Response to Public Notice; Response to Public Notice of 04.11.04: Gita Dewan Verma

Mr S.MUKHERJEE,
Under Secy, Delhi Division, MoUD, Nirman Bhawan, New Delhi - 110011

Sub: Public Notice No. K-13011/5/2000-DIB dated 04.11.04, notified in Gazette of India dated 05.11.04 and published in Times of India dated 19.11.04, p.101: RESPONSE

Ref: News reports of 01.12.2004 and my letters of 14.11.04 (encl.12) and 24.11.04 (encl.23), in continuation of letters, etc, since 2000 (chronicled on the web, index at encl.34), and response (encl.45, without annexures) to Public Notice of 21.06.04

Dear Sir,

In my letter of 14.11.04 apropos Public Notice of 04.11.04 I had expressed appreciation for GoI's choice of lawful options of s.11A over "ordinance", redevelopment over "regularisation" and term non-conforming clusters over "non-conforming areas", etc. In letter of 24.11.04 I had sought from DDA clarifications, etc, about prior Public Notices for IT Park, etc, in time to file this response. I have not received the same and am responding in view of news reports of 01.12.04 about proceedings in Hon'ble Supreme Court relating to this Public Notice.

According to these news reports, in which Delhi industries commissioner has been quoted and "enabling provisions" (phrase used by CM) mentioned, Hon'ble Court has reacted sharply to Delhi Government's proposal of "in-situ regularisation", Amicus curiae told the court Delhi government has gone against it orders, etc. This is obfuscation inasmuch as the Public Notice is NOT for "enabling provision" or "in-situ regularisation" and Delhi Government is NOT empowered to make Plan modifications. This is also interference with s.11A inasmuch as Amicus curiae, etc, have commented in media against the Public Notice, industries commissioner published it prior to GoI and asked for responses to be filed under intimation to him, Delhi government is acting in contrary manner vis-à-vis concurrent connected Public Notice to regularise its IT Park on riverbed, etc. As per the news reports, Hon'ble Court has, in effect, upheld s.11A to say it will test the proposal's conformity with law and Constitutional framework and sought to know if units have been closed in areas covered by it, thereby opening up also the question of any unlawful closure.

Besides for lawful solution for industries, it is now imperative for sanctity of s.11A process and of solution-seeking nature of PIL that this Public Notice be processed responsibly, since it emanated from intervention at highest political levels that is now to be scrutinised by the Apex court and it would be contrary to national interest if a situation were to arise that suggests either conflict between constitutionally valid political and judicial interventions or incapability of planning law / professions to throw up tenable solutions for conflict resolution.

It is from the foregoing perspective that I am filing this response.

  1. What I am filing is a suggestion u/s.11A for an alternative text for the proposed modification since GoI's proposal is wide open to techno-legal challenge (especially as attempt to "regularise" under the garb of redevelopment). My suggestion articulates, within the ambit of statutory imperatives, redevelopment parameters (so far not explicated in the Master Plan), also in an attempt to ensure that valid redevelopment, contemplated in law as being part and parcel of development, is not precluded by a precedent set by a shoddy example. I specifically seek for this suggestion u/s.11A to be tested (on merit and by comparative appraisal with GoI proposal) for:

    (a) conformity with law and constitutional framework

    (b) consistency with goals, framework and structure of the Master Plan

    (c) efficacy vis-à-vis so-called "populist" objectives (which are, in fact, intuitively just and demand techno-legal articulation rather than criticism)

    Infirmities in techno-legal content of GoI proposal are implicitly described in my suggestion that addresses them and I could explicate them further if and as required.

  2. This Public Notice is marked by glaring lapses in terms of procedural requirements of s.11A read with statutory provisions for plan monitoring and review. Consequently, most of the content of the proposed modification seems arbitrary and, furthermore, suited to Zonal Plans. The single largest challenge to the proposed modification, as it stands, is that instead of flowing from the logic of the Plan it is extrapolated from some particular reality and therefore unfit to be part of a general framework. I have attempted to address this lacuna through a proposal in two parts - a policy level addition to the Master Plan text and addition of a detailed clause in Development Code to guide incorporations in Zonal Plans. I specifically seek that all existing clusters first be mapped on the Master Plan Land Use Plan, as mandatory u/s.7 in view of on-going Plan revision, for any meaningful consideration of the proposed modification as well as of my suggestion. If required I can explicate further, with reference to such mapping, the defects in approach and procedure in GoI proposal (directly / implicitly raised in prior communications).
  3. The other Public Notice of 04.11.04 (for household industries), which was published by Delhi Government on 12.11.04 and GoI publication of which I have not come across, reflects extreme arbitrariness and is precluded by (and in fact jeopardizes) this Public Notice. I specifically seek withdrawal of that Public Notice for household industries in view of the larger proposal in this Public Notice and in view of the general contents of my response to Public Notice of 21.06.04 (encl.4) and contents of para-3 in my letter of 14.11.04 (encl.1), and request that this be treated as my response to that Public Notice. If required I can file a separate formal response after I have received a reply to my letter of 14.11.04 with information about the publication of the GoI Public Notice as per s.11A.
  4. I reiterate my contention that Delhi Government has disregarded statutory solutions and misused the court's order to effect unlawful closure without waiting for DDA to identify precise violations and follow due process for action against them even though the order of 07.05.04 allowed ample time for this and did not in any way empower Delhi Government to take actions beyond its jurisdiction. Delhi government's relocation scheme, announcements and Public Notices, show-casing at international trade fair, etc, have all been unmindful of the provisions of the Plan. That Hon'ble Court will be testing the conformity with law of GoI's proposal to allow the statutory solution (through redevelopment) calls for equivalent scrutiny of actions of Delhi Government (whose insistence on regularisation - since 1999 and even after rejected in order of 07.05.04 and now even after GoI has proposed redevelopment - has precluded any serious consideration of statutory options). In view, especially, of Hon'ble Court having sought to know if units in areas covered by the proposed modification have been closed / shifted, I specifically seek that details of Delhi Government's industrial development and closure also be mapped on Master Plan Land Use Plan and examined also with reference to the prohibitions and options set out in my suggestion. If required I can explicate further the illegalities in Delhi Government's initiatives (mentioned in several prior communications, including with requests for investigation, etc, u/s 41(3)).
  5. I had specifically suggested in my response to Public Notice of 21.06.04 (for household industries) debate on government's overall plan for compliance to establish it is better than option of compliance through statutory solution that I had already broadly outlined in my note of 06.06.04. If GoI had respected the sanctity of s.11A and solution-seeking nature of PIL and not ignored such a suggestion, the unfortunate situation of doubts (in my case conviction) about the court's order having been misused to effect unlawful closure would not have arisen. I specifically seek for my present suggestion u/s.11A to be urgently heard and also to be placed before the Hon'ble Court for its consideration.

The text that I suggest to replace the GoI's proposal is as follows:

To be inserted at end of section on Industrial Areas Redevelopment Schemes in the Master Plan (ie, where the text in the Public Notice is proposed to be inserted):

"Only three clusters have been identified for redevelopment through detailed studies of the question of conforming/non-conforming and overall compatibility of industries, also the basis of Plan targets (to be monitored annually as per Monitoring Frame For Physical Development) for development / redevelopment in industrial space in Areas Of Industrial Activity (next section) and in commercial / mixed areas as per Permissibility Of Industrial Units In Different Use Zones (foregoing table) for all other units to be located / shifted. Most of this space is not indicated in Master Plan Land Use Plan and is to be shown in Zonal Plans to be prepared / modified subsequently.

In case of delay in detailed planning and/or implementation, other industrial clusters should be redeveloped by a different process guided by following imperatives of law:

  • Since redevelopment is included in definition of development u/s.2(d) of Delhi Development Act and purpose of the Act and object of its Authority u/s.6 is development according to Plan, inconsistency between development and redevelopment would obfuscate purpose of the Act and Authority. As such, redevelopment option can be exercised only to bring existing / spontaneous development as close as possible to (and not to downsize / substitute or condone implementation failures / violations of) statutory provisions for planned development.
  • As per the Act redevelopment areas are to be shown in Zonal Plans (s.8(2)c), to be prepared simultaneously or as soon as may be after (s.8(1)) and within the basic framework of the Master Plan (s.7(2)b), which states further that they "shall detail out the policies of the Master Plan and act as link between the Layout Plan and the Master Plan. The development schemes, layout plans indicating use premises shall conform to the master plan / zonal (divisional) plan". As such, especially since most Master Plan provisions for industrial space are not shown in Master Plan Land Use Plan, the redevelopment option can be exercised only through the link of Zonal Plans to ensure conformity with the Master Plan.

Clause 11.0 of the Development Code sets out regulations - in terms of prohibitions, options, schemes and processes - for such redevelopment.

To be inserted at the end of the Development Code:

"Clause11.0. REGULATIONS FOR REDEVELOPMENT OF INDUSTRIAL CLUSTERS (other than the three already identified in the Master Plan)

Redevelopment is part of the definition of development u/s.2(d) of Delhi Development Act and is aimed at the same goals while being more complex. Redevelopment areas will not be identified at level of Master Plan, except through holistic synthesis of cross-sectoral analysis of studies for comprehensive Plan revision (as done for three clusters in MPD-2001). As required by s.8(2) of the Act, redevelopment areas will be shown in Zonal Plans prepared / modified within, as required by s.7(2)(b), the basic framework of the Master Plan, that requires them to detail out its policies (which, in case of industries, are based on resolving "the question of conforming/non-conforming and overall compatibility of industries in the city") and to act as link to sub-zonal plans, that must conform to master / zonal plans. In view of these statutory imperatives, these regulations set out parameters for redevelopment of industrial clusters in terms of:

  • prohibitions (arising from the way in which the question of overall compatibility of industrial use in the city has been resolved in the Master Plan)
  • options (arising from the way in which the question of conformity/non-conformity has been resolved in the Master Plan)
  • schemes (that must, like all sub-zonal plans, conform to master plan / zonal plan)
  • process (that must ensure redevelopment remains consistent with development).

(1) REDEVELOPMENT PROHIBITIONS: The following can not be considered for redevelopment in view of prohibitions arising from the way in which the question of overall compatibility of industrial use in the city has been resolved in the Master Plan:

In view of Master Plan prohibitions for city-level compatibility / regional balance:

1.01. clusters in excess of total industrial allocation for the city (1 lakh units)

1.02. clusters of units prohibited in Delhi (viz, category-Ha and Hb)

In view of Plan stipulations for inter-Zonal balance for city-level compatibility:

1.03. clusters of extensive units in DUA-81 (Zones A-H) in excess of Master Plan allocation for such industries for the Zone (as indicated in the text in section on Areas of Industrial Activity and Land Use Plan)

1.04. clusters of extensive units in outlying Zones / Urban Extension (Zones K, L, M, N, P) in excess of Master Plan allocation for such industries in Urban Extension (total of 265 Ha)

1.05. clusters of light/service units in DUA-81 in excess of Plan allocation for them for the Zone (as indicated in the text and in Land Use Plan)

1.06. clusters of light/service units in outlying Zones / Urban Extension in excess of Plan allocation for them in Urban Extension (total 1533 Ha)

In view of Master Plan stipulations for intra-Zonal compatibility:

1.07. clusters in areas identified in Master / Zonal Plan for and developed under approved sub-Zonal plans as use-zones in which industries are not permitted, ie, 33 of 37 use-zones defined in Development Code clause-4 (other than 4.01, 4.03, 4.06, 4.07 and 4.36 in which units are permissible subject to restrictions as per Master Plan table on Permissibility of Industrial Units in Different Use Zones / Development Code clause-8(ii))

1.08. clusters in or around which requirements for handling effluent, emissions, pollution, etc, (viz, CETPs, parks/buffers) as per Development Code clause-8(i) (Sub-division of Use Zones into Use Premises) cannot be met.

(2) REDEVELOPMENT OPTIONS: If not precluded by any of the foregoing prohibitions, the following can be considered for redevelopment in view of the way in which the question of conformity/non-conformity has been resolved in the Master Plan:

In outlying zones / Urban Extension other than ridge and riverbed area, ie, Zones K, L, M, N, P, for which Master Plan Land Use Plan does not indicate use-zones (and, therefore, there can be no Master Plan Land Use violation):

  • In areas with no notified Zonal Plans (hence also no Zonal Plan violation):

2.01. clusters of mainly extensive units (400 to 3000 sqm), provided the total extensive industrial area redeveloped / developed is within 265 Ha limit.

2.02. clusters of mainly light & service units (30 to 1000 sqm), provided the total light/service industrial area redeveloped/developed is within 1533 Ha limit.

  • In areas where Zonal / sub-Zonal Plans have detailed out Master Plan provisions but mandatory monitoring reveals shortfall on targets:

2.03. areas subdivided by authorities but not being occupied, for rectification of any non-conformity with the master plan / zonal plan.

2.04. clusters in areas notified in Zonal Plan for manufacturing use-zones 4.06 and 4.07 (ie, also not in violation of Zonal Plan land use).

2.05. clusters in areas notified in Zonal Plan for use-zones 4.01, 4.03 and 4.36 (ie, in violation only of permissibility restrictions), subject to penalties (see 3.05) and to possibility of compensatory land use adjustment with undeveloped industrial / mixed use-zones in the Zone

In DUA-81 Zones A-H, for which Master Plan indicates in Land Use Plan manufacturing use-zones and requires redevelopment of existing / development of new industrial space to be detailed out subsequently in Zonal Plans:

  • Existing industrial / commercial development:

2.06. existing industrial development, requiring to be redeveloped for conformity with revised Plan provisions (by shifting non-permissible uses, etc) on priority for least-cost achievement of Plan targets

2.07. existing commercial development, requiring to be redeveloped for promoting permissible units (categories A to C), on priority for least-cost achievement of Plan targets for industries and since commercial allocations have been revised upwards for this and new commercial development could otherwise become excessive / unsustainable

  • In areas identified in Master Plan for new industrial development:

2.08. clusters in areas identified but not developed as manufacturing use-zones, ie, clusters not in violation of Master Plan / Zonal Plan land use

2.09. clusters in areas left as rural / unspecified urban use-zone (for future), subject to possibility adjustment with undeveloped industrial in the zone

2.10. clusters in areas identified but not developed as commercial use-zones (in which industries are envisaged), subject to compensatory adjustment with undeveloped commercial / industrial within the Zone and penalties (3.05)

  • In areas identified in Master Plan as use-zones in which industries are not permissible or residential use-zone (in which only category-A is permissible):

2.11. clusters in areas not developed as per approved sub-Zonal plans (ie, unauthorized colonies, etc), if industrial area redevelopment is more practical than restoring the planned use-zone, provided compensatory land use adjustment with undeveloped industrial area is possible in the same of proximous sub-Zones and subject to penalties

2.12. clusters in planned residential areas due to excess or expansion of A-category units, by creating premises for sheds / flatted factories for reorganising housing-based units without dislocation.

(3) REDEVELOPMENT SCHEMES: For clusters / areas identified for redevelopment Industrial Area Redevelopment Scheme will be prepared in conformity with master plan / zonal plan, as follows:

3.01. Like industrial development areas, industrial redevelopment areas will be unambiguously designated as a specific type of industrial use-zone as per the nomenclature in the Master Plan, viz:

  • Light & Service Industry (Flatted Factory or Service Centre or Industrial Estate or Group-specific industrial area), or
  • Extensive Industrial Estate

3.02. Like industrial development schemes, redevelopment schemes will be in accordance with Development Code regulations for sub-division of use zones into use premises (clauses 8(i)(b) and (c) for, respectively, Light / Service and Extensive industry), with relaxations only as per the following parameters:

  • Norms for CETP, Parks/buffer, arising from environmental considerations shall be adhered to, if necessary by acquisition of adjoining land (1.08)
  • Norms for facilities (0.6 Ha sub-Fire station, 1.0 Ha Police Station, 1.0 Ha Commercial, 0.5 / 1.0 Ha ESS, 1.0 / 1.5 Ha Parking, etc), for productivity, shall be adhered to as far as possible, by land acquisition if needed
  • Norms for plot size proportions / ranges (400 to 3000 sqm in Extensive and 30 to 1000 sqm in Light/Service areas, etc), meant for reasonable overall density, should also be adhered to as far as possible.
  • Circulation norms, pegged at 24 sqm for all roads in all new industrial development, are unlikely to be maintainable and Plan standard for secondary collectors (18m to 24m r/w) for approach roads and suggestion for local streets (12m r/w) for internal roads shall be the desired norm, relaxable only by reasoned consideration while making detailed scheme.

3.03. Like industrial development areas, redevelopment areas will be governed by restrictions on permissibility of other uses as set out in Development Code clause-8(ii)(A)(i to iii) and redevelopment schemes will make appropriate provisions for shifting non-permissible uses as per policies for them.

3.04. Industrial dispersal policy of the Plan is connected to the policy for integrating all classes of housing throughout the city for work-residence relationship. Redevelopment shall be synchronised with development of EWS / LIG housing according to Plan in the vicinity to take care of workers' housing.

3.05. Low-income housing and industrial use are expected to benefit from DDA's remunerative development by principle of cross subsidy across uses that is central to land policy / land-based approach to financing development. As such redevelopment schemes shall largely be financed from DDA's revolving fund (governed by s.23). Betterment charge can also be recovered in / around the scheme u/s.37, etc, and if the land is or is acquired to become public land, charges can also be levied u/s.21 for land disposal. Another source of redevelopment funds is charges already recovered by other authorities on account of non-conformity or through ad-hoc licensing (expressly prohibited by Master Plan), which could be transferred to DDA's fund or adjusted against redevelopment inputs that DDA could require from other authorities using its powers u/s.36. Redevelopment cannot become a means for condoning violations and, therefore, penalties for violations must be levied as follows:

  • Violations shall be precisely identified, ie, with reference to all levels of approved Plans (viz, Master Plan / Zonal Plan / sub-Zonal Plan) in case of land use violations and to Development Code clauses in other violations.
  • Penalties for different types of violations shall be clearly set out and levied as and if applicable to the aforementioned Options (see (2))
  • Any charges already recovered for non-conformity shall be deducted from the penalties and expedient process for this worked out in the scheme

3.06. Like industrial use premises in development areas, individual use premises in redevelopment areas shall be governed by use activity / permissibility regulations as per Development Code clause-8(iii), though controls under clause-8(iv) for buildings within them are likely to have to be relaxed and the reduced standards should be arrived at by reasoned consideration of each of the relevant provisions of clause-8(iv) and ground realties, with a view to minimising the difference between them.

3.07. As required by the proviso to s.6 of the Act, like all plans, redevelopment schemes also cannot violate any other law.

(4) REDEVELOPMENT PROCESS: The following regulations arise from the overall imperative of consistency between redevelopment and development and the recognition that redevelopment is more complex than development and that, under no circumstances, should redevelopment options be seen as an attempt to side-step development responsibilities.

4.01. Identification: Identification of areas for redevelopment in manner consistent with the Master Plan (and hence tenable in law) requires technical expertise as well as monitoring data and should be carried out by DDA Planning Wing. On its own or on application by an industry owner or worker / group or association thereof in an industrial cluster or by residents / users in its vicinity, it shall examine which clusters can be redeveloped in a Zone.

4.02. Proposal: Planning Wing's reasoned proposal for designating any area as industrial redevelopment area will be referred to High Level Policy Making Committee that formulates policy guidelines for sanctioning sub-Zonal plans (Development Code clause-3) and has representatives of MoUD, DDA, GNCTD, NDMC, MCD and DUAC and is assisted by Technical Committee of Chief Planners / Architects of DDA, local bodies, Delhi Fire Services, Civil Aviation, TCPO, MoUD, Traffic Police, DUAC, Water/ Sewage Departments.

4.03. Incorporation in Zonal Plan: Redevelopment proposals for the Zone, preferably all together, shall be put up to the Authority (having representatives of all tiers of government u/s 3(3) and Advisory Council with representatives of key departments as well as representatives of industry, labour, etc, u/s 5) for incorporation into Zonal Plan (as required by s.8(2)(c)) by due process of s.11A for plan modification or s.10 for plan preparation and approval.

4.04. Scheme: Simultaneously detailed surveys for / work on redevelopment scheme shall be started by DDA Planning Wing. The physical layout shall be prepared, if needed under guidance of Technical Committee, so as to meet all requirements of s.8(2) of the Act (since 136 Zones covered by this provision have been re-designated sub-Zones to simplify approval process, now required only for 15 Zones, and Development Code stipulations require sub-Zonal plans to ensure no dilution of content of s.8(2) of the Act. Parameters for leases and charges (as per 3.05) shall be finalised as part of the scheme, in coordination with finance and land departments, so as to conform to various provisions of the Act and land policy / revolving-fund.

4.05. Public Hearing / Defence: While the Master Plan envisages for unauthorized colonies improvement plans by residents' societies, the same is not suited for industries because industrial redevelopment is technically more complex, because even industrial development cooperatives have proved less efficient than public authorities in the past and because land policy, as such, did not contemplate industrial development in the cooperative sector. However, the opportunity for public participation that redevelopment offers through known target group should not be missed. The draft scheme could be presented / defended in Public Hearing, combined with that for s.10 / s.11A process, with focussed follow-up meetings as needed, before it is finalised.

4.06. Clearances and execution: Work on redevelopment scheme can start after necessary approvals and clearances from various authorities including those under other laws, such as Environmental Protection Act, besides those represented on the Authority, Advisory Council, High Level Policy Committee and Technical Committee for necessary coordination. This also makes DDA the most appropriate agency for executing redevelopment schemes, besides which industrial use is one of the uses that is expected to benefit from cross-subsidy across uses out of DDA's revolving fund, which makes it incumbent upon DDA to devote its financial and organisational resources for it so as not to be seen as concentrating only on remunerative development. The execution of work would also benefit if overseen by the Technical Committee.

4.07. Maintenance and management: s.36 of the Act empowers the Authority to require local authorities to assume responsibility for amenities. User participation in maintenance management is essential, but unlike in residential areas associations in industrial areas may not always be cohesive and unless sufficient evidence of their capabilities for collective maintenance is found in course of preparation of the redevelopment scheme, maintenance responsibilities for amenities created should be assigned to local authorities.

This suggestion does not have the benefit of peer review or discussion and I would be more than willing to try and improve it in light of any feedback. I urge you to please consider it seriously and look forward to hearing from you. Thanking you,

Yours sincerely

Gita Dewan Verma, Planner

Encl.

  1. Letter of 14.11.046 (1p)
  2. Letter of 24.11.047 (1p)
  3. Index page (AZ-Plan: NCMP-DMP minder: Manufacturing)8 (6p)
  4. Response to Public Notice of 21.06.049 (3p)

| Redevelopment [Industrial areas]: s.11A suggestion | Gita Dewan Verma | Planner | 02.12.2004