Industries' regularisation: Questions about legality
Gita Dewan Verma / Planner / 08.02.03


The following is the text of the letter I had sent to Secretary MoUD with
copy to DDA Vice Chairman on 21.12.02 following news reports about DDA
having accorded approval to a proposal to regularise industrial units in
24 residential areas. On 29.01.02, following press statements by Delhi BJP
chief about imminent notification of this Plan modification, I had
written, presuming mandatory Public Notice, to say that my letter be
considered a formal objection. On 04.01.02, after the Minister announced
that a Committee had been constituted, I had written to say my letter be
placed before it. Following news reports suggesting that the purpose of
the Committee is to revise an earlier affidavit submitted in court, I have
written to ask again about the legality of the proposal for studying which
the Committee was earlier stated to have been set up. More on the
regularisation moves at <http://www.architexturez.net/+/e/000117.shtml>


Sub:
Industrial land in Delhi / Master Plan provisions, etc
Ref:
News reports of DDA 'approval' for sweeping regularisation of industrial
units in 24 residential areas and my letters of 01.11.02 and 04.12.02 on
the above subject (copies enclosed)

Sir,

I am writing to you because I am unable to find in Delhi Development Act
and Master Plan any basis for the 'regularisation' under reference. I am
also unable to see any basis for the impression being conveyed that this
is a 'solution'. I wish to place on record my view in terms of the
following:


(1)        This 'decision', or at least the manner of its public projection
vis-à-vis the court deadline, is without basis. The impression being
conveyed is that a decision can be taken by DDA/MoUD to extend the court
deadline even as government has not approached the court for this. One
news reports is even titled 'DDA decides not to close industries' and
speaks of a five year time frame. In my understanding DDA/MoUD cannot
possibly have powers to take decisions amounting to nullifying or
extending deadlines set by the Apex Court. Creating this sort of
impression has, I think, serious implications for governance in general
and public respect for the court in particular.


(2)        This decision is, to put it mildly, undoubtedly a 'modification' of
the Master Plan. Even if it is within the jurisdiction of DDA/MoUD to make
such a modification (which I contend next it is not), it would require due
process under s.11A of the Act. I am unable to understand how the
impression is being conveyed that this is some 'measure' related to the
Court deadline of 31st December since s.11A requires Public Notice over at
least 30 days, followed by hearings, etc. More importantly, I am unable to
understand the presumption of eventual approval, which suggests that only
DDA/MoUD are party to this decision and there is no room for public
comment. This sort of thing undermines faith in mechanisms of public
participation in planning available in the Act.


(3)        In my opinion a modification of this nature is beyond the jurisdiction
of DDA since s.11A(1) of the Act does not permit DDA to make Plan
modifications that 'effect important alterations to the plan' or 'relate
to the extent of land users'.

(a)        This modification does 'relate to the extent of land users' as it
transfers a large amount of land from residential use allocation to
industrial at city level without compensatory land use change to restore
residential allocation. It is also in disregard of planned industrial land
use provisions and will undoubtedly open up that land to commercialization
(as evident from concurrent moves to regularize commercial use in
industrial areas). There has always been an excess of commercial space
over Plan targets in DDA's development and modifications such as these
ultimately contribute to commercialization to an extent that the city
neither needs nor can sustain. In effect, this modification drastically
distorts 'extent of land users' as contemplated across various uses in the
Master Plan and, so, is beyond DDA's jurisdiction.

(b)        The modification does 'effect important alterations in the character
of the plan' by introducing a type of use-zone not contemplated at all in
the Plan. The Master Plan does not envisage mixing of residential and
industrial uses. Sub-clause 8(ii)A prohibits residential premises in
industrial zones and industrial premises in residential zones (pp.56-58).
Even Mixed Land Use Regulations in Clause 10 do not permit manufacturing
units, except household industry, in residential premises (p.85). Details
of DDA's 'decision' are also not in line with imperatives for the three
types of use zones envisaged in the Plan that could apply to the matter:
(i)        DDA could convert the areas in question to Mixed Land Use Zones. This
would imply two things under Clause 10. One, the areas will remain
residential with household industries permissible subject to conditions
and other industries would have to be shifted out. Two, DDA would have to
carry out studies and prepare mixed land use area layouts on a
case-by-case basis. This will have to be done while preparing zonal plans
in accordance with s.8, 9 & 10 or, if zonal plans already exist, will
require their modification as per s.11A.
(ii)        DDA could convert the areas in question to Light and Service Industry
Use Zones through s.11A. This would imply two things. One, under
Sub-clause 8(ii)A, residential use will become non-permissible and will
have to be shifted out. Two, the areas would be governed by sub-division
regulations of Clause 8(i)(b) (p.55) - minimum road width of 24m, 12% area
for buffers, area for facilities @ 2.05 sqm per worker, treatment plants,
etc, which might need some de-densification even beyond shifting out of
residential units.
(iii)        DDA could extend to the areas in question provisions for Industrial
Area Redevelopment Schemes that the Plan proposed in 1990 for three
clusters (p.12). This would require s.8, 9 & 10 or s.11A process on
case-by-case basis to show the area as redevelopment area in the zonal
plan as per s.8(2)(c) and also, as per Plan provisions for redevelopment,
schemes based on proper survey/appraisal, environmental upgrading,
regularisation of units on individual merit, etc. Shifting residential
and/or industrial units might be needed.

DDA's 'decision' is an exercise of 'powers' to modify the Plan without
jurisdiction and also without responsibility of detailed planning to
ensure modifications are carefully considered. The latter is contrary to
its mandate of securing development according to Plan under s.6 of the Act
as well as to the monitoring basis for Plan modification, mandatory under
the Master Plan. (As an aside, I would like to specifically mention the
reference to road width of 18m. This is short of the minimum permissible
in the Plan for industrial zones and Mixed Use Regulations and Industrial
Area Redevelopment provisions do not contemplate general norms and require
detailed schemes. The 18m norm is, however, part of liberal conditions of
1999 permitting Nursing Homes, etc, in residential premises, now proposed
to be extended to other uses (not including industries), for which Public
Notice appeared on 15.12.02, in response to which at least one detailed
objection (mine) has been filed. DDA's decision presumes the 18m norm even
as Notice inviting objections to it as part of a proposed modification is
currently out. All this also smacks of unacceptable indifference to due
process under the Act.)


(4)        In my opinion a modification of this nature is also beyond the
jurisdiction of MoUD. S.11A(2) of the Act does empower MoUD to initiate
modifications that effect important alterations, etc. S.11A(6) also
empowers it to reject the contention that this modification is such. But
nothing empowers MoUD to make modifications contrary to the purpose and
other provisions of the Act:

(a)        Delhi Development Act is "An Act to provide for the development of
Delhi according to Plan". It is clear from s.6 that it is for this sole
purpose that DDA was created and it is for furtherance of this purpose
that public land was vested in it, under a policy of socialisation of land
explicitly aimed at securing equitable benefits in planned development.
All powers under the Act, including those under s.11A, are subservient to
the purpose of the Act and also that of land policy. If the Plan is, as it
must be, viewed not as a plannerly artifact in 'control' of DDA/MoUD but
as a document of citizens' entitlements in benefits of planned
development, it becomes obvious that modifications must, at least, protect
entitlements. Modifications for sweeping 'regularisation' of unplanned
development, in effect, deny planned development benefit altogether.
Moreover, experience has repeatedly shown that sweeping 'regularisation',
howsoever politically expedient, does no more than change label of problem
to that of solution and, so, amounts to abdication of responsibility for
planned development, taking away the basis for vesting public land in DDA.
Furthermore, this particular modification skews overall land allocations
further (indirectly) in favour of commercial use to the disadvantage
(directly) of residential and (indirectly) industrial use, with
unacceptable implications for equity and carrying capacity. Such
modifications amount to abandonment of the purpose of the Plan and of land
policy and cannot possibly have been contemplated by the Act.

(b)        This modification is also unacceptable on account of coincidence with
on-going Plan revision. As requested in my letters under reference,
planning data about status of development/use of the large amount of land
the Plan set aside for industries must form the basis for a holistic
solution to the problem of industries on land not meant for them. Since
s.7 of the Act requires civic survey basis for Plan making and the Plan
requires monitoring basis for Plan review, at the moment this planning
data is mandatory/available. Therefore, at the moment, this Plan
modification is unacceptable for taking a piece-meal approach when a
holistic one is possible and for pre-empting statutory process for Plan
revision under s.10 inclusive of greater opportunity for public
scrutiny/comment than available in case of Plan modifications u/s.11A.


In view of the above I request reconsideration of this Plan modification
so that the areas in question are carefully considered on a case-by-case
basis within the ambit of overall Plan provisions to arrive at
problem-solving rather than problem-sustaining options. And I reiterate
with urgency the request made in my letters under reference that planning
data about the status of land meant for industries in the Master Plan be
used as basis for identifying solutions from a holistic perspective. Both
requests arise from the same fundamental position that not only are
'land-less' options (like regularisation or limited/sub-standard
re-settlement) unlikely to produce durable solutions, they represent an
unacceptable denial of entitlements in benefits of planned development,
not only of industrial workers/ entrepreneurs but also of others in the
city.

Yours sincerely...