National Common Minimum Programme: opportunities and imperatives
The Judgment and emergent initiatives
The Supreme Court, in its judgment of 07.05.041, has directed closure of industries come up in Delhi after 01.08.90 in areas not meant for them under Delhi Master Plan (DMP) as per a schedule ending in 18 months. On 29.05.04 Delhi government, by Public Notice, has directed all such units to “close down and stop operating” as per the schedule fixed by the Court.
On 01.06.04 The Hindu, quoting Delhi industries minister, said Delhi government had drawn up an action plan for compliance of Court orders in letter and spirit and identified additional land for relocation and was writing to central government to expand the list of household industries (which the Court has directed central government to do in three months, while directing Delhi government to announce incentives in six weeks, progress on which the Minister / report did not mention). Also on 01.06.04 the Hindustan Times reported that Delhi government was asking Union government to regularize industries (quoting an unnamed senior official as saying, “Shutting such a large number will create a lot of problems. Regularisation of these industries is a easier way out,” and urban development minister saying, “I have sought an appointment with the Union urban development minister …on the issue”). On 04.06.04 The Hindu mentioned regularization of industries among Delhi-centric issues before union urban development minister. On 05.06.04 Pioneer reported ‘stakeholder’ opinion (of an unnamed DDA official and an industrialist) in support of a review petition. None of these news reports mentioned the Public Notice of 29.05.04.
The contradiction between government’s official Public Notice and unofficial views in media is typical of what has been going on since 1999 in the matter of Delhi’s industries and is partly responsible for why industries, lured by regularization promises, have not availed relocation opportunities and come to be considered unworthy of sympathy. The games going on since 1999, however, are passé, as the judgment leaves no scope for them to go on.
The Supreme Court’s indictment of the doings of Delhi and Central Governments, DDA and MCD through the protracted case is complete and scathing. It also comes down heavily on industries which did fail to avail opportunities to become part of a lawful solution. It comprehensively rejects the case for regularization and also pre-empts fake concern (“the Government and its agencies, if there was genuine will, could help the industry and workers by relocating industries by taking appropriate steps in last about 15 years”) and excuses (“Municipal Authorities have expressed helplessness in taking action on the apprehension of breakdown of law and order in areas. The Municipalities have constitutional responsibilities of town planning”) and even clever ‘guidelines’ (“under the garb of issuing guidelines for the Master Plan for Delhi-2021, action against violators of law has come to a standstill for an indefinite period”). The closure direction flows logically from the detailed discussion in the judgment and is ironclad for compliance (“going by the past experience, it would also be necessary to not only monitor but also to fix responsibility so that illegal activity does not continue any further and stops within the time schedule for its cessation fixed in this order”).
UPA NCMP imperative
The matter of Delhi’ industries can be viewed as one of one lakh units facing closure for something they are less to blame than government. It can also be viewed as telling example of reckless economic policy being pushed in violation of considered planning law.
Industries in Delhi are in places not meant for them not because space set aside for them in DMP has not been given to them due to some harmless delay in its development. They are there because, in utter disregard of DMP, city space is being systematically diverted to extraneous consumption uses while city productivity is being eliminated by an abdicate-extort-evict tactic. The judgment notes, “Respondents have been taking a convenient stand from time to time without any regard for statutory provisions and have at least turned their face on the other side knowing that blatant breach is being committed, even if we assume that there was no connivance with the industry for extraneous considerations”. It quotes from affidavit of an industries’ association that “each industry is being visited by 53 departmental inspectors of the Government". (Even private Discoms have been charging, without authority, higher electricity tariff from non-conforming units). And it refers to efforts since 2000 to evict all industries to NCR (which is contrary to DMP that not only requires only hazardous or large industries to shift out but also that small units “which require skill, less of manpower and energy and are non-nuisance and clean and largely subserve Delhi economy” be retained in Delhi for balanced regional development as well as for balanced city employment profile).
While Delhi government has taken an inertial position on the judgment, UPA’s National Common Minimum Programme (NCMP) calls for more responsible compliance. Indeed, time-bound directions of the Court provide UPA an opportunity to demonstrate its commitment to NCMP. In this regard, in continuation of previous representations (summarized in Annexure), outlined here are opportunities provided by the judgment and next-step imperatives flowing from DMP provisions for industries, on implementation of which the implementation of NCMP commitments for industries in Delhi is, now unavoidably, predicated.
Opportunities arising from the Judgement
Supreme Court, “going by the past experience”, has de-linked closure from incentives and allotments, leaving government free to enforce the latter without prejudice to schedule set for the former. (“…not debar Government/authorities to allot to such oustees plots in industrial area but that under no circumstances should delay the closure process” and “Delhi Government may announce a policy within six weeks giving such incentives as it may deem fit … non-announcement …shall not, however, delay the closure process”). It says, “There cannot be any doubt that non-conforming industrial activities could not have commenced or continued at such a large scale in the capital of the country if the Government and the concerned authorities had performed their functions and obligations under various statutes. But such situation cannot be permitted to continue forever.” The Court has thus ruled the best it could in the circumstances, leaving it open to the government to do more.
On industries’ contentions about non-development of space and recoveries by government, the Court says, “An illegality would not become a legality on inaction or connivance of the Government authorities”, which has implications for relocation schemes / misuse permissions in violation of DMP. It also says, “Non taking of action by Government amounts to indirectly permitting the unauthorized use which amounts to the amendment of the Master Plan without following due procedure” and “under the garb of issuing guidelines for the Master Plan for Delhi-2021, action against violators of law has come to a standstill for an indefinite period”, while also reiterating about leasehold tenure that “the policy of the Legislature seems to be to put an end to unauthorized use of leased land rather than merely to enable the authorities to get back possession … the authority may not be prepared to accept compensation but might insist upon cessation of the unauthorized use. …it was even open to the authorities to cancel the lease on account of the misuser”. The Court has, in effect, pointed the government in the direction of rectifying, rather than ‘policifying’, distortions in statutory land use allocations.
In several places the judgment weighs rights of industries and others in terms of safety, environment, convenience, etc. Why it does not do so in terms of DMP entitlements to use of space seems because all that was before it in this regard was affidavit of DDA Commissioner (Planning) on 02.02.01 that interprets DMP provisions very inadequately, as follows: - It suggests DMP earmarks industrial space only in urban extensions (ie, Dwarka, Bawana, Narela) and mentions proposal of 17.09.91 to not develop this and resolution of 07.07.02 to develop it and then says ‘pending the said policy decision, no new industrial development was taken up and even industrial area indicated in the development plan of Dwarka (181 hectare) was reverted to commercial and other land uses’ (apparently without even bothering with due process for DMP modification). - There is no mention of space that DMP earmarks for industrial use within the city in (besides existing estates and as household industry) Redevelopment Schemes (3 sites), flatted factories (7 sites), service centres (19 sites) and also different types of commercial centres (subject only to restrictions, set out in a table). The last is significant because proposal of 17.09.91 also said “that in the additional 2% area being earmarked for service sectors / establishments industrial activities … would be promoted”. - There is no mention of dispersal provisions, eg, 1533 hectares to be dispersed over 16 new estates, each with “upto 5 unit industrial estates (UIE) of about 20 ha each”. Such provisions are for transport efficiency and to prevent stress on account of industrial concentration. Ongoing relocation is violative of these DMP provisions. - There is no mention of significance of DMP industrial classification. DMP uses the classification to expand location opportunities (including to commercial areas) for no or low-nuisance / small-scale units, to club industries with similar infrastructure needs for efficient estates, to make promotional reservations by earmarking some estates exclusively for certain types of units, to set standards for, say, plot sizes (minimum of 400 sqm for F-category, range from 30 sqm to 1000 sqm for categories B to E with minimum of 2000 sqm for plot for flatted-factories), etc. The relocation schemes, with maximum plot size of only 250 sqm, etc, disregard provisions and possibilities arising from DMP classification of industries. This, in fact, bogs down the whole debate on industries, since most arguments for or against them do not apply to all types. The reference in the judgment to the oleum gas leak case, for instance, is unfortunate since H-category units are not covered by it, and, as the judgment comprehensively comments apropos the regularization proposal, permission for industries with inadequate criteria (either classification or performance based) for health, safety, etc, is unacceptable
The judgment says, “those who have set up industrial units after 1st August, 1990 have no right for allotment of a plot in an industrial area”. This may well have flown from facts before the Court. However, it is also a fact that there is no other legitimate user for well over 2000 ha out of the space set aside in DMP for industries (including 1533 ha for light and 265 ha for extensive industry in urban extensions and, in the city, space to be freed in existing estates after shifting H/F-category units, carved out in industrial redevelopment areas or in renewal / mixed use schemes for household units and developed in flatted factories, service centres and commercial centres), since it was set aside for units expected during DMP period. Since the judgment bases closure directions on illegality in terms of DMP, upholds DMP processes and makes critical mention of instances of disregard of DMP, while complying with its directions for closure of industries, for which Public Notice has already been issued, government will also have to deal with the question of legitimate alternative use for 2000 ha of DMP industrial space. In doing so, since the Court has made it clear that its schedule for closure does not debar allotments, the government might consider the option of priority implementation of DMP provisions for industries, which would also help it implement NCMP commitments for them. Illustrative next-step ideas for this option are enumerated next.
Illustrative next-step ideas arising from DMP imperatives / possibilities
Relocation that veritably forces all types of units into one inadequate option cannot work. If government would offer each DMP category of industries choice of all options available for it under DMP, with incentives linked to type of option and type of space on offer, it would find ready takers. All that this requires is (1) identification of all available / possible DMP industrial space and (2) schemes targeted separately at each DMP industry category.
Details of available / possible DMP industrial space, expected to be available with the industries’ expert group for ongoing DMP revision, would need to cover:
- space available in the city: (i) in industrial estates by way of vacant plots or plots under misuse (non-industrial purpose or units of DMP category not permitted), (ii) in commercial / service centres by way of space not disposed off or being misused, (iii) in metro property development, connected by metro to concentrations of non-conforming units.
- space possible in the city: (i) DMP sites for flatted factories (Jhandewalan, Birla Mills, Near Shankar Market, DCM, Anand Parbat, Kirti Nagar near Pusa Institute), (ii) plots for flatted factories in estates, (iii) DMP industrial area redevelopment sites (Anand Parbat, Shahdra, Samapur), (iv) commercial/service centres and renewal/mixed use underway
- space available in urban extensions: (i) in commercial / service centres and mixed use pockets (since industrial estates were dropped on promise of industries in these), especially in Dwarka, and (ii) in industrial estates in conformity with DMP provisions for overall percentage (6-7%), size of estate (maximum 100 Ha), standards, etc.
- space possible in urban extensions: (i) commercial / service centres and mixed use pockets under development and (ii) industrial estates, including in Dwarka (since they were dropped in it without due process for DMP revision)
Schemes targeted at different DMP categories of industries need merely to offer all available / possible supply for each category to that category in one go for free market choice. Incentives can be offered to different categories as per industrial policy / NCMP commitments, moderated on basis of what is on offer (eg, in less attractive urban extension locations larger plot sizes could be an incentive, as recommended in DMP in 1962, while in attractive commercial locations only loans might be needed). The cost of incentives need not create a burden on the exchequer if amounts recovered by various authorities / agencies from industries (despite explicit DMP stipulation to stop all ad-hoc licenses) are pooled into a corpus along with the cross-subsidy component required to be invested by DDA in industrial development out of its earnings from remunerative uses (commercial, institutional, high-income housing, etc). Such an approach might also help Delhi government to responsibly comply with Court directions for incentives and Central government to comply with the direction for reclassification of A-category (household units) in necessary holistic context.
The schemes would, of course, require adequate publicity, including for awareness to clear confusion about industrial categories and, perhaps, also a policy against confusing media. Needless to say, all initiatives in respect of industrial space that are in contravention of DMP would have to be immediately stop, including shoddy relocation, hasty land acquisition for the same, attempts for regularization approval, schemes for freehold disposals / conversions and for misuse permissions / charges, expensive projects for beautification of markets inclusive of misuse, etc, etc, and agencies in charge of industrial development (notably DSIDC in Delhi government and expert groups / committees appointed by DDA / MoUD and also by MCD for initiatives directly or indirectly affecting industrial space) might need to be specifically asked to accord top priority to imperatives arising from the Supreme Court judgment for industries in context of NCMP commitments, readily answered by DMP provisions.
Most of previous correspondence about industries in Delhi since 2002
- 28.05.02: To DDA VC, to object to ‘scheme’ to allow commercial misuse of industrial plots and ask all DMP industrial space be made central to the industries case (also Express Newsline article, 31.05.02)
- 20.06.02: To DDA VC about decisions in disregard of DMP, referring also to letter of 28.05.02.
- 30.08.02: To Secretary MoUD, copy DDA VC, to object to ‘decision’ to allow the scheme
- 03.09.02: To President about disparaging remarks about DMP by MPs pressing for regularization, etc.
- 01.10.02: To Secretary MoUD, about non-enforcement of DMP provisions, including for industries
- 01.11.02: To Secretary MoUD, copy DDA VC, after Supreme Court stopped scheme for commercial misuse of industrial plots, apropos other request (DMP industrial space to be detailed in court).
- 04.12.02: To Secretary MoUD, copy DDA VC, wrt news on 31.12.02 deadline / 2000-like possibility
- 13.12.02: To DERC, wrt news of Discoms charging non-conforming units extra, to ask they pay DDA.
- 21.12.02: To Secretary MoUD, copy DDA VC, wrt news reports of DDA ‘approval’ to regularization of industries to list illegalities of sweeping regularization and approval in terms of DMP and DD Act.
- 29.01.03: To Secretary MoUD, copy DDA VC, wrt reports of MoUD ‘decision’ to regularize and also declare 5 SSI estates extensive, to ask letter of 21.12.02 be considered s.11A objection.
- 04.02.03: To Secretary MoUD, copy DDA VC, wrt news of committee for regularization, to ask about its role and relation to industries’ expert group for DMP revision, etc
- 05.02.03: DDA’s ‘reply’ No.F 11(18)96/Mont/55 saying “Delhi Govt. has conducted certain surveys and recommended areas where industrial concentration was observed. This issue was looked into by the Industrial Group in Master Plan-2021 and had suggested specific guidelines, if at all these areas are to be regularised. The matter was considered by the Authority and has been referred to the Ministry of Urban Development for calling public objections and suggestions on the issue”
- 08.02.03: To Secretary MoUD, wrt news about regularization committee, to ask about its role, etc
- 14.02.03: To Secretary MoUD, wrt DDA’s ‘reply’, to reiterate questions as they remained unanswered.
- 22.03.03: To Secretary MoUD, copy MD DSIDC, wrt DSIDC ‘self assess and quote’ tender and news of relocation refund claims evoking DSIDC relief about less demand, to recall DMP role of DSIDC
- 02.04.03: To Secretary MoUD, wrt news of regularization report and DDA scam, to ask information.
- 26.04.03: To DDA Commissioner (Planning), wrt to Supreme Court asking government to file affidavit by 05.05.03, to ask for DMP monitoring / revision data, etc, to be placed in court / made public.
- 26.04.03: To Secretary MoUD, copy to DSIDC MD, GNCT UDM, to request status of DMP industrial space to be placed in court and ask for details of regularization ideas under Right to Information.
- 07.05.03: GNCT No.F.PS/MOI/2003/2264 forwarding letter of 26.04.03 for reply in 2 weeks
- 15.05.03: To Chairman DERC, to reiterate questions about higher tariff from non-conforming units, etc.
- 20.05.03: To UDM, wrt freehold ‘policy’, to list illegalities as s.11A response, ask basis by Right to Info
- 24.05.03: To GNCTD UDM to ask basis of DSIDC housing, role apropos industries, etc, etc
- 24.05.03: To LAC (NW), copy GNCT UDM, wrt hearing of objection to acquisition for DMP violation.
- 01.06.03: To PS to GNCT Industries Minister, copy Secretary MoUD, wrt ‘reply’ of 07.05.03 and news about Minister’s idea to simply issue licenses in DMP industrial redevelopment schemes.
- 03.06.03: s.11A response to MoUD Public Notice for land use change in walled city to H/F-category industry, including objection to distortion in industrial allocation and suggestion of priority to walled city, starting, as per DMP, with shifting incompatible uses by priority to DMP industrial space provisions.
- 26.06.03: To Secretary MoUD, wrt to MCD plans for walled city project for which Public notice was out.
- 03.06.03: To Leader of Opposition in Lok Sabha, met on 28.05.03 about slum initiatives in disregard of DMP, to express apprehension of matters getting out of hand as in matter of industries in 2000, etc
- 27.06.03: To Leader of Opposition, about initiatives in disregard of DMP, including apropos industries
- 08.07.03: Response to Lok Sabha Standing Parliamentary Committee Public Notice inviting views on functioning of DDA, an overview on implications of (non)functioning of DDA (in accordance with its DMP mandate), including apropos industries, with offer of more details.
- 29.07.03: To UDM to object to ‘Master Plan Guidelines’ announced on 28.07.03 to frustrate due process of DMP revision and related public notice, judicial and Parliamentary processes underway.
- 29.07.03: To Leader of Opposition in Lok Sabha, about ‘guidelines’, enclosing letter to UDM
- 29.07.03: To Standing Parliamentary Committee, for urgent hearing in view of ‘guidelines’
- 30.07.03: To President about ‘guidelines’, enclosing letters of 29.07.03 and also response to Standing Committee and letter of 03.09.02 about announcements in disregard of DMP, become ‘guidelines’.
- 11.08.03: Response to invitation to public to comment on ‘Master Plan Guidelines’ to ask DDA VC to make public (a) status of DMP revision by due process that ‘guidelines’ frustrate, (b) legal basis of ‘guidelines’ / inviting comment, as ‘guidelines’ are same as ‘recommendations’ of 1999, (c) mandatory planning / DMP monitoring data about ideas in the ‘guidelines’, since they are poorly informed and provide no DMP accountability or basis for ‘participation’, (d) responses to techno-legal objections / suggestions made since 1999 on nearly all matters covered by these ‘guidelines’ through letters, reports, Public Notice responses, court cases, etc (with enclosures to detail out each of these).
- 28.08.03: To Secretary MoUD, wrt response to Lok Sabha question that “Government is not aware of any repeated demand to probe the functioning of DDA” to make / repeat request formally
- 09.09.03: DDA ‘reply’ Dir/MPD-2021/2003/DDA/F-364/D-1111 to letter of 11.08.03: “Dear Sir/Madam, We acknowledge with thanks receipt of your comments/suggestions in response to the guidelines for preparation of Master Plan for Delhi-2021. These will be examined while formulating the proposals…”
- 10.09.03: To Secretary MoUD, copy DDA VC and Lok Sabha Sectt, about commercial (including industrial) space initiatives (freehold ‘scheme’ announced on 09.08.03, etc) in disregard of DMP, Supreme Court, High Court matter against freehold, misuse, etc, driving DDA to bankruptcy.
- 11.09.03: To Lok Sabha Standing Committee Sectt, to request urgent hearing
- 29.09.03: To GNCT UDM, wrt news of GNCT slum survey to ask about DSIDC housing in Bawana, etc
- 01.10.03: To Chairman DERC, wrt to ‘public hearing’, to reiterate questions not heard / answered.
- 28.10.03: To Secretary MoUD, copy DDA VC, MCD Commissioner and GNCT UDM for status of Public Notices underway, including for industrial use in walled city, etc.
- 19.11.03: To Secretary MoUD, copy DDA VC, wrt errors in DMP interpretation in arguments in Supreme Court, to ask, in view of precedent by MCD for NGO, permission as expert to brief counsel.
- 22.01.04: To President, CJI and Standing Committee, about disregard of planning law, with examples of industries, etc, also wrt anarchy abetting anti-Plan/courts NGO propaganda, as at WSF 2004 ‘event’
- 06.02.04: To Secretary MoUD, wrt plans for sweeping regularization of colonies, to reiterate objection.
- 11.02.04: President’s Secretariat’s No.P1/B-221312 forwarding letter of 22.01.04 to Secy MoUD
- 15.02.04: To Secretary MoUD, wrt news of ‘policy’ for commercial misuse of farmhouses, to recall Supreme Court quashing same in industrial plots and wrt 30 cr beautification of markets, with misuse.
- 04.04.04: To Police Commissioner, with copy to MoUD Secretary, DDA VC, GNCT Secretary, MCD Commissioner and NHRC, EC, CVC, CBI, Standing Committee, President’s Secretariat, about illegalities in course of compliance of court orders for Pushta clearance and also anti-court/law NGO propaganda, as in industries matter in 2000, at WSF 2004 ‘event’, etc, with law and order implications.
- 1. Writ Petition (civil) 4677 of 1985: Supreme Court judgement: Delhi industries Judgement
Text of Supreme Court judgement of 07.05.2004 directing closure of industries in residential / non-conforming areas in Delhi as per a schedule ending in 18 months.