area in the context of planning unit works out to less than 1% and is therefore also not hit as a change of substantial nature under Section 22A nor as a change in the Character of the Plan under Section 37 of the Act. It was thus submitted by the learned Senior Counsel that the Petitioner is not entitled to seek any relief on the ground that the amended DCR 2001 is violative of the provisions of the Act. 94. The learned Senior Counsel Mr.Rohatgi also submitted that the present regulation does not envisage acquisition of mill land by the State Government. It provides for a scheme whereunder the owners may voluntarily surrender a portion of their land for open spaces and Public Housing. The object of the policy of the amended DCR 2001 was to provide for development and redevelopment of mill land and/or shifting or modernisation to make resources available to the owners of sick/closed mills or to companies which were declared as sick under the SICA Act in order to meet the liabilities. The State and the City also gained some open space for MCGM and MHADA under the Scheme. There are conflicting needs in a society and an attempt was made to balance the seme. The policy was to satisfy the economic needs of the owners and also benefit the city by a voluntary surrender land for Public Housing or for open space.95. Mr.Rohatgi the learned Senior Counsel contended that in the instant case there is no case made out for judicial review of policy decision of the Government:- (a) It is submitted that the judicial review of the policy decision is very narrow. The policy of the Government which takes into account the past experience during the period 1991 to 2001 during which only 3-4 mills opted for development of cotton textile mill must be given effect to. A conscious departure was felt necessary from the old DCR 58-1991 and the said decision was translated into an amendment to the said Regulation in 2001 after following the due procedure prescribed under the Act. (b) It is submitted that the Government was conscious of the fact that unless the DCR 58 was amended to make it more attractive for the owner of the mill land the assets of the sick or closed mills would remain idle and would not be brought in for development in which case no land at all would be made available for open space or for Public Housing. In order to make the scheme more efficacious the said amendment was brought into effect. Unless the modified DC is interpreted in line with the legislative intent the problem which was sought to be addressed by the Government would not be given effect to. It is also submitted that the golden rule of interpretation is required to be applied in the present case while construing the provisions of DCR 58. There is no ambiguity in the said provision.(c) Though the Petitioners have contended that there are two interpretations on DCR 58 possibly and that the Petitioners would have this Court accept the interpretation sought to be put forward by them on the ground that the said interpretation advances the environmental and social needs of the city. These respondents submit that there is only one interpretation possible of the said modified DC Regulations. The interpretation of the Petitioners is not correct as it does not take into account the clear and unambiguous words used in DCR 58(a)(b) which provides for development of ‘open land’ and ‘balance FSI’. The modified DC Regulation construed on the basis of the clear and unambiguous words used therein would lend itself only to the interpretation as put forward by these Respondents. (d) It was therefore submitted that this Court would not be entitled to interfere with such policy decisions of the Government which have been introduced by following of an amendment after doing following due process of law. 96. Mr.Rohatgi the learned Senior Counsel submitted as follows with regard to proper construction and true meaning of amended DCR 58 :- (a) The Petitioners have submitted different interpretations of DCR 58 as modified in 2001 in the Writ Petition at the time of submitting oral arguments before this Court and at the time of submitting its rejoinder. The Petitioners have also filed a note with regard to construction of Regulation 58 which is at variance with the interpretation of the said Regulation in the Writ Petition (Paragraph 23 page 17 of the Writ Petition). The relevant portion reads as under:-The Petitioners therefore submit that on account of the words ‘open lands and balance FSI’ the land available for redevelopment under DCR 58 is limited only to the land on which no structure exists at the time when the application is submitted. The Petitioners have therefore approached this Court on the premises that there is a drastic reduction in the area available for open space and public housing on account of the modified DC Regulation 2001 and not on account of the clarification issued thereafter dated 28th March 2003. (b) The Petitioner have further relied on the Resolutions of the Respondent No.2 regarding the letter of Shri.Gunvant Sheth dated 22.8.2003 at Exhibit I to the petition. The said letter inter-alia states as under:-The recent amendment to Regulation 58 of DCR Regulations states that in the calculation of the land to be surrendered the built-up area has to be excluded though the built-up area would be demolished for such construction resulting in deprivation to the citizens of Mumbai for over 120 R.G.potential xxxx.(c) The Petitioners have also relied on the letter addressed by UPS Madan the then Vice President and CEO of MHADA dated 25.7.2003 addressed to the Principal Secretary of Housing Dept. which reads as under:-Till about 2 years back DCR 59 provided for sharing the entire land of the Textile Mills in the ratio of 1/3rd each between the Mills MCGM and the MHADA. As an amendment made to the said DCR 2 years back whereby the Mill Owners was allowed to deduct the existing built-up area on such land and share only the vacant area with MCGM & MHADA. This has resulted into a tremendous loss to the MHADA as a very little area is left after deducting the built-up area from the total area of the Mill land.(d) it is thus clear that the Petitioners are and were fully aware of the proper construction of DCR 58. Despite this the Petitioners have sought to interpret open land used in DCR 58 (1) (b) as set out in paragraph 56A of the Writ Petition in a manner which was not the intention of the legislation at all.(e) The interpretation of the DCR 58 if construed in the matter as submitted in the note of the Petitioner dated 6.9.2005 would lead to an anomalous result such as –(i) If open land is to be interpreted as including land available after demolition then what is the meaning to be given to the expression ‘balance FSI’ (See DCR 58(i) (b).(ii) If land after demolition is included in the said Regulation i.e.58(1)(b) how is it that land after demolition is referred specifically in DCR 58(6). If the expression open land is to be construed as including land after demolition then the expression land after demolition was not required to be specified in DCR 58(6). (iii) If the definition of the term development as defined in section 2(7) of the Act as amended in 1994 which includes the expression ‘demolition of any existing building structure’ has to be taken for the purpose of interpreting the entire DC Regulation 58-2001 then the ‘land after demolition’ would also be included in the expression development/ redevelopment used in the DCR 58(1)(a). (iv) If the Petitioner’s contention with regard to the expression open land is accepted then what is the meaning to be given to DCR 58(6) which provides for development and/or redevelopment of the entire open land and/or built up area of premises of a cotton textile mill wherein demolition of the existing structure is specifically provided for. (v) The Petitioner’s interpretation totally ignores the fact that under the DCR 58(1)(b) read with the notes stipulated thereunder provides for demolition of existing structure only under note (iv) and for the limited purpose of surrendering open land in a case where the balance FSI is available but no open land is available. No demolition is envisaged barring this one exception under DCR 58(1)(b). (vi) The interpretation given by the Petitioners also ignores the fact that in DCR 58(8)(a) it is envisaged that funds will accrue open such modernisation/ development under sub regulations of DCR 58. Sub Regulation enumerated in the said DCR 58(8)(a) includes 58(6)(a) and 58(6)(b). It however conspicuously does not include 58(5) which provides only for textile user or other related user. It is therefore envisaged in the scheme and the policy of the Regulation that resources may not be generated if only textile user or related user is opted for by the owner of the mill land.(vii) The contention of the Petitioners that 58(6) is a stand alone provision is not at all tenable. 58(6) cannot be limited to a situation where textile mill alone must continue after the development envisaged under 58 particularly in view of the fact that the said contingency is already envisaged and provide for under 58(5) and is consciously omitted under sub regulation 58(6). Further if the user of the land is required to be continued as that of textile or related user then the entire interpretation of the scheme of the said Regulation would be rendered unworkable and meaningless. The common thread running through DCR 58 is that the land component of the existing built-up area is protected land and it belongs to its entirety of the owner of the land. This land the owner will not be called upon to share for open space or for public housing. This was the aim sought to be achieved by the amendment of 2001. The reading down of the said Regulation for the purpose of rendering the said regulation unconstitutional is not permissible.(viii) The changes effected in the DCR 58(1)(a) and 58(1)(b) are indicative of the legislative intent by changes brought about in 58(1)(a) by deletion of the words newly and simultaneous amendment in 58(1)(b) by deletion of the words land after demolition of the existing structures in case of a redevelopment scheme. The contention therefore of the Petitioners that these amendments should be ignored and open land should be interpreted to notionally include even land after demolition would be a regressive step and would defeat the very purpose of the modified DC Regulations. Such an interpretation cannot be accepted. (ix) The further submission of the Petitioners in respect of the change of user permissible under 58(1) (2) (3) and (4) was not available under 58(6) also is fallacious and must be negatived. The Petitioners have taken support of Regulation 56 and 57 in its behalf and also has referred to the definition of the expression ‘existing land use map’ in section 2(12) and Chapter IV of the Act in support of its case. This contention cannot be accepted as the user of the land and the change thereof is prescribed in 58(1) even in respect of schemes which may be submitted under 58(6)(a) or 58(6)(b). If the textile mills’s structures are to be demolished and only another textile mill can take its place there is no reason for an employer or an owner to demolish the existing structure at all. Also if a new textile mill has to be constructed after demolishing the existing textile mill’s structures no resources would be generated as envisaged under 58(8)(a). In so far as change of user under 58(1)(a) is concerned it specifically provides that the said regulation permits user for commercial purposes. Commercial Purposes does not have the same meaning nor is it synonymous to the expression Commercial use as understood in the context of the policy of the Act. Commercial Purpose has been specifically referred to in the notification dated 10.4.2001. The Commercial purpose therefore permits residential use as well as the commercial use. DCR 58(6) therefore has to be read in the context with regulation DCR 58(1). Since DCR 58(6) envisages reconstruction after demolition the interpretation of the Respondent is correct as the land component of the existing structure is not required to be shared. The impugned clarification dated 28.3.2003 merely clarifies the position which has been clearly understood by the developers and/ or owners of the mill land. This can be ascertained from the proposals submitted by the owners/ developers between the period March 2001 and 28th March 2003. The further contention of the Petitioner that residential user is permitted only under 58(1)(b) and not under 58(1)(a)(iii) is also not tenable. It is thus submitted by the learned Senior Counsel that the issue of user as raised by the Petitioners cannot be accepted in view of what is submitted hereinabove.(f) It is submitted that interpretation put forward by the Petitioners with regard to the user of land ignores totally the provisions contained in DCR 52 and 53 which permits shops and other commercial uses as enumerated therein even in residential zone or commercial zone.(g) It is submitted that the interpretation put by the Petitioner on the DCR 58 as modified in 2001 cannot be sustained in view of what is stated hereinabove. 97. The learned Senior Counsel Mr.Rohatgi thereafter dealt with the clarification dated 28.3.2003. He has submitted that the said clarification is nothing but a clarification and not an amendment and the contentions raised by the Petitioner must be negatived on this issue particularly in view of the affidavit dated 17th August 2005 filed by the Respondent No.1. It is also submitted that the said clarification was issued in response to the queries submitted by the Respondent No.2. The clarification pertaining to 58(6) and 58(1)(a)(iii) proceeded on the assumption made by the Respondent No.2. The Respondent No.2 merely sought confirmation of the said assumption and the said clarification has to be viewed in view of this factual position and cannot be treated as an amendment. The said clarification was only given in response to the query of the MCGM for the purpose of ascertaining mode of calculation of the land component of the existing built up area for the purpose of determining the land which would not be available for sharing. The further submission of the Petitioner that the clarification violates section 37 can also not be entertained and must be rejected in as much as the DCR 58-2001 clearly intends that the land component of built up structure is not to be taken into account for the purpose of sharing and that only open land and balance FSI would be available for sharing. The clarification dated 28th March 2003 clearly reiterates the same and does not amount to any amendment or any new provisions being enacted as erroneously submitted by the Petitioners. Further the contention raised by the Petitioners runs totally counter to the interpretation put by the Petitioners themselves regarding the implication of DCR 2001 itself. It is therefore submitted that the clarification also cannot be treated as violation of provisions of section 37 or of the Constitution as contended by the Petitioner in their amended Writ Petition. The challenge to the said clarification must therefore fail. 98. On the factual aspects of NTC (MN) Ltd. and NTC (SM) Ltd. the learned Senior Counsel submitted as follows:-(a) These Respondents crave leave to refer to the chronology as set out in the affidavit of Shri.Devdatta Pandit in reply to the affidavit of the Respondent Nos. 16 27 and 32. To this affidavit the affidavit in reply to the Notice of Motion No. 128 of 2005 filed by these Respondents is annexed. The chronology in the said affidavit is relevant and the same may be perused. (b) Reference was made in respect of these Respondents to the BIFR constituted under the Sick Industrial Company (Special Provisions) Act 1985 in the year 1992. Both the subsidiary companies in Maharashtra were declared as sick industrial company as defined under Section 3(1)(o) of the said Act and BIFR appointed IDBI as the Operating Agency to explore the possibility of revival/rehabilitation of the sick company. During prolonged hearing before the BIFR for 10 long years a stage came when the BIFR was of the view that since no tied up scheme was made available by the Operating Agency a show cause notice was necessary to be issued for winding up of both the subsidiary companies. The Supreme Court had in fact directed expeditious resolution of the dispute before the BIFR as referred to in the order of the BIFR dated 25.7.2002 whereby the Rehabilitation Scheme was finally sanctioned. During the course of the hearing before the BIFR the promoters i.e. the holding company i.e. NTC Limited had sought exemption from the then DC regulations as applicable from time to time i.e. DCR 58 - 1991. Total exemption was sought on the ground that in other States where other subsidiaries of the holding company are in existence and which were also before the BIFR the State Government in respect of those subsidiaries had permitted development of land of the subsidiaries without any restriction or condition of sharing land for open space and public housing. During the pendency of the said scheme DCR 58 was modified and brought into effect in March 2001. Even under the said modified Regulation an exemption was sought by the holding company and the promoters. However the consistent stand of the Respondent No.1 before the BIFR was that no such exemption would be granted and the subsidiaries would have to develop the land strictly in consonance with DCR 58 in force. This is clear from the letter dated 30th April 2001 addressed to BIFR by the Deputy Secretary Ministry of Textiles Government of Maharashtra. (c) It is submitted that the norms of viability of the mill owned by the subsidiaries have undergone changes in this period of 10 years. The techno-economic viability study (TEVS) has been carried out by an independent organization namely Bombay Textile Research Association (BTRA) whereas the Operating Agency IDBI has carried out the study with regard to the economic implications of the scheme. Based on the said viability report certain mills were found to be viable and certain mills are found to be unviable. Based on the said viability report it was envisaged that the Corporation would utilise the land which was surplus to its requirement for the purpose of generating resources in order to meet the cost of the scheme and also in order to meet the outstanding liabilities of these Respondents. The total outstanding dues towards MVRS dues monthly wage bill modernization expenses statutory dues dues owned to financial institutions and creditors have already enumerated not only in the cost of the scheme but also in the affidavit filed in the present proceedings as aforesaid. The IDBI therefore took into consideration this land which was surplus to the requirement of the Respondents for the purpose of analysing the resources that could be generated by sale of such surplus land. This is clear from the IDBI scheme at Exhibit B collectively to the affidavit dated 12.9.2005 and the note at Exhibit E & F to the said affidavit. (d) The scheme as formulated by the Operating Agency made valuation on approximate basis of the surplus land and have arrived at approximate value thereof to be at 72% of the value of the total surplus land. While carrying out this valuation the Operating Agency took the then registration rates as applicable. Further the BIFR report further envisages that in the event of there being any shortfall for the purpose of meeting the cost of the scheme the same would be borne by the holding company and the promoters of the company. (e) It is further submitted that the Ministry of Textile under the direction of the BIFR constituted an Assets Sale Committee vide order dated 19.11.2001. The function of the Assets Sale Committee was to ensure that the sale of land is carried out in a transparent and fair manner so as to generate maximum resources for the revival of the company. These respondents therefore appointed an Architect pursuant to the joint meeting of the Assets Sale Committee with these Respondents and the said Architect. The said Architext prepared an integrated development scheme as per the modified DC Regulation 2001 which envisages multi mill aggregation sale of some mill land modernization and revival of some mills and sharing of land pursuant to the said scheme with MCGM and MHADA. The said scheme is formulated as per 58(6) read with 58(1)(b). The said scheme was submitted in May 2003 to Respondent No.2. After the submission of the said scheme Respondent No.2 appointed a sub committee under the Chairmanship of Charles Correa which made a report. However this report was not acceptable to these Respondents as the said report was not in consonance with the modified DCR 58 - 2001. The said issue was thereafter referred by the Respondent No.2 to the Urban Development Department of Respondent No.1. Two meetings were also held under the Chairmanship of the Hon’ble Chief Minister Government of Maharashtra along with the Hon’ble Minister of Textiles Government of India and the representatives of the concerned departments and a decision was taken that the proposal of 7 mills of these Respondents be cleared as per the DCR 58 in force. This decision of the Government was communicated to the Respondent No.2. Thereafter the Respondent No.2 after processing the scheme granted clearance vide its order dated 27.10.2004. The integrated development scheme of the 25 mills layout of 7 mills and the order of the MCGM are annexed to the affidavit dated 12.9.2005. The minutes of the meeting held under the Chairmanship of the Hon’ble Chief Minister is at pages 1983 to 1985 of Vol. VII. Pursuant to the said approval of the Respondent No.2 and the subsequent orders of the Supreme Court of India dated 11.5.2005 made in the Special Leave Petition 5 mills out these 7 mills have been sold as per the details submitted in the affidavit dated 12th September 2005. The remaining two mills namely India United Mill No.2 and 3 and new Hind Textile Mill have been earmarked for the MCGM and MHADA as approved by Respondent No.2. (f) It is submitted that the sale of 5 mils have taken place after approval of the Assets Sale Committee constituted by the Ministry of Textile under the directions of the BIFR. (g) It is submitted that this Court is required to construe DCR 58-2001 without reference to the facts and circumstances of any given mill or mill owner including NTC. The interpretation of DCR 58-2001 cannot change from mill to mill or from proposal to proposal which may be submitted under Section 58(1)(a) or 58(1)(b). The construction of the DCR 58 is the key issue before this Court which is to be interpreted by applying known cannons of interpretation with reference to the facts of different mill owners before this Court.(h) It is further submitted that the various submissions made by the Petitioners with regard to the cost of the scheme valuation of surplus land as enumerated in Table C/ Table D the amounts received/ receivable on the sale of land etc. have no relevance or bearing on the construction of DCR 58 - 2001 and can therefore not be used for the purpose of interpreting Regulation 58. (i) These Respondents also crave leave to refer to para 10 of the Affidavit filed by the Petitioner dated 19.5.2005 at page 329 - Vol.II wherein the Petitioners have themselves submitted as under:- It is submitted that B.I.F.R. proceedings that have been referred to therein are irrelevant and have no bearing in relation to the petition which raises a challenge to the very legality of amended DCR -58. The B.I.F.R.’s going into the question of the surrender of mill land by the 3rd and the 4th Respondent is also of no consequence. (j) These Respondents strongly object to the attempt being made by the Petitioners to misguide and misrepresent the facts and circumstances of the case in so far as NTC Mills are concerned. It is also the submission of these Respondents that as aforesaid the BIFR Scheme and its implementation is an ongoing process. Valuation done in 2002 cannot be used as a tool to non-suit the NTC or the pass order against NTC with regard to the sale of land which have already taken place. (k) It is the further submission of these Respondents that the alleged breach of the Supreme Court order dated 11.5.2005 and the allenged breach of the BIFR cannot be the subject matter of the present petition. (l) These Respondents crave leave of this Court to draw the attention to letter dated 6.1.2005 on page 279 of Vol.II as addressed by M/s.Keshab Mahindra and Deepak Parekh who are the trustees of the Urban Design Research Institute to the then Hon’ble Chief Minister Government of Maharashtra wherein the said two members of the institute have represented to the Government that it is not the intention of the institute to go back to the old DCR 58. The relevant portion of the said letter reads as under:- We understand that our representation in this regard has been misunderstood to mean that the recent amendment to DCR 58 should be rescinded and we should go back to DCR 58 as it stood between 1991 and 2000. It was also not our intention that the approvals under DCR 58 already given should be stayed. Our primary objective should be to optimize the provisions of amended DCR 58 so as to achieve a more imaginative use of the NTC land likely to become available for redevelopment especially to achieve continuous green belts. The booklet as furnished by the Petitioner in Writ Petition 1980 of 2005 as prepared by the said institute therefore cannot be taken into account for the purpose of determining the constitutional validity of the said DCR 58. (m) It is therefore submitted that even on this ground the Petitioners are not entitled to any relief prayed for in the present petition. 99. With regard to delay and laches the learned Senior Counsel has contended as under:-(a) It is submitted that there is an inordinate delay in filing of the present Petition. The procedure for amending started sometime in October 2000 with a newspaper report announcing the new textile policy and culminated in March 2001 when DCR 58 was amended by the Respondent No.1. The present petition has been filed on 18th February 2005 i.e. four years after the said modified DCR 58 came into force. Despite the widespread public debate relating to the proposed amendment to DCR 58 the Petitioner did not submit their objections in reply to the public notice nor did they challenge the said amendment till February 2005. The Petitioner did not even challenge the development activity which has already commenced the last four years. It is submitted that the Writ Petition therefore suffers from gross delay and on this ground the Petition should be dismissed with costs. (b) It is submitted that the present petition also suffers from latches. Merely because the petition is a PIL does not condone the inaction on the part of the Petitioners in challenging the said DCR 58-2001 and clarification of March 2003. In fact the clarification was known to the Petitioners even at the time of filing of the petition. However the amendment was sought after the Supreme Court order dated 11.5.2005.(c) It is submitted that the Petitioner allowed third party interest to be created and acquiesced in the development / redevelopment pursuant to the modified DCR 58 - 2001. It is submitted that in so far as the NTC is concerned these Respondents have incurred huge expenses towards payment of MVRS amounts to its employees and has also issued interest bearing bonds. The total expenses incurred by these Respondents is as enumerated at page 1938 - Vol.VII and page 245 - Vol.II of the Affidavit in Reply to the Writ Petition.(d) It is submitted that in view of the fact that these Respondents have incurred enormous expenses and have also created third party interest the present Petitioner ought not be granted any relief. (e) It is therefore submitted that the Petitioners are thus disentitled from seeking any relief on the ground of the delay and latches. It is prayed that this Court be pleased to reject this petition on this ground alone.100. Finally Mr.Rohatgi has submitted that the present petition is devoid of any merits and that the Petitioner has taken contrary stand as enumerated hereinabove. The modified DCR 58 - 2001 has been amended after following due process of law and is required to be implemented in its entirety. There is no case made out for the relief prayed for in the present petition. Hence the learned Counsel prayed for dismissal of the Petition. SUBMISSIONS OF RESPONDENT NO.5 (MHADA): 101. Mr.Sayed the learned Counsel appearing on behalf of Maharashtra Housing and Area Development Authority (MHADA) has submitted that the Maharashtra Housing and Area Development Act 1976 has been enacted basically to deal with housing repairing and reconstructing dangerous buildings as well as carrying out improvements of work in slum areas.102. Mr.Sayed the learned Counsel has strongly relied upon the letter dated 24th July 2003 addressed by Shri. U.P.S. Madon the then Vice President and Chief Executive Officer of the MHADA to the Principal Secretary of the Housing Department. In fact the said letter has been annexed as Exhibit ‘J’ to the Petition. The said Vice President and the Chief Executive Officer of MHADA has clearly mentioned in the said letter that by the amended DCR 58 there will be tremendous loss to MHADA as there will be very less area left after deducting the built-up area from the total area of the mill lands. He has mentioned that the MHADA will get only 10 Hectares of land instead of 24 Hectares of land from the NTC Mills. In the said letter there is a complaint made that the amended DCR 58 undoubtedly favours the mill owners and is positively bias against the MHADA which has to provide affordable houses to the public at large. He has emphasized that the spirit and the objective of DCR was to give equal benefits to the mill owners as well as common man by providing affordable houses while getting open spaces for B.M.C. The said letter also urges the Government to have relook into the whole issue before damage is done as many mill owners are redeveloping their existing built up area without sharing the vacant land with B.M.C. and MHADA. 103. Mr.Sayed the learned Counsel has also pointed out that very recently during the monsoon almost five buildings have been collapsed and there are about 107 buildings which have declared as highly dangerous and they are likely to be collapse at any moment. The learned Counsel Mr.Sayed has also submitted that there is a grave paucity of accommodation to the persons who are rendered homeless by house collapse. He has contended that there is dire need of sharing 1/3rd area of the land with the MHADA so that within the city the MHADA will be able to provide public housing.SUBMISSIONS OF R.M.M.S.(UNION) : 104. Mr.Janak Dwarkadas the learned Senior Counsel appearing on behalf of Respondent No.6 on the issue of sever ability of the provisions of the DCR-58 has submitted as under:-(a) In the course of their arguments in rejoinder the Petitioners contended that DCR-58(1)(b)-2001 was severable from the rest of the provisions of DCR-58(2001)_ and could alone be struck down as unconstitutional or as being violative of Section 37 of the MRTP Act. According to the Petitioners it was not necessary to strike down the entire DCR-58(2001). It was further contended that if the amended DCR-58(1)(b)-2001 was struck down as unconstitutional or illegal the original DCR-58(1)(b)-1991 would be revived. It is submitted that the aforesaid contentions of the Petitioners are misconceived for the reasons set out below. (b) It is well settled that if a legislation is not validly enacted due to non compliance of the mandatory legislative procedure the doctrine of severability will not apply. This has been laid down by the Supreme Court in the case of Kihoto Hollohan V/s Zachillhu - 1992 Supp.(2) SCC 651. The relevant paragraph 172 is reproduced below:-The Doctrine of Severability applies in a case where an otherwise validity enacted legislation contains a provision suffering from a defect of lack of legislative competence and the invalid provision is severable leaving the remaining valid provisions a viable whole. This doctrine has no application where the legislation is not validly enacted due to non-compliance of the mandatory legislative procedure such as the mandatory special procedure prescribed for exercise of the constituent power. It is not possible to infuse life in a still-borne by any miracle of deft surgery even though it may be possible to continue life by removing a congenitally defective part by surgical skill. Even the highest degree of surgical skill can help only to continue life but it cannot infuse life in the case of still birth.(c). Although paragraph 172 is a part of the minority view the majority has not sounded a discordant note with regard to the principle laid down by the minority in paragraph 172. In fact the majority and the minority were not divided on the principles of the doctrine of severability but were divided on their application to the facts of the case. According to the majority Paragraph 7 of the Tenth Schedule was severable from the rest of the provisions of the Tenth Schedule whereas according to the minority it was not. According to the majority the ratification of the majority of the States as provided for by the proviso to Clause 2 of Article 368 was not required in respect of the entire Tenth Schedule but was only required in respect of paragraph 7 thereof whereas according to the minority the entire Tenth Schedule required to be ratified by the majority of the States. It was for this reason that the majority struck down Paragraph 7 of the Tenth Schedule. The minority however held that the entire Tenth Schedule not having been ratified by majority of the States was bad in law. In view of the above it is submitted that the principle of law laid down in paragraph 172 of the decision of the Supreme Court in Kihoto Hollohan’s case correctly lays down the law with regard to the doctrine of severability and the same can be relied upon. (d) Applying the above principle in the instant case it is submitted that if this Court comes to the conclusion that DCR 58(2001) changes the character of the Development Plan and is therefore violative of Section 37 of the MRTP Act as submitted by the Petitioners the whole of DCR-58(2001) must fall. If DCR-58(2001) is held to be illegal for the reason that it could not be enacted under Section 37 of the MRTP Act the doctrine of severability would have no application as the legislation is not validly enacted due to non-compliance of the mandatory legislative procedure prescribed by Section 37. In the words of Supreme Court the whole of the DCR-58 would be still-born and it would not be possible to infuse life into it.(e) There is yet another reason why DCR-58(1)(b)-2001 is not severable and that is that all the provisions of DCR-58-2001 including DCR 58(1)(b) are so inextricably mixed up that they cannot be separated from one another. Moreover all the provisions of DCR-58(2001) form part of a single scheme which is intended to be operative as a whole. It is well settled that in the above situation the invalidity of a portion of DCR-58(2001) would result in the invalidity of the whole of the DCR-58(2001) as laid down by the Supreme Court in the case of R.M.D. Chamarbaugwalla V/s.Union of India reported in AIR 1957 SC 628. The relevant portion of paragraph 22 is reproduced below:-22. That being the position in law it is now necessary to consider whether the impugned provisions are severable in their application to competitions of a gambling character assuming of course that the definition of prize competition in Section 2(d) is wide enough to include also competitions involving skill to a substantial degree. It will be useful for the determination of this question to refer to certain rules of construction laid down by the American Courts where question of severability has been subject of consideration in numerous authorities. They may be summarized as follows:-(i) .........................(ii) If the valid and invalid provisions are so inextricably mixed up that they cannot be separated from one another then the invalidity of a portion must result in the invalidity of the Act in its entirety. On the other hand if they are so distinct and separate that after striking out what is invalid what remains is in itself a complete code independent of the rest then it will be upheld notwithstanding that the rest has become unenforceable. Vide Cooley’s Constitutional Limitations Vol.I at Pg.360-361; Crawford on Statutory Construction Pg.217-218.(iii) Even when the provisions which are valid are distinct and separate from those which are invalid if they all form part of a single scheme which is intended to be operative as a whole then also the invalidity of a part will result in the failure of the whole. Vide Crawford on Statutory Construction pg.218-219.(iv)......................(v) ......................(vi)......................(vii) ...................... (f) The learned Senior Counsel has submitted that as far the argument that if DCR-58(1)(b)-2001 is severable and is liable to be struck down and then DCR 58(1)(b)-1991 will be revived is concerned the same is untenable in law. This is because there is no legal principle which states that if a part of the amended/modified provision of law is struck down the allegedly corresponding provision in the old law is revived. Additionally this argument proceeds on the erroneous hypothesis that every part of the modified DCR 58(2001) corresponds to some part of the earlier DCR 58(1991) and is a substitution for that part. This argument further proceeds on the assumption that both the earlier and the later provisions was/were entirely severable. (g) The fallacy of the Petitioners’ submission is borne out by a simple illustration. If the amended DCR-58(1)(b)-2001 is struck down the concept of balance FSI will go with it. The concept of balance FSI is not to be found in the amended DCR-58(1)(a). Hence if the original DCR-58(1)(b)-1991 is revived read with amended DCR-58(1)(a)-2001 the concept of balance FSI will completely disappear from DCR-58. It will mean that balance FSI is not dealt with or covered by DCR-58. This illustration also shows that DCR 58(1)(b)-2001 is not severable from the modified DCR-58(2001). SUBMISSIONS ON BEHALF OF RESPONDENT NOS. 7 8 10 AND 24 105. Mr. Bhatt the learned Senior Counsel for the Respondent Nos. 7 8 10 and 24 submitted that the principal questions that arise for consideration of this Court in the present Petition are as follows:-(i) The true and correct construction of Development Control Regulation 58 (DCR 58 for short) and in particular DCR 58(1)(b) particularly whether on a plain reading and meaning of DCR 58(1)(b) is a mill bound to share in the proportion set out in the table therein the entire land including the land emerging after demolition of the existing built up area or is the mill bound to share only the vacant open land and balance FSI after excluding that portion which is attributable to the built up area? (ii) If the construction of the said DCR 58 is as contended by these Respondents whether the said DCR 58 is violative of Article 14 of the Constitution of India and/or Article 21 of the Constitution of India read with Article 48A of the Constitution of India? 106. The learned Senior Counsel Mr. Bhatt further submitted that for a true and proper construction of DCR 58 DCR 58 as it stands today should be considered and construed. DCR 58(1) inter alia provides that with the previous approval of the Commissioner to a layout prepared for development or redevelopment of the entire of the entire of the entire open land and built up area .... open land and built up area .... open land and built up area .... the Commissioner may allow:(a) the existing built up areas to be utilised: i) for the same cotton textile or related user subject to observance of all other Regulations;ii) for diversified industrial user in accordance with the industrial location policy with office only ancillary to and required for such users subject to and observance of all other Regulations; iii) for commercial purposes as permitted under these Regulations;(b) Open lands and balance FSI shall be used as in the Table below:.... (emphasis supplied)107. The learned Senior Counsel further submitted that the Petitioners contended that on a construction (according to the Petitioners) DCR 58(1)(a) relates only to the utilization of the existing built up areas without demolition and DCR 58(1)(b) relates to the development of open lands and balance FSI that remains if the existing built up area is chosen to be retained or of the entire land if the existing built up area is sought to be demolished. In other words the Petitioners contend that the phrase open land in Clause 58(1)(b) is to be read and/or read down as open lands and lands after demolition of existing structures.108. Mr. Bhatt further submitted that the question that arises for consideration is whether the words open lands in DCR 58(1)(b) mean open lands and balance FSI other than the land covered by and/or commensurate with the existing built up area or would refer to the entire area of a mill if the mill chooses to demolish its existing structures. If as the Petitioners contend the phrase open lands means and includes also that land which emerges after the demolition of the existing built up area then the proportion of sharing of land as provided for in the table contained in DCR 58(1)(b) would apply to the entire land including that which emerges after the demolition of the existing built up area with the addition of the already existing open lands. If the construction of DCR 58(1)(b) as canvassed for by these Respondents is correct then the area required to be shared under DCR 58(1)(b) would be only that area which exists on the land after excluding the land commensurate with already built up area as contemplated by DCR 58(1)(a).109. The learned Senior Counsel contended that the whole basis of the contention of the Petitioners that DCR 58(1)(b) should be construed to mean open lands and lands after demolition is two fold viz. (i) that the policy of DCR 58 is based on a special philosophy of providing open spaces and lung spaces in the form of public areas to the people of the city of Mumbai; of providing housing to lower income groups in the form to be constructed by MHADA; and providing housing to workmen; (ii) to bring about sustainable development of the city of Mumbai. Mr. Bhatt pointed out that according to Petitioners this is in consonance with the objective philosophy and policy of DCR 58 of continuing the textile mills and/or of enabling the sick and closed textile mills to be revived and rehabilitated. The Petitioners further contend that if the Petitioners’ contention is understood in this light the construction as proposed by the Petitioners to DCR 58(1)(b) would release larger areas as being available for public parks and public housing and would be environmentally advantageous resulting in sustainable development of the city of Mumbai. 110. Thereafter the learned Senior Counsel submitted that the phrase open lands in DCR 58(1)(b) can only mean open lands as exist on the property after excluding the land commensurate with the built up area. This is the most natural interpretation and plain meaning of the phrase open lands. The aforesaid natural interpretation canvassed for by these Respondents apart from emanating from a plain reading of the phrase open lands is also additionally supported by the following:-i) DCR 58(1) provides for a conjoint development or redevelopment of the entire open lands and the built up areas. Thus there is an internal indication in the opening part of DCR 58 itself that the term open lands and built up area are distinct;ii) The layout to be prepared and submitted under DCR 58(1) is for the development of the entire open entire open entire open land and built up area land and built up area land and built up area. Thus the layout prepared would be at the time when both the open lands and the built up areas exist on a property and it is the layout for development of such built up areas and open lands that has to be submitted. On the date of the submission of the layout the only open lands that would be available would be over that which is commensurate with the built up area; iii) The phrase open lands in DCR 58(1)(b) is composite phrase viz. open lands and balance FSI. The concept of balance FSI would necessarily mean FSI over and above the one consumed by the area already built up and covered by DCR 58(1)(a). Thus the sharing of land contemplated by the term open lands and balance FSI in DCR 58(1)(b) would only relate to either the open lands that exist on the property at the time of the submission of the layout or the balance FSI if there is no open land in a given case where the built up area consumes the entire open lands but does not consume the balance FSI. The concept of balance FSI would be rendered meaningless in a case where the entire existing structure is demolished. If the existing structure is demolished there is no question of balance FSI. Thus the phrase balance FSI in conjunction with open land in DCR 58(1)(b) can only strengthen the contention of these Respondents that the phrase open land in DCR 58(1)(b) would mean open land over and above the lands which are relatable to or commensurate with the existing built up area. Further if the contention of the Petitioners about the construction of DCR 58(1)(b) is correct then in a case where the existing structure is partly demolished the mill would be required to share a larger area of land than what was contemplated under DCR 58 as it was promulgated in 1991. The mill would then have to surrender open lands that is lands in excess of lands commensurate with the built up area further lands which emerge after demolition of part of structure and share the balance FSI. This would be clearly inconsistent with the plain natural and reasonable construction. 111. Mr. Bhatt further submitted that the Note (iv) to DCR 58(1)(b) makes the aforesaid interpretation doubly clear when it inter alia states that where FSI is in balance but open land is not available for the purpose of sharing land will be made open by demolishing the existing structures to the extent necessary and made available accordingly. Thus the concepts of built up areas balance FSI open lands and land made open by demolishing the existing structures are four distinct concepts internally clearly indicated by DCR 58 itself and there is no warrant or justification to restrict or enlarge the scope of either of these concepts. By no stretch of imagination can the phrase open lands be naturally construed to mean or include lands after demolition of the existing structures.112. The learned Senior Counsel further submitted that in view of the aforesaid the phrase open lands in DCR 58 must mean only lands or that area which exist on the property after excluding the area of land relatable to or commensurate with the built up area. 113. Mr. Bhatt further contended that even though the meaning of the said phrase ‘open land’ in DCR 58 as it exists today is clear if additional support for the aforesaid construction is sought the same is available in DCR 58(1) as it was originally promulgated in 1991 where in DCR 58(1)(b) specific distinction was made between open lands and lands after demolition of existing structures both of which were specifically included in DCR 58(1)(b). The deletion of the phrase land after demolition of existing structures in DCR 58(1)(b) as it originally stood in 1991 clearly gives specific expression to the intention of the legislature to delete from the purview of DCR 58(1)(b) as it exists today lands after demolition. If the construction of the Petitioners of DCR 58(1)(b) as it stands today is correct the present DCR 58(1)(b) is restored to its original unamended position of 1991 rendering the new DCR 58 completely otiose redundant and unnecessary. 114. The learned Senior Counsel further submitted that it is Petitioners’ contention that the phrase land after demolition of existing structures from DCR 58 is deleted on account of the subsequent amendment of the definition of the word development as contained in Section 2(7) of the Maharashtra Regional & Town Planning Act 1966 (MRTP for short). It is contended by the Petitioners that in DCR 58 of 1991 it was necessary to include the phrase land after demolition of existing structures as prior to the amendment of Section 2(7) of the said Act to the definition of the word development in 1994 the words in the said definition demolition of any existing building structure or erection were absent and now that the said words have been specifically included in the definition of the word development to continue to retain the same in DCR 58(1)(b) was according to the Petitioners unnecessary. 115. Mr. Bhatt further submitted that such a reading of DCR 58 would be selective and contrary to and destructive of the contentions of the Petitioners. If as per the contention of Petitioners the phrase land after demolition of existing structures is deleted from DCR 58(1)(b) as it exists today on account of the amendment of the definition of the word development in Sec. 2(7) of the Act is correct then the word development in the opening part of DCR 58(1) should also be read in accordance with the definition of the word development as it exists today in the said Act. Read thus it would mean that under DCR 58(1) with the previous approval of the Commissioner to a layout prepared inter alia for making of any material change in any building or land or in the use of any building or land or any material or structural changes in any heritage building or its precinct including demolition of any existing building structure or erection or part of such building structure or erection the Commissioner may allow the existing built up areas of mill land for any of the purpose mentioned therein. Thus construed DCR 58(1)(a) would on the Petitioners’ own showing invest authority in favour of the Commissioner to permit change of user of land or building subject to the Regulations and also demolition of any existing building structure or erection. Such a construction would mean that DCR 58(1)(a) permits a complete demolition and reconstruction of the existing built up areas without there being any requirement of sharing under DCR 58(1)(b). The support sought for by the Petitioners from the amended definition of the word development far from supporting the case of the Petitioners clearly supports the case of these Respondents.116. Mr. Bhatt the learned Senior Counsel for the Respondent Nos. 7 8 10 and 24 further submitted that the constructions put forward by the Petitioners completely negates the objective of introducing DCR 58 as it stands today. After introduction of old DCR 58 in 1991 history showed that there was no development taking place in respect of lands belonging to cotton textile mills and whatever development was permitted was haphazard and more importantly resulted in releasing only negligible open spaces in the form of public areas or for public housing. The continued deterioration of cotton textile mill lands and structures led the Government to evolve a scheme which was in consonance with the development of the city and also in consonance with the objective of opening areas for public housing and open spaces such as would be available as a result of the said scheme.117. The learned Senior Counsel also submitted that the Development Control Regulations being provisions for permission to be granted for controlling and regulating the use and development of land and inter alia providing for imposition of conditions and restrictions with regard to open spaces to be maintained about the buildings provide for certain measures to control and regulate the development and to impose conditions. Section 22(m) pursuant to which the Development Control Regulations are formulated permits imposition of conditions and restrictions in regard to the open space to be maintained about buildings and cannot provide for any compulsory acquisition for whatever consideration by the Government or Municipal Authority in respect of private lands. It is in pursuance of the power to impose such condition that DCR 58 has been formulated. 118. Mr. Bhatt contended that the provisions for designation of areas for open spaces playgrounds stadia zoological gardens green belts nature reserves sanctuaries and dairies as provided for in Sec. 22(c) of the said Act is de hors and beyond the scope of DCR. Such a provision as contemplated by Sec. 22(c) would take into account inter alia the social philosophy canvassed for by the Petitioners and the provisions would be made by way of designation in the development plan itself and not by way of conditions under DCR. The imposition of any condition as contended by the petitioners expropriating nearly 2/3rd of the lands of the mills would be clearly ultra vires the Constitution. Further to construe DCR 58 as providing for reservation or provisions or designation of areas for open spaces playgrounds stadia zoological gardens green belts nature reserves sanctuaries and dairies or even public housing would render DCR 58 ultra vires the provisions of the Constitution and ultra vires the said Act. The construction consistent with the validity of DCR 58 would only mean that the term open lands in DCR 58(1)(b) would cover only those open lands as are over and above the existing built up area. 119. Hence the learned Senior Counsel submitted that the construction of open lands must be as expounded by these Respondents. 120. The learned Senior Counsel further contended that the arguments of the Petitioners based on the underlying philosophy or policy behind DCR 58 is misplaced. There is no foundation or premise to conclude that DCR 58 is aimed only at giving expression to a policy of providing for open spaces or lung space or public housing or employment or revival or rehabilitation of the textile mills. The Government realized: a) that most cotton textile mills were also sick or closed;b) that vast land occupied by the said mills were lying unutilized;c) that there was urgent need for solving problems created by the sickness or closure of textile mills;d) that the said problems could be solved with compendiously providing incentives to mills to develop their lands. DCR 58 while providing such an incentive substantially achieves the social philosophy if any.121. Thus the learned Counsel submitted to start from a premise that DCR 58 is a social measure with the underlying philosophy or providing a sustainable development in the sense of a social and environmental measure is fallacious. It is respectfully submitted that implementation of DCR 58 in the form and manner as contemplated for by these Respondents would result in coherently achieving the objectives viz. sustainable development of the city of Mumbai revival or rehabilitation of some of the mills providing public open spaces apart from those designated and/or reserved in the Development Plan public housing over and above the one reserved for and designated in the Development Plan and an environmentally friendly development of the same. There is nothing shown that the development of the said lands would result in environmentally hazardous consequences for the city of Mumbai. 122. Mr. Bhatt thereafter contended that if the interpretation of DCR 58(1)(b) as canvassed for by the Petitioners is accepted it would be counter productive to the development of the city of Mumbai. If the Petitioners are right then the situation that prevailed post 1991 would continue and there would be hardly any sharing or surrender of any land under DCR 58(1)(b). There would be haphazard development of existing structures for commercial purpose. Large dues of workers and Financial institutions would remain unpaid and National Textile Corporation (NTC) would be debt ridden and totally unviable. If on the other hand interpretation of these Respondents is accepted lands would be released for buildings and apartment blocks and commercial development would take place. There would also be revival or rehabilitation of some mills. Lands would be available for public housing or for open space to a substantial extent as against negligible quantity of such land being available if DCR 58 is interpreted the way Petitioners contend. If the contention of the Petitioners is correct that only mills which are sick and under BIFR can invoke DCR 58 any development consequent upon such interpretation would be clearly contrary to the Petitioners’ stand. It would mean that in an area where large number of mills are situated which is so in the case of Mumbai there will be no coherent planning and development. In the same zone or area there would be residential buildings commercial complexes cotton textile industries related industries and diversified industries. It certainly could not be the intention of DCR 58 that such haphazard development of a given area takes place and a hotchpotch of construction for various divergent purposes mushrooms. The dilapidated mill structures would continue to lie in the state in which they are at present and the so called social philosophy behind DCR 58 would not be realized to any extent whatsoever.123. The learned Senior Counsel thereafter submitted that the Petitioners’ further contention that the object of DCR 58 is revival and rehabilitation of existing mills is incorrect. To revive and rehabilitate a sick or closed textile mill moneys have to be pumped in which can only come from sale of land or development of land. The revival and rehabilitation of the mills would consume entire land on which the mill structures stand at present and would not leave any land for development and would completely defeat the so called policy of providing open lands lung spaces and public spaces. 124. Mr. Bhatt further submitted that the Petitioners have contended that DCR 58(6) only permits the construction of a cotton textile mill on the area contemplated by DCr 58(6). It is submitted that such an interpretation is incorrect inter alia as is clear from DCR 58(8). If a healthy mill is redeveloped then in accordance with the contention of the Petitioners the entire gross revenue of the said mill would be required to be deposited in the escrow account under DCR 58(6) read with DCR 58(8) and distributed in accordance with DCR 58(9). Such a construction is clearly unwarranted. Again the construction put to DCR 58(6) by the Petitioners renders DCR 58(5) otiose. Under DCR 58(5) notwithstanding anything contained in the Regulations the cotton textile mills can develop the land for cotton textile mill or related user without sharing. The development may be by demolishing the existing structure. Under DCR 58(5) no amount is required to be deposited in the escrow account. 125. It was thereafter contended that the Petitioners’ contention would drive mill land to a situation where:i) only cotton textile mill can be operated or;ii) healthy mills are driven to sickness to be able to develop the land oriii) no land would be developed as large areas would have to be surrendered and only small areas would be available for development making the entire exercise unviable.126. Shri Bhatt the learned Senior Counsel further submitted that if only those mills as are sick and consequently compulsorily subject to BIFR can develop it would mean that BIFR would be required to be equipped with the knowledge of Town Planning when it provides for various conditions under Sections 16 17 and 18 of the Sick Industrial Companies (Special Provisions) Act. It is open to BIFR to direct the sale or disposal of the land or assets of the company. In order to be able to do so if the Petitioners are right BIFR would have to take a comprehensive view of the Development Control Regulations which it is respectfully submitted BIFR would not be in a position to do. Again what comes within the purview and jurisdiction of BIFR is not a mill but a joint stock company as in its corporate entity. Thus if a cotton textile mill within Mumbai is a part of several units of a corporate entity viz. a company other units being engaged in manufacturing other products -- and there are several such companies involved in mill land - it would mean that the loss making unviable textile mill unit which is a part of several units of a company would have to continue its loss making activity in the city of Mumbai as the main corporate or company continues to be a profit making unit. The profit making unit of a corporate body would be required to fund continuously the losses of its cotton textile unit within Mumbai till the funds dry out or are exhausted or till it is capable of doing so and then declare itself sick go to the BIFR and get a scheme approved.127. The learned Senior Counsel further submitted that again the healthy textile unit which is the only unit of a company would have no option but to continue its textile activity and can never choose to close down its textile activity for if it so chooses to close down it will have to abide by the Development Control Regulations as sought to be interpreted by the Petitioners. DCRs 56 and 57 exclude cotton textile mills from their purview. Thus the only way in which the cotton textile mill can utilize its land is in accordance with DCR 58 and in no other way. This if the Petitioners are right in their contention can be done only after a textile mill becomes sick or closed and the corporate entity of which the textile mill is a part also becomes sick and involves the jurisdiction of BIFR. Thus the only way it can close down is to drive itself sick and thus the interpretation put by the Petitioners on this count also cannot meet the test of judicial scrutiny.128. Mr. Bhatt the learned Senior Counsel thereafter submitted that the Petitioners have contended that DCR 58 if construed otherwise than contended for by the Petitioners is ultra vires Articles 14 and 21 read with Article 48A of the Constitution of India. The learned Senior Counsel further submitted that to be able to fail the test of Article 14 the impugned action has to be arbitrary or result in unequal treatment to similarly situated entities or be unreasonable or is such as would have no relation to the object sought to be achieved thereby and that the Petitioners have not made out any ground to show that DCR 58 as it stands today suffers from any of the aforesaid. The learned Senior Counsel also submitted that it is well settled that in considering a challenge to the constitutional vires of an action the constitutional validity of a statute is to be presumed and the burden on the Petitioners to displace the presumption is strong and heavy such a presumption gets enhanced in the case of delegated legislation and that the Courts cannot go behind the policy of a provision the piece of legislation - and in this case the Development Control Regulation - cannot be struck down if the Courts thinks it to be unreasonable unnecessary or unwarranted. The learned Senior Counsel further submitted that in fact the Court should endeavour to validate a legislation and not view it suspiciously to strike it down at the threshold and that the test of arbitrariness is relaxed in the case of delegated legislation the legislation should be manifestly unjust and arbitrary and in the present case none of the aforesaid ingredients are present. Mr. Bhatt further contended that the Petitioners have not been able to show how the legislation is arbitrary or unreasonable viz.i) (1974) 4 SCC 415 (Amalgamated Tea Estates Co. Ltd. Vs. State of Kerala) Vs. State of Kerala) Vs. State of Kerala) ii) (1996) 3 SCC 709 (State of A.P. Vs. McDowell & Co.) iii) (1996) 10 SCC 304 (Khoday Distilleries Ltd. Vs. State of Karnataka)iv) (1997) 2 SCC 453 (State of Bihar Vs. Bihar V) (2002) 2 SCC 188 (Sharma Transport Vs. Government of A.P.)129. Mr. Bhatt thereafter submitted that being unable to show any direct or manifest arbitrariness in DCR 58 as it stands today the Petitioners have sought to do so by juxtaposing DCR 58 as it stands today with DCR 58 as was promulgated in 1991. The learned Senior Counsel also submitted that the Petitioners contend that under DCR 58 as promulgated in 1991 more open spaces would have been available to the city of Bombay by way of public places and for public housing. The learned Senior Counsel submitted that such a comparison or juxtaposing of present DCR 58 with the erstwhile DCR 58 is not permissible. A legislation for consideration of its constitutional validity has to be tested as it stands per se and not in comparison with its earlier from. There is nothing in DCR 58 as it stands at present to show its unconstitutionality on the test of Article 14 of the Constitution of India. 130. The learned Senior Counsel further submitted that the Petitioners contend that based on the purported philosophy of DCR 58 as interpreted by them it is the policy of DCR 58 to provide better environment provide open public spaces and public housing and that they contend that if DCR 58 is to be construed as canvassed for by these Respondents DCR 58 would result in hardly any open public space hardly any public housing and would not result in revival or rehabilitation of textile mills and therefore DCR 58 is ultra vires. Mr. Bhatt further submitted that the provision for public spaces and public housing is taken care of by the development plan as provided for under the said Act. The learned counsel further submitted that the Petitioners’ contention proceeds on a presumption that old DCR 58 would achieve the results that they believe it would achieve though the actual experience is to the contrary and that the contention is based on how the statute would be administered. The learned Senior Counsel further submitted that it is well settled that validity of a statute cannot be tested on the basis of how it would be administered- AIR 1962 SC 317 at 331 paragraph 33. There have been three stages through which DCR 58 has progressed. The first was prior to 1991 when the mills and the lands were in unused dilapidated conditions. The second was when DCR 58 was introduced in 1991 when there was haphazard minimal development with negligible land being available for public open spaces and public housing and thirdly post 2001 when there is development of mill lands and there is available land for open public spaces and public housing. Thus even if the validity of the provision has to be tested on the basis of its administration which it is submitted it cannot be the contention of the Petitioners cannot stand.131. In view of the aforesaid submission the learned Senior Counsel submitted that the challenge of the Petitioners based on Article 21 read with Article 48A of the Constitution of India is liable to be rejected. 132. Mr. Bhatt the learned Senior Counsel for the Respondent Nos. 7 8 10 and 24 thereafter submitted that the original case of the Petitioners in the Petition and the opening arguments was that Regulation 58 was a measure to give the city maximum open space and land for MHADA housing and that the case in the Rejoinder is completely contrary to the one put forward in the Petition and in the opening arguments viz. DCR 58 will not apply unless the mill is sick and/or closed and under the purview of BIFR. The consequence of such an argument or interpretation of DCR 58 would necessarily be that even those mills which are not before BIFR or a part of the modernization or shifting exercise who wish to share 2/3rd of their entire area in accordance with the interpretation of DCR 58 by the Petitioners would be unable to do so. The city and MHADA would be denied the benefit of huge areas of land which might be potentially available. SUBMISSIONS ON BEHALF OF RESPONDENT NO. 9133. Written submissions were made on behalf of Respondent No. 9 contending that the principal questions that arise for consideration of this Court in the present Petition are as follows:-(i) The true and correct construction of Development Control Regulation 58 (DCR 58 for short) and in particular DCR 58(1)(b) particularly whether on a plain reading and meaning of DCR 58(1)(b) is a cotton textile mill company bound to share (in the proportion set out in the table therein) its entire land including the land emerging after demolition of the existing built up area (as contended by the Petitioners) or is the mill company bound to share (as contended by the Respondents) only the original un-built vacant open land and balance FSI after excluding that portion which is attributable to the already existing built up area?(ii) If the construction of the said DCR 58 is as contended by these Respondents whether the said DCR 58 is violative of Article 14 of the Constitution of India and/or Article 21 of the Constitution of India read with Article 48A of the Constitution of India? I. INTERPRETATION OF DCR 58 134. It was submitted that for a true and proper construction of DCR 58 DCR 58 as it stands today should be considered and construed. DCR 58(1) inter alia provides that with the previous approval of the Commissioner to a layout prepared for development or redevelopment of the entire open land and built up area.... the Commissioner may allow: (a) the existing built up areas to be utilized:i) for the same cotton textile or related user subject to observance of all other Regulations;ii) for diversified industrial user in accordance with the industrial location policy with office space only ancillary to and required for such users subject to and observance of all other Regulations;iii) for commercial purposes as permitted under these Regulations;(b) Open lands and balance FSI shall be used as in the Table below:...... (emphasis supplied)135. It was submitted that the Petitioners have contended that on a construction (according to the Petitioners) DCR 58(1)(a) relates only to the utilization of the existing built up areas without demolition and DCR 58(1)(b) relates to the development of open lands and balance FSI that remains if the existing built up area is chosen to be retained or of the entire land if the existing built up area is sought to be demolished in other words the Petitioners contend that the phrase open land in Clause 58(1)(b) is to be read and/or read down as open lands and lands after demolition of existing structures. 136. It was submitted that the question that arises for consideration is whether the words open lands in DCR 58(1)(b) mean open lands and balance FSI other than the land covered by and/or commensurate with the existing built up area or would refer to the entire area of a mill company if the mill company chooses to demolish its existing structures. If as the Petitioners contend the phrase open lands means and includes also that land which emerges after the demolition of the existing built up area then the proportion of sharing of land as provided for in the table contained in DCR 58(1)(b) would apply to the entire land including that which emerges after the demolition of the existing built up area with the addition of the already existing open lands. If the construction of DCR 58(1)(b) as canvassed by these Respondents is correct then the area required to be shared under DCR 58(1)(b) would be only that area which exists on the land after excluding the land commensurate with already existing built up area as contemplated by DCR 58(1)(a). 137. Further submission was that the whole basis of the contention of the Petitioners that DCR 58(1)(b) should be construed to mean open lands and lands after demolition is two fold viz. (i) that the policy of DCR 58 is based on a social philosophy of providing open spaces and lung spaces in the form of public areas to the people of the city of Mumbai; of providing housing to lower income groups in the form to be constructed by MHADA; and providing housing to workmen; (ii) to bring about sustainable development of the city of Mumbai.138. Respondent No. 9 further submitted that the Petitioners contend is in consonance with the objective philosophy and policy of DCR 58 of continuing the textile mills and/or of enabling the sick and closed textile mills to be revived and rehabilitated. The Petitioners further contend that if the Petitioners’ contention is understood in this light the construction as proposed by the Petitioners to DCR 58(1)(b) would release larger areas as being available for public parks and public housing and would be environmentally advantageous resulting in sustainable development of the city of Mumbai.139. Then it was submitted that the phrase open lands in DCR 58(1)(b) can only mean open lands as exist on the property after excluding the land commensurate with the built up area. This is the most natural interpretation and plain meaning of the phrase open lands. The aforesaid natural interpretation canvassed for by these Respondents apart from emanating from a plain reading of the phrase open lands is also additionally supported by the following:-i) DCR 58(1) provides for a conjoint development or redevelopment of the entire open lands and the built entire open lands and the built entire open lands and the built up areas up areas up areas. Thus there is an internal indication in the opening part of DCR 58 itself that the term open lands and built up area are distinct;ii) The layout to be prepared and submitted under DCR 58(1) is for the development of the entire open land and built up area. Thus the layout prepared would be at the time when both the open lands and the built up areas exist on a property and it is the layout for development of such built up areas and open lands that has to be submitted. On the date of the submission of the layout the only open lands that would be available would be over and above that which is commensurate with the built up area;iii) The phrase open lands in DCr 58(1)(b) is a composite phrase viz. open lands and balance FSI. The concept of balance FSI would necessarily mean FSI over and above one consumed by the area already built up and covered by DCR 58(1)(a). Thus the sharing of land contemplated by the term open lands and balance FSI in DCR 58(1)(b) would only relate to either the open lands that exist on the property at the time of the submission of the layout or the balance FSI if there is no open land in a given case where the built up area consumes the entire open lands but does not consume the balance FSI. The concept of balance FSI would be rendered meaningless in a case where the entire existing structure is demolished. If the existing structure is demolished and the interpretation forwarded by the Petitioners is correct there is no question of balance FSI and consequently balance FSI would then have to be read as all the FSI. Thus the phrase balance FSI in conjunction with open land in DCR 58(1)(b) can only strengthen the contention of these Respondents that the phrase open land in DCR 58(1)(b) would mean open land over and above the lands which are relatable to or commensurate with the existing built up area. Further if the contention of the Petitioners about the construction of DCR 58(1)(b) is correct then in a case where the existing structure is partly demolished the mill company would be required to share a larger area of land than what was contemplated under DCR 58 as it was promulgated in 1991. The mill company would then have to surrender open lands that is lands in excess of lands commensurate with the built up area further lands which emerge after demolition of part of structure and share the balance FSI. This would be clearly inconsistent with a plain natural and reasonable construction. 140. On behalf of Respondent No. 9 it was further submitted that the Note (iv) to DCR 58(1)(b) makes the aforesaid interpretation doubly clear when it inter alia states that where FSI is in balance but open land is not available for the purpose of sharing land will be made open by demolishing the existing structures to the extent necessary and made available accordingly. Thus the concepts of built up areas balance FSI open lands and land made open by demolishing the existing structures are four distinct concepts internally clearly indicated by DCR 58 itself and there is no warrant or justification to restrict or enlarge the scope of either of these concepts and that by no stretch of imagination can the phrase open lands be naturally construed to mean or include lands after demolition of the existing structures.141. It was submitted that in view of the aforesaid the phrase open lands in DCR 58 must mean only lands or that area which exist on the property after excluding the area of land relatable to or commensurate with the built up area.142. It was submitted that even though the meaning of the said phrase ‘open lands’ in DCR 58 as it exists today is clear if additional support for the aforesaid construction is sought the same is available in DCR 58(1) as it was originally promulgated in 1991 where in DCR 58(1)(b) specific distinction was made between open lands and lands after demolition of existing structures both of which were specifically included in DCR 58(1)(b). The deletion of the phrase land after demolition of existing structures in DCR 58(1)(b) as it originally stood in 1991 clearly gives specific expression to the intention of the legislature to delete from the purview of DCR 58(1) as it exists today lands after demolition. If the construction of the Petitioners of DCR 58(1)(b) as it stands today is correct the present DCr 58(1)(b) is restored to its original unamended position of 1991 rendering the new DCR 58 completely otiose redundant and unnecessary contrary to the canons of statutory interpretation. 143. The Respondent No. 9 further submitted that it is the Petitioners’ contention (made only during the oral rejoinder and nowhere so stated in the pleadings) that the phrase land after demolition of existing structures from DCR 58 is deleted on account of the subsequent amendment of the definition of the word development as contained in Sec. 2(7) of the Maharashtra Regional & Town Planning Act 1966 (MRTP for short) and that it is contended by the Petitioners that in DCR 58 of 1991 it was necessary to include the phrase land after demolition of existing structures as prior to the amendment of Section 2(7) of the said Act to the definition of the word development in 1994 the words in the said definition demolition of any existing building structure or erection were absent and now that the said words have been specifically included in the definition of the word development to continue to retain the same in DCR 58(1)(b) was according to the Petitioners unnecessary.144. The Respondent No. 9 further submitted that such a reading of DCR 58 would be selective and contrary to and destructive of the contentions of the Petitioners and that if as per the contention of Petitioners the phrase land after demolition of existing structures is deleted from DCR 58(1)(b) as it exists today on account of the amendment of the definition of the word development in Section 2(7) of the Act is correct then the word development in the opening part of DCR 58(1) with the previous approval of the Commissioner to a layout prepared inter alia for making of any material change in any building or land or in the use of any building or land or any material or structural changes in any heritage building or its precinct including demolition of any existing building structure or erection or part of such building structure or erection the Commissioner may allow the existing built up areas of mill land for any of the purpose mentioned therein. Thus construed DCR 58(1) would on the Petitioners’ own showing invest authority in favour of the Commissioner to permit change of user of land or building subject to the Regulations and also demolition of any existing building structure or erection. Such a construction would mean that DCR 58(1)(a) permits a complete demolition and reconstruction of the existing built up areas without there being any requirement of sharing under DCR 58(1)(b). The support sought for by the Petitioners from the amended definition of the word development far from supporting the case of the Petitioners clearly supports the case of these Respondents.145. The Respondent No. 9 further submitted that the construction put forward by the Petitioners completely negates the objective of introducing DCR 58 as it stands today. After introduction of old DCR 58 in 1991 the facts clearly demonstrated that there was no development taking place in respect of lands belonging to cotton textile mill companies and whatever development was permitted was haphazard and more importantly resulted in releasing only negligible open spaces in the form of public areas or for public housing. The continued deterioration of cotton textile mill companies’ lands and structures led the Government to amend DCR 58 and evolve a scheme which was in consonance with the development of the city and also in consonance with the objective of opening areas for public housing and open spaces and meet the social objectives of protecting the workers and paying the banks and financial institutions such as would be available as a result of the said scheme.146. Thereafter it was submitted that the Development Control Regulations being provisions for permission to be granted for controlling and regulating the use and development of land and inter alia providing for imposition of conditions and restrictions with regard to open spaces to be maintained about the buildings provide for certain measures to control and regulate the development and to impose conditions. Section 22(m) pursuant to which the Development Control Regulations are formulated permits imposition of conditions and restrictions in regard to the open space to be maintained about buildings and cannot provide for any compulsory acquisition for whatever consideration by the Government or Municipal Authority in respect of private lands and that is pursuance of the power to impose such condition that DCR 58 has been formulated.147. Further submission was that the provisions for designation of areas for open spaces playgrounds stadia zoological gardens green belts nature reserves sanctuaries and dairies as provided for in Section 22(c) of the said Act is de hors and beyond the scope of DCR and that such a provision as contemplated by Section 22(c) would take into account inter alia the social philosophy canvassed for by the Petitioners and the provisions would be made by way of designation in the development plan itself and not by way of conditions under DCR. and that the imposition of any condition as contended by the Petitioners expropriating nearly 2/3rd of the lands of the mills would be clearly ultra vires the Constitution and further to construe DCR 58 as providing for reservation or provisions or designation of areas for open spaces playgrounds stadia zoological gardens green belts nature reserves sanctuaries and dairies or even public housing would render DCR 58 ultra vires the provisions of the Constitution and ultra vires the said Act. The construction consistent with the validity of DCR 58 would only mean that the term open lands in DCR 58(1)(b) would cover only those open lands as are over and above the existing built up area. 148. In view of the aforesaid it was contended that the construction of open lands must be as is submitted by these Respondents.149. Respondent No. 9 further submitted that the arguments of the Petitioners based on the underlying philosophy or policy behind DCR 58 is misplaced and that there is no foundation or premise to conclude that DCR 58 is aimed only at giving expression to a policy of providing for open spaces or lung space or public housing or employment or revival or rehabilitation of the textile mills. The learned Senior Counsel thereafter submitted that the Government realized: a) that most cotton textile mills were also sick or closed;b) that vast land occupied by the said mills were lying unutilized;c) that there was urgent need for solving problems created by the sickness or closure of textile mills;d) that the said problems could be solved with compendiously providing incentives to mills to develop their lands. DCR 58 while providing such an incentive substantially achieves the social philosophy.150. It was further submitted that thus to start from a premise that DCR 58 is a social measure with the underlying philosophy of only providing a sustainable development in the sense of a social and environmental measure is fallacious. The learned Senior Counsel further submitted that implementation of DCR 58 in the form and manner as contended for by these Respondents would result in coherently achieving the objectives viz. sustainable development of the city of Mumbai revival or rehabilitation of some of the mills providing public open spaces apart from those designated and/or reserved in the Development Plan public housing over and above the one reserved for and designated in the Development Plan and an environmentally friendly development of the same. There is nothing shown that the development of the said lands would result in environmentally hazardous consequences for the city of Mumbai. 151. Thereafter Respondent No. 9 submitted that if the interpretation of DCR 58(1)(b) as canvassed for by the Petitioners is accepted it would be counter productive to the development of the city of Mumbai and that if the Petitioners are right then the situation that prevailed post 1991 would continue and there would be hardly any sharing or surrender of any land under DCR 58(1)(b) and that there would be haphazard development of existing structures for commercial purpose. Large dues of workers and Financial institutions would remain unpaid and the National Textile Corporation (NTC) would be debt ridden and totally unviable. The learned Senior Counsel also submitted that if on the other hand interpretation of these Respondents is accepted lands would be released for buildings and apartment blocks and commercial development would take place and that there would also be revival or rehabilitation of some mills and that the lands would be available for public housing or for open space to a substantial extent as against negligible quantity of such land being available if DCR 58 is interpreted the way the Petitioners contend. Further it was submitted that if the contention of the Petitioners is correct that only mills which are sick and under BIFR can invoke DCR 58 any development consequent upon such interpretation would be clearly contrary to the Petitioners’ stand and that it would mean that in an area where large number of mills are situated which is so in the case of Mumbai there will be no coherent planning and development and that in the same zone or area there would be residential buildings commercial complexes cotton textile industries related industries and diversified industries. Therefore it was submitted that it certainly could not be the intention of DCR 58 that such haphazard development of a given area takes place and a hotchpotch of construction for various divergent purposes mushrooms and that the dilapidated mill structures would continue to lie in the state in which they are at present and the so called social philosophy behind DCR 58 would not be realized to any extent whatsoever.152. It was further contended that the object of DCR 58 is revival and rehabilitation of existing mills and require them to run as cotton textile mills is incorrect and that to revive and rehabilitate a sick or closed textile mill company moneys have to be pumped in which can only come from sale of land or development of land. It was further contended that the revival and rehabilitation of the mill companies would consume entire land on which the mill structures stand at present and would not leave any land for development and would completely defeat the so called policy of providing open lands lung spaces and public spaces. 153. Thereafter it was submitted that the Petitioners have contended that DCR 58(6) only permits the construction of a cotton textile mill on the area contemplated by DCR 58(6). Mr. Manohar the learned Senior Counsel submitted that such an interpretation is incorrect inter alia as is clear from DCR 58(8) and DCR 58(9) and that if a healthy mill is redeveloped then in accordance with the contention of the Petitioners the entire gross revenue of the said mill would be required to be deposited in the escrow account under DCR 58(6) read with DCR 58(8) and distributed in accordance with DCR 58(9) and that such a construction is clearly unwarranted. The learned Senior Counsel further submitted that again the construction put to DCR 58(6) by the Petitioners would render DCR 58(5) otiose and that DCR 58(5) is clear and unambiguous. It was also submitted that under DCR 58(5) notwithstanding anything contained in the Regulations the cotton textile mills can develop the land for cotton textile mill or related user without sharing and that the development may be by demolishing the existing structure and that under DCR 58(5) no amount is required to be deposited in the escrow account. 154. Again it was submitted that the Petitioners’ contention would drive mill land to a situation where: (i) only cotton textile mills can be operated or;(ii) healthy mills are driven to sickness to be able to develop the land or(iii) no land would be developed as large areas would have to be surrendered and only small areas would be available for development making the entire exercise unviable. 155. Respondent No. 9 thereafter submitted that if only those mills as are sick and consequently compulsorily subject to BIFR can develop it would mean that BIFR would be required to be equipped with the knowledge of Town Planning when it provides for various conditions under Sections 16 17 and 18 of the Sick Industrial Companies (Special Provisions) Act and that it is open to BIFR to direct the sale or disposal of the land or assets of the company and that in order to be able to do so if the Petitioners are right BIFR would have to take a comprehensive view of the Development Control Regulations which BIFR would not be in a position to do and that again what comes within the purview and jurisdiction of BIFR is not a mill but the corporate entity. The learned Senior Counsel Mr. Manohar therefore submitted that thus if a cotton textile mill within Mumbai is a part of several units of a corporate entity viz. a company other units being engaged in manufacturing other products - and there are several such companies involved in mill land - it would mean that the loss making unviable textile mill unit which is a part of several units of a company would have to continue its loss making activity in the city of Mumbai as the main corporate or company or company continues to be a profit making unit and that this profit making unit of a corporate body would be required to fund continuously the losses of its cotton textile unit within Mumbai till the funds dry out or exhausted or till it is capable of doing so and then declare itself sick go to the BIFR and get a scheme approved. 156. It was submitted that again the healthy textile unit which is the only unit of a company would have no option but to continue its textile activity and can never choose to close down its textile activity for if it so chooses to close down it will have to abide by the Development Control Regulations as sought to be interpreted by the Petitioners and that DCRs 56 and 57 exclude cotton textile mills from their purview thus the only way in which the cotton textile mill can utilize its land is in accordance with DCR 58 and in no other way. Thereafter submission was that if the Petitioners are right in their contention can be done only after a textile mill becomes sick or closed and the corporate entity of which the textile mill is a part also becomes sick and invokes the jurisdiction of BIFR thus the only way it can close down is to drive itself sick and thus the interpretation put by the Petitioners on this count also cannot meet the test of judicial scrutiny.II. CONSTITUTIONAL VALIDITY OF DCR 58: 157. Respondent No. 9 thereafter submitted that the Petitioners have contended that DCR 58 if construed otherwise than contended for by the Petitioners is ultra vires Articles 14 and 21 read with Article 48A of the Constitution of India. The learned Senior Counsel also submitted that to be able to fail the test of Article 14 the impugned action has to be arbitrary or result in unequal treatment to similarly situated entities or be unreasonable or is such as would have no relation to the object sought to be achieved thereby. Thereafter it was submitted that the Petitioners have not made out any ground to show that DCR 58 as it stands today suffers any of the aforesaid and that it is well settled that in considering a challenge to the constitutional vires of an action the constitutional validity of a statute is to be presumed and the burden on the Petitioners to displace the presumption is strong and heavy and that such a presumption gets enhanced in the case of delegated legislation. Further it was submitted that the Courts cannot go behind the policy of a provision and that the piece of legislation - and in this case the Development Control Regulation - cannot be struck down if the Court thinks it to be unreasonable unnecessary or unwarranted and in fact the Court should endeavour to validate a legislation and not view it suspiciously to strike it down at the threshold and that the test of arbitrariness is relaxed in the case of delegated legislation the legislation should be manifestly unjust and arbitrary. in the present case none of the aforesaid ingredients are present and that the Petitioners have not been able to show how the legislation is arbitrary or unreasonable viz:(i) (1974) 4 SCC 415 (Amalgamated Tea Estates Co.Ltd. Vs. State of Kerala) (ii) (1996) 3 SCC 709 (State of A.P. Vs. McDowell & Co.) (iii) (1996) 10 SCC 304 (Khoday Distilleries Ltd. Vs. State of Karnataka) (iv) (1997) 2 SCC 453 (State of Bihar Vs. Bihar Distillery Ltd.) (v) (2002) 2 SCC 188 (Sharma Transport Vs. Government of A.P.) 158. It was further contended that being unable to show any direct or manifest arbitrariness in DCR 58 as it stands today the Petitioners have sought to do so by juxtaposing DCR 58 as it stands today with DCR 58 as was promulgated in 1991 and that the Petitioners contend that under DCR 58 as promulgated in 1991 more open spaces would have been available to the city of Bombay by way of public places and for public housing. The learned Senior Counsel further submitted that such a comparison or juxtaposing of present DCR 58 with the erstwhile DCR 58 is not permissible a legislation for consideration of its constitutional validity has to be tested as it stands per se and not in comparison with its earlier form and that there is nothing in DCR 58 as it stands at present to show its unconstitutionality on the test of Article 14 of the Constitution of India.159. The Petitioners contend that based on the purported philosophy of DCR 58 as interpreted by them it is the policy of DCR 58 to provide better environment provide open public spaces and public housing and that they contend that if DCR 58 is to be construed as canvassed for by these Respondents DCR 58 would result in hardly any open public space hardly any public housing and would not result in revival or rehabilitation of textile mills and therefore DCR 58 is ultra vires. It was submitted that the provision for public spaces and public housing is taken care of by the development plan as provided for under the said Act and that the Petitioners’ contention proceeds on a presumption that old DCR 58 would achieve the results that they believe it would achieve though the actual experience is to the contrary. It was further submitted that the contention is based on how the statute would be administered and that it is well settled that validity of a statute cannot be tested on the basis of how it would be administered - AIR 1962 SC 317 AIR 1962 SC 317 AIR 1962 SC 317 at 31 paragraph 33 and that there have been three stages through which DCR 58 has progressed. It was further submitted that the first was prior to 1991 when the mills and the lands were in unused dilapidated conditions and the second was when DCR 58 was introduced in 1991 when there was haphazard minimal development with negligible land being available for public open spaces and public housing and thirdly post 2001 when there is development of mill lands and there is available land for open public spaces and public housing. Even if the validity of the provision has to be tested on the basis of its administration which it is submitted it cannot be the contention of the Petitioners cannot stand.160. Hence it was submitted that the challenge of the Petitioners based on Article 21 read with Article 48A of the Constitution of India is liable to rejected. 161. Thereafter it was submitted that the original case of the Petitioners in the Petition and the opening arguments was that Regulation 58 was a measure to give the city maximum open space and land for MHADA housing and the case in the Rejoinder is completely contrary to the one put forward in the Petition and in the opening arguments viz. DCR 58 will not apply unless the mill is sick and/or closed and under the purview of BIFR and that the consequence of such an argument or interpretation of DCR 58 would necessarily be that even those mills which are not before BIFR or a part of the modernization or shifting exercise who wish to share 2/3rd of their entire area in accordance with the interpretation of DCR 58 by the Petitioners would be unable to do so and that the city and MHADA would be denied the benefit of huge areas of land which might be potentially available. 162. The Respondent No. 9 submitted that the aforesaid written submissions are restricted to some of the principal issues before this Court. Respondent No. 9 also adopted the arguments given by Respondent No. 11 on the issues dealt by them and that in respect of delay and laches on the part the Petitioners the case of these Respondents is that: (i) The commercial office premises of Unit No. II of Respondent No. 9 is complete all units therein have been sold and building completion certificates have been granted as far back as between 12.09.2001 to 30.10.2004.(ii) In relation to Unit No. I Respondent No. 9 has received IODs and CCs in respect of the 4 residential complexes being constructed thereon. As far back as between:a. IODs - May 21 2004 to September 14 2005 andb. CCs - August 17 2004 and November 29 2004.(iii) The total cost towards development of the aforementioned residential buildings at Unit No. I is expected to be around Rs. 235 crores (excluding interest overheads etc). Respondent No. 9 has entered into contracts of approximately Rs. 107 crores with various parties towards development of the Buildings.(iv) A total of 498 customers have been sold premises which sale process commenced in June 2004.(v) VRS of Rs. 150.95 crores has been paid to all the workers of Respondent No. 9.(vi) In order to carry out the development/re-development Respondent No. 9 has resorted to further borrowings. As of April 2005 a sum of Rs. 355.44 crores is still due and payable to the Banks/Financial Institutions.(vii) Construction work in the aforementioned residential complexes have commenced since 18.08.2004.SUBMISSIONS OF BOMBAY DYEING MILL : 163. Dr.A.M.Singhvi the learned Senior Counsel appearing for Respondent No.11- Bombay Dyeing and Manufacturing Company Limited has submitted that there is no question of reduction of green areas as the earlier Scheme-1991 has totally failed. To enumerate the larger picture at the outset Dr.Singhvi has given some relevant facts as follows:-(i) Total number of cotton textile mills sought to be addressed by 1991 Policy measures are 58 including 25 of NTC. They occupy a total aggregate area of 0.6% of the municipal area of Greater Mumbai and on an average (ranging from 0.31% to 9.95%) area of 3.07% of the total ward area where these 58 mills stand.(ii) These mills as a result of the prolonged strike of the early eighties incurred huge liabilities as a result of unproductive and stagnating assets and became either sick or were operating hugely below their normal potential. In the aggregate the total amount of payments due by these 44 to of 58 mills to workers (aggregating Rs.1201.13 crores); payments to non-bank financial institutions (aggregating Rs.2997.10 crores); payments to banks (aggregating Rs.365.72 crores); additional statutory dues excluding workers liabilities (aggregating Rs.88.31 crores) and all other residuary liabilities (aggregating to Rs.1827.87 crores). The grand total of these aggregate figures in 2005 adds upto Rs.6696.02 crores.164. It is the submission of Dr.Singhvi that in the light of this stagnating status quo a policy was devised at the heart of which lay the object of solving several problems at the same time. According to Dr.Singhvi the principal objects of this policy ex-facie inherent in DCR 58 1991 itself were as follows:-(a) to unlock for the use the large immovable assets occupied by cotton textile mills in Greater Mumbai lying unproductive unutilized and sterlie;(b) to achieve the shifting out and/or closure of industrial use mills in a city where almost all the contiguous and surrounding areas were functionally residential or office/commercial.165. According to Dr.Singhvi the 1991 scheme although inspired by clear public interest and national interest objectives the said policy failed to achieve its objectives through the promulagation of DCR 58 1991. It is not unusual that mere good intentions fail to achieve the desired objective. Dr.Singhvi has submitted that since DCR 58 1991 was admittedly not a land acquisition scheme the crucial element of legal compulsion was necessarily missing in that scheme. The scheme was and had to be based on voluntary option and for that option to succeed commercially it had to be made as attractive and as viable as possible to ensure that the predominant part of the constituency sought to be addressed by that measure invoked and adopted it. According to Dr.Singhvi the significant crucial element missing from DCR 58-1991 which made it functionally non-viable was the fact that it relied upon voluntarily giving up of heavily built up areas by mill owners who demolished their built up structures and then to share the land on which such built up areas had existed along with the remaining open land. Dr.Singhvi has further submitted that for a variety of commercial and logistical reasons the chief of them being the absence of legal compulsion and the obligation of the land owners to share even those areas on which mill structure stood the undeniable fact is that the achievements of DCR 58 1991-2001 were marginal and insignificant. The admitted position is that 5 mills invoked DCR 58 1991 out of which 2 did so only marginally by merely reconstructing and redeveloping the existing structures already standing on those areas which required no sharing. Three other mill units exercised the option only to the limited extent of sharing and developing the open lands standing on their plots. Some other mills also propounded modernization schemes envisaging utilization and/or development of open land upto 15% of the total open land of a mill which did not entail surrender or any part of the lands of the Cotton Textile Mills to Respondent Nos.2 or 5. Dr.Singhvi further submits that none of the objectives inspiring DCR 58 1991 can be said to have been even marginally much less partially achieved. Since legal compulsion still remained a non-available option the only way to achieve the objectives stated in para 3 above (ex-facie desirable and in public interest) was to modify and make DCR 58 1991 significantly more viable. Hence according to Dr.Singhvi a simple change was made so far as attracting mill owners is concerned but even that was subjected to a significant number of additional safegaurds.166. Dr.Singhvi has further submitted that the second change was to provide that those who opted for DCR 58 2001 would be entitled to develop in addition to the other options provided under DCR 1991 also the entire plot area by demolition of existing structures but would require to share by way of surrender broadly 2/3rd of that area over which no earlier built up structure stood (i.e. 2/3rd of remaining areas). This crucial change was however subjected to several additional safeguards including creation of an Escrow Account and the creation of a high powered Monitoring Committee headed by a retired High Court Judge to ensure the disbursal of the large funds expected to be received to meet various liabilities. Dr.Singhvi has therefore submitted that in the light of this sequence of events policy objectives underlying both 1991 and 2001 initiatives the ground reality of 1991-2001 experience and a holistic policy perspective that the entire argument of reduction in green areas advanced by the Petitioners is completely fallacious and erroneous principally because it is purely hypothetical and imaginary. According to him expression reduction is itself a relative term and must necessarily be viewed against a larger benchmark which exists in reality or in situation from which the alleged reduction results. In the present case admittedly there has been no actual green area of a significant degree achieved in 1991-2000 by application of DCR 1991 which can be said to have been remotely or in any real or meaningful sense to have been reduced. Dr.Singhvi has contended that indeed if DCR 2001 is actually implemented (subject to the outcome of this Petition) the reverse is likely to be true. According to him large chunks of land occupied by the 58 mills will actually become green as against the actual insignificant green areas achieved under the pre-2001 scheme and the various liabilities mentioned above will be dealt with and liquidated. 167. Dr.Singhvi has further submitted that the petitioners’ contention proceeds on an extreme over simplification of the issue. According to him the fundamental failure of that contention is to simply aggregate the entire mill lands represented by 58 mills and to divide them by 1/3rd so as to produce the complete imaginary and theoretical figure or 200 acres as being available as green under DCR 58 1991 and 2000 acres as public housing. Firstly he submits that this has never happened and the established actual experience shows that it was never likely to happen. Hence according to Dr.Singhvi any comparison with the figures for a period in the past which actually shows us that those figures were not achieved is inherently fallacious. Secondly Dr.Singhvi submits that the Petitioners incorrectly assume that 1/3rd of the entire mill land area of 58 mills should be treated as being designated and/or in some unexplained mysterious sense be conditionally reserved as greens in terms of Sec.22(c) of the MRTP Act. the Master Plan of 1991 is there for all to see and admittedly there is no reservation/designation or declaration of any kind as far as any of the items under Sec.22(c) are concerned in respect of 58 mill lands in question except to the highly limited extent as already stated in that plan. Consequently since there is no such designation there can be no question of change of such designation and hence no question of either violation of Section 22(c) or of the Act in general. According to Dr.Singhvi the Petitioners’ approach suffers from the inherent flaw of comparing non-existent actually non-achieved and hence imaginary alphonso mangoes with the actually achieved and achievable oranges. This approach reflects first the creation of a non-existent World and then the demolition of the real World against the touchstone of that non-existent World. Consequently it reflects an ostrich in the sand attitude unrelated and unlinked to reality. Since the premise from which the Petitioners approach the problem is itself flawed the Petitioners’ case conceding without admitting all bonafide intentions on their part in fact raises an anti-public interest case because the achievement of a reasonable good and significant reality is sought to be tested by them against the touchstone of a non-existent non-reality. The learned Senior Counsel therefore submits that the Petitioners are guilty at the least best of allowing a non-achievable perfect to become the enemy of the actually achieved good.168. Dr.Singhvi the learned Senior Counsel appearing on behalf of Respondent No.11 on the issue of interpretation of DCR 58 has submitted that the deletion be given full effect. According to him as seen from Rule 58(1)(a) existing built-up area is not available for sharing. Sharing is provided in DCR 58(1)(b) as per the ratios provided therein. According to him if DCR 58(6) is read with DCR 58(a) & (b) if there is reconstruction after demolition to the extent of the built up area of the demolished structure there is no sharing required both on language of 58(6)(a) read with language of 58(1)(a); and if development of open lands alone is done as per 58(6) (which specifically also talks of open lands) then sharing as per 58(1)(b) will occur. Hence according to Dr.Singhvi DCR 58(6) is inextricably interwined and wholly interdependent with 58(1)(a) and (b) and cannot possibly be treated as a stand alone provision. According to Dr.Singhvi DCR 58(6) cannot be limited to situations where the textile mill alone must continue after the development envisaged under DCR 58 for the reasons as follows:-(a) the same cotton textile or related user is limited to 58(5) and is consciously and deliberately omitted from 58(6) (b) such conscious and deliberate omission must necessarily be given full effect on normal principles of interpretation (1883) 8 AC 354 (Pages 380-381); A 32 PC 92 (Page 94); (1985)4 SCC 404 (Page 415).(c) If the user had to continue in future only as textile mill user the entire structure of DCR 58 2001 in general and 58(8)(a) and (b) 58(9)(a) and 58(9)(c)(i) in particular would be rendered unworkable meaningless and inconsistent since the funds directly dealt with in the escrow account and/or by the Monitoring Committee arising by sale disposal and redevelopment of built up areas and open lands cannot possibly accrue if the textile mill must necessarily continue for all times in the future.169. Dr.Singhvi the learned Senior Counsel further submits that there are several obvious reasons as to why DCR 58 2001 clearly mandates sharing only in respect of remaining area after excluding built up area. According to him one of the principal reasons for failure of the scheme propounded by DCR 58 1991 was the absence of voluntary surrender of land beneath built up area between 1991-2001. It was to make the scheme operational and efficacious that the change in 2001 was brought about. Unless the change in 2001 is interpreted to involve sharing of only the balance area the real mischief sought to be removed by 2001 would not at all be addressed and the experience gained between 1991 and 2001 would be deemed to have been ignored by the policy makers. Such an interpretation is untenable. According to him both 58(1)(a) and 58(1)(b) of DCR 2001 consciously explicitly and deliberately delete crucial phrases as they stood in DCR 58 1991. In support of his submissions the learned Senior Counsel has referred to and relied upon the decision of the Supreme Court in the case of Onkarlal Nandlal V/s.State of Rajasthan - (1985) 4 SCC 404 wherein the Supreme Court whilst expounding the doctrine of incorporation by reference in an amended statute laid down in para 9 of the said judgment that the Rule is that when a subsequent enactment amends an earlier one in such a way as to incorporate itself or a part of itself into the earlier then the earlier Act must thereafter be read and construed (except where that would lead to a repugnancy inconsistency or absurdity) as if the altered words had been written into the earlier Act with pen and ink and the old words scored out so that thereafter there is no need to refer to the amending Act at all. Thereafter the learned Senior Counsel Dr.Singhvi has referred to and relied upon the judgment in the case of Ventaka Sabamma and Anr.V/s.Ramayya and Ors. - AIR 32 PC 92 wherein the Privy Council has held that when a section of a statute has been substituted by a new one it may well be that upon the old section the argument on behalf of one of the parties would have had more force but the Court had to interpret the Act as if presently stood and they cannot attribute to the particular section a meaning based on the reading of the repealed section. The learned Counsel has also referred to the decision reported in (1883) 8 A.C.354 (at pages 380 381). The learned Counsel Dr.Singvi therefore submits that in view of the explicit deletions from 58(1)(a) and (b) in DCR 2001 in view of its direct linkage with 58(6) and in view of the inconsistencies involved in reading 58(8) and (9) with the argument of the Petitioners the argument of reading down by the Petitioners is completely untenable. 170. The learned Senior Counsel Dr.Singhvi has further submitted that the user for commercial purposes includes residential user and is permitted under the DCR. He submits that it is the Petitioners’s case that amended DCR 58(1)(a) only permits the existing built-up areas to be utilized for commercial purposes. Therefore assuming without admitting that the mills are allowed to keep the area of the existing built-up structures when demolished the said area can only be developed for commercial user. Development / redevelopment for residential user can only be done under DCR 58(1)(b) and a prerequisite for the same is sharing with BMC and MHADA in the proportions of 1/3. The learned Senior Counsel Dr.Singhvi further submitted that it is the Petitioner’s case in the amended Writ Petition that the purported clarification of 28.3.2003 is not a clarification but an amendment to DCR 58 of 01 as it seeks to permit residential user under DCR 58(1)(a) in respect of existing structures which are demolished and reconstructed. Regulation 62(3) under which the clarification has been issued does not empower the Government to amend DCR 58 and therefore the clarification is bad in law null and void. Therefore the mills cannot use the area of the existing structures after they are demolished for development for residential user. According to him the submission of the Petitioners is erroneous for the following reasons:- (a) DCR 58(1)(a)(iii) states for commercial purposes as permitted under these regulations. Under the Regulations commercial purposes encompasses residential user. Regulation 53(1)(i) which deals with users in the commercial zone (C-1) permits any user allowed in a residential zone with a shop line (R-2 zone) (b) Regulation 52 which deals with users in a Residential Zone with shop line (R-2) provides in Regulation 52(4)(i) for all users permitted in a purely Residential Zone(R-1). Clearly therefore DCR 58(1)(a)(iii) itself provides for residential user in respect of the development of the existing built-up areas after they are demolished. 171. According to Dr.Singhvi the submission of the Petitioners that the clarification of the Government dated 28.3.2003 is an amendment of DCR 58 of 01 is clearly fallacious. Further according to Dr.Sinhvi the submission of the Petitioners that under DCR 58 of 01 development of mill lands is permitted for residential user only under DCR 58(1)(b) under which the mill is required to share its lands in proportions of 1/3rd is wholly erroneous. According to him clearly the existing built-up areas of the mills can be developed under Regulation 58(1)(a)(iii) for residential purposes and the Government threfore correctly clarified by its order dated 10.4.2001 (which was reiterated by its order dated 28.3.2003) that the commercial purposes under Regulation 58(1)(a)(iii) includes permissible user in the residential zone by the mill itself or another person by way of transfer with the object of raising funds.172. The learned Senior Counsel Dr.Singhvi has further submitted that the document dated 28th March 2003 is a clarification and not an amendment of DCR 58 2001 and hence there is no violation of Section 37 of the MRTP Act. According to him the main contention of the Petitioners regarding this document is that in fact and in substance it constitutes an amendment of DCR 58 2001; that it is not a mere clarification thereof and that consequently it violates Section 37 in so far as the prescribed procedure for the amendment of DCR 58 has admittedly not been followed. Dr.Singhvi has submitted that the aforesaid contention of the Petitioners is erroneous and unsustainable for the following reasons:-(i) The first crucial question is whether DCR 58 2001 (as opposed to DCR 58 1991) makes it sufficiently clear that sharing of lands will apply only to the balance area arrived at after excluding the land area on which the existing built up structure had stood. If DCR 58 2001 is held or found to prescribe sharing only in respect of area remaining after excluding built up area the document dated 28.3.2003 cannot be said to add or detract in substance or principle from DCR 58 2001 and therefore cannot be construed as an amendment.(ii) There are several obvious reasons as to why DCR 58 2001 clearly mandates sharing only in respect of remaining area after excluding built up area. (iii) One of the principal reasons for failure of the scheme propounded by DCR 58 1991 was the absence of voluntary surrender of land beneath built up area between 1991-2001. It was to make the scheme operational and efficacious that the change in 2001 was brought about. Unless the change in 2001 is interpreted to involve sharing of only the balance area the real mischief sought to be removed by 2001 would not at all be addressed and the experience gained between 1991 and 2001 would be deemed to have been ignored by the policy makers. Such an interpretation is untenable.(iv) Both 58(1)(a) and 58(1)(b) of DCR 2001 consciously explicitly and deliberately delete crucial phrases as they stood in DCR 58 1991. As already submitted to this Court these deletions have to be given full effect and the direct effect of these deletions is that the sharing would apply only in case of areas remaining after excluding built up areas.(v) DCR 58(6) read with DCR 58(1) clearly contemplates:- (a) no sharing in so far as there is reconstruction after demolition limited to the extent of the built up area of the demolished structure and (b) sharing only in respect of open lands and balance FSI which necessarily means lands and FSI after excluding the built up area portion. In respect of (a) above 58(6) operates in conjunction with 58(1)(a) while in respect of (b) above 58(6) operates in conjunction with 58(1)(b). Hence 58(6) and 58(1) are inextricably intertwined and interdependent. 58(6) is not a stand alone provision.(vi) Consequently as far as the issue of sharing remaining lands after excluding built up structures is concerned if the foregoing interpretation of DCR 58 2001 is correct ex-hypothesis the document dated 28.3.2003 could not in substance add or subtract from the basis principles already made crystal clear by DCR 58 2001. In other words even if one were to ignore and/or exclude altogether the document dated 28.3.2003 the operation implementation and effect of DCR 58 2001 would remain unaffected in so far as the basis principle of sharing of remaining lands only after excluding built up area is concerned. (vii) However even where an issue is clear on the text of the law (viz.DCR 58 2001) queries questions and clarifications on that subject are not precluded and are not otherwise impermissible in any manner. DCR 62(3) has been specially enacted to explicitly empower the State Government to respond to such queries and to give a decision on the issues raised. (viii) The entire contention of the Petitioners is premised on the self-serving assumption that the affected class of people treated DCR 58 2001 as still born or incapable of implementation and that everybody was galvanized into action only after the issuance of document dated 28.3.2003. This premise is completely fallacious and erroneous for the simple reason that several mills applied for and obtained permission under DCR 58 after 2001 and well before 2003. In this regard the following affidavit assertion is noteworthy which reads as under:-14. It is further respectfully submitted that the interpretation and effect of modified DCR 58 is clear from its plain language. According to the Petitioners themselves a layout was sanctioned under amended 58 in the case of New Great Eastern Spinning & Weaving Mills prior to the Clarification dated March 28 2003. As far as these Respondents have been able to ascertain several applications were made under amended DCR 58 prior to the clarification viz. Standard Industries Ltd. (Prabhadevi Textile Unit) Standard Industries Ltd. (The Sewree Textile Unit) Respondent No.9 (Unit No.II) Hindoostan Spinning and Weaving Mills Ltd.(Unit Nos.A and B) and Simplex Mills Ltd.(Byculla Unit) in the year 2002 itself and in some cases DCR 58 approvals were granted in the year 2002 itself.(ix) What is significant is not only that these applications were made but that approvals were also granted under DCR 58 2001 prior to the 2003 document. This it is submitted is conclusive proof of the clear textual mandate of DCR 58 2001 as also the contemporaneous understanding of all those affected by it.(x) The Petitioners have themselves admittedly treated DCR 58 2001 as meaning and having the effect of sharing lands remaining after excluding built up area. This is inter alia clear from their petition para 23 pages 17 to 19 especially 5th line onwards (page 18 Vol.1).(xi) Indeed the Petitioners grievance qua the Order dated 28.3.2003 is mainly in respect of allegedly wrongly permitting residential user (Page 38B para 56B(i)(i) of Petition Vol.1). In this paragraph and in the other pleadings of the Petition in this respect the Petitioners are not making any grievance regarding the issue of sharing only the balance but are focusing entirely on the alleged wrongful permission regarding residential user.(xii) However while this mandate of DCR 58 2001 even before the 2003 clarification was reasonably clear and unequivocal there were several other issues related to calculation of FSI which involve questions which would inevitably arise in the nitty-gritty operation of DCR 58 and which led to several queries. This is the factual context in which the document of 28.3.2003 came to be issued. To say that it amends DCR 58 2001 substantively by bringing in for the first time the concept of sharing remaining area after excluding built up structure is thus erroneous and is to ignore the sequence of events and the aforesaid context completely.(xiii) The affidavit of Shri.Tiwari dated 17.8.2005 (filed before this Court) also makes it clear that in effect so far as the main question of sharing of lands remaining after excluding built up area is concerned what was done by the 28.3.2003 document was merely to confirm and affirm the existing understood interpretation of 2001 DCR 58 viz.to the effect that only remaining balance areas would be shared after excluding built up areas. In particular Mr.Tiwari affirms that the mode of computation of open land and the balance FSI (in the sense of sharing only areas remaining after excluding built up area) is in consonance with the Cabinet decision taken and the DC Regulation 58 was amended accordingly. Mr.Tiwari also quotes the letter dated 28.8.2001 on which the clarification was issued which states the presumed position that sharing would apply only in respect of remaining area after excluding built up area. (xiv) The clarification was issued in particular by the Government to ensure that those mills which invoked DCR 58 2001 would share lands in a manner so as to yield more green space by the adoption of one out of two possible calculations under DCR 58 2001. For example a mill seeking to apply DCR 58 2001 could well claim that because DCR 32 allowed FSI of ONE for industrial user and because such mill was seeking to utilize a small part of the plot for continuing industrial user the land area which was not required to be surrendered to the Government would be calculated by applying a denominator of only 1 FSI thereby yielding a higher figure of the protected land area not required to be surrendered to the Government. However the clarification of 28th March 2003 made it clear that whether a mill was continuing to use part of the land for future mill user (i.e.industrial user) as also other parts for reconstructed commercial user the Government would apply a denominator of 1.33 (& not of 1) thereby yielding a smaller protected area i.e. area not required to be surrendered to or shared with BMC & MHADA. In other words the Government thought it fit to clarify one method of calculation as opposed to another to ensure that the original land owners would be allowed to retain a smaller protected area within the non-sharable pool and would have to yield and give up a larger area to the sharable pool. This is made clear in the second sentence of para 1 of the document dated 28.3.2003. An example worked out with hypothetical figures in Annexure-A shows how the clarification intended to ensure that option B out of two calculation options was adopted so as to ensure that a larger area was surrendered by the land owner.173. The learned Senior Counsel Dr.Singhvi has further submitted that DCR 2001 does not change the character of the development plan and hence there is no violation of section 37 of the MRTP Act. The learned Senior Counsel has submitted that the Petitioners contend that the alteration achieved by 2001 DCR 58 is of a nature which changes the character of such Development Plan (Development Plan according to them includes all regulations) and therefore the change could not be effected by following Sec.37. If at all a change had to be made the procedure of Sec.38 would have to be followed including inter alia carrying out a fresh survey preparing an existing land used map and various provisions listed in Sec.38 to revise the Development Plan. Admittedly this has not been done. According to Dr.Singhvi the phrase changes the character of such Development Plan under Section 37(1AA) cannot be interpreted to mean any modification or any change because Section 37(1AA) itself suggests that the changes other than of the kind listed in its fourth line are permissible under Section 37. Consequently the intent purpose scope and rationale of Section 37(1AA) is really to exclude fundamental changes or changes of a vitally significant character and not to apply to any modification or revision. In support of his submissions Dr.Singhvi has referred to and relied upon the decision of the Supreme Court in the case of Forward Construction Company V/s.Prabhat Mandal - (1986) 1 SCC 100 (Para 33) wherein the Hon’ble Supreme Court whilst considering a case arising under the MRTP Act and relating to the Development Control Rules for Greater Bombay 1967 (the precursor of the Development Control Regulations 1991) held that the meaning of the word change is to make or become different to transform or convert. If the user was to be completely or substantially changed only then the prior modification of the Development Plan was necessary. In this case the Supreme Court was considering a provision of the building bye-laws which provided that the users mentioned therein may be changed by the local authority after modification of the Development Plan. It is submitted that the phrase change in the character of the Development Plan would require a far more radical change then envisaged by the Supreme Court in connection with the case of Forward Construction Company. According to Dr.Singhvi the fact that only fundamental basic structure crucial and vitally significant alterations are sought to be excluded from Sec.37 and not all modifications is reinforced by the conscious deletion of the word minor in the marginal heading of Sec.37 in 1994 by amendment of Section 37. According to Dr.Singhvi any other interpretation would act as a serious public interest fetter freezing for periods of 20 years and rendering immutable the Development Plan to meet the exigencies of the situation which would periodically arise in a city like Mumbai. The nature and degree of the inquiry contemplated in Section 38 is itself of a fair de novo survey of the entire Greater Mumbai area and that would seriously inhibit any concrete action for more than a decade and thus hamper public interest. The learned Senior Counsel Dr.Singhvi further submits that the fact that Section 37(1AA) empowers both minor and even major changes so long as it does not change the character of the plan as has been held by the Division Bench of this Court in the case of Panshikar V/s State of Maharashtra - 2002(5) BCR 318 (paragraphs 44 46 and 47). According to Dr.Singhvi the present 2001 change in DCR is not a change to the basic character or basic structure and is not vitally significant firstly because the total areas affected by this change are only of an average approximately 3.07% of the total area of the wards in which such mill lands are located secondly because that such mill lands in the aggregate are only 0.6% of the entire land area obtained in Mumbai and thirdly because there can be no question of change of the Development Plan or its basic character because the Development Plan as existing continues to show the lands in question as industrial zone (I-2 I-3) and the conversion to open spaces & public housing which will be achieved on the event of implementation of 2001 DCR 58 is not reflected in the existing Development Plan. There cannot be an alteration at least by way of deprivation of green areas when the original Development Plan does not even show such areas as green. The learned Senior Counsel Dr.Singhvi has further submitted that the judgment sought to be referred to and relied upon by the Petitioners in the case of Pune Municipal Corporation - 2004 (10) SCC 796 is completely distinguishable because:-(a) The case involves the submission by the PMC of a proposal for modification of DCR which the State Government allowed but whilst so allowing added some words. This addition by the State Government while giving final sanction to amendment of the DCR was challenged in the High Court as being beyond the powers of the State Government under Sec.37(2). The High Court upheld this contention and allowed the writ petition holding inter alia that the language of Sec.37(2) nowhere allows the State government to add condition of its own while approving modification submitted by the Planning Authority. This conclusion of the High Court was reversed by the Supreme Court. It is thus clear that the issue as to what is the meaning and scope of the phrase character of the plan in Section 37(1) did not either directly or even indirectly arise for consideration and decision before the Supreme Court. (b) The reference to minor changes by the Apex Court in para 4 at page 799(g) is only to hold that for such changes the State Government exercises wide discretion. The Court does not decide the converse proposition as to what is the scope and ambit of the phrase character of the plan.(c) The deletion of the word minor from Section 37(1) in 1994 was not pointed out to the Apex Court and not considered. 174. Dr.Singhvi the learned Senior Counsel has further submitted that as alleged by the Petitioners DCR 58 2001 is not ultra vires of Section 22(c) of the MRTP Act. He submits that Section 22 of the said Act relates to the contents of a Development Plan and provides for the manner in which the use of land in the area of Planning Authority shall be regulated. According to him Section 22(c) relates to proposals for designation of areas for open spaces playgrounds stadia zoological gardens green belts nature reserves sanctuaries and dairies. The learned Senior Counsel has further submitted that no reservation was made for open spaces or public housing under Section 22(c) in regard to the Mill Lands in the Final Development Plan 1991. Under the Final Development Plan the Mill Lands were shown as situated in I-2 I-3 (Industrial Zone) / or other zones permitting Retention Activity. There is therefore no quetion of DCR 58 2001 having reduced any of the open spaces or public housing reserved under Section 22(c) in the Final Development Plan 1991. The areas designated and reserved for open spaces or public housing under Section 22(c) have not been touched or reduced by DCR 58 2001. DCR 58 2001 only applies to the Mill Lands which are situated in I-2 I-3 Zone or other zones permitting retention activity. Hence Dr.Singhvi submits there is therefore no question of DCR 58 2001 being ultra vires the provisions of Section 22(c) of the said Act or being ultra vires the provisions of the MRTP Act. 175. Dr.Singhvi the learned Senior Counsel has further submitted that no expropriation of Mill Lands by the State Government is permissible except by legally acquiring under Land Acquisition Act. In support of his submissions Dr.Singhvi referred to and relied upon the Supreme Court Judgment in the case of Raju S.Jethmalani V/s.State of Maharashtra - JT 2005(5) SC 244 wherein the Supreme Court has observed that in a case arising under the MRTP Act that the State Government cannot deprive a person of his land under the provisions of the said Act without acquiring the land. The Hon’ble Supreme Court was considering a case relating to reservation of a plot of land belonging to a private individual for the purposes of a park or playground. As the State Government did not proceed to acquire the said plot from the owner as provided for under the provisions of the MRTP Act the said reservation of the plot lapsed. The learned Senior Counsel has submitted that in the present case DCR 58 does not envisage the acquisition of the mill lands by the State Government but provides a scheme under which the mill owners may voluntarily surrender a portion of their lands to the State Government as provided for under DCR 58 of 2001. According to his as the scheme depends on the voluntary surrender by the mill owners of a portion of their land it was essential that the same be made more attractive for the mill owners as they had not opted for the Scheme of 1991.176. The learned Senior Counsel Dr.Singhvi has submitted that the scope of Judicial Review of the Policy and/or Economic Issues by Writ Court is highly circumscribed. According to him it is the settled law as laid down by a catena of judgments of the Supreme Court that the Courts will not interfere in matters relating to State Policy. It is submitted that the DCR 58 which is a piece of delegated legislation reflects the State Policy relating to the development/redevelopment of lands of Cotton Textile Mills. The State Government had enunciated a particular policy when it brought into force DCR 58 of 1991. When it found that the State Policy did not work for a period of 10 years it sought to introduce a change in the said policy by bringing into force amended DCR 58 of 2001. It did this in the hope that the mill owners would come forward to redevelop the mill lands and thereby a valuable asset which was lying unutilized viz. the land of the mills and thereby full a social objective in ensuring that the mill workers dues were paid as also that the Banks and Financial Institutions were repaid the loans given by them to the mills. It is submitted that in such a case the Court ought not to interfere in a matter which related purely to the enunciation of State Policy. The Court would permit a large play in the joints. The Court cannot second guess the wisdom or appropriateness of the policy or scheme adopted to achieve the objectives udnerlying DCR 58. In support of his submissions the learned Senior Counsel referred to and relied upon the decision of the Supreme Court in the case of Raunaq International Ltd. - (1999) 1 SCC 492 (paragraphs 11 to 13 and 17).177. On the issue of Delay/ Laches the learned Senior Counsel Dr.Singhvi has submitted as to how there is a delay on the part of the Petitioners for atleast four years and/or unexplained laches for 24 months. He has given reference of various dates as follows:-12.10.2000 Indian Express Report Announcing new Textile Policy 29.11.2000 Public Notification inviting objections to proposed Modification of Reg.58. 02.12.2000 Public Notice in local Marathi Newspaper Sakal. 03.12.2000 Public Notice in India Express Jan.2001 Deputy Director Town Planning U/s.162 of the Act gave public hearing to all 24 Objectors. 06.01.2001 Objections forwarded to BMC for comments. 24.01.1001 TOI Report regarding new policy policy of Mill Lands. 26.01.2001 TOI Report regarding change in policy 03.02.2001 Comments from BMC received by R1. 02.03.2001 Deputy Director Town Planning prepared Report for R1 based on above objections. 20.03.2001 Original Regulation 58 amended by R1 23.03.2001 Modified Regulation 58 came into force. 18.02.2005 PIL (WP 482/05) filed by Petitioners 178. The learned Counsel Dr.Singhvi has submitted that the above dates clearly highlight the delay/laches on the part of the Petitioners in the present matter. According to him despite the fact that there was a widespread public debate in Mumbai relating to the proposed amendment to DCR 58 of 1991 from the beginning of 2000 as also the fact that the State Government published a notification dated 29th November 2000 inviting objections and suggestions to the proposed DCR 58 of 2001 and advertised the same on 2nd December 2000 in the Marathi newspaper Sakal and 3rd December 2000 in the English newspaper Indian Express the Petitioners chose not to raise any objections and suggestions to the proposed amendment of 2001 nor did they challenge the same after the same was brought into force on 23rd March 2001 till they filed the Writ Petition on 18th February 2005 four years after the said notification was brought into force. During this entire period of four years between 23rd March 2001 and 18th February 2005 the Petitioners did not send a single notice to either the State Government or any statutory authority or even to the Mill owners. It is therefore submitted by the learned Senior Counsel Dr.Singhvi that the Writ Petition suffers from gross delay/laches on the part of the Petitioners and on this round alone the same ought to be dismissed with costs. Dr.Singhvi has submitted that the doctrine of laches also applies to Public Interest Litigation. According to him this doctrine is based on the higher public policy of giving finality to the rights of the parties and a quietus to controversy. In support of his submissions he has referred to the decision of the Supreme Court in the case of Narmada Bachao - JT 2000 (Supp.II) SC 6 paragraphs 45-48 & 222-225. Dr.Singhvi has further contended that in the present case there is not only delay on the part of the Petitioners in filing the Writ Petition but the same is coupled with the fact that huge liabilities and obligations have been undertaken by the Mill Owners on the basis of amended DCR 58 of 2001 by paying hundreds of crores of rupees to their workers as also to the banks and financial institutions third party rights have been created by them by sale of premises to flat purchasers development rights created in favour of third parties mortgages created in favour of banks and financial institutions etc. In the case of these Respondents the total financial obligations amount to Rs.932.55 crores which include payment of Rs.120.55 crores to its workers by way of VRS and a further obligation to pay them an amount of Rs.50 crores as also an obligation to repay loans taken from Banks and Financial Institutions amounting to Rs.347 crores. In respect of 44 out of the 58 mills including 25 mills of NTC the total liabilities/payments made/committed based on DCR 58 of 2001 is Rs.6696.02 crores. The learned Seniour Counsel Dr.Singhvi has also given charts which are annexed as Annexures B and C to his written submissions which give details about the said liabilities/payments obligations undertaken by various mills between March 2001 when amended DCR 58 came into force and the date of filing of the Writ Petition. Based on the above submissions the learned Counsel Dr.Singhvi has submitted that the Writ Petition filed by the Petitioners ought to be dismissed on the ground of dalay/laches.179. On the ground of laches the learned Sr.Counsel Dr.Singhvi has referred to various decisions of the Supreme Court as well as this Court which are as follows:(i) Tilokchand Motichand - AIR 1970 SC 898 (Paragraphs 51 & 52). In this case the Supreme Court whilst considering delay in the context of a Writ Petiton held that normally a Writ Petition ought to be dismissed on the ground of delay if the same has been filed after the period prescribed for filing of a suit viz. three years.(ii) In the case of Aflatoon - (1975) 4 SCC 285 (Paragraphs 11 & 12) the Hon’ble Supreme Court has dismissed the said case on the ground of delay despite the fact that the same related to a land acquisition case in which the property of an individual was at stake.(iii) In the case of Ramanna Shetty - (1979) 3 SCC 489 (Paragraph 35) the Hon’ble Supreme Court whilst holding that the fundamental rights of the Petitioner under Article 14 of the Constitution had been violated dismissed the Writ Petitin in view of the fact that the same suffered from a delay of 5 months. (iv) In the case of Nandlal Jaiswal - (1986) 4 SCC 91 (Paragraphs 23 and 24) the Hon’ble Supreme Court dismissed the Writ Petition in view of the fact that the same suffered from a delay of 8 months.(v) In the case of Narmada Bachao Andolan - JT 2000 (supp.2) SC 6 (Paragraphs 45-47 and 224-229) the Hon’ble Supreme Court upheld the contention of the State that the said PIL suffered from delay and proceeded to dismissed the same on the said amongst the other grounds.(vi) In the case of Breach Candy Residents Association V/s.BMC (unreported Judgment dated 27th January 2000 delivered by the Chief Justice Y.K.Sabharwal (as he then was) and Mrs.Ranjana Desai J. in Writ Petition No.1585 of 1999) this Court held that whilst it may have intervened in the matter so far as the question of creation of bogus tenancies was concerned and directed the fresh examinatiion of this aspect by MHADA but as the Petition suffered from gross laches and third party rights had intervened it proceeded to dismiss the said Writ Petition.(vii) In the case of Bombay Environmental Action Group V/s.State of Maharashtra - (2001) 3 Mah.L.J.260 a Division Bench of this Court whilst repelling the challenge of these very Petitioners to the construction of a fly over at Adhere held that just because a petition is termed as a PIL does not mean that ordinary principles applicable to litigation will not apply. Laches is one of them.(viii) Judgment of the Hon’ble Supreme Court in the case of Raunaq International Ltd. - (1999) 1 SCC 492 (Paragraph 7).180. On the issue of Waiver/Acqiescence the learned Senior Counsel Dr.Singhvi has submitted that as the Petitioners did not raise any objections or suggestions to the proposed amendment of DCR 58 of 1991 when the same were invited from members of the Public by the State Government by issuing a public notice in this regard dated 29th November 2000 followed by a publication of the said notice in the marathi newspaper Sakal dated 2nd December 2000 and in the English newspaper Indian Express dated 3rd December 2000 the same four years after amended DCR 58 was brought into force. The State Government issued the said public notice as required under the provisions of Section 37(1AA) of the MRTP Act. Even prior to the issuance of the said public notice the entire issue relating to the proposed amendment to DCR 58 of 1991 was in the public domain and articles relating to the same had appeared in various newspapers from the beginning of 2000. Despite this the Petitioners raised no objections or suggestions to the said proposed amendment. The State Government received 24 objections and suggestions in pursuance of their public notice which they considered before proceeding to bring into force amended DCR 58 of 2001. It is thus submitted that not having raised any objections or suggestions to proposed DCR 58 of 2001 it is not open to the Petitioners in public interest to challenge the amended DCR 58 of 2001. In this context the learned Senior Counsel has referred to and relied upon the decision of the Supreme Court in the case of Jaswant Singh Mathurasingh V/s.Ahmedabad Municipal Corporation - AIR 1991 SC 2130 (Paragraph 14) wherein the Supreme Court has observed that the principle of waiver connotes issuance of notice and non-response thereto. The Supreme court has also observed that everyone has a right to waive an advantage or protection which law seeks to give him/her. Undoubtedly if a notice is issued and no representation was made by either the owner tenant or sub-tenant it would amount to waive the opportunity and such person cannot be permitted to turn round after the scheme reaches finality to say that there is non-compliance of the statutory provisions. This would amount to putting premium on dilatory and dishonest conduct. The said case arose under the provisions of the Bombay Town Planning Act 1955 which was the precursor to the present MRTP Act and related to issuance of both public and private notices in relation to a proposed acquisition to be made under the provisions of the said Act. The learned Senior Counsel Dr.Singhvi also referred to another decision of the Supreme Court in the case of Rai Vimal Krishna V/s.State of Bihar - AIR 2003 SC 2676 (paragraphs 26 & 27) wherein the Supreme Court has held that generally the object of giving a notice is to draw the attention of the persons sought to be affected to the matter notified. The purpose of giving notice is to raise a legal presumption against such person of knowledge of the subject of the notice. 181. On the doctrine of Prospective Over-ruling the learned Senior Counsel Dr.Singhvi has submitted that the there are strong and cogent grounds available to dismiss the writ petition specially because it is contrary to public interest based on completely non-existent assumptions and suffers from huge unexplained laches. However in the wholly without prejudice and unlikely eventuality of this Court allowing the writ petition either wholly or in part and specially in view of the enormous delay laches and huge third party rights already created as submitted earlier this Court ought to invoke and apply the doctrine of prospective over-ruling so as to invalidate if at all DCR 58 2001 and all actions taken there under only w.e.f. the date of the judgment of this Court. The learned Counsel has submitted that the doctrine of prospective overruling is an established part of the Indian Law innovatively created and developed to meet unforeseen exigencies to tailor and mould the relief to those exigencies and to ensure that justice is done to a particular party or parties even if the law is subsequently declared contrary to such parties’ assertion. According to him the doctrine of prospective over-ruling is an unavoidable consequence of the fact that Judge made law and judicial decisions are ex facie conceptual ex-post facto declaration of law which are fictionally deemed to declare always existing legal position. The inevitable phenomena of Court judgment given after the event can and does frequently generate serious injustice to individual parties who have predicated their actions on the basis of their bonafide and reasonable understanding of the law which existed prior to the date of the judgment. To fully provide for such situation the Apex Court innovated the doctrine of prospective over ruling in Golaknath V/s Panjab - AIR 1967 SC 1643. A catena of judgments have subsequently applied the doctrine of prospective over-ruling including inter alia Wamanrao V/s.UOI - 1981 2 SCC 362; Atam Prakash V/s.State of Haryana - 1986 (Vol.2) SCC 249; Orissa Cement V/s Orissa- 91(Suppl.1 SCC 430 and so on. 182. Dr.Singhvi has submitted that it is a common misconception to believe (a) that the doctrine is not available for application by the High Court and is restricted for use only of the Apex Court (b) that it does not apply to ordinary statute but only to the Indian constitution and issues of constitutional validity and (c) that it does not apply to issues of interpretation of delegated legislation. According to him each of these contentions/assumptions are erroneous and fallacious. 183. The learned Counsel has submitted that the issue as to whether the doctrine of prospective overruling is available for application by the High Courts exercising writ jurisdiction under Article 226 is no longer reintegrate. In support of this contention the learned Senior Counsel Dr.Singhvi has referred to and relied upon the decision of the Supreme Court in the case of Harsh Dhingra V/s.Haryana - 2001 9 SCC 550 wherein the Court expressly and specifically upheld the power of the High Court to apply this doctrine under Article 226. The Court based its conclusion on the larger public interest which doctrine sub serves; the fact that Apex Court judgments applied this doctrine itself constitute binding precedent on High Courts to apply the same. Additionally there are several judgments of the Apex Court where application of the doctrine of prospective overruling by the High Court exercising Article 226 jurisdiction has been upheld in the result by the Apex Court. In support of this submissions Dr.Singhvi referred to and relied upon the judgments of the Supreme Court in the case of Raymond V/s.MPED - 2001 (1) SCC 534 (Paragraphs 23 and 24); and Gangaram V/s.Rajasthan - 2001 (6) SCC 89 (Paragraphs 19 20 and 24) upholding the results of the High Courts.184. The learned Senior Counsel Dr.Singhvi has further stated that the contention that the doctrine is inapplicable to cases of interpretation of ordinary statutes and is restricted to the constitution is also erroneous and unsustainable. He has submitted that the contention/assumption that the doctrine of prospective overruling is inapplicable to delegated legislation is equally fallacious. In this context he referred to the decision of the Supreme Court in the case of Shridhara V/s State of Karnataka - 2002 (9) SCC 441 (paragraph 9) wherein the Supreme Court struck down Rule 3B of the Karnataka State Civil Services (General Recruitment) Rules but applied its conclusion prospectively. Similarly in the case of State of Karnataka V/s Kum.Gowri - 95 Suppl.2 SCC 560 (Paragraph 11) the Apex Court upheld the judgment of the High Court striking down certain provisions of Karnataka State Civil Services (Direct Recruitment) Rules 1977 but applied its ruling prospectively. SUBMISSIONS ON BEHALF OF RESPONDENT NO. 12 185. Mr.E.P.Bharucha the learned Senior Counsel appearing on behalf of Swan Mills Limited (Respondent No.12) has reiterated the contentions made on behalf of Respondent Nos.7 8 and 9 contending that in the amending DCR 58 what is meant by ‘open land’ would only mean open land excluding the portion of the land wherein structures were standing. To put in other words the land wherein the structures were standing will have to be excluded within the expression of ‘open land’. 186. The learned Senior Counsel Mr.Bharucha has further emphasised that the very objective of amending DCR 58 wherein the words lands after demolition of existing structures have been specifically deleted. Mr.Bharucha has contended that as the original DCR was not attractive enough the builders did not make use of it and therefore the Government of Maharashtra after taking into account various recommendations made by several committees has provided for additional incentives in the sense the sharing will only be with regard to the existing open lands and the lands on which structures were standing & which will be demolished will have to be excluded from open lands. Mr.Bharucha has contended that by this process also sufficient open spaces as well as the lands for public housing would be made available. SUBMISSIONS ON BEHALF OF RESPONDENT NOS.13 14 15 21 & 22 187. Dr.V.Tulzapurkar the learned Senior Counsel appearing on behalf of various mill owners viz. Godrej Property Limited K.Raheja Corporation Private Limited Prakash Cotton Mills Private Limited K.Raheja Universal Private Limited and Sheth Developers Private Limited (being Respondent Nos. 13 14 15 21 and 22 in this Petition) has submitted that the true and correct interpretation of the amended DCR 58 would be that the words open lands would exclude the lands wherever structures are standing or the lands upon demolition of such structures.188. Dr.Tulzapurkar referred to the pleadings in paragraph No.34 of the Petition with regard to the interpretation given by the Petitioners as far as the amended DCR 58 is concerned. he contended that the Petitioners have now sought to argue the contrary case which this Court ought not to entertain. He pointed out that the clarification issued by the Government of Maharashtra on 23.3.2003 is strictly in consonance with the interpretation as suggested by the Counsel on behalf of builders as well as the learned Advocate General for the State of Maharashtra and the learned Advocate for B.M.C.189. Dr.Tulzapurkar the learned Senior Counsel contended that as far as the interpretation of DCR 58(1)(b) is concerned two interpretations are possible.190. Dr.Tulzapurkar the learned Senior Counsel thereafter referred to and relied upon the judgment of the Supreme Court in the case of Raymonds Synthetics AIR 1992 SC 847 to contend that the interpretation suggested by these Respondents is not unreasonable. Hence he submitted that any interpretation which is not unreasonable ought to be accepted. 191. Dr.Tulzapurkar has pointed out that the entire petition proceeds on the basis that the amended DCR would be contrary to the provisions of Maharashtra Regional Town Planning Act and contrary to Articles 14 21 48A of the Constitution of India. He submits that the entire basis of the Petitioners is erroneous and misconceived since as of date there are no open spaces or green spaces or spaces for public housing being made available by the mill owners and that there is no question of same being taken away. To put in otherwords the Petitioners cannot claim any vested right on such open spaces or lands for public housing which are yet to come into existence. 192. Dr.Tulzapurkar the learned Senior Counsel has further contended that the correct interpretation would be that DCR 58(6) should also be read alongwith DCR 58(1)(a) & (b) and there is no question of the said Regulation 58(6) to be stand alone provision. Dr.Tulzapurkar has contended that all the procedures as contemplated under the Maharashtra Regional Town Planning Act have been duly complied with while amending DCR 58 in the year 2001 and as such there is no violation under Article 21 of the Constitution of India. Similarly he also contended that there is no violation of Article 14 of the Constitution of India inasmuch as there is nothing irrational or unreasonableness in the aforesaid amendment. He has contended that in fact by amended DCR 58 almost all the builders will come forward and release their lands for open spaces and for public housing and in fact that would be beneficial to the large section of people and it will also help in reducing the great need for open spaces and public housing. Dr.Tulzapurkar has strongly supported the contentions/ submissions of the learned Advocate General the contentions/ submisions made by Counsel appearing for BMC and the contentions/submissions made by the Counsel appearing on behalf of various builders.193. Dr.Tulzapurkar has pointed out that as far as violation regarding environmental clearance is concerned the Maharashtra Pollution Control Board has already issued notices to the concerned Respondents and the concerned Respondents will be appearing before the Maharashtra Pollution Control Board to justify their stand. According to him none of these Respondents have violated the E.I.A. Notification issued by the Ministry of Environment and Forests. SUBMISSIONS ON BEHALF OF GKSS (UNION)- RESPONDENT NO. 16 194. The learned Counsel Ms. Gayatri Singh on behalf of Girni Kamgar Sangharsh Samiti Respondent No. 16 herein explained the DEVELOPMENT CONTROL REGULATIONS 58 OF 1991 as under:-(i) Regulation 58 was introduced permitting sale and development of mill land for revival/rehabilitation of potentially viable sick mill. The objective of Regulation 58 was therefore revival/rehabilitation of sick textile mills. This is evident from Regulation 58(1) which provides for a scheme of revival to be sanctioned by BIFR. The BIFR sanctions schemes which are meant only for revival of sick mills under the SIC Act and not for closure of a mill. If the BIFR comes to the conclusion that the mill cannot be revived or that its net worth cannot be made positive it recommends winding up and in such a situation the question of sanctioning a scheme for revival doe snot arise. Therefore the sale/development or redevelopment of mill land under Regulation 58 has to be seen in the context of revival of the mill and NOT revival of a company. Regulation 58 is specifically meant for textile mills and not for the company. If this was the case then the lands of the company apart from those of textile mill lands would also be included under Regulation 58 which is not so. If the Mill is to be closed Regulation 58 would not apply. Ms. Singh pointed out that as perii) the Ranjit Deshmukh Committee Report the objective of Regulation 58 is to revive a closed/sick mill.(iii) The fact that Regulation 58 was to be used only in relation to a running mill is evident from Regulation 58(1) which provides for sanctioning by the BIFR of a sick mill and the manner in which the land of the mill is to be used. Sub Regulation (2) provides for cases where land may be developed/redeveloped for the purpose of modernization of the mill. Therefore both Regulation 58(1) and (2) do not provide for closure of the mill but for revival and/or modernization of the mill. Regulation 58(3) provides for shifting of the mill within Maharashtra and it is only if a mill is set up will the government sanction concessions to the mill owner. Therefore this sub regulation also does not provide for closure of the mill. It is only in cases under Sub regulation (2) and (3) that no prior approval is sought from the BIFR. This is so because in both cases the mill is neither sick nor closed but is a running mill and the owner seeks to modernise or run the mill at another place. (iv) Regulation 58 of 1991 gave two major benefits to mill owners which were as under: (a) It allowed a change in user of the land from industrial use to commercial/residential use.(b) It granted an increase in the Floor Space Index (FSI) or the ratio of the area of the plot to the total area allowed for construction on that plot. The FSI on industrial land is only 0.5 but the FSI on the mill land was increased to 1.33 permitting nearly 3 times the construction allowed before 1991.(v) In return for these concessions the mill land was to be shared in more or less equal thirds between (i) mill owners (ii) the Municipal Corporation of Greater Mumbai (MCGM) for public open space and civil amenities and (iii) Maharashtra Housing Area Development Board (MHADA) for public housing. The mill owners did not lose out because of this sharing. They were given the benefit of the FSI for the total plot. In lieu of the 1/3rd + 1/3rd of the land given back to the city for public space and public housing they were given Transfer of Development Rights (TDR) or permission to use this FSI on any other property in the city. TDR can be bought and sold. This is provided under Regulation 58(1)(b)(iii). Under the amended DCR additional benefits have been given to the mill owners by allowing the FSI on the plot of MCGM to be used in site. (vi) In view of the bonanza given to the mill owners Regulation 58 was not challenged by any of the mill owners. However the mill owners found various loopholes in circumventing the provisions of Regulation 58 in order to reap additional profit. 195. Ms. Singh pointed out various breaches of REGULATION 58 OF 1991 BY MILL OWNERS as follows:-(i) The State Government MCGB and the mill owners have stated the Regulation 58 of 1991 was unworkable and that only two mills applied under Regulation 58(1)(a) and only three mills applied under Regulation 58(1)(b). It is the case of the State Government that the two mills namely Kamala Mills and Phoenix Mills applied under Regulation 58(1)(a) and that they sought development of existing structures only for commercial purpose. This is absolutely false since in both the cases all the structures were demolished and there was complete alteration in the plinth. At the time when the development of the mill land commenced both the mills had closed and there was no revival of either of the mills. In both the cases the mills were before the BIFR.(ii) In the case of Phoenix mills altered audited accounts were submitted before the BIFR to show that its net worth had mysteriously become positive. It therefore succeeded in obtaining an order from the BIFR allowing it to deregister itself. At about the same time it made an application to the MCGM on 23rd April 1998 stating that it proposed relocation of recreation facilities with addition to existing area addition to existing area addition to existing area of canteen indoor sports and games etc. for the workers staff and executives working in the premises of Phoenix Mills Limited. In its application the mill stated that at the relevant time it was employing over a 1000 workers and more than 200 staff and that the workers had made repeated representations to the mill to provide for indoor sports and games such as Billiards Carrom Table Tennis and a number of bowling alleys and for educational and recreational purposes like health club such as steam bath and sauna. The management stated that it had conceded to the demands of the workers to avoid unrest. At the time when the said application was submitted the services of all the workers had been terminated. The GKSS had filed a number of cases on behalf of the workers with regard to the illegal termination. A petition was also filed by GKSS in respect of the illegal construction and a status quo order was passed. Complaints in this regard were made to the State Government and the Labour Minister. At that time the Labour Minister visited the mill and came to the conclusion that the mill had been illegally closed and that there were no workers working inside the mill. Hence the question of the workers making any application for bowling alleys and steam bath/sauna does not arise at all. The MCGM was fully aware of the fact that there were no workers in the mill. However it colluded with the management in sanctioning the application and allowing the mill to construct a large bowling alley. The mill structures were demolished and new structures constructed in its place. The development/redevelopment of the mill land is neither for revival or rehabilitation since it was not a sick mill at the time when the application was made nor was it for modernisation of the mill nor for shifting. Phoenix Mills is a blatant case where all rules were bent in favour of the mill owner at the expense of the workers. The workers were paid paltry sums as legal dues whereas the mill owner has benefited in crores without sharing any land with MCGM and MHADA and without any transparency in the development and/or sale of the entire mill land. Therefore in the case of Phoenix Mills Regulation 58(1)(a) had been misused and the submission by the mill owners and the State Government that Regulation 58(1)(a) was unworkable is absolutely false to the knowledge of all the parties. (iii) In the case of Kamala Mills the Mill had been referred to the BIFR and had been declared sick under the SIC Act. The mill had submitted a rehabilitation package for modernization of the mill. Under the scheme the mill was required to be revived and modernized. The development/redevelopment of mill land was to form part of this revival package. Kamala Mills applied Regulation 58(1)(a)(iii) on the ground that it did not want to demolish any structures but to utilize only the existing structures for commercial purpose. Instead of reviving the mill it terminated the services of all the workers paying a paltry sum of legal dues under the name of VRS and the entire mill structures were demolished and new structures constructed. As in the case of Phoenix Mills Kamala Mills was also required to give one third of its land to MCGM and one third to MHADA but instead it utilized the entire mill land for commercial purpose. Therefore in both the cases there has been complete demolition of the mill structures alteration in the plinth area change of user with both mills closing down their operations and no sharing of land with MCGM or MHADA.(iv) The GKSS has evidence to show that from 1991 to 1996 at least seven mills applied under regulation 58(1)(a). These are (i) Kamala Mills (ii) Phoenix Mills (iii) Piramal Mills (iv) Swan Mill (v) New Great Spinning and Weaving Co. Ltd. (vi) Century mill and (vii) Raghuvanshi Mills. Ms. Singh relied on a copy of letter dated 5-10-1996 addressed by the MCGM to Girangaon bachao Andolan which gives details about the mills which applied under Regulation 58(1)(a) 58(1)(b) and 58(2). Thus by about 1996 at least about 11 mills had applied under Regulation 58. It is therefore totally false to say that only 5 mills took advantage of the old Regulation since it was unworkable. In fact all these mills have misused and misapplied the old Regulation and in all such cases illegal construction has been allowed in collusion with the State Government and the MCGM. It will be seen from the said letter that most of these mills applied under Regulation 58(2) which permitted only 15% of development of mill land for the purpose of modernization and in all these cases development of more than 15% has taken place and the MCGB has allowed development plans in collusion with the mill owners. No modernization has of course taken place. The mills have therefore circumvented not only Regulation 58(1)(a) 58(1)(b) but also 58(2) and in all such cases neither revival nor modernization of the mill has been carried out. The existing structures have been demolished and new structures constructed without providing for public open space and public housing as required under Regulation 58(1)(b). GKSS has in its possession a letter dated 18-2-2005 addressed to the Secretary (Special Project) General Administration department Government of Maharashtra by the Chief Engineer (Development Plan) MCGM. The said document shows that at least 13 private mills had applied under the old Regulation 58. The GKSS has prepared a chart at Exhibit-A to its Affidavit dated 26th July 2005 at page 1582 of Vol. V giving details of the said mills and constructions carried out with no land being given to the MCGM and MHADA. This chart has been prepared on the basis of the document of MCGM. MCGM has knowingly furnished false information to this Hon’ble Court with regard to the mills who applied under the old Regulation 58.(v) With regard to the old DC Regulation 58 the parties were in agreement at least on one issue that Regulation 58 was meant exclusively for revival/rehabilitation and/or modernisation of the textile mills and not of the company. At the time when DC Regulation 58 of 1991 was introduced there were at least 10 mills which were closed out of which three mills were in liquidation. All the other 7 mills were before the BIFR and their schemes for rehabilitation were under consideration. Therefore though these mills were closed they were proposed to be restarted and revived. This is evident from all the revival schemes sanctioned by the BIFR in respect of the said seven closed mills. These mills were Kamala Mills new Great Eastern Spinning Mills Raghuvanshi Mills three units of Swan Mills and Modern Mills. Some of the departments of these mills were proposed to be reorganised and/or closed and the workers who were rendered surplus were to be paid VRS. In all these cases as soon as the scheme was sanctioned the workers were at least paid their VRS immediately. The payments were not linked to the development/sale of land as is now being done. In the case of Modern mill Rs. 10 crores were distributed to the workers between 1993 to 2001 i.e. prior to the amendment. After 2001 there were only 70 workers left. The GKSS has prepared a chart which is at Exhibit-D to its affidavit at page 1587 which shows the dues paid to the workers under the old Regulation. The dues form only a small proportion of the total sale proceeds from the development of the land even under the old Regulation 58. At Exhibit-E to the affidavit at page 1588 is a table which shows that the dues of the workers are a miniscule amount in proportion to the value of the land. Therefore the statement made by the State Government that the old DCR 58 had to be modified because it was unworkable and in order to protect the interests of the workers by ensuring immediate payment of legal dues is false and factually incorrect. Since there was no monitoring committee and there was no supervision and monitoring of the sale/development of the mill land under the Revival proposals the mill owners were able to siphon off crores of Rupees. It was to plug this loophole that the formation of a monitoring committee was suggested. Despite the siphoning off of large sums of money the workers were paid their legal dues immediately. Thus Regulation 58 of 1991 ensured revival of the mill and immediately payment of legal dues. It was another matter that the mill owners took advantage of the loophole in the old DCR. 196. Ms. Singh the learned counsel pointed out that the State Government has stated that Regulation 58 of 1991 had to be modified in the interest of the workers since the workers were not being paid their dues in a timely manner mainly since the mill owners were unable to generate sufficient funds from the sale/development of mill land. This is untrue for the following reasons: (i) The mill workers had made several representations to the Government stating that old Regulation 58 of 1991 was being misused and loopholes were being found by mill owners to circumvent various provisions of the said Regulation. Several committees were formed to study the weaknesses in the old Regulation 58 one of which was the Committee of 1999 set up under the Chairmanship of the Ministry of Industries Law and Judiciary. This report was never disclosed to the public. Ultimately a Cabinet Sub Committee under the Chairmanship of the Ministry of Textile was constituted in March 2000. The Sub Committee was required to make recommendations with regard to the effective implementation of old Regulation 58. For this purpose detailed discussions were held with the representatives of mill owners and mill workers. The GKSS was also called for these meetings and submitted its recommendations with regard to the loopholes in the old Regulation 58. The issue of job losses and housing for workers residing in the mills premises was also raised by GKSS. It was the case of the workers that the Regulation 58 of 1991 was being circumvented and that it therefore required to be tightened to ensure that it was effectively implemented. Detailed correspondence has been done by GKSS with the State Government in this regard. (ii) The Deshmukh Committee has reiterated the fact that Regulation 58 was introduced only for the revival/rehabilitation and modernization of the textile mill. Development/redevelopment of mill land could be allowed only for this purpose. Since the old Regulation 58 was being misused and mill land was being developed without reviving and modernizing the mill the Deshmukh Committee made certain recommendations and all these recommendations have been accepted in to and have been incorporated in the new DC Regulations 58. The State Government has been unable to show that there were any contrary suggestions. These recommendations were made after discussing with all concerned parties and after hearing experts in the field. These are as under: a) It was suggested that the term newly built up in Regulation 58(1)(a) be deleted since the said Regulation does not permit new construction does not permit new construction does not permit new construction and the said words were being misused. If it permitted new construction it would have meant that the mill owner could use the balance FSI and consequently use the adjoining open space which would in turn make Regulation 58(1)(b) redundant and ineffective. It was therefore found necessary to distinguish between regulation 58(1)(a) and 58(1)(b) and therefore the words or newly were sought to be deleted. Similarly the words permissible FSI in Regulation 58(1)(a)(i) was sought to be deleted. Regulation 58(1)(a) was to be limited to the extent of new use of existing building existing building existing building of the mills only and no new structures or demolition of existing structures were envisaged under Regulation 58(1)(a). It is evident from the said changes that Regulation 58(1)(a) was modified in order to make it more effective more effective more effective and not to totally change its meaning. This is clearly set out in paragraph 18.2 of the Deshmukh report. b) With regard to Regulation 58(1)(a)(iii) commercial purpose has been defined by the Committee which means that the said use must be for raising funds as recommended by BIFR for the revival of a closed/sick for the revival of a closed/sick for the revival of a closed/sick textile mill textile mill textile mill. Thus it is evident that the DC Regulation 58 of 2001 does not envisage any new construction under Regulation 58(1)(a). c) The fact that Regulation 58 was meant for revival/rehabilitation of sick mills and that this was being misused by the mills who were seeking development of the mill land by closing down the mills was sought to be addressed by the Deshmukh Committee by seeking to plug this loophole by making certain recommendations to tighten Regulation 58(1). It was suggested that since prior permission of BIFR was required for sanctioning a revival proposal under Regulation 58(1) the words financial institutions and commissioner ate of industries be deleted. Accordingly the deletion of these words have been carried out in the modified DC Regulation 58 of 2001. Moreover since closed mills were also being revived under the BIFR schemes it was suggested that after the words revival/rehabilitation of a potentially viable sick the words and closed may be added. It is thus evident that even in cases of closed mills revival schemes were being sanctioned by the BIFR and this was required to be specifically mentioned in the modified DC Regulations which was done. This inclusion of the word closed does not mean that the D.C. Regulation 58 of 2001 allows closure of mills.d) The Deshmukh Committee has also defined the words related user as meaning the cotton textile and all the processes incidental thereto.e) Since modernization of the mill was to be encouraged the area to be developed in the case of modernization proposal was increased from 155 to 30% and a ceiling of 30% was imposed for any such modernization proposals. All these recommendations have been carried out in the modified DC Regulation 58 of 2001. The main objective of Regulation 58 old and new is to revive/rehabilitate and/or modernise the mills for carrying out a planned and balanced urban development and to protect the interests of the workers. There has thus been no change in the objective of the old and new DCR 58. In order to further protect the interests of the textile workers certain changes have been introduced particularly with regard to the following: (i) To provide employment to the jobless textile workers. Those workers whose names were included in the muster rolls of the mill as on 1-1-2000 and who were subsequently retrenched were to be provided with employment in the new offices or commercial establishments set up in the mill premises. Though the services of over 30000 workers were terminated during this period not a single member of the family of a textile worker has been provided with employment. The State Government has stated that an Escrow account has been introduced with a view to monitor the disbursement of funds received by the company from the sale/development of mill land and that part of the said funds are to be utilised for training employees on new jobs. However not a single worker has been trained and the funds have not been utilised for the training of workers.(ii) Since large amounts of funds were being received by the mill owners a Monitoring Committee was to be set up as suggested by the Deshmukh Committee whose purpose was to ensure the effective and speedy implementation of revival/modernization. No guidelines for the Committee have yet been framed and the monitoring committee has been merely overseeing disbursement of funds. It does not decide on whether the funds released are correct or excessive or the manner in which the land is to be sold or developed. GKSS has given the details of the functioning of the monitoring committee in its affidavit. The State Government has in its affidavit dated 22nd March 2005 at Exhibit-1 (Vol.-II) page 219 falsely stated that the total VRS amounts paid and disbursed by the Monitoring Committee is about Rs. 578.47 crores. It will be seen from the list that Modern Mill Sriram Mill MSTC Matulya Mill Kamala Mill etc. had no Escrow accounts since the amounts were disbursed much prior to 2001 and the Monitoring Committee had no role to play in the said disbursement. With regard to Mafatlal Mills Hindustan Mill and Piramal Mills which have sought development after 2001 instead of ensuring immediate payment the workers have been paid paltry amounts in lengthy instalments and till date the payments have not been made. Piramal was closed in 2001 and the full legal payments have not yet been made to the employees. Similarly in the case of Mafatlal mills the scheme was sanctioned in 2001. However till date the payments have not been made. Instead of making immediate and quick payments to the workers after the modified DC Regulation 58 the workers have undergone great financial difficulties since not only are their legal dues paltry amounts but are spread over a considerable period of time ranging from 5 to 7 years. For example under the scheme Mafatlal Mills is supposed to receive about Rs. 16 crores from the sale of the 8th floor at Mafatlal Centre and about Rs. 200 crores from the sale of the built up area of Mafatlal Centre at Parel. This is far in excess of the legal dues of the workers which is about Rs. 93 crores. However the workers have been paid only part of their paltry sums whereas the dues of the banks have been cleared. The workers are also being held at ransom by linking the legal dues to the sale/development of the mill land. This was not the case under the old Regulation 58. GKSS has filed an extract from the revival scheme of the Mafatlal Mill which is at Exhibit-J to its affidavit at page 1595. In its affidavit RMMS has stated that under the modified DC regulation 58 the workers will get sumptuous amount. This is incorrect as is evident from the legal dues paid to the workers of Morarji Mill Mafatlal Mill Standard Mills Simplex Mills Hindustan Mills and Piramal Mills. All these mills have been closed which is not permissible under th DC regulation 58. The GKSS has filed a chart at Exhibit H to its affidavit at page 1593 which shows that the total amounts to be received by the mill workers works out to only about 10% to 16% of the total amounts received from the sale/development of the mill land by the mill owners. Exhibit I to the affidavit of GKSS at page 1594 shows the total dues of the workers in proportion to the value of land. Therefore the workers have in no way benefited from the clarifications given by the State Government to the modified D.C. Regulations. This is despite the fact that more mills have sold/developed their mill land and entire lands have been sold. (iii) With regard to housing and workers have been evicted even though there is a specific protection to the occupants residing in the mill premises. Ms. Singh submitted a list giving details of the occupants in the various mills. In a Petition before the High Court the stand of the Bombay Dyeing was that no protection could be given to the occupants since at the time when the policy decision was taken to protect the occupants Bombay Dyeing had not been consulted. Thus though on the one hand the mill owners have supported the clarification given to the modified DC Regulations the provisions protecting the workers and their families have been opposed by the mill owners in various proceedings before the High Court with the State Government supporting them. Ms. Singh relied on a copy of the order dated 18th August 2001 of this Court in Writ Petition No. 752 of 2001. Both NTC Mills and private mills are deducting substantial amounts from the VRS of workers who are occupants in the Mill premises. 197. The learned Counsel Ms. Singh pointed out that Public land was leased to mill owners to develop the textile industry. Details of the leasehold land the meagre rents being paid and usage have been set out in the Affidavit of GKSS at page 1546 of Vol. V. MCGM and the State Government have furnished details of some of the mills which are on lease hold land. Admittedly details of some of the private mills which are on leasehold land have not been furnished by the State Government or MCGM. The fact that some of these mills are on lease hold land is admitted by the mills in their affidavits. Both Hindustan and Morarjee mills stated in their affidavit that 87% of the private land is on free hold land. Therefore according to t e admission of the mill owners at least a minimum of 13% of the mill land is on leasehold land. This land should be immediately taken over by the Government and used or public housing. In addition to this the following mills are situated on lease hold land: a) Morarjee Mill Unit No. 1 Lease hold land - 23006 sq. metersb) Morarjee Mill Unit No. 2 is on private lease. However no details have been furnished.c) Simplex Mills Lease Hold land - 7836.18 sq. meters. Lease deed has expired in 1983.d) Swan Mills Kurla Lease Hold - 22 577.20 sq. meterse) Century Mill (lease deed in possession of GKSS)f) Raghuvanshi Mill g) Phoenix Millh) Khatau Milli) Bombay Dyeingj) Mafatlal Millsk) Ruby Millsl) Hindoostan Mills198. The learned Counsel pointed the following details with regard to Development of Mill land:- Development of Mill land:- Development of Mill land:- Those mills whose affidavits have been filed have stated that they have developed the mill land under Regulation 58(2) read with 58(6)(a) and (b) and 58(1)(a)(iii). These mills are Prakash Cotton Bombay Dyeing and Simplex. In all these mills there is no revival. Section 58(1)(a)(iii) can be applied only for the purpose of revival and the mill cannot be totally closed. Regulation 58(2) can be made use of only for modernisation of the mill and only 30% of the total mill land can be developed. In all the above cases the entire mill structures have been demolished or are in the process of being demolished and land in excess of 30% is being developed. Regulation 58(6) can be used only for the purpose of mill. In all these cases there is no revival of the mill and no structures for running the mill have been retained. The entire mill is being demolished. In the case of Hindustan Mill though it is claimed that the development is for the purpose of modernisation there is no modernisation and both the mills at Mahalaxmi and Crown Mill at Dadar have been demolished. Mafatlal mill is sought to be revived under a BIFR scheme. However the entire Parel unit has been closed down and a small portion of the spinning unit at Mazgaon with only 1000 spindles is proposed to be operated. Ruby mill has claimed that it has sought development for modernisation and shifting. No such modernisation proposal or shifting proposal has been submitted nor disclosed. In the case of Morarji mill both units at Lalbaug and Parel have been closed. No details have been given as to under which provision the develop ent/redevelopment of the mill land is proposed to be carried out. Thus in all the cases the mills are proposed to be closed. There is no revival/rehabilitation or modernisation of the mills. There is a drastic reduction in the land being surrendered to MCGM and MHADA. The GKSS has prepared charts in its affidavit at Exhibit F and G at pages 1589 to 1592 showing the drastic reduction. Details of the breach of the Regulation have been set out in the affidavit. 199. Ms. Singh the learned Counsel pointed out that GKSS has filed a chart at Exhibit-P to its affidavit giving details of the 5 NTC mills sold the difference between the amounts received and the BIFR sale price. The amounts received are at least three times more than the sale price mentioned by BIFR. Under the scheme only some of the mills were to be sold in order to revive the remaining mills. The excess amounts received have to be disclosed to BIFR. No details have been given as to how the excess amounts are to be utilized. There are a large number of workers who have not yet received even their legal dues. For example about 500 workers of Kohinoor Mill have not yet received their dues though a large number have obtained orders from the Labour Courts. The stand of NTC is that it has no funds to pay the dues of the workers. The Technical/Supervisory staff in all the NTC mills in Maharashtra have not yet been paid their revised salaries on the ground of lack of funds and so is the case of a large number of workers. A number of occupants residing within the NTC mills have been forcibly evicted and in order to pressurize others to leave large sums of money ranging from about Rs. One lakh to Rs. two lakhs are being deducted from the VRS amounts of each worker who is occupying a tenement in the NTC Mill land since some of the NTC mills are being closed in order to revive other NTC Mills the entire mill land is to be divided in three equal shares in accordance with the schemes sanctioned by BIFR. 200. Finally Ms. Singh the learned Counsel submitted that it was because of the fact that the old DCR 58 was being circumvented by the Mill owners did the amendment come to be passed. Therefore the amendment has to be interpreted so as to make DCR 58 more effective by ensuring that the objectives of planned and balanced urban development and protection of workers interests is met.201. Ms. Singh submitted that as the objectives of DCR 58 was to revive/rehabilitate/modernize textile mills complete closure of mill operations cannot be countenanced under DCR 58 if textile mill operations are to cease. Therefore both in cases where there have been development/redevelopment and in cases where development/redevelopment is to take place strict compliance with DCR 58 i.e. surrendering 2/3rd of the total land to MCGM and MHADA excluding only structures to be retained for textile mill operations and the mill owners share has to be ensured. Protection of workers interests including employment housing and immediate payment of legal dues has to be ensured. Further occupants of chawls in Mill premises should not be evicted in accordance with the Government policy.202. Ms. Singh the learned Counsel submitted that neither the State Government nor the MCGM have disclosed fully and correctly either the extent of textile land which is leasehold or the rents being paid for the same. Even according to the mill owners a minimum of 13% of the total mill land is leasehold. Hence the Counsel submitted that the Government should immediately take over this land and use it for public housing. SUBMISSIONS OF BEHALF OF RESPONDENTS NOS.17 18 19 & 20 203. Mr.Rahul Narichania the learned Counsel appearing on behalf of Action for Good Governance and Networking in India (AGNI) and City Space being Respondent Nos.17 and 18 has submitted that the aforesaid amended DCR 58 ought to be interpreted in such a manner so as to enable the city of Mumbai to have sufficient open spaces and lands for public housing. 204. Mr.Rahul Narichania referred to the Report prepared by Rahul Malhotra and Guenter Nest German known as Public Places Bombay. The learned Counsel has emphasised the importance of open spaces and contended that the London has 4.84 Acres of open space per 1000 persons Newyork has 5.33 Acres per 1000 persons and the New Delhi has over 6 Acres per 1000 persons. 205. The learned Counsel Mr.Rahul Narichania has submitted that what has been recommended as a minima for Bombay is 4 Acres of open space per 1000 persons whereas the Bombay have only 0.03 (or less) Acres of open space available for per 1000 persons. 206. Mr.Rahul Narichania submits that there has been an uncontrolled growth of the city during the last five decades and as such the city has left with a very little breathing space for its inhabitants.207. Mr.Rahul Narichania showed us a map of the city wherein he emphasised that in the entire area where the mills are situated there are only three main arterial roads vertically i.e.South to North and on the contrary horizontally there are very small and narrow lanes. He emphasised that without making a detailed and proper study if alomst five hundred Acres of land were suddenly allowed to be developed with high rise buildings there will be no proper roads provided for the vehicles to park. 208. The learned Counsel Mr.Rahul Narichania has submitted that the Authority seems to have not even taken into account the available drinking water as well as providing of proper drainage facility. According to him if within a year five hundred Acres of land were to be suddenly constructed with multi storied buildings commercial offices shopping malls etc. the city will not be able to bear such burden having regard to the experience the Mumbai had during the 3rd week of July 2005.209. The learned Counsel Mr.Rahul Narichania has therefore contended that the development will have to be a sustainable development and not in an arbitrary or irrational manner in which it is sought to be done. He contended that the amended DCR ought to be interpreted as suggested by the learned Counsel for the Petitioners so as to enable the city to get sufficient open spaces as well as lands for public housing. He submits otherwise the city will get completely crippled. SUBMISSIONS OF MINISTRY OF ENVIRONMENT AND FORESTS:210. Mr.B.A.Desai the learned Additional Solicitor General of India appearing on behalf of the Ministry of Environment and Forests (Respondent No.19) right at the outset has submitted that the Ministry is very keen in enforcing and implementing its notification dated 27th January 1994 including its amendment dated 7th July 2004.211. The learned Additional Solicitor General of India has pointed out that as per the amendment of 7th July 2004 all new townships idustrial townships settlement colonies commercial complexes hotel complexes hospitals and office complexes for 1000 persons or more are discharging sewage of more than 50 litres per day or more and with investment of more than Rs.50 crores or more would be required to obtain environmental clearance from Central Government. He has submitted that unless and until such a clearance is obtained no construction activity can be taken up.212. The learned Additional Solicitor General of India referred to the affidavit filed by the Ministry of Environment and Forests dated 29th July 2005 especially the letters dated 2nd June 2005 written by the Ministry with regard to various construction which are taking place on about 15 mill lands. In the said letter it is also mentioned that the public hearing will have to be conducted by the Maharashtra State Pollution Control Board. In the said letter the State Government was directed to ensure that the environmental clearance is obtained prior to the construction activities and that the stipulated environmental procedures are followed. Again the similar letter dated 16th June 2005 was addressed by the Special Secretary of Ministry of Environment and Forests mentioning categorically that the development of textile mills land in Mumbai covering 600 Acres will have serious implications on the provision of community facilities open spaces transport networking and the infrastructure services. This letter was directly sent to the Chief Secretary to the Government of Maharashtra. Mr. Desai the learned Additional Solicitor General of India has contended that the Government of India is very keen to protect the environment and to ensure the strict compliance of the aforesaid notification to prevent any environmental damage to the city of Mumbai. 213. Mr.Govilkar the learned Counsel appearing on behalf of Maharashtra Pollution Control Board (being Respondent No.20) has assured that there will be strict compliance of the notification issued by the Ministry of Environment and Forests and especially the amendment dated 7th July 2004.214. It is pertinent to note that after hearing was commenced it was brought to the notice of this Court that various construction activities were going on in full swing and quite a few constructions have even come up to more than 10 floors without obtaining any clearance from the Ministry of Environment and Forests. We had therefore directed the Maharashtra Pollution Control Board as well as the State Authorities and the Municipal Authorities to carry out inspection of all mill lands and submit a report with regard to on-going construction activities and whether any clearance was obtained from the Ministry of Environment and Forests. Accordingly the Maharashtra Pollution Control Board has filed a report alongwith the affidavit dated 1.9.2005. A perusal of the said report clearly indicates that none of the Respondents who are carrying on construction activities had obtained any clearance from the Ministry of Environment and Forests and quite a few constructions have come up even above 10th floor. SUBMISSIONS ON BEHALF OF INDIA BULLS LTD. - RESPONDENT NO.26 215. Mr. Andhyarujina the learned Senior Counsel for the Respondent No. 26 submitted that the Respondent No. 26 has purchased the lands of Jupiter Textile Mills from NTC by paying the full amount of consideration of Rs. 276 crores to NTC after the Supreme Court of India in its order of 11-5-2005 has permitted NTC to complete this transaction. 216. The learned Senior Counsel further submitted that the sale has taken place after the BMC approved of an integrated Development Scheme for 7 mills on 14-10-2004. 217. The learned Senior Counsel also submitted that the sale of NTC under the BIFR Rehabilitation Scheme of 25-07-2002 is clearly a matter of public and social interest as the sale of unviable mills of NTC under the Scheme will finance MVRS aggregating to Rs. 643 crores to the workers of NTC (NM) NTC (SM) and to discharge the financial obligations of these companies to the Financial Institutions of Rs. 1779 crores and that this has been noted by the Supreme Court in its order of 11-05-2005.218. Mr. Andhyarujina the learned Senior Counsel further submitted that under the BIFR Scheme Jupiter Mills is an unviable mill which is required to be disposed of to finance the Scheme.219. The learned Senior Counsel further submitted that there is no provision in the BIFR order or the Scheme that the sale of the any NTC lands would be on the basis of sharing of open lands after demolition in accordance with un-amended Regulation 58 of the D.C. Rules as wrongly contended by the Petitioners. 220. Mr. Andhyarujina the learned Senior Counsel referred to the statement in paragraph 1.3 of the BIFR order (page 8) and paragraph 1.15 of the BIFR Scheme (page 22) which reads as under:-GOM had stated that one-third of the land to be given to Bombay Municipal Corporation (BMC) one-third to MHADA and the balance one-third of the land could be sold by the Company.This statement only refers to the division of 1/3rd of land to BMC 1/3rd to MHADA and 1/3rd to the ompany which is the ratio common to both amended and un-amended Regulation 58. 221. The learned Senior Counsel further submitted that the BIFR had directed that if as a consequence of the above there was any shortfall of funds the Purchaser would bring in the same. Thereafter paragraph 22 of the BIFR order at page 12 clearly states that the operating agency had taken into account the modified Regulation 58 and consequently the Scheme would not undergo any change and that this is obviously because NTC would get larger amount for rehabilitation as per the Amended DCR 58 as a larger amount would be available from the sale.222. Thus the learned Senior Counsel Mr. Andhyarujina submitted that the in the premises the sale is in accordance with the BIFR Scheme. 223. The learned Senior Counsel Mr. Andhyarujina further submitted that in any case this submission becomes irrelevant as the case of Jupiter Textile Mills is unique and even if the Petitioners contention that the larger areas for BMC and MHADA are required (as per un-amended Regulation 58) is upheld by this Court NTC has agreed to provide the required land to the BMC or MHADA over and above the present allocations of land to them under NTC’s Integrated Development Scheme for 7 mills and that this is a substantial compliance of the requirements of un-amended Regulation 58. 224. Mr. Andhyarujina the learned Senior Counsel further submitted that this assurance was given by NTC on 14-3-2005 has noted the undertaking given by NTC to this effect.225. The learned Senior Counsel thus contended that finally the Supreme Court in its order of 11-03-2005 has stated in the event Writ Petition ultimately succeeds vacant land available from other mills if necessary shall be offered by way of adjustment.226. Mr. Andhyarujina the learned Senior Counsel thereafter submitted that the NTC has got 25 mills located in Mumbai having sufficient land to make adjustments to provide for further lands to be given to BMC and MHADA if necessary as directed by the Supreme Court of India.227. In the premises there would be substantial compliance of the DCR 58 if the NTC provides adequate land for open space to BMC and for public housing to MHADA and that it would also be in the interest of Integrated Development if the entire area for open space and for public housing was a large plot of land instead of five different small plots contended Mr. Andhyarujina the learned Senior Counsel. 228. Lastly Mr. Andhyarujina the learned Senior Counsel contended that in the circumstances the Petitioners can have no grievance against the sale of land of Jupiter Textile Mills by NTC to Respondent No. 26 and that the Respondent No. 26 has applied to the Maharashtra Pollution Control Board for environmental clearance on 20-08-2005 and has not made any construction on the land so far and will do so only after the requisite environmental clearance is given.SUBMISSIONS ON BEHALF OF RESPONDENT NOS. 27 TO 32 229. Mr.Ganguli the learned Counsel for Respondent Nos.27 31 and 32 highlighted the importance of revival and rehabilitation of the mills so that the workers continue to have their livelihood.230. Mr.Ganguli also emphasised that the National Textile Corporation was acting contrary to the objectives of 1995 Nationalisation Act. 231. The learned Counsel pointed out that none of the mill owners are providing accommodation of 225 Sq.feet to all the occupants as mandated under amended DCR 58(7) free of cost.232. Mr.R.J.Gagrat the learned Counsel for Respondent Nos.28 29 and 30 adopted and reiterated the arguments of mill owners.Delay And Laches Aspect 233. Almost all the learned Counsel for Respondents have opposed the above petition on the ground of delay and laches and had cited various judgments as mentioned hereinabove. Mr.Chagla the learned Senior Counsel for the Petitioner had contended that there was no undue delay in the above for the reasons set out by the Counsel and even if it were to be construed that there was delay still in the facts and circumstances of the case the same ought not to prevent this Court from deciding the case on merits. 234. The learned Advocate General had contended that the Petitioners did not even object when the amendment was proposed with regard to DCR 58 and the same was duly amended in the year 2001 however the Petition has been filed in the year 2005 hence it is grossly belated. 235. The learned Advocate General had also contended that if the challenge is now entertained the same would seriously prejudice the interests of mill workers banks and financial institutions flat purchasers mill owners and the city ifself as under the unamended DCR 58 very little land was surrendered by the mill owners. With regard to the above the learned Advocate General relied upon the following judgments:-i) AIR 2000 SC 3751 (Paragraphs 77-79) Narmada Bachao Andolan etc. V/s Union of India ii) 2001 (4) Mah.L.J.260 (Paragraphs 38-39) Bombay Environmental Action Group & Another V/s. State of Maharashtra & Ors. iii) (2005) 3 SCC 91. - R & M Trust V/s.Koramangala Residents Vigilance Group and Ors. Residents Vigilance Group and Ors. Residents Vigilance Group and Ors.236. Mr.Rohatgi the learned Senior Counsel for National Textile Corporation also reiterated for the same reasons. Petition suffers from delay and laches. The Seniour Counsel also relied upon the following judgments in that behalf:-i) (2003) 8 SCC 567 (Paragraph 32) Chairman & MD BPL Ltd.V/s.Gururaja. ii) (1979) 3 SCC 489 (Paragraph 35) Raman Dayaram Shetty V/s International Airport Authority. iii) (1986) 4 SCC 566 (Paragraph 24 34) State of Madhya Pradesh V/s Nandlal Jaiswal.iv) (1999) 1 SCC 412 (Paragraph 12) Raunaq International. 237. On behalf of Respondent No.9 it was submitted that various third party rights have been created construction of four complexes have already been started VRS amounts have been paid to workers hence on the ground of gross delay the Petition ought not to be entertained.238. Dr.Singhvi the learned Senior Counsel on behalf of Bombay Dyeing had submitted that the Petition ought to be rejected on the ground of laches and the Counsel relied on the following cases:-i) Trilokchand Motichand’s case- AIR 1970 SC 898 (Paragraphs 51 and 52) wherein the Hon’ble Supreme Court had held that a Writ Petition ought to be normally dismissed if filed beyond three years period.ii) R.D.Shetty’s case - (1979) 3 SCC 489 wherein the Petition was dismissed on the ground of 5 months delay.iii) Nandlal Jaiswal’s case - (1986) 4 SCC 91 the Petition was dismissed for a delay of 8 months.iv) Aflatoon’s case - (1975) 4 SCC 285 also was dismissed on the ground of delay in a land acquisition case.v) Narmada Bachao Andolan’s case - JT 2000 (Supp.2) SC 6 the Supreme Court had upheld the contention of delay.vi) Breach Candy Residents Association V/s.B.M.C.(unreported judgment dated 27.1.2000) of this Court wherein the Petition was dismissed on the ground of delay and creation of third party rights.vii) B.E.A.G. V/s. State of Maharashtra - (2001) 3 Mah.L.J.260 this Court had dismissed P.I.L. on the ground of delay pertaining to construction of a flyover.viii) Raunaq International Ltd. - (1991) 1 SCC 492 (paragraph 7) wherein the Supreme Court pertaining to an award of a tender the Court dismissed the same on the ground of delay.239. On the contrary Mr.Chagla the learned Senior Counsel for the Petitioners had contended that there was no undue delay in the above for the following reasons:-i) Even the Government itself was not clear about the true and correct interpretation of amended DCR 58 hence clarification was issued in March 2003.ii) Even MHADA and Bombay Municipal Corporation through its Mayor had protested against the amended DCR 58 in the year 2003.iii) The State Government itself had conceded that the amended DCR 58 had reduced open spaces and public housing by its resolution dated 25th January 2005.iv) The purported clarification dated 28.3.2003 was neither published nor notified. (v) Even till date not a single construction project has been cleared by the Ministry of Environment and Forests under its EIA notification. 240. In any event Mr.Chagla relying upon the following judgments of the Supreme Court contended that having regard to the fact that almost every resident of Mumbai City is vitally concerned and in view of such a large scale public interest the Petition ought not to be rejected only on the ground of delay or laches and the Petition ought to be entertained on merits.(a) In M/s.Lohia Machines V/s. Union of India - AIR 1985 SC 421 at para 13 a Constitution Bench considered whether Rule 19-A of the Income Tax Rules 1962 was ultra vires the provisions of the Income Tax Act 1961. It was held in the opinion of the majority that It is undoubtedly true that merely because for a long period of 19 years the validity of the exclusion of borrowed moneys in computing the ‘capital employed’ was not challenged that cannot be a ground for negativing such challenge if it is otherwise well-founded. It is settled law that acquiescence in an earlier exercise of rule-making power which was beyond the jurisdiction of the rule-making authority cannot make such exercise of rule-making power or a similar exercise of rule-making power at a subsequent date valid. If a rule made by a rule-making authority is outside the scope of its power it is void and it is not at all relevant that its validity has not been questioned for a long period of time: if a rule is void it remains void whether it has been acquiesced in or not. (b) Similarly the Privy Council in Proprietary Articles Trade Association and Others V/s.Attorney General of Canada and Others - (1931) All ER 277 at page 280 stated that Their Lordships entertain no doubt that time alone will not validate an Act which when challenged is found to be ultra vires nor will a history of a gradual series of advances till this boundary is finally crossed avail to protect the ultimate encroachment. (c) Again in Attorney General of the Commonwealth of Australia V/s The Queen - (95 - C.L.R.529) at pages 546 and 548 the Privy Council dismissed appeals against an order of the High Court of Australia which declared certain provisions of the Conciliation and Arbitration Act 1904-1952 as ultra vires and invalid notwithstanding that such provisions had not been challenged for a quarter of a century and in a series of cases it was assumed without question that such provisions were valid. The Privy Council while considering this aspect of the case which has been in the forefront of the appellants’ arguments observed that It is clear from the majority judgement that the learned Chief Justice and the judges who shared his opinion were heavily pressed by this consideration. It could not be otherwise. Yet they were impelled to their conclusion by the clear conviction that consistently with the Constitution the validity of the impugned provisions could not be sustained. (d) In Narmada Bachao Andolan V/s Union of India - JT 2000 (Supp.2) SC 6 in paragraph 49 the Hon’ble Supreme Court has held as under:-49. This Court has entertained this petition with a view to satisfy itself that there is proper implementation of the relief and rehabilitation measures at least to the extent they have been ordered by the Tribunal’s Award. In short it was only the concern of this Court for the protection of the Fundamental Rights of the oustees under Article 21 of the Constitution of India which led to the entertaining of this petition. It is the relief and rehabilitation measures that this Court is really concerned with and the petition in regard to the other issues raised is highly belated. Though it is therefore not necessary to do so we however presently propose to deal with some of the other issues raised. 241. After considering all the above submissions we are clearly of the view especially in the light of the fact that this Petition raises issues which are very vital to every resident of Mumbai regarding serious environmental degradation right to open spaces public housing especially the enhanced right under Article 21 of the Constitition of India as well as the importance of Article 48A of the Constitution of India the above Petition cannot be dismissed solely on the ground of delay or laches. We are in full agreement with the reasons given by Mr.Chagla as mentioned hereinabove by way of reasonable explanation. We are also fully supported in our view in the abovementioned judgments cited by Mr.Chagla for not dismissing the Petition on the ground of delay. In the facts and circumstances of the case and the enormity of the issues involved and almost all residents of Mumbai are concerned the Petition cannot be rejected on the ground of delay.242. After hearing all the learned Counsel at length before we go into the core issue of true and correct interpretation of amended DCR 58 one has to appreciate the real relevance and importance of open spaces and public greens in this city of Mumbai.IMPORTANCE OF OPEN SPACES AND PUBLIC SPACES:In every city there is a wide range of public spaces from streets chowks and public squares to paths and maidans and including important civic and religious buildings. We seem to be curiously indifferent to this crucial determinance of our urban environment. Our lack of concern for (and more often than not callous misuse of) these spaces has reduced our urban environment to the pitiful state it is in today. (Report of the National Commission of Urbanisation Vol.II Part IV Paragraph 10.6.1 ) 243. It is vital to note that we are the neglecting importance of these open spaces both from environmental angle and from the ecological angle and the importance has been grossly underestimated and undervalued. The importance of natural wetlands and waterbodies for flood control has been completely overlooked in the planning process. The approach has been to destroy the natural resources and in its place construct man made projects. As a direct result Mumbai has already lost a large number of fresh water reservoirs tanks etc. and even the existing ones are under perennial threat. This has been one of the major causes for heavy flooding in Mumbai during the last week of July 2005. 244. All of us are aware that play grounds gardens and other open spaces are being steadily encroached upon either by slum dwellers or by official and authorized encroachments like club houses gymkhanas religious & political functions and fairs etc. 245. Today no one can dispute that all cities and towns need green spaces as much as other amenities like hospitals educational institutions roads public chowks etc. The health of the residents is directly releated to the ratio of built-up area and open area inasmuch as in a congested area the occurance of respiratory ailments is much more compared to the places where there is sufficient balance maintained between the built up area and the open spaces. That is the reason these green and open spaces are called lungs of the cities.246. The ideal ratio recommended for the open spaces for Mumbai is 4 acres per 1000 persons. The New York has 5.33 Acres of open space per 1000 persons whereas the London has 4.84 Acres per 1000 persons. On the contrary when the study was conducted in the year 1970 the city of Mumbai had a shocking 0.03 Acres of open space per 1000 persons whereas today the ratio would be 0.015 Acres per 1000 persons which should be approximately 540 times less than the minima recommended.247. In view of lack of proper outdoor recreation facilities the social behaviour pattern get seriously affected. The children invariably become restless and divert their attention to disruptive activities as there are no places to play. The elderly persons do not have places to have fresh air and to have pleasant and quiet moments. In Mumbai in view of lack of green and open spaces the oxygen contained in the air is lower and polluted levels are higher. As a result even the pregnant woman inhales less oxygen and conveys the same through her placenta to the child growing in her womb. Medically it has been established that insufficient supply of oxygen leads to various mental and other physical infirmities. In this context one may recollect the famous book of Aldous Huxley known as Brave New World written in 1932 wherein he conceptualised five races in this world viz.Alfa race with the higher intelligence level Beta race with slightly lower IQ Gama race with still lower IQ Delta race with still lower IQ and Epsilon race with the lower level IQ that of a moron or idiot. In his book the author has conceptualised that to get such children test tube babies will be allowed to grow with 100% oxygen to have Alfa race and about 70% oxygen for Epsilon race. The author says The lower the caste said Mr.Foster the shorter the oxygen. The first organ affected was the brain. After that the skeleton. At seventy percent of normal oxygen you got dwarfs. At less than seventy eyeless monsters. Hence in our city of Mumbai we might start having a large number of children born with various mental and physical infirmities if the oxygen level goes on reducing gradually in view of lack of green & open spaces and lack of recreation facilities. Medically it has been also established that for a proper and healthy growth of children specially for their lungs and bones the children will have to play in an open ground and play ground by running around.248. While dealing with the importance of maintaining the ecological balance in every area while developing the area the Hon’ble Supreme Court observed as follows in Sushanta Tagore V/s.Union of India - AIR 2005 SC 1975:- 36. It is imperative that the ecological balance be maintained keeping in view the provisions of both directive principles of State Policy read with Article 21 of the Constitution. Furthermore a State within the meaning of Article 12 of the Constitution of India must give effect to the provisions of Article 51A(g) of the Constitution which reads as under:51A. Fundamental duties. It shall be the duty of every citizen of India -......(g) to protect and improve the natural environment including forests lakes rivers and wildlife and to have compassion for living creatures.37. It may be true that the Appellants herein have their own houses within 3000 acres of land but they have been residing there for a long time. What is being objected to by them is construction of huge residential and commercial complexes which even according to the High Court would not only change the topography but also would change the place almost beyond the recognition of the poet. 38. It may be true that the development of a town is the job of the town planning authority but the same should conform to the requirements of law. Development must be sustainable in nature. A land use plan should be prepared not only having regard to the provisions contained in the 1979 Act and the rules and regulations framed thereunder but also the provisions of other statutes enacted therefor and in particular those for protection and preservation of ecology and environment. 39. As Visva Bharati has the unique distinction of being not only a University of national importance but also a unitary one the SSDA should be well-advised to keep in mind the provisions of the Act. The object and purpose for which it has been enacted as also the report of the West Bengal Pollution Control Board. It is sui generis. 40. It is idle to compare Shantiniketan with any other university. Truism is that Shantiniketan has unique features. Its environmental ambience thus must be maintained. There is no other university which having regard to the purport and object of the Act as would appear from the objects and reasons thereof can be compared with Visva Bharati. Our attention has not been drawn to any other statute establishing any university which has such unique features as Visva Bharati. 41. Only because some advantages would ensue to the people in general by reason of the proposed development the same would not mean that the ecology of the place would be sacrificed. Only because some encroachments have been made and unauthorized buildings have been constructed the same by itself cannot be a good ground for allowing other constructional activities to come up which would be in violation of the provisions of the Act. Illegal encroachments if any may be removed in accordance with law. It is trite law that there is no equality in illegality.TRUE MEANING AND CORRECT INTERPRETATION OF AMENDED DCR-58:249. After having considered all the arguments of all the learned Counsel for the parties and the relevant provisions of law our observations on the core issue in this Petition being the true meaning and correct interpretation of amended DCR - 58 would be as follows: a) The entire matter will have to be considered in the backdrop of two important factors:-(i) that textile mills and area where they are located (Girangaon) constituted at one time the hub of commercial activity. Mumbai was known as Textile City along side Ahmedabad Coimbatore etc.(ii) Land belonging to these mills forms a sizable chunk of the total land area.(b) It is true that textile mills were in a bad shape after the textile strike. However it is not the textile strike alone which is responsible for these state of affairs. As has been noted by the Supreme Court the owners acts of omission and commission are also responsible for their downfall. Apart from that Authorities also did not initiate certain emergent and necessary measures. The State took up its Constitutional obligation and tried to improve these state of affairs by resorting to measures such as nationalisation and rehabilitation and revival of the mills without recourse to nationalisation. Two enactments viz. Sick Textile Mills (Nationalisation) Act of 1974 and 1995. The Sick Industrial Companies (Special Provisions) Act 1985 provide for fulfilling such constitutional obligation. In the case of Nationalisation Act the property viz. structure and the land as well as machinery etc. came to be handed over to the custodian appointed by Central Government viz. National Textile Corporation and its subsidiaries. c) In case of the later enactment as per its mandate the companies approached the Board of Industrial Finance and Reconstruction set up by Central Government by instituting a reference. The reference proceeded in accordance with the provisions of SICA and operating agencies mostly financial institutions came to be appointed to suggest steps and measures to revive and rehabilitate the mills.d) Apart from the workers and the financial institutions the State has a stake in the mills because they meet the requirement of cheap and quality cloth. These mills also provided work and livelihood to those directly employed as well as indirectly dependent upon the same. It is not in dispute that not only workers but others such as wholesalers retailers suppliers contractors transporters were earning their livelihood from these mills. They were contributing in the maintenance of a just social order. e) When the Textile strike paralysed textile industry naturally two important problems cropped up which required immediate attention. f) First was taking over these mills some of whom were already sick. It was necessary to remove all obstacles in the way of revival rehabilitation and modernization of such mills. It was suggested by National Textile Corporation that considering the present building regulations it will not be possible to utilise the built up space and open lands forming part of estate of the mills. It is only by such utilisation that funds could be generated which would be ploughed back in the mills so as to revive and rehabilitate them. The process of modernisation was also to be initiated. In other words mills were to be made fully viable. g) Secondly there were several mills which were sick and/or closed but regarding which steps were not taken under the above enactments nor were other measures implemented by owners themselves. This could have been a deliberate ploy so that upon closure of these mills the properties including open lands can be disposed of in open market at huge profits. From this money secured creditors could have been paid off. Allowing such step would only encourage owners to run away from their obligation of providing work to the employees. It would also result in a shortfall in production. This would adversely affect the economy. Permitting such alienation of lands encourages uncontrolled construction activity. That would put additional pressure on the existing infrastructure which was already inadequate to meet the demands of growing population. Permitting unregulated construction activity on mill lands would make the areas more congested. An ecological imbalance will also be created by proliferation of high-rise structures in Girangaon area which was essentially planned for commercial and industrial activities.h) It is for achieving both purposes and objects that special provisions carving out regulatory measures insofar as development and re-development of cotton textile mill lands are concerned were incorporated in the D.C. Regulations. The D.C. Regulations vide Regulation 58 facilitate the implementation of measures for revival rehabilitation and modernisation of closed sick potentially viable sick mills.i) It was not necessary to introduce such provisions till the cotton textile mills were functioning. Running a factory or mill is always subject to the provisions of M.R.T.P. Act and D.C. Rules. It is only because of the aforesaid development and serious apprehension that mill lands would be utilised for other purposes or disposed of straight away that these provisions were introduced.j) It cannot be forgotten that some sick textile mills were taken over by NTC. The NTC steps in to revive or rehabilitate sick or closed mills. NTC should be able to generate funds from unoccupied unused or undeveloped surplus portions including open land belonging to the mills and by Regulation 58 it is permissible to do so. These funds are to be utilised for revival rehabilitation and modernisation.k) N.T.C. cannot take a stand that this is not its obligation. Its endeavour ought to be to take all such measures as are necessary to protect and encourage the industry. It is to enable primarily N.T.C. to do so that Regulation 58 was introduced. l) It was noticed that some further amendments were necessary so as to enable NTC and the mill owners to revive the mills or modernise them. It was also thought fit to permit utilisation of Transferable Development Rights considering the potential of the land. This would not have been possible unless D.C. Regulations were amended to confer additional rights and incentives.m) In this behalf phraseology of Regulation 58(1) is crucial. It states that; i) with the previous approval of the Commissioner to a lay out prepared for development or re-development of the entire open land built up area of the premises of a sick and/or closed cotton textile mill;ii) on such conditions as are deemed appropriate and specified by the Commissioner; andiii) as a part of package and measures recommended by BIFR for revival/rehabilitation of potentially viable sick and/or closed mill.iv) the Commissioner may allow utilisation of existing built up areas for the cotton textile or related trade for diversified industry or commercial purposes;v) Then follows permission for utilising open lands and balance floor space index.n) Thus lands of sick and/or closed cotton textile mills could be developed or re-developed as per the lay out to which prior approval must be granted. This lay out covers entire open land and built up area of the premises. Some conditions can be imposed even while approving such lay outs. Needless to state that such conditions ought to be imposed and specified by the Commissioner. The words used are Deemed appropriate. Naturally the meaning that can be given to this term is that conditions consistent with the object and purpose of M.R.T.P. Act and Regulation 58 can be imposed. Last but not the least all this has to be as a part of package of measures recommended by BIFR. o) With all this development or re-development was not possible unless Commissioner had discretion to permit utilisation of existing built up area and open lands as well as balance FSI. Therefore provision in that behalf is made. Thus if existing structures/built up areas are not to be utilised as permitted and the owner desires demolishing them and developing the land then the premises would be taken as open land which is capable of being developed and used as per 58(1)(b). p) It is only with such consolidated and comprehensive measures that the exercise of permitting development and re-development becomes fruitful and achieves the purpose and object for which the regulation is framed. q) Both unamended and amended regulations are framed to fulfil the purpose of achieving revival and rehabilitation of the textile mills and curbing uncontrolled and unregulated development of their lands. In this view of the matter it is not permissible to hold that there is no obligation to revive rehabilitate or modernise the mills. If that is not the intention then there is no need to confer aforesaid discretionary powers on the Commissioner. r) It is well settled that such powers are in the nature of Trust and are coupled with duties. They ought to be utilised for public purpose and for public good. While permitting utilisation of existing built up areas and open lands as well as balance FSI the regulations cast an obligation on the Commissioner to impose such conditions as are necessary. More so to secure areas for R.G./Garden/P.G. or any other open user as well as for development by MHADA for public housing/mill workers housing as per the guidelines approved by Government. Of course these areas have to be shared. It is only after securing such percentage and earmarking portions for the same that the owner can use open lands and balance FSI for other purposes/uses permitted by Regulation 58(1)(b). s) This utilisation of open lands and balance FSI is on further conditions set out in the Note below this sub-clause. The notes (i) to (vi) will have to be read together. So read what the owner gets now in exchange of sharing of portions of his property is development rights. The term Development Rights is defined in section 2(9A) of M.R.T.P. Act 1966. t) Earlier the owner was not entitled to the benefit of development rights/transferrable development rights in respect of lands earmarked and handed over as per column 3 in the table below regulation 58(1)(b) on the same land. Now the owner would be entitled to the benefit of such rights by utilising them in the very land/property as per Sr.No. 5 in the table below 58(1)(b) or he gets it in the form of T.D.R. which could be utilized elsewhere. This could be disposed of in the open market by him as well. However wherever F.S.I. is in balance but open land is not available for the purpose of columns 3 and 4 the land will have to be made open by demolishing existing structures to the extent necessary and made available accordingly. There is also a departure as far as development for purpose of modernisation. Regulation 58(2) applies to such cases. A mill may not be sick or closed but requires modernisation to stay in business and face competition. For this purpose funds are necessary. The funds can be generated for this exercise by developing the land or by better and prudent use of existing structures. Therefore a scheme can be framed and approved by the authorities for this purpose. u) Regulation 58(3) deals with lands of Cotton Textile Mills shifting outside Greater Bombay. It is clear that such development or re-development of the property even if the mill shifts is made part and parcel of Regulation 58. The reason is obvious. If you cannot revive and restart the mill in Bombay and it has to be shifted elsewhere in the State the expenditure can be met by developing the lands in Bombay. Looked at from other angle there is incentive and benefit if you decide to stay in the cotton textile trade. Since the State permits shifting naturally the intent is not to deprive the owner of his rights in the property but at the same time strike a proper balance. Regulatory measures have turned out beneficial as well.v) Regulation 58(4) makes it clear that the condition of recommendation by BIFR is not mandatory for modernisation and shifting of the mills. Meaning thereby that the same is mandatory in case of sick and closed mills. w) Regulation 58(5) enables the Commissioner to permit and allow additional development to the extent of balance FSI on open lands or otherwise by the mill itself for cotton textile or related user. That would not have been permissible if this special code had not been incorporated in the D.C. Regulations for greater Bombay. This is obviously to facilitate restarting cotton textile and related business. x) Regulation 58(6) must be understood in the above backdrop. So understood it is clear that further discretionary power is conferred on the Commissioner to allow demolition and re-construction of existing structures. Even here condition is imposed and re-construction would be limited to the extent of built up area of the demolished structures. Further combination of properties whether under common ownership or otherwise and joint development is permitted provided FSI is in balance. In other words two properties can be clubbed under 58(6)(b). The provision is not isolated but must be read with 58(1)(a) and 1(b). y) Regulation 58(7) once again opens with a non obstante clause. Here again a departure is made because unamended regulation ends at sub-regulation 4. Thus all regulations after 58(4) are added for the purpose of making a complete and consistent Code. If this non obstante clause were not to be there all occupants of mill lands would be rendered homeless and shelterless. Therefore while allowing development and re-development of the properties/lands obligation has been cast upon the land owner to provide them tenements free of cost. Obviously if the textile mill has shifted or owner establishes a diversified industry then further obligation is cast to offer on priority in the relocated mill or diversified industry as the case may be employment. Workers must satisfy the criteria of cut-off date as well as requisite qualifications/skills. A provision for giving complete training for employment before recruitment is also introduced. Thus Regulation 58(7) advances the social purpose further. z) Regulation 58(8) and (9) states that fruits and benefits of development and re-development cannot be retained by owners but they have to be passed on to those legitimately entitled to the same. Hence monies should be put in escrow account. The word Escrow has a definite legal connotation. Monies are deposited in Trust for fulfilling terms and conditions. They cannot be taken away or used until the conditions are complied with. The utilisation of funds is for an earmarked purpose as set out in Regulation 58(8)(b). Regulation 58(9) provides for establishment of Monitoring Agency. Monitoring agency is established under the Chairmanship of a Retired High Court Judge and its constitution is also set out. Its powers and functions are enlisted clearly.250. It is well settled that the principle that all sections of an Act/enactment have to be read together and harmonised and this applies even to part of a section or sub-sections thereof. In other words the court must endeavour and rather it is its duty to read the provisions together and harmonise them keeping in mind the object and purpose of enacting them. It is only after this exercise that a consistent enactment can be made of the whole. aa) Applying this well settled principle it is clear that Regulation 58 of D.C. Rules makes provision for development re-development of lands of cotton textile mills with a clear and unambiguous intent and duty of reviving and/or rehabilitating them. It is too late in the day to contend that there is no obligation to revive and rehabilitate or modernise the mill. If the mill owner is not willing to do so but desires developing his property/land then he/it is permitted to do so on terms and conditions set out in the Regulations. ab) The object and purpose being discussed above it is clear that this is a complete and comprehensive code insofar as development and re-development of lands of cotton textile mills. The long title makes this aspect abundantly clear.ac) It is pertinent to note that neither the owners nor other affected parties such as workers financial institutions have challenged the validity of the Regulation.ad) The intention is not to allow mill owners to trade in property. It is well settled that right to property is not a fundamental right but a Constitutional and Legal one. Such a right can be taken away or regulated by the authority of law. More so when the law regulating it is in public interest and enacted for larger public good.ae) One cannot take a stand that benefits and advantages alone be granted without reciprocal obligations and duties. In any event the N.T.C. cannot be allowed to get away with the aforesaid obligations. af) That apart if the regulations are not construed in this manner then there would be uncontrolled and unregulated as well as unchecked development and re-development of mill lands which was also not intended by the framers of the same. If the intent is to permit development and re-development for some avowed object and purpose then there is no question of wriggling out of the obligations. Further if the aforesaid interpretation is not placed on Regulation 58 it will reduce open spaces public amenities. It would not be possible to implement public housing schemes as well. The mandate to provide both is enshrined in Article 21 and the Directive Principles of State Policy. An interpretation which advances constitutional philosophy must therefore be placed on these regulations. ag) If the aforesaid interpretation is placed on the Regulations then all arguments of the Government as well as mill owners would have to be turned down. There is no question of allowing a contention that the scheme is unworkable and the regulation does not allow enough free play to meet the obligations towards workers and financial institutions. ah) There are several benefits and advantages as enlisted above and by dilution of the social and other obligations very purpose of regulating and checking the development and re-development would be defeated. ai) Assuming that there is no obligation to restart or revive the same textile mill yet insofar as utilisation of existing built-up areas the rule makers intended that they be utilised for cotton textile or related user or diversified industrial or commercial purpose. To facilitate this provision is made in Regulation 58(6).aj) Insofar as utilisation of open lands and balance FSI admittedly a provision is made in DCR 58(1)(b). The reason for this appears to be obvious. If the owner is not interested in utilising the existing built-up areas as aforesaid even by demolition and reconstruction then upon demolition of existing structures there has to be some provision for usage of the land beneath as also adjacent open land which is undeveloped and unutilised.ak) Such usage could not have been left unchecked uncontrolled or totally unregulated. The framers were aware that upon demolition of existing structures the land would become open and vacant. There is every likelihood that it would be developed or disposed off in that very state. It could be partly developed as well. Such development also should be controlled and regulated is the clear intention. Therefore sub clause (b) which was already in place came to be amplified by deletion of superfluous words. To make the intention more clear the framers coined and adopted two categories namely Open Lands and Balance FSI. The manner of utilisation of the same was laid down in Rule58(1)(b). The idea is that the owner should not indulge in such acts which would hamper urban planning. If cotton textile mill owners and more particularly public sector corporations like National Textile Corporation have to be reminded of their commitment to the public and purpose of balanced development then their rights to utilise open land and balance FSI had to be necessarily curtailed. It is clear that there is enough incentive to develop the property. There is no question of the same being taken away by the interpretation suggested by the Respondents.al) The arguments of the State Government and BMC overlook the notes below Regulation 58(1)(b). If the notes are read together with the substantive part then it is crystal clear that the owner by making the entire land open is not in a disadvantageous position as suggested. On the other hand the owner gets FSI of the plot after surrendering the portions earmarked as per the table and in addition gets transferable development rights. If the owner had voluntarily handed over the property to the Corporation the owner will get 1.33 FSI on the surrendered land and the same can be used at the site. The authorities can always acquire the land for fulfilling and achieving the public purpose mentioned in Sr. No. 3 and 4 of the Table. Therefore right to develop and utilise one’s property as per his/her wishes and choice is not in any way hampered leave alone defeated. On the other hand while upholding the right a balance has been struck so that construction activity at site does not lead to further congestion and burden on the already inadequate infrastructure. am) No one disputes the fact that the mill areas are already congested. Houses chawls and commercial structures are very close to each other. The distance between them is less and poses problems of safety. The structures are old and dilapidated as well. Buildings and structures are abutting the main road. There are by-lanes and narrow streets abutting which are old residential and other structures. Thus the area is thickly populated. If further construction activity is permitted then basic amenities which are already minimal would disappear altogether. an) The above mentioned pleas do not take into consideration the unauthorised and unregulated development which has already taken place in the area in question and all over Mumbai. If more residential towers are erected then it is quite likely that the local authorities would not be in a position to meet the demand for additional basic amenities. Thus to meet the demand of the existing and growing population in the area it is necessary that there are more public amenities and utilities.ao) The arguments of respondents overlook the fact that when the mill structures were constructed in their vicinity development took place. This went on increasing rapidly as the business was flourishing. Now the business of textile may have dwindled but other business is very much there. The population has increased. It is not as if that mills being closed there is no development and construction activity at all. Over the years some construction activity has already taken place. Therefore the framers thought it fit that while permitting additional development at site appropriate conditions be imposed so that further congestion could be avoided.ap) If the regulations are read in this perspective then there is no scope for making any distinction or playing with the words existing built up areas and open lands. The intent being as aforesaid and with a need to control the development and redevelopment by making comprehensive regulatory measures it is but natural that portions becoming vacant after demolition of existing built up areas have to be included in the concept open lands. aq) The basic argument is that assuming that this intent is not apparent and clear and it is as reflected in the clarification issued in March 2003 then amended regulations would have to be declared ultra vires the parent Act as well as violating the mandate of Articles 14 21 and 48A of the Constitution of India. If the interpretation as above is placed on the Regulation then there is no necessity of striking down the same. No occasion arises of reading down if a harmonious construction is adopted. The clarification above then would have to go as the same was admittedly issued without following the procedure under Section 37 of the MRTP Act.251. In the above background we will now analyse the true and correct meaning of open lands open lands open lands occuring in DCR 58 (1)(b):-i. The term open lands is to be given its natural unrestricted meaning i.e.lands which are presently vacant and/or lands which become vacant at any time upon demolition of the structures thereon.ii. Clause (1)(b) of the original DCR 58 used the phrase Open lands and lands after demolition of existing structures because at the time original DCR 58 came into force (25th March 1991) the definition of development in Section 2(7) of the MRTP Act did not expressly include demolition of existing structures. This was introduced into the definition of development in 1994 [vide Section 2(b) of Mah.Act X of 1994]. The Statement of Objects and Reasons for the Bill stated inter alia that In the course of time along with other changing concepts the concept of ‘development’ and ‘development rights’ with reference to lands and buildings in the urban areas has undergone radical changes necessitating incorporation of such new concepts by defining or re-defining certain expressions in the Act. Hence prior to the said amendment when demolition of the existing structure was contemplated under original clause (1)(b) it was necessary to expressly provide for the same in view of the definition of development as it then stood.iii. Therefore in March 2001 when amended DCR 58 was brought into force the term development expressly included demolition of existing structures and there was no longer any need to expressly provide for demolition of existing structures in (1) (b) in order to give effect to the natural meaning of the term open lands (which includes lands becoming vacant upon demolition). Thus the deletion of the phrase lands after demolition of existing structures was intentional as the amended definition of development made the said phrase otiose and tautologous.iv). The deletion of the said phrase was not to restrict the plain and natural meaning of the term open lands only to lands which are presently vacant and exclude those which become vacant subsequently. To give such a restricted meaning would require reading the said term as existing open lands which is not permissible. The word existing which appears in (1)(a) is intentionally omitted in (1)(b). (v) Amended DCR 58 (1)(b) now provides that open lands and balance FSI shall be used as in the Table below. The Phrase lands after demolition of existing structures in case of a re-development scheme in the original DCR 58 (1)(b) has been substituted by the phrase and balance FSI and balance FSI and balance FSI.252. The most important aspect to DCR 58(1)(a) and (b) is that the Municipal Commissioner must grant a previous approval to a layout and the same must be part of a package of measures recommended by BIFR for the revival/rehabilitation of a potentially viable sick and/or closed mill. To put it in other words it is not open to any mill owner to seek the approval of the Commissioner to a layout under DCR 58(1) on his own but the same can be done only as a part of a scheme of BIFR. 253. It is significant to note that as per the amended DCR 58 the mill owner can now avail of the entire FSI in situ in respect of land surrendered to the Municipal Corporation whereas the same was available as TDR in the original DCR 58. As a result there is a substantial incentive for the mill owners. In fact as per the approved BIFR Schemes of NTC (SM) Ltd. 78% of the full value is being recovered and NTC (MN) Ltd. 72% is being recovered.254. The basic idea behind DCR 58 is that if the mill is revived or rehabilitated then there is no surrender of land either to MCGM or MHADA. Whereas if the mill owner wants to close the mill and trade in land then the mill owner has to surrender portions of it to MCGM and MHADA for social objectives. It may be noted that all the above mills when they were originally built the permisible FSI was only 0.5 FSI but now for redevelopment the permissible FSI is 1.33 which is a substantial increase to counter the surrender of land to MHADA. As far as surrender of land to MCGM is concerned at the very same site 1.33 FSI can be utilised. Hence from the above it can be seen that the entire scheme of amended DCR 58 is quite beneficial to the mill owners. 255. While interpreting amended DCR 58 we have adopted the rule of construction which is more reasonable and just. The Hon’ble Supreme Court in B.P.Khemka Pvt.Ltd. V/s Birendra K.Bhowmik - (1987) 2 SCC 407 at paragraph 11 quoted with approval the following passage from its judgment in Madhav Rao Scindia V/s Union of India - (1971) 1 SCC 85: -The Court will interpret a statute as far as possible agreeably to justice and reason and that in case of two or more interpretations one which is more reasonable and just will be adopted for there is always a presumption against the law maker intending injustice and unreason ... The provision in a statute will not be construed to defeat its manifest purpose and general values which animate its structure. 256. While dealing with a Public Interest Litigation the Constitutional Court acts as the sentinel on the qui vive discharging its obligation as custodian of the Constitutional morals ethics and code of conduct as observed by the Supreme Court in Padma V/s. Hiralal Motilal Desarda - (2002) 7 SCC 564 in the following words:-While hearing a public interest litigation the constitutional court acts as the sentinel on the qui vive discharging its obligation as custodian of the constitutional morals ethics and code of conduct - well defined by series of judicial pronouncements. The Court is obliged to see while scrutinising the conduct and activities of a public body constituted with the avowed object of serving the society to see that its activities bear no colour except being transparent are guided with the object of public good and are within the four corners of law governing the same. The holder of every public office hold a trust for public good and therefore his actions should all be above board. The Hon’ble Supreme Court has further observed :-In public interest litigation jurisdiction of the Constitutional Court is mobolized and acts for redressal of public injury enforcement of public duty protection of social rights and upholding constitutional and democratic values. Technicalities do not deter the Court in wielding its power to justice enforcing the law and balancing the equities. We are unhesitatingly of the opinion that the appellants before us cannot raise any grievance on the ground of want of necessary pleadings. 257. Almost all the learned Counsel for the mill owners submitted that in the layout submitted to Municipal Corporation for construction sufficient Private Greens are provided hence the same would take care of providing open spaces for public. This submission has been consistently rejected by the Hon’ble Supreme Court holding that Public Greens are more important and the same prevail over Private Greens. In Padma V/s.Hiralal Motilal Desarda - (2002) 7 SCC 564 the importance of providing Public Greens has been emphasised as they not only act as lungs and ventilators for suffocating growth of population but also add luster and beauty to the township. Similarly in Banglore Medical Trust V/s.B.S.Muddappa - (1991) 4 SSC 54 the Supreme Court emphasised the greater need of Public Greens. The same sentiment was reiterated by the Supreme Court in B.K.Srinivasan V/s.State of Karnataka - (1987) 1 SCC 658. In Friends Colony Development Committee V/s.State of Orissa - (2004) 8 SCC 733 the Supreme Court held as under:-The private owners are to some extent prevented from making the most profitable use of their property. But for this reason alone the controlling regulations cannot be termed as arbitrary or unreasonable. The private interest stands subordinated to the public good . In Municipal Corporation Ludhiana V/s Balinder Bachan Singh - (2004) 5 SCC 182 the Hon’ble Supreme Court held:-17. For every locality green spaces and green belts have to be provided to provide lung space to the residents of the locality. A provision for green park was made by the Municipal Corporation keeping in view the minimum requirement to provide open/green space to the residents of the locality. 18................................................... .....................................................Having taken advantage of selling the plots in a developed colony and charging higher price which were purchased by the inhabitants with the understanding that civic amenities including the park were well provided for the Plaintiff-Respondents cannot be permitted to turn around to claim the land left in the scheme for being used as a park as their personal property.258. There is also a dire need for land in Mumbai for Public Housing which became very apparent recently when 5 old buildings collapsed there was no accommodation with MHADA to accommodate them in the City. Now MHADA has listed 107 buildings as very dangerous. Over and above MHADA has to provide cheap housing for poor and the middle class in Mumbai who cannot afford housing otherwise.259. Similarly while considering the importance of Public Open Spaces and Public Housing we should not forget the duty of the present generation towards posterity; principle of inter-genertional equity; rights of the future against the present. The Hon’ble Supreme Court in A.P.Pollution Control Board V/s.Prof.M.V.Nayudu - (1999) 2 SCC 718 at paragraph 53 of the judgment has held as under:-53. The principle of inter-generational equity is of recent origin. The 1972 Stockholm Declaration refers to it in Principles 1 and 2. In this context the environment is viewed more as a resource basis for the survival of the present and future generations. Principle 1. - Man has the fundamental right to freedom equality and adequate conditions of life in an environment of quality that permits a life of dignity and well-being and he bears a solemn responsibility to protect and improve the environment for the present and future generations.... Principle 2. - The natural resources of the earth including the air water lands flora and fauna and especially representative samples of natural ecosystems must be safeguarded for the benefit of the present and future generations through careful planning or management as appropriate. Several international conventions and treaties have recognised the above principles and in fact several imaginative proposals have been submitted including the locus standi of individuals or groups to take out actions as representatives of future generations or appointing an ombudsman to take care of the rights of the future against the present (proposals of Sands and Brown Weiss referred to by Dr.Sreenivasa Rao Pemmaraju Special Raporteur paras 97 98 of his Report). 260. Having regard to the above we are clearly of the view that the words open lands occuring in amended DCR 58(1)(b) would also include the lands after demolition of structures.261. The above interpretation is in consonance with the Constitutional provisions under Article 21 and 48A of the Constitution of India.VALIDITY OF CLARIFICATION DATED 28TH MARCH 2003. 262. In view of our aforesaid interpretation of DCR 58(1)(b) with regard to open lands the above mentioned clarification dated 28th March 2003 will clearly amount to an amendment of DCR 58 and not a clarification under DCR 62(3) hence it cannot be sustained.263. The above clarification is contrary to the mandatory procedures contemplated under Section 37 of the MRTP Act i.e.inviting objections etc. and considering them.264. The above clarification is clearly violative of Article 21 of the Constitution of India.NON COMPLIANCE OF EIA NOTIFICATION 265. As mentioned hereinabove pursuant to our directions the Maharashtra Pollution Control Board Bombay Municipal Corporation and the State Government had deputed its officers to physically verify whether any of the Mills which were carrying on construction had obtained the clearance as per the EIA notification amended on 7th July 2004 from the Ministry of Environment and Forests. It is explicitly clear from the report of Maharashtra Pullution Control Board dated 30th August 2005 and the affidavit of Bombay Municipal Corporation dated 15th September 2005 that none of the Mills had obtained clearance as per the above EIA notification though most of them were carrying on construction merrily. As a result of our directive to physically verify upon verification both the Maharashtra Pollution Control Board and Bombay Municipal Corporation have issued stop work notice to all the defaulters.266. In this context we are constrained to observe that neither the Bombay Municipal Corporation nor the State of Maharashtra took any steps to ensure strict compliance of the aforesaid EIA notification. Even the Maharashtra Pollution Control Board was lackadaisical in its approach for strict implementation of the above notification. Virtually all the above three Respondents had abdicated their legal obligations and duties in implementing the aforesaid EIA notification.267. Even the so called public hearing conducted by the Maharashtra Pollution Control Board as per the EIA notification was not at all satisfactory. Such a hearing must be held after a sufficient notice prominently published in newspapers with wide circulation. Maharashtra Pollution Control Board should also utilise the Television Media to give proper publicity regarding such public hearing. The main objective of such a public hearing is to know all kinds of objections so as to take a fair decision. 268. In view of the facts disclosed in this case and in view of the totally casual and lackadaisical approach by the Maharashtra Pollution Control Board Bombay Municipal Corporation and State of Maharashtra it would be just and proper if public hearings are conducted by the Ministry of Environment and Forests itself and not delegate to the State Pollution Control Board in view of the enormity of ecological imbalance and environmental degradation especially having regard to the Precautionary Principle and Sustainable Development .269. In this context we should not forget the importance of Environment Impact Assessment Reports as held by the Hon’ble Supreme Court in T.N.Godavarman Thirumald V/s Union of India - (2002) 10 SCC 606 at paragraph 36:-36. In this background the environment assessment reports are of great importance. The Council of European Economic Committee in their directive to the member States highlighted objectives of such assessments as follows:-The effect of a project on the environment must be assessed in order to take action of the concerns to protect human health to contribute by means of a better environment to the quality of life to ensure maintenance of the diversity of species and to maintain the reproductive capacity of the ecosystem as a basic resource of life. 270. The Supreme Court also lamented about the lackadaisical functioning of the State Pollution Control Board in State of M.P.V/s.Kedia Leather and Liquor Ltd. - (2001) 9 SCC 605 as follows:-5. Considering the aforesaid disturbing facts revealed by the joint inspection it prima facie appears that the M.P.State Pollution Control Board has failed to discharge its statutory functions despite the order passed by the Sub-Divisional Magistrate since 1990. It is to be remembered that a statutory board is constituted under the Act for implementing the Act or Rules framed thereunder and not only for holding post or wielding power. 6. We fail to understand why the State Pollution Control Board has not taken any action nor inspected the various industries without directions being issued by this Court. It is to be made clear that this statutory authority is required to discharge its functions without there being any directions by this Court. If it fails to discharge its functions by overlooking apparent defaults no purpose is served in maintaining such statutory board.NTC SALES CONTRARY TO SUPREME COURT ORDERS:271. According to Mr.Chagla the sales of lands carried out by NTC were contrary to Supreme Court orders. Mr.Chagla had pointed out the following observation from the Supreme Court’s order dated 11th May 2005:-We therefore having regard to the facts and circumstances of this case as also the law operating in the field are of the opinion that interest of justice would be subserved if the National Textile Corporation is permitted to complete the transactions is permitted to complete the transactions is permitted to complete the transactions in terms of the scheme framed by the BIFR in terms of the scheme framed by the BIFR in terms of the scheme framed by the BIFR but the same shall be subject to the conditions that in the event the writ petition ultimately succeeds the vacant land available from other mills if necessary shall be offered by way of adjustment.272. It may be noted here that the above order was passed by the Hon’ble Supreme Court after it was submitted on behalf of NTC as under:-If the transactions in respect of the mills are not allowed to be completed the scheme framed by the BIFR the scheme framed by the BIFR the scheme framed by the BIFR would come to a standstill would come to a standstill would come to a standstill resulting in accrual of interest payable by the National Textile Corporation to the financial institutions besides other hardships which may be caused to various other persons including the workers.273. It is very clear from the order of the Supreme Court dated 11th May 2005 that every sale after the said order by either NTC-MN or NTC-SM will be only in terms of the scheme framed by the BIFR. Only sale of land from Jupiter Mills had taken place earlier.274. But even the sale of land from Jupiter Mills will have to be in accordance with the BIFR scheme as perearlier order of the Supreme Court dated 27th September 2002.275. The sanctioned scheme of BIFR clearly provides that the surrender of land to MCGM and MHADA in respect of each mill shall be out of the land of such mill itself itself itself and not out of the land of some other mill. Hence the integrated scheme in respect of 7 mills approved by MCGM on 27th October 2004 (which provides for aggregation of land to be surrendered to MCGM and MHADA in respect of the five mills sold on two other mills) is contrary to the sanctioned scheme which clearly does not contemplate any such integration. (emphasis supplied).276. In paragraph 5 of the affidavit dated 12th September 2005 filed by NTC it is expressly admitted that the integrated development scheme submitted to MCGM is a modification of the sanctioned cheme of BIFR. It is stated that a proposal for modification of the sanctioned scheme has been made to BIFR about a year ago. It is submitted by the Petitioners that this application for sanction of the BIFR to such modifications was made in view of the direction of the Supreme Court dated 27th September 2002 Let the scheme as sanctioned by BIFR be implemented It is stated in the said affidavit of NTC that The sanction of BIFR is awaited and Respondent Nos.3 and 4 will implement the same after approval of BIFR However contrary to the aforesaid statement and in breach of the orders of the Hon’ble Supreme Court NTC has sold five mills under the integrated development scheme approved by MCGM without the approval of the BIFR to the modifications in the sanctioned scheme.277. Hence we are clearly of the view that the sale of lands by NTC from 5 mills viz. (a) Apollo Textile Mills (SM) (b) Mumbai Textile Mills (SM) (c) Elphinstone Mills (SM) (d) Kohinoor Mill No.3 (MN) and (e) Jupiter Mills are clearly contrary to the sanctioned BIFR Scheme and both the orders of Supreme Court dated 11th May 2005 and 27th September 2002.278. In this context it is relevant to note that in the year 1983 the Textile Undertakings (Taking Over of Management) Act 1983 was passed. The Preamble of this Act very clearly states that a further investment of a very large sums of money is necessary for reorganizing and rehabilitating the said undertakings thereby to protect the interest of workmen employed therein and to augment the production and distribution at fair prices the different variety of clothes and yarn so as to subserve the interest of general public. Thereafter in the year 1995 the Parliament passed the Textile Undertaking Nationalisation Act 1995 wherein it is mentioned in its Preamble that the investment of a very large sums of money is necessary for the purpose of securing optimum utilisation of the available facilities for the manufacture production and distribution of clothes and yarn by the said Textile Undertakings of the Companies. The Preamble also further states that such an investment is also necessary for securing the continued employment of the workmen employed in the said Undertakings. Finally it is stated in the Preamble that it is necessary in the public interest to acquire the said Textile Undertakings of the Textile Companies to ensure that the interest of general public is served by the continuance by the said Undertakings of the Companies the manufacturing production and distribution of different variety of cloth and yarn which are vital to the needs of the Country.279. One of us (Dharmadhikari J.) while dealing with the scope of the Textile Undertakings (Nationalisation) Act 1995 in the case of Aurangabad Textile Mills V/s State of Maharashtra (Writ Petition No.1100 of 1986) Aurangabad Bench Bombay High Court has observed as under:-.... I also cannot ignore and brush aside the constitutional obligation sought to be fulfilled vide the said Act by the Parliament. The preamble of the said Act is reproduced by me already. I will be failing in my duty if I construe the provisions narrowly or by brushing aside the object and purpose. The said Act really gives effect to a constitutional duty and obligation. The welfare State is obliged to hold and take charge of the properties for the purposes of subserving common good. It is obliged to make available material resources to the community. It’s role is that of a trustee. All properties vest in the Central Government under such enactments as and by way of trust for public good and public purpose. It acts in public interest while enacting such Legislation. The principle is to remove poverty and unemployment and at the same time make cloth available for vast millions of citizens of this country. Therefore sick textile mills are taken over and rehabilitated and managed thereafter in the light of and in accordance with other provisions of the said Act.280. Unfortunately NTC like a private mill owner was only keen in trading its land for high profits totally contrary to the above objectives and also the sanctioned BIFR Schemes and both the aforesaid Supreme Court orders.DOCTRINE OF PROSPECTIVE OVERRULING:- 281. Dr.Singhvi on behalf of Respondent NO.11 had contended that in the event if the interpretation of amended DCR 58 as propounded by the Petitioners is accepted by this Court then the said interpretation should be given prospective application applying the principle of doctrine of prospective overruling. Dr.Singhvi in that behalf relied upon Harsh Dhingra V/s.Haryana - (2001) 9 SCC 550 to contend that even the High Court can apply the above doctrine under Article 226 of the Constitution of India. 282. We are afraid that the Hon’ble Supreme Court through its Constitution Bench in State of H.P.V/s State of Nurpur Private Bus Operators Union - (1999) 9 SCC 559 at Paragraph 10 had clearly held that the High Court cannot invoke the above doctrine.CERTAIN DISTURBING ASPECTS:- 283. The MCGM has not ensured at all while sanctioning the building plans for provisions of public amenities to be provided by the Mill owners and other Developers as per DCR 27 which is also made clear in DCR 58 and MCGM very candidly admits that none of the developers are providing any public amenities public amenities public amenities as per its affidavit dated 15th September 2005.284. MCGM took no steps whatsoever with regard to compliance of EIA Notification until we directed during the final hearing of the above petition. Inspite of our categorical direction MCGM filed an affidavit only on 15th September 2005 giving vague particulatrs of Green Areas without clearly indicating Public Greens and Private Greens.285. MCGM has not ensured that all the Mill owners should provide free housing of 225 Sq.feet to the occupants and in reality none of the sanctioned plans provide for any housing for mill workers/ occupants though mandatorily it ought to have been provided under DCR 58(7).286. MCGM has not ensured surrendering of lands for open spaces and public housing as per amended DCR 58 at the time of issuance of commencement certificate. MCGM ought to have ensured such a physical surrender while issuing such a commencement certificate to the Developers making it clear that only after such a physical surrender of such lands earmarked as open spaces and public housing any construction can commence.287. Mr.Singhvi the learned Counsel for MCGM very candidly after taking instructions from the officer present in Court stated that MCGM does not even have a single officer with the qualifications in Town Planning though MCGM is the Planning Authority under the MRTP Act with an Annual Budget of over 7500 Crores. MCGM prepares Draft Development Plan. 288. Hence we direct the Respondent No.1 - State of Maharashtra to take immediate remedial measures with regard to all the above aspects as MCGM has completely abdicated all its basic functions. 289. CONCLUSIONS: (a) In amended DCR 58(1)(b) open lands” would include lands after demolition of structures.(b) Clarification dated 28th March 2003 is clearly violative of Section 37 of MRTP Act and Article 21 of the Constitution of India.(c) The issue whether the amended DCR 58 is contrary to Section 37 of MRTP Act or Article 21 of the Constitution of India is kept open.(d) All the constructions carried out by various Developers are clearly in violation of EIA Notification as amdnded on 7th July 2004 as admittedly none of them have obtained clearance from Ministry of Environment and Forests. (e) All sales of Mill lands carried out by NTC are clearly contrary to the Supreme Court orders dated 11th May 2005 and 27th September 2002 and contrary to the sanctioned BIFR schemes.290. Rule is accordingly made absolute with costs.