Bombay High Court
Overseas Chinese Cuisine (India) Pvt. ... vs The Municipal Corporation Of Greater ... on 1 January, 1800
Equivalent citations: 2000(1)BOMCR341
ORDER
B.N. SRIKRISHNA. J.
1. Rule , returnable forthwith. Respondents waive service through their respective Counsel. By consent, rule taken up for final hearing and heard.
2. "Gate Bheeshme hate Drone Karne cha tridiwam gate Aasha balavvatee rajan Shalyo jeshyati Pandawaan"
was the sage advice of Sanjaya to the King Dritharashtra, in the context of the Mahabharat war, assuring him that then was still hope that Shalya would defeat the Pandawas, though all the veterans like Bhisma, Drona and Kama had become hors de combati Alexander Pope, in 'An essay on man' echoed this sentiment when he said "Hope springs eternal in the human breast". This petition is paradigmatic of the spirit of never say die in litigiousness.
3. The petitioners before us challenge two orders made by the first and the second respondents dated 28th June 1999 and 9th July 1999 (at Exhibits "DD" and "GG" to the petition) rejecting the plea of the petitioners for "regularisation" of certain admittedly and blatantly illegal action on their part. In order to correctly understand, appreciate and adjudge the contentions urged before us, it is necessary to take a quick survey of the facts leading to the application made by the petitioners.
Facts
4. The first petitioner is a company incorporated under the provisions of the Companies Act, 1956 having its registered office at a building known as Om Chambers, 123, August Kranti Marg, Kemps Corner, Mumbai 400 036. The second petitioner is a share-holder and Director of the first petitioner. The first respondent is the Municipal Corporation of Greater Bombay, a Corporation established under the provisions of the Bombay Municipal Corpora-lion Act, 1888 (hereinafter referred to as the "BMC Act"), and the second respondent is the Municipal Commissioner, a statutory functionary invested with the statutory functions under the BMC Act. The third respondent is the State of Maharashtra and the fourth respondent is the Union of India.
5. Sometime in the year 1978, the building plans of the building called "Om Chambers" were sanctioned by the first respondent. In 1982 revised plans in respect thereof were also sanctioned. The second petitioner came to acquire certain premises in the said building in which it is running a popular restaurant - patronised by a large number of celebrities and the 'creme de la creme' of Mumbai-popularly known as China Garden and Piano Bar.
6. On 1st August, 1991 the first respondent Corporation issued a notice to the petitioners under section 394 of the BMC Act alleging that the petitioners had resorted to unauthorised construction and/or unauthorised utilisation of Floor Space Index (F.S.I.) in excess of that permitted under the sanctioned plans. This notice was challenged by the petitioners before the City Civil Court at Mumbai by filing Suit No. 6477 of 1997. An order was made by the City Civil Court on 28th August 1991 restraining the petitioners' user of the area alleged to be unauthorisedly used. The petitioners moved Appeal From Order No. 971 of 1991 before this Court. A second notice was also issued to the petitioners by the first respondent Corporation for removal/demolition of a mezzanine floor construction which was also alleged to be unauthorised. The petitioners filed Suit No. 4860 of 1988 before the City Civil Court and obtained orders from the City Civil Court. In Appeal From Order No. 971 of 1991, this Court made an order on 5th September 1991 disposing of the Appeal. The petitioners were permitted to approach the Bombay Municipal Corporation for regularisation of the unauthorised actions. An order was made in the companion Appeal From Order No. 972 of 1991 on 5th September 1991 by which the Appeal from order itself was disposed of. It is necessary to quote the relevant and material clauses of the order which are as under :
"(i) The impugned order dated 28th August, 1991 passed by the City Civil Court, Bombay in the said notice of motion (not yet numbered) taken out by the plaintiff in Long Cause Suit No. 6477 of 1991 is set aside and is substituted by the following order.
(ii) The appellant is at liberty to approach the Municipal Commissioner and make such representations, as he may desire, for obtaining necessary permission/licence in respect of his suit business including the application for modification of the existing user of the premises and/or for shifting the kitchen and part of the service lobby from the basement level to any higher level. The appellant to make the necessary application to the Municipal Commissioner on or before Tuesday the 10th September 1991.
(iii) The Commissioner will, as far as possible, communicate his decision on the said representations within a period of two weeks of his receiving the said representations.
(iv) In the event of the Municipal Commissioner rejecting the representation of the appellant, wholly or partly, the said order of rejection not to be enforced for a period of two weeks from the date of communication of the said order of rejection to the appellant.
(v) In the event, however, of the Municipal Commissioner accepting the representation of the appellant, the Municipal Commissioner shall give four weeks time from the date of the communication of the said order to the appellant, to enable the appellant to carry out the necessary modifications which may include shifting of the kitchen and part of the service lobby from the basement to any higher level. "
As a result of this order, the suit was disposed of. Civil Application taken out in the Appeal was also disposed of. In short, the petitioners were given an opportunity of moving the first respondent Corporation for regularising what according to the Corporation were blatantly illegal actions on the part of the petitioners.
7. Pursuant to the liberty granted by the Court, on or about 9th September 1991 the petitioners submitted a proposal for regularisation to the second respondent Commissioner. Several meetings were held in the office of the Commissioner which were attended by the representatives of the petitioners as well as the concerned officers of the first respondent Corporation.
8. On 15th/16th November 1991, the second respondent Commissioner addressed a letter to the Secretary, Urban Development Department, Government of Maharashtra, suggesting that the State Government should consider the petitioners' request for grant of additional F.S.I. in order to regularise the action of the petitioners. The Commissioner, pointed out that Rule 64(b) of the Development Control Regulations for Greater Bombay, 1991 does not authorise the Municipal Commissioner to condone construction of additional F.S.I. nor did it vest power to grant additional F.S.I., in the Commissioner. The Commissioner, therefore, suggested to the Government that the deficiencies in the construction could be condoned on payment of some amount/fine. Says, the Commissioner in the said letter:
"As already mentioned above, since the Municipal actions are not effective and the unauthorised user is likely to continue unabated, it is felt that instead of continuing with the actions as mentioned above, we may try to regularise the work by charging heavy penalty. If this is accepted in principle, then the following steps will have to be taken:
(i) Additional F.S.I. to the extent of 575 sq.mts. will have to be allowed. In the present D.C. Regulation No. 33 there is no provision for such additional F.S.I. for the purpose of Eating House. However, Government may take a view to regularise this extra creation of F.S.I., by charging a premium equivalent to the cost of land to generate the corresponding F.S.I. analogous to T.D.C. concept now introduced in the Development Control Regulations, 1991.
The unauthorised work and the user were first detected in 1985. Based on the prevailing rates at their time, the amount to be paid by the owner on the above basis works out to Rs. 50,72,784/- (excluding interest). This is only an approximate amount and will have to be finalised in consultation with the State Government. This will also be subject to withdrawal of various Court cases by the owner of the Eating House.
Since the proposal for regularisation of unauthorised work as well as change of user is pending with the Municipal Corporation, I request you to move the State Government to consider the line of action as suggested above and issue necessary instructions so that final decision in the matter can be taken."
9. On 21st December 1992, Secretary, Urban Development Department, Government of Maharashtra, replied to the Municipal Commissioner and sought clarification on certain issues.
10. By a letter dated 14th March 1992, the Municipal Commissioner once again informed the Secretary, Urban Development Department, Government of Maharashtra, pointing out that the unauthorisedly built up area was very much in excess of the area permitted under the building plans and could not be regularised under the Development Control Rules. In fact, the Commissioner appeared to take the view that permitting a post facto regularisation of utilised excess F.S.I. by imposition of a fine was likely to send wrong signals to the public at large and set a bad precedent. The Commissioner pointed out:
(vii) This type of unauthorised built up area beyond the permissible area cannot be regularised under the present D.C. Regulations 1991. My predecessor, in his D.O. Letter No. MMC/523 dtd. 16th Nov. 1991, at p. 4 has made suggestions to the Government. In fact if user is allowed to be continued, this will set a precedent for other such unauthorised works. It is therefore, not at all desirable to continue the user by giving additional F.S.I. as suggested by my predecessor. I therefore, propose to refuse the request for regularisation of the unauthorised work as well as change of user carried out and continue with the various actions already initiated to remove the said unauthorised work as well as change of user. "
11. The Municipal Commissioner thereafter heard the petitioners on several dates after previous notice. By an order made on 15th March 1994, the Municipal Commissioner rejected the representation made by the petitioners for regularisation of the unauthorised construction by the following operative order :
"1. The owner is directed to remove/demolish within 30 days all unauthorised constructions/works referred in notices already issued bearing No. D/Bldg./JE-2/2 of 85-86 dated 24-5-85 and D/Bldg/JE 2/1 of 88/89 dated 25-4-86, failing which M.C.G.B. will take further demolition action at the risk and cost of the owner.
2. The owner is directed to restore the walls and floors in Shop Nos. 19 and 20 within 30 days so that the shops and the ramp are in consonance with the approved plans. If the owner fails to restore the walls as stated above, M.C.G.B. to restore the said walls and execute the work at the risk and cost of owner.
3. The owner is further directed to stop using the area below the ramp and the rear open space within 30 days failing which further appropriate action will be taken by M.C.G.B. officials.
4. The owner is directed to fill up the area below the ramp and the excavated area beyond building line coming under the rear open space within 90 days with earth without endangering the structural stability of the building and the ramp under the supervision of a registered structural Engineer, to be directed to submit all the relevant details, of the work including design, execution and completion plan to M.C.G.B. failing which the said works would be carried out by M.C.G.B. at the risk and cost of the owner.
5. After the unauthorised works are removed and the owner cease to use the areas below the ramp and the rear open space and brings ramp and the structure of the shops in consonance with the approved plans, the application of owner for restoration of licence could be considered to the extent of area of shop as per the approved plans and after the requirements of C.F.D. are complied with."
12. Being aggrieved by the order dated 15th March 1994 made by the Municipal Commissioner, the petitioners carried the matter in Appeal under section 47 of the Maharashtra Regional and Town Planning Act, 1966 (hereinafter referred to as MRTP Act). This appeal was made to the State Government. This was summarily dismissed on the ground that it was not maintainable.
13. The petitioners thereafter filed a third suit in the City Civil Court at Bombay and took out a Notice of Motion for interim relief. The Notice of Motion having been dismissed, an appeal came to be filed in this Court vide Appeal From Order No. 518 of 1994. This Court disposed of the said appeal by taking a view that the appeal of the petitioners under section 47 of the M.R.T.P. Act was maintainable. Consequently, the order by the State Government dismissing the appeal of the petitioners under section 47 as not maintainable was set aside and the Minister was redirected to rehear the said appeal by treating it as a regular appeal under section 47 of the M.R.T.P. Act. A hearing was given to the petitioners by the Minister and by an order made on 24th August 1994, the State Government once again dismissed the appeal of the petitioners on merits.
14. The petitioners thereafter filed Suit No. 3585 of 1994 on the Original Side of this Court. The prayers in the said suit are as follows :
"(a) that this Hon'ble Court be pleased to quash and set aside the orders dated 15th August, 1994 and 24th August, 1994 Exhibits "A" and "C" hereto;
(b) that this Hon'ble Court be pleased to direct the defendants to implement the proposal of the 4th defendant's predecessor-in-office and to grant the application for regularisation of China Garden and Piano Bar on payment of premium as already calculated.
(c) that this Hon'ble Court be pleased to order and direct the defendants to allow the application for regularisation submitted on 18th October 1991 or alternatively to consider the same on merits without being influenced by extraneous or irrelevant consideration or alternatively to allow the abridged proposal submitted on 25th August 1994 or to consider the same without taking into account any irrelevant consideration.
(d) that pending the hearing and final disposal of the suit the defendants, their servants and/or agents be restrained from in any manner implementing the orders dated 15th March 1994 and 24th August 1994 (Exhibits "A" and "C" hereto) and to restrain them from taking any steps to demolish the said premises or any part thereof or from in any manner preventing the plaintiff from carrying on his business from the said premises including in particular the restaurant business of China Garden and Piano Bar."
15. A Notice of Motion being Notice of Motion No. 2325 of 1994 was also taken out for interlocutory relief in the suit. This Notice of Motion came to be dismissed by A.Y. Sakhare, J., by his order dated 9th September 1997. The learned Judge (A.J. Sakhare, J.) by a lengthy order which traces out the chequered history of litigation, came to the conclusion that there was no cause made out for granting any interim relief and dismissed the Notice of Motion. The learned Judge also expressed his prima facie view that the order dated 15th March 1994 made by the Municipal Commissioner was in accordance with law. The learned Judge observed in paragraph 11 of the said order, "11. Order dated 15-3-1994 passed by the Commissioner, Bombay Municipal Corporation is in accordance with the law. Plaintiff has constructed 575 sq. mtrs. of area unauthorisedly and in total violation of Rules and Regulations of the Corporation. Undisputedly, this is an unauthorised construction and cannot be tolerated. From year 1991, plaintiff is successful in preventing the Corporation from taking action by filing suits and taking proceedings. In my judgment, as plaintiff has made construction illegally and in total violation of the Rules and Regulations of the Corporation, the Commissioner has no powers to condone this illegality, therefore, the Commissioner was justified in rejecting plaintiff's request for regularisation."
The learned Single Judge found that the order made by the State Government on 24th August 1994 was unexceptionable as it had taken into account all contentions urged on behalf of the petitioners. A contention was also urged before the learned Single Judge by the Counsel for the petitioners that the Corporation had come up with a policy of regularisation and that the petitioners be given liberty to approach the concerned authority. The learned Judge declined to deal with this submission or make any observations thereupon, but proceeded to dismiss the Notice of Motion.
16. An appeal was carried to this Court against the order dated 9th Sep tember 1997 dismissing the Notice of Motion by Appeal No. 980 of 1997 in Notice of Motion No. 2325 of 1994 in Suit No. 3585 of 1994. The Division Bench which heard this appeal (V.P. Tipnis and Mrs. R.P. Desai, JJ.) considered in detail the contentions urged and, being fully satisfied that there was no substance in the appeal, dismissed the appeal by an order dated 12th November 1997. We may mention here that some of the facts on which the petitioners have relied this writ petition were also placed before the said Division Bench, though with a view to seeking an adjournment of the hearing of the appeal. The Division Bench remained unmoved, heard the appeal and dismissed it on its own merits. The Division Bench pointedly observed :
".. .We cannot forget that this matter has been agitated for last several years before different courts and plaintiff has succeeded in avoiding demolition of the structure, which in our opinion, is blatantly unauthorised for all these years. There is no end to the plaintiff making successive representations to different authorities to consider it again and again ......".
(emphasis ours) The Division Bench highlighted the observations made by the Municipal Commissioner in his letter dated 14th March 1993 addressed to the State Government cautioning that any regularisation of the unauthorised construction, even upon payment of premium of fine, would set a bad precedent for others to follow. We are informed by the learned Counsel for the petitioners that the matter was not carried further against the order of the said Division Bench of this Court.
17. We need to refer to one development which took place while this battle royal between the petitioners and the Bombay Municipal Corporation was being carried out in the different for a in the city. By Government Resolution dated 21st April 1995, the State Government in exercise of its powers under section 31(1) of the M.R.T.P. Act sanctioned Development Control Regulation No. 67 along with Appendix VII-A as specified in the Schedule appended to the Government Resolution and brought it into force with effect from 1st June 1995. Regulation No. 67 and the Rules in Appendix VII-A are compendiously referred to as "Heritage Regulations for Greater Bombay, 1995". They are intended to apply to and make provision for conservation of listed buildings, areas artefacts, structures and precincts of historical, aesthetical, architectural and cultural value. Broadly, Heritage Regulations impose restrictions on development, redevelopment and repairs of certain structures which are part of the heritage of the city of Mumbai and the precincts of such structures with the intention to conserve the history of heritage of the city. With a view to carrying forth these objectives, the Heritage Regulations classified several structures into Heritage Grade I, Heritage Grade II, A and B, and Heritage Grade III and imposed different restrictions with regard to the development, redevelopment, repairs or engineering operations, additions, alterations, repairs, renovations of such buildings. There are also restrictions with regard to change in skyline of heritage buildings and heritage precincts. A Committee known as "Heritage Conservation Committee" has been constituted thereunder to advise the Municipal Commissioner with regard to development, redevelopment, renovation, repairs, etc., of such heritage buildings. There are detailed provisions made with regard to these heritage buildings, which, though relevant for us in an indirect manner, are not directly concerned with the petitioners' case. The only relevant provision from the point of view of the petitioners is Rule 6 of Regulation No. 67. Rule 6 of the Heritage Regulation No. 67 provides as follows;
"6. Grant of Transferable Development Rights in case of loss of Development Rights.-If any application for development is refused under this Regulation or conditions are imposed while permitting such development which deprive the owner/lessee of any unconsumed F.S.I. the said owner/lessee shall be compensated by grant of Development Rights Certificate (hereinafter referred to as "T.D.R.") of the nature set out in Development Control Regulation No. 34 and Appendix VIII-A and as may be prescribed by Government from time to time. The T.D.R. from heritage buildings in the island city may also be consumed in the same ward from which it originated. The extent of T.D.R. Certificates to be granted may be determined by the Commissioner, if required in consultation with the Heritage Conservation Committee and will not be awarded unless sanctioned by Government."
18. The intention behind this rule is that an owner who was unable to consume the full authorised Floor Space Index (F.S.I.) on account of Heritage Regulations imposing restrictions on development/redevelopment of heritage buildings and precincts, should be compensated appropriately. The compensation is by the grant of Development Rights Certificate (D.R.C.) which are of the nature set out in Development Control Regulation No. 34 read with Appendix VII-A and subject to such prescription as the State Government may make from time to time. The Transferable Development Rights (T.D.R.) from heritage building in the island city is permitted to be consumed in the same ward from which it originates. The extent of T.D.R. certificates to be granted is to be determined by the Municipal Commissioner, if required, in consultation with the Heritage Conservation Committee, subject to the sanction of the State Government.
19. Appendix VII-A which is a part of Development Control Regulation No. 67 lays down the procedure of obtaining Development Rights Certificate (D.R.C.) and the manner of use of such D.R.Cs. and the restrictions subject to which they may be used. Clause 2 provides that a D.R.C. will be issued only on satisfactory compliance with the conditions prescribed in the Appendix. Clause 3 requires an endorsement by the Municipal Commissioner every time a holder of D.R.C. intends to transfer it to another person. Clause 4 provides that a holder of D.R.C. who desires to use the F.S.I. credit certified therein on a particular plot of land is required to attach the D.R.C. to his application for development permission. Clause 5 provides that D.R.Cs. may be used on any plot in the same ward as that in which they are originated or in any ward in the suburbs except as specified in Clause 6. Clause 6 is material and delineates the situation wherein the D.R.C. is not valid. Clause 6 reads as under :
"6. A.D.R.C. shall not be valid for use on receivable plots in the areas listed below :-
(a) On plots falling within 50 m. on roads on which no new shops are permitted as specified in sub-regulation (2) of Regulation 52.
(b) Coastal areas and areas in No Development Zones, Tourism Development Zones, and areas for which the Bombay Metropolitan Region Development Authority or Maharashtra Housing and Area Development Authority is the Special Planning Authority;
(c) On plots for housing schemes of slum dwellers for which additional F.S.I. is permissible under sub-regulation (1) of Regulation 33;
(d) Any heritage building
(e) Any heritage Precinct except with the prior approval of the Heritage Conservation Committee and subject to compliance with the regulations of the particular precinct."
Clauses 7 to 11 are not very directly relevant for the purpose of this writ petition.
20. Thus, a D.R.C. is not valid - (a) on plots falling within 50 metres on roads on which no new shops are permitted as specified in Regulation 52(2) of the Development Control Regulations and (b) in coastal areas ......" and certain other areas of no development as indicated in Clause (b).
21. Having drawn a blank throughout in all litigation, the petitioners now decided to take advantage of the Heritage Regulations for Greater Bombay, 1995 and try their luck under these Regulations.
22. Though, under the M.R.T.P. Act the 'Planning Authority' is the Bombay Municipal Corporation and as such any application to be made under the provisions of the M.R.T.P. Act has to be addressed to Bombay Municipal Corporation as the Planning Authority, the petitioners decided to bypass the Bombay Municipal Corporation and go straight to the Government.
23. On 2nd July, 1997, a letter was addressed by the second petitioner to D.K. Afzalpurkar, the then Chief Secretary of Government of Maharashtra, by which the second petitioner submitted a concrete proposal whereby the "alleged violation of F.S.E." would be rectified. After putting forth a suggestion that the petitioners would discontinue the shop user of Shop Nos. 16, 17 and 18 and convert them into garages, it was suggested that the release of F.S.I. by such conversion could be adjusted against the excess F.S.I. used by the China Garden. If, after such adjustment, there was still excess utilisation of F.S.I. by the petitioners' Restaurant, the petitioners undertook to discontinue the user of the basement to the extent of the excess utilisation of F.S.I. Interestingly, this letter, though purported to be a formal application to the State Government for regularisation of unauthorised excess use of F.S.I., is personally addressed to Afzalpurkar and terminates with the salutation "Yours sincerely".
24. On 28th July 1997, the State Government replied to the second petitioner informing him that his request could not be examined precisely in the absence of several documents and requested him to forward the mentioned documents in triplicate. On 28th July 1997, the Architect of the petitioners, acting on behalf of the petitioners, addressed a letter to K. Nalinakshan, Principal Secretary, Urban Development, Government of Maharashtra, pointing out that the excess F.S.I. consumed by the petitioners could be adjusted by conversion of shops bearing Nos. 16, 17 and 18 admeasuring 1638.75 sq. ft. into parking spaces (stilts free of F.S.I.) and utilising the consequent F.S.I. against the excess F.S.I. utilised in China Garden. The Architect also suggested, "......after adjustment, if there is excess F.S.I. consumption, our client is agreeable to avail the T.D.R. of Heritage buildings which could be utilised in the same ward".
25. On 30th August 1997, another letter was addressed to D.K. Afzalpurkar, Chief Secretary, Government of Maharashtra, by the second petitioner putting forth the details of the proposal by which the excess F.S.I. consumed by the petitioners' Restaurant and Bar could be regularised. There was also grievance made in this letter that the Municipal Commissioner had refused to consider the case as per the existing policy and without the "required amount of sympathy".
26. On 30th August 1997, the Government of Maharashtra addressed a letter to the second petitioner acknowledging receipt of his letter dated 28th July 1997, but pointed out that the information called for earlier had not been submitted.
27. On 4th September 1997, the second petitioner gave the information called for and pointed out that condonation on five different heads were needed for regularisation.
28. On 17th October 1997, the Government of Maharashtra responded to the second petitioner's letters dated 2nd July 1997 and 4th September 1997. He was informed that the proposal made by him for regularisation of excess F.S.I. user for China Garden Restaurant was being sent to the Municipal Corporation of Brihan Mumbai for examination and report "whether the same can be regularised in view of the suggestions" given by the letter of the petitioners with regard to heritage F.S.I. and surrendering shops 16, 17 and 18 and regularisation of the mezzanine floor under the proposed rules. The second petitioner was also informed that the Corporation had been directed to give him 45 days time to produce documents and thereafter decide the case within 45 days. A copy of the said letter was endorsed with compliments to the Municipal Commissioner of Bombay Municipal Corporation who was requested to inform the Government "if regularisation is not possible within the rules".
29. On 13th January 1998, the Personal Secretary to the Municipal Commissioner addressed a letter to the second petitioner and called upon him to submit a regular proposal through his Architect to the Executive Engineer, Building Proposals (City).
30. On 14th January 1998, the second petitioner was informed by the State Government that his proposal for regularisation of unauthorised floor space had been forwarded to the Bombay Municipal Corporation and that the Commissioner had been directed to grant him 45 days for production of the requisite documents and thereafter to decide the issue of regularisation within another 45 days. By the said letter, the Government agreed to grant extension of time limit for a further period of 45 days.
31. By a letter dated 13th April 1998, the Principal Secretary to Government, Urban Development Department, clarified to the Municipal Commissioner that the heritage T.D.R earned "on account of surrendering land reserved for recreation ground" in "D" ward in the case of land bearing C.S. No. 26 Malabar Hill Division, Banganga Road, Walkeshwar could be utilised on any land situated in the same ward, regardless of the fact that the land in question is situated within the island city or otherwise. We may emphasise here that this is not a letter addressed to the petitioners, since something turns thereupon. This is a clarification by the Urban Development Department of the State Government given to the Municipal Commissioner with regard to the usage of heritage T.D.R of a certain plot.
32. On 20th May 1998, the Architect of the petitioners addressed a letter to the Executive Engineer (Building Proposals) City, Municipal Corporation of Greater Mumbai in connection with the proposal for regularisation of the China Garden Restaurant. He enclosed along with the letter a D.R.C for heritage T.D.R dated 8th May 1998, the plan with proforma. Consent from the owner of the property, notices under section 342 of the B.M.C. Act and under section 44/69 of the M.R.T.P Act, Structural Engineers stability Certificate, Scrutiny Fees and Agreement for shops 19, 20 and 21 as ownership document. On the strength of these documents, the petitioners requested that those documents be scrutinised and the approval sought for be granted. The Municipal Commissioner was generally reminded that the Municipal Corporation had come out with a policy of regularisation of unauthorised mezzanine areas and that the petitioners' unauthorised mezzanine floor may also be regularised under this policy which was declared on 15th August 1997. We shall have occasion to deal with and comment upon the agreement dated 3rd June 1998 by which the petitioners obtained certain rights in the D.R.C. dated 8th May 1998 and the Development Rights Certificate itself.
33. On 28th May 1998, the second petitioner wrote to the Executive Engineer (Building Proposals) City undertaking to abide by the policy of the Corporation in relation to regularisation of mezzanine which was under formulation and yet to be finalised. He also undertook to comply with such conditions as may be imposed thereunder regarding payment of premium, if any. He also suggested that if the Municipal Corporation decided not to go ahead, then he shall take such alternative steps as are necessary to regularise the mezzanine including obtaining heritage F.S.I. if required.
34. On 11th June 1998, the Assistant Engineer, Development Plan (City), informed the petitioners that the land comprised in C.S. No. 565, Malabar Hill Division on August Kranti Road was not reserved for any public purpose, that the land was situated in a "residential zone with shopline facing August Kranti Road" as indicated in blue line on the plan. He specified, "However, the development shall be as per the provisions of Regulation No. 52(2)(d) of D.C. Regulations for Greater Mumbai, 91." He also pointed out that the land under reference abuts the designation of existing Cemetery as shown distinctly on the plan. Finally, he pointed out that "The land under reference falls within the Coastal Area Regulation Zone as per the Government of India Notification under S.O. No. 114(E) of 19-02-1991." He expressed a reservation that the remarks had been offered only from the zoning point of view without carrying out actual inspection at the site and without any reference to the existence and status of the structure, if any, on the land under reference.
35. On 19th June 1998, the second petitioner pointed out to the Municipal Commissioner that the total built up area sought for regularisation was 5333.32 sq. ft. (as against the permitted area of 789.70 sq.ft). He also attached a certificate of a registered valuer to show that the total investment in the project would be Rs. 1,76,64,980/-. The second petitioner also filed an Indemnity Bond dated 19th June 1998 indemnifying the Corporation from any legal actions, loss, suit, damage, etc. in case as per the guidelines of the Environment and Forest Ministry the investment in the proposed work exceeded Rs. 5 crores.
36. By the letter dated 6th November 1998, the petitioners once again appealed to the Secretary, Urban Development Department, Government of Maharashtra, for regularisation of the irregularities found in the Restaurant. The petitioners entered into an agreement dated 1st July 1999 with one Pukhraj Chunilal Bafna for buying the heritage T.D.R. of 136.50 sq. mtrs. and forwarded the D.R.C. dated 4th January 1999 in connection therewith to the first respondent in support of the application for regularisation of the irregularities found in the Restaurant.
37. On 6th May 1999, K. Nalinakshan, Principal Secretary, Urban Development Department, Government of Maharashtra, addressed a letter to the Municipal Commissioner in which he drew attention of the Municipal Commissioner to Development Control Regulation No. 64(b) which empowered the Commissioner to condone any dimensions prescribed in the Regulations and said "...After examining the hardship aspect, you may do the needful as above" in connection with utilisation of heritage T.D.R. He further stated that as the Restaurant was existing prior to 1991, the contention about applicability of Regulation 52(2)(d) and 52(4)(xiii) was justified and the same was being upheld. Finally, with regard to regularisation of mezzanine floor, it was pointed out by the Principal Secretary that the proposal of the Corporation in this regard had not been yet finally sanctioned and that regularisation thereof may be considered as per the Regulations pertaining to heritage T.D.R. and the Development Control Regulations in force. After having given these directions to the Municipal Commissioner, the Government disposed of the second petitioner's application by its communication dated 10th May 1999 by informing him that the request made by him to the Municipal Corporation of Greater Mumbai for regularisation of the Restaurant against heritage T.D.R. brought by him would now be finally decided by the Municipal Corporation since the Government had issued necessary clarifications/instructions to the Corporation and that he should approach the Corporation regarding regularisation of his application.
38. The Corporation considered the petitioners' application dated 21st May 1998 and by an order dated 28th June 1999 (Exhibit "DD" to the Writ Petition), rejected the application. It is pointed out in this order that the order of the Municipal Commissioner dated 15th March 1994 was still binding on the petitioners. It was further pointed out that the heritage T.D.R. intended to be purchased by the petitioners was "not acceptable as per the terms of present Regulations governing the use of T.D.R.". Hence, the Corporation had come to the conclusion that "actions taken by the petitioners till date did not fulfil the requirements of law to create a situation wherein the irregular works pointed out earlier can be regularised". The second petitioner was, therefore, called upon to remove unauthorised works within 21 days, failing which the Corporation threatened removal of the said unauthorised works not in keeping with Development Control Regulations at the risk and cost of the petitioners.
39. By a letter dated 3rd July, 1999 addressed to the Deputy Chief Engineer (Building Proposals) City, Brihan Mumbai Mahanagar Palika, Mumbai with copy to K. Nalinakshan, Municipal Commissioner, the second petitioner protested against the decision taken by the Deputy Chief Engineer and maintained that he had been "directed" in January 1998 to submit a regular proposal through his Architect to the Executive Engineer, (Building Proposals) City. He also maintained that he had proceeded "on the basis of the assertion held out by the State Government itself" that heritage T.D.R. intended to be purchased by the petitioners could be utilised for lands situated in the same ward and on that basis the petitioners had purchased the T.D.R. prior to submitting application for regularisation on 21st May 1998 at huge expense. He also referred to the internal correspondence between the Urban Development Department and the Municipal Commissioner and pointed out that all requisite clarifications had been issued by the State Government to the Municipal Commissioner and he had been advised to approach the Corporation regarding regularisation. Finally, the second petitioner wound up by pleading that huge amounts had been expended by him in procuring the T.D.Rs. on the "legitimate expectation and the bona fide belief" that the regularisation application was fully complete with all the necessary provisions of law and that he had acted "on the basis of various representations held out by the Corporation and the Government". In these circumstances, the petitioners protested that it would be unfair and discriminatory if they were now told that the T.D.Rs. were not acceptable for any reasons whatsoever.
40. By a final communication dated 9th July 1999 addressed to the petitioners, the petitioners were informed that there was no substance in their protest and that after scrutiny of the proposal "....in the light of the present rules, regulations and guidelines of M.O.E.F. in respect of the properties situated in coastal regulation zone.." it had been found that the heritage T.D.R. intended to be purchased by the petitioners was not acceptable "....as per the terms of present regulations governing the use of T.D.R.". The petitioners were directed to remove the unauthorised works on or before 19th July 1999 failing which they were threatened with necessary removal action under law.
41. It is against these two orders dated 28th June 1999, Exhibit "DD", and 9th July 1999, Exhibit "GG", that the petitioners are before this Court by the present writ petition.
42. At the outset, Mr. Singhvi, learned Counsel appearing for the first respondent Corporation strongly urged that this writ petition ought not to be entertained as it seeks exactly the same relief and is based on the same cause of action as in Suit No. 3585 of 1994 which is pending on the Original Side of this Court. He contends that this writ petition is a gross abuse of the process of law and entertaining it or granting any relief therein would put premium on abuse of the process of law. He points out that admittedly the petitioners have made unauthorised construction and consumed about ten times the permissible F.S.I. The Restaurant and Bar have been running from 1991 without license. These facts are not disputed by the petitioners. According to Mr. Singhvi, the establishment of the petitioners flouts all Fire Regulations and is a veritable firetrap and if there is an unfortunate fire therein, several innocent lives would be lost. Mr. Singhvi also contended that a writ petition invoking the discretionary jurisdiction under Article 226 of the Constitution must necessarily appeal to equity, and considering the peculiar facts and circumstances of the case, the Court should decline to exercise its extra ordinary, equitable and discretionary jurisdiction under Article 226 of the Constitution.
43. The learned Counsel for the petitioners, on the other hand, submitted that the petition as filed is entirely maintainable as it is based on a totally different cause of action. When we pointedly drew the attention of the learned Counsel to the prayer clauses in the plaint filed in Suit No. 3585 of 1994 and those in the writ petition itself which are not only identical in substance, but also in language, the learned Counsel for the petitioners contended that though the relief claimed may have been the same, the cause of action on which the relief in the petition was founded is entirely different.
44. The thrust of the contentions of the petitioners is that the action of the respondent Corporation in rejecting the application dated 21st May 1998 for regularisation of the irregularities found by way of consumption of excessive F.S.I. is unfair, discriminatory, arbitrary and liable to be interfered with in writ jurisdiction. What is the provision of law under which this application dated 21st May 1998 was made? Initially, the learned Counsel for the petitioners insisted that this was an application under the provisions of section 53 sub-section (3) of M.R.T.P. When confronted with the arguments of the respondent Corporation that the provisions of section 53(3) were quasi-judicial in nature and did not permit repeated applications being made ad infinitum for the same reliefs, notwithstanding the initial vehemence, the petitioners toned down their argument and contended that if the Court comes to the conclusion that the application dated 21st May 1998 does not fall within the parameters of section 53(3) of the M.R.T.P Act, then they would rely on the doctrine of "legitimate expectation" to breathe life into It.
Is the application tenable?
45. At the outset, it is necessary to clear up one issue. We are of the view that an application for "regularisation" is a notion alien to the provisions of the Bombay Municipal Corporation Act or M.R.T.P Act, both of which deal with situations of constructions/development of land contrary to rules. In such a situation, under either Act there is a provision for a show cause notice being issued to the developer/owner/occupier and after hearing him if the Commissioner is satisfied that the structure is contrary to or in excess of the building permission, the Commissioner is empowered to call upon the owner/ occupier/developer to demolish or alter the structure so as to conform to the Regulations. In fact, the provisions of section 53 of the M.R.T.P Act are very relevant and give an important right of retention to the owner who has carried out development of land contrary to the provisions of section 52. Section 53 of the M.R.T.P. Act provides that in such a case the Planning Authority shall issue him a notice calling upon him to require the demolition or alteration of any building or works or the carrying out on land of any building or other operations or the discontinuance or any use of any land. Sub-section (3) provides that the aggrieved person may, within the time allowed by the notice and in the prescribed manner, apply for permission under section 44 of the M.R.T.P Act for "retention on the land of any building or works or for continuance of any use of the land to which the notice relates". Once this is done, pending the final determination or withdrawal of the application, the owner is given the liberty of retention of the offending building or works. Sub-section (5) provides that if such application is granted, then the notice is deemed to have been withdrawn. If such notice is dismissed, then the owner is liable to carry out what is directed under the notice, namely, demolition, alteration of any building or works and so on. An order made under section 44 is appealable under section 47 to the State Government.
46. In the instant case, after plenty of litigation, the Commissioner was directed to treat the application made by the petitioners as one under section 53 and the Commissioner did make an order on 15th March 1994 declining to grant permission sought for retention of the offending structure. This order was subjected to an Appeal under section 47 before the State Government. The State Government by its order dated 24th August 1994 dismissed the Appeal and upheld the Commissioner's order. In other words, an application for retention under sub-section (3) of section 53 pursuant to a notice under sub-section (2) of section 53 had already been made, rejected and subjected to an appeal, which also failed. We are in agreement with the view expressed by a learned Single Judge of this Court (A.C. Agarwal, J. as he then was) in C.J. Kanga, Administrator of Municipal Corporation of Greater Bombay and another v. S.S. Basha, Appeal From Order No. 67 of 1987 that an order of this nature must be treated as an exercise of quasi-judicial power and not mere administrative power. The learned Judge was construing the provisions of section 351 of the Bombay Municipal Corporation Act and we think that the observation made in connection with section 351 are equally true of an application made under sub-section (3) of section 53 of the M.R.T.P. Act, namely, that the order made is quasi-judicial and further that such an order is neither revisable, nor open to review, in the absence of a specific provision in the statute. We, therefore, agree with the contention of Mr. Singhvi that an application under sub-section (3) of section 53 of the M.R.T.P, Act can only be pursuant to a notice issued under sub-section (2) of section 53 and once such application has been disposed of and the Appeal there against has come to an end, there is no scope for repeated applications being made under section 53(3) of the M.R.T.P. Act. We are, therefore, unable to accept the contention urged by the petitioner that their application dated 21st May 1998 must be deemed to be one under section 53(3} of the M.R.T.P. Act, nor are we impressed by the contention that such applications can be entertained ad infinitum depending on the variation in the circumstances.
47. In fact, such a contention was urged in a somewhat similarly situated case dealing with contravention of the Development Control Regulations and was substantially rejected by the Division Bench of this Court in Appeal No. 231 of 1990 (Per C. Mookerjee, C.J. and G.H. Guttal, J. dated 9th March 1990). The Division Bench of this Court observed, "We have carefully perused the orders both of the Deputy Commissioner who had rejected the application under section 44 as not maintainable and also the order of the Appellate Authority upholding the same. In our view, the said authorities did not fail to exercise the jurisdiction vested in them by law. They also did not commit any error apparent on the face of record by refusing to entertain the second application under section 44 of the Act made by the appellant peti-
tioner society. .... The said second application under section 44 was prima facie not maintainable. As already stated, after service of a notice under section 53(2) of the Act, the appellants had made a previous application under the said provisions. Being aggrieved by the order passed thereon, they had preferred an appeal which was also unsuccessful. .... The principles analogous to res judicata may not be attracted. But there is no reason to contend that even after the matter has progressed and finality has been reached the executing authorities are at liberty to retrace their steps and to set aside the cancel final orders already passed. ..."
48. Thus, in our view, there is no doubt that the application dated 21st May 1998 could not have been considered as an application under section 53(2) of the M.R.T.P. Act or entertained thereunder.
Promissory Estoppel
49. Mr. Manohar, learned Counsel who argued the petition with commendable astuteness, at one stage contended that the doctrine of promissory estoppel would come to the rescue of the petitioners. He relied on the judgments of the Supreme Court in Union of India v. Godfrey Philips India Ltd., , and Express Newspapers Pvt. Ltd. v. Union of India, in support of his contentions. In our view, this contention is wholly misconceived. In order to put forth such a contention, the petitioners must demonstrate clearly that a representation was made to them by some one who could have granted relief that if the petitioners followed a course of conduct they would be granted relief; and it must also be demonstrated that pursuant to the said representation, the petitioners had altered their stand to their prejudice. In our view, neither of these factors is present in the instant case. All that the learned Counsel for the petitioners was able to show was correspondence with the State Government ending with the gratuitous advice that the petitioners may approach the Municipal Commissioner for appropriate decision in the matter. In the first place, the petitioners are not able to show that the State Government could have granted condonation of excessive consumption of F.S.I. on the part of the petitioners' Restaurant. It is not in doubt - may it could not be doubted - that the only authority who could have considered such an application under the M.R.T.P. Act is the "Planning Authority" which, in the instant case, is the Bombay Municipal Corporation. Merely because the petitioners addressed a letter to the Chief Secretary personally and ended it with the salutary clause "Yours sincerely" (perhaps based on previous friendship or acquaintance) and the Chief Secretary referred the matter to the Urban Development Department which corresponded with the Municipal Commissioner on the mechanics of regularisation, we are unable to hold that there was any representation made to the petitioners by any one in the authority that the flagrant violation of the F.S.I. norms - almost nine and half times what was permitted - would be condoned if the petitioners adopted any particular course of conduct. In fact, we notice from the correspondence that the idea of utilising heritage TDR to get over the excessive consumption of F.S.I. was actually mooted by the petitioners and not by the State Government. All that the State Government did was to forward the proposal to the Municipal Commissioner for consideration and direct the petitioners to make a formal proposal. One additional thing that the State Government did - perhaps not warranted by the provisions of the Act - was to give the petitioners some time to produce the docu-
ments required by the Commissioner. By no stretch of imagination can this be called an act of representation or holding out on the part of the State Government sufficient to buttress the argument of promissory estoppel. When we turn to the conduct of the Municipal Commissioner, we find even less scope for this argument. All that the Commissioner did was to call upon the petitioners to make a formal proposal through his Architect. The formal proposal was made, scrutinised in accordance with law and the applicable Regulations, and rejected for reasons given in the orders of the Deputy Chief Engineer. We are unable to hold that there was any act on the part of the Corporation which, even remotely, could be considered as a representation or holding out of promise to the petitioners sufficient to found the argument of promissory estoppel. In our view, therefore, the argument based on promissory estoppel has no substance and must fail.
"Legitimate Expectation"
50. When we pointed out the difficulty in their way in accepting the contention that the application dated 21st May 1998 would be tenable under sub-section (3) of section 53 of the Act, the learned Counsel for the petitioners changed tack and contended that, irrespective of whether the petitioners had a right to make an application dated 21st May 1998 or not, the petitioners had a "legitimate expectation" that their application would be considered fairly and rationally in view of the circumstances of the case. Such legitimate expectation having been belied, the petitioners contend that they are entitled to the relief as prayed in the present writ petition. We must say this, at first blush, is a very attractive argument which may, if not subjected to critical appraisal, carry weight. Several authorities were cited at the bar to delineate the exact contemporary contours of this doctrine of "legitimate expectation".
51. Though the learned Counsel for the petitioners have referred to a number of judgments of the Court of Appeal and Privy Council in England and the Supreme Court of this country, we prefer to refer to and rely upon the latest judgment of the Supreme Court on the subject, in Punjab Communications Ltd. v. Union of India", 1993(3) SCALE 149 since it has dealt with almost all cases cited by the petitioners. This judgment has explored the contours of the doctrine of legitimate expectation in Administrative Law as it exists today starting from the case of Council of Civil Service Unions v. Minister of Civil Services, 1985 A.C. 374 through the judgment in Attorney General for N. S. W. v. Quinn, 1990(93) A.L.R. 1 down to the judgment in National Buildings Construction Corporation v. S. Raghunathan & others, striking a somewhat discordant note. The Supreme Court in Punjab Communications Ltd. (supra) was dealing with a situation where the State of Punjab had rejected the tender of the appellant before the Supreme Court on the ground that A.D.B. loan of the Asian Development Bank soft loan of US 113 million Dollars which had been promised earlier for funding a project meant to provide digital wireless telecom facility had failed to materialise. At one time when the A.D.B. loan lapsed, the State Government had taken a decision to go ahead with the project by expending its own funds, but later the Government was of the view that the scheme regarding telephones in rural areas must cover not only the villages in Eastern Uttar Pradesh but also in other backward rural areas in other States. The Government on the basis of facts before it, changed its policy and gave up the notification calling for bids for Eastern Uttar Pradesh. The principal contention urged before the Supreme Court was that, in view of what the State Government had done earlier, the appellant before the Supreme Court had a 'legitimate expectation' of having his tender being considered and in defeating such legitimate expectation, the State Government had acted arbitrarily, discriminatorily and irrationally so as to fall foul of Article 14 of the Constitution.
52. The Supreme Court pointed out in Punjab Communications Ltd. (supra) that the principle of legitimate expectation was still in a stage of evolution, that basically the root of the principle is the rule of law which and requires regularity, predictability and certainty in Government's dealings with the public. After referring to the origin of this principle in English Administrative Law and the enunciation of this principle by Lord Diplock in Council of Civil Service Unions (supra), the Supreme Court pointed out that even in the Civil Service Unions case (supra), the English Court had held that for a legitimate expectation to arise the decisions of the administrative authority must affect the person by giving him some benefit or advantage either (i) he had in the past been permitted by the decision maker to enjoy and which he can legitimately expect to be permitted to continue to do until there has been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment; or (ii) he has received assurance from the decision maker that they will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn. The procedural part of it relates to a representation that a hearing or other appropriate procedure will be afforded before the decision is made. The substantive part of the principle is that if a representation is made that a benefit of a substantive nature will be granted or if the person is already in receipt of the benefit that it will be continued and not be substantially varied, then the same could be enforced. In the above case, Lord Fraser accepted that the civil servants had a legitimate expectation that they would be consulted before their trade union membership was withdrawn because prior consultation in the past was the standard practice whenever conditions of service were significantly altered. Lord Diplock went a little further, when he said that they had a legitimate expectation that they would continue to enjoy the benefits of the trade union membership. The interest in regard to which a legitimate expectation could be had must be one which was protectable. An expectation could be based on an express promise or representation or by established past action or settled conduct. The representation must be clear and unambiguous. It could be a representation to the individual or generally to class of persons.
53. Observed the Supreme Court (vide paragraphs 28 & 29):
"28. The principle of substantive legitimate expectation, that is, expectation of favourable decision of one kind or another, has been accepted as part of the English Law in several cases. (De Smith, Administrative Law, 5th Ed) (Para 13.030); (See also Wade, Administrative Laws, 7th Ed.) (pp 418 - 419). According to Wade, the doctrine of substantive legitimate expectation has been rejected "by the High Court of Australia in Attorney General for N.S.W. v. Quinn, 1990(3) A.L.R. 1 (But see Teon's case referred to later) and that the principle was also rejected in Canada in Reference (Re Canada Assistance Plan), 1991(83) D.L.R. (4th) 297 : 1991(2) S.C.R. 525 but favoured in Ireland : Canon v. Minister for the Marine, 1991(1) I.R. 82. The European Court goes further and permits the Court to apply proportionality and go into the balancing of legitimate expectation and the public interest.
"29. Even so, it has been held under English law that the decision maker's freedom to change the policy in public interest, cannot be fettered by the application of the principle of substantive legitimate expectation. Observations in earlier cases project a more inflexible rule than is in vogue presently. In (Re Findlay), 1985 A.C. 318 the House of Lords rejected the plea that the altered policy relating to parole for certain categories of prisoners required prior consultation with the prisoner. Lord Scarman observed :
"But what was their legitimate expectation. Given the substance and purpose of the legislative provisions governing parole, the most that a convicted prisoner can legitimately expect is that his case be examined individually in the light of whatever policy the Secretary of State sees fit, to adopt provided always that the adopted policy is a lawful exercise of the discretion conferred upon him by the statute. Any other view would entail the conclusion that the unfettered discretion conferred by statute upon the minister can in some cases be restricted so as to hamper or even to prevent changes of policy."
54. After dealing with the judgments in Naujyoti Co-op. Group Housing Society v. Union of India, ; Food Corporation of India v. M/ s. Kamdhenu Cattle Feed Industries, ; Union of India v. Hindustan Development Corporation, ; Madras City Wine Merchants 'Association v. State of Tamil Nadu, ; MP. Oil Extraction v. State of MP., and National Buildings Construction Corporation v. S. Raghunathan & others, , the Supreme Court (vide paragraph 37) summed up the principle as under:
"The above survey of cases shows that the doctrine of legitimate expectation in the substantive sense has been accepted as part of our law and that the decision maker can normally be compelled to give effect to his representation in regard to the expectation based on previous practice or past conduct unless some overriding public interest comes in the way. The judgment in Raghunathan's case requires that reliance must have been placed on the said representation and the representee must have thereby suffered detriment."
55. Again in paragraph 38, the Supreme Court observed :
"The more important aspect, in our opinion, is whether the decision maker can sustain the change in policy by resort to Wednesbury principles of rationality or whether the Court can go into the question whether decision maker has properly balanced the legitimate expectation as against the need for a change? In the latter case the Court would obviously be able to go into the proportionality of the change in the policy."
56. The Supreme Court in Punjab Communications Ltd. (supra) emphasised that the Wednesbury principle had been accepted as a legitimate test in English Administrative Law and quoted with approval the observations of Laws, J., in R. v. Secretary of State for Transport ex parte Richmond upon Thames London BC., 1994(1) W.L.R. 74 as under :
"The Court is not the Judge of the merits of the decision maker's policy .... the public authority in question is the Judge of the issue whether 'overriding public interest' justifies such a change in policy ... But that is no more than saying that a change in policy, like any discretionary decision by a public authority, must not transgress Wednesbury principles."
57. And finally, after tracing how the enunciation of the test by Laws, J., was dissented from Sedley, J., in R. v. Ministry of Agriculture, Fisheries & Food, ex parte Hamble Coffshore Fisheries Ltd., 1995(2) All.E.R. 714 and how the judgment of Sedley, J., was overruled by the House of Lords in R. v. Secretary of State for the Home Department and another, ex parte Hargreaves, and others, 1997(1) W.L.R. 906(A), the Supreme Court observed :
"The result is that change in policy can defeat a substantive legitimate expectation if it can be justified on Wednesbury reasonableness. We have noticed that in Hindustan Development Corporation, case, 1993(3) S.C.C. 449 also it was laid down that the decision maker has the choice in the balancing of the pros and cons relevant to the change in policy. It is, therefore, clear that the choice of the policy is for the decision maker and not for the Court. The legitimate substantive expectation merely permits the Court to find out if the change in policy which is the cause for defeating the legitimate expectation is irrational or perverse or one which no reasonable person could have made."
58. The Supreme Court in Punjab Communications Ltd. (supra) also quoted with approval the following observations of Simon Brown, L.J., in R, v. Commissioner of Inland Revenue, ex parte Unilever Plc., 1990 (Vol. 68) Tax Cases 205:
"Of course legal certainty is a highly desirable objective in public administration as elsewhere ... the central Wednesbury principle is that an administrative decision is unlawful if'... so outrageous in its defiance of logic of or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. The flexibility necessarily inherent in that guiding principle should not be sacrificed on the altar of legal certainty."
59. Finally, the Supreme Court says in paragraph 42 :
"In sum, this means that the judgment whether public interest overrides the substantive legitimate expectation of individuals will be for the decision maker who has made the change in the policy only if they are satisfied that the decision is irrational or perverse. (See 1997 Public Law, 375 "Wednesbury Protection of Substantive legitimate expectation by Christopher Forsyth)..."
60. We notice in paragraph 45 of the said judgment, that ultimately the Supreme Court applied the Wednesbury principles to adjudge whether the change in policy by the State of Uttar Pradesh was irrational or perverse. Since in its view there was no irrationality or perversity by test of Wednesbury principles, the decision of the State Government was upheld.
61. Most of the judgments that the learned Counsel for the petitioners cited have been considered in the judgment in Punjab Communications Ltd. (supra). The petitioners cited the following judgments :
(1)Arjun Singh v. Mohindra Kumar, .
(2) R.R. Verma v. Union of India, .
(3) Attorney-General of Hong Kong v. Ng Yuen Shiu, 1983(2) A.C. 629.
(4) Usman Gani J. v. Cantonment Board, .
(5) Navjyoti Co-op. Group Housing Society v. Union of India, .
(6) Food Corporation of India v. M/s Kamdhenu Cattle Feed Industries, 1993(2) S.C.C. 71.
(7) Sultan Singh v. State of Haryana, .
(8) State of Tamil Nadu v. K. Sabanayagam, .
(9) M.P. Oil Extractions. State of M.P., .
62. Now that the doctrine of legitimate expectation has been sufficiently adumbrated, we may undertake the task of applying it to the facts before us. What exactly does it mean when petitioners contend that they had a legiti-
mate expectation of the irregularities of the first petitioners' Restaurant being regularised? That notwithstanding any legal provision to the contrary, they had such expectation, or does it mean, if otherwise permissible in law and otherwise permissible in the discretion of the Municipal Commissioner, there was a legitimate expectation that regularisation would be granted? If the former, then the expectation can hardly be legitimate; it would actually be an illegitimate expectation, for no one can have an expectation that a public authority would act contrary to law. If the latter, then we have to decide whether the decision of the first respondent in rejecting the petitioners' request made in the application dated 21st May 1998 fails by application of the Wednesbury principle.
63. By the two impugned orders dated 28th June 1999, (Exhibit "DD") and dated 9th July 1999, (Exhibit "GG") what exactly did the first respondent Corporation convey? By the letter dated 28th June 1999 the Corporation stated that the heritage T.D.R. intended to be purchased by the petitioners was not acceptable "as per the terms of the present Regulations governing the use of T.D.R." and by the second order dated 9th July 1999, the Corporation reiterated that after scrutinising the proposal of the petitioners "in the light of the present Rules. Regulations and Guidelines of MOEF in respect of the properties situated in Coastal Regulation Zone", it was found that the heritage T.D.R. intended to be purchased by the petitioners was not acceptable "as per the terms of the present Regulations governing the use of T.D.R." . The Counsel for the petitioners were vociferous in contending that the reasons given in both these impugned orders were cryptic, if not indecipherable. It is contended that merely rejecting the T.D.R. on the ground that it does not fulfil the Regulations or rejecting on the ground that it is deviant from the Rules, Regulations and Guidelines pertaining to use of T.D.R. in Coastal Regulation Zone, does not make the petitioners wiser. True, if the petitioners do not carefully read the applicable rules or the notification pertaining to Coastal Regulation Zones, they would not become wiser. With a view to testing by the Wednesbury principle the Commissioner's decisions, we called upon Counsel to address us on the specifies of the Heritage T.D.R. Regulations as well as the restrictions on utilising heritage T.D.R. in Coastal Regulation Zone. At the end of the day, after lengthy debate, we find ourselves unable to disagree with the view taken by the Commissioner for reasons which we shall presently elaborate.
64. By Notification dated 19th February 1991 issued under exercise of powers under section 3(1) and section 3(2)(v) of the Environment (Protection) Act, 1986 and Rule 5(3)(d) of the Environment (Protection) Rules, 1986, the Government of India in the Ministry of Environment and Forests brought into force several Rules/Regulations which severely restrict development and construction activity in areas which are known as "Coastal Regulation Zone (C.R.Z.)" as defined in the said Notification. There is a clarification issued by the Ministry of Environment and Forests, Government of India, by its letter dated 8th September 1998 as to what the word "existing" used in the C.R.Z. Notification means and a letter dated 1st February 1999 addressed by the Government of Maharashtra, Urban Development Department, to the Secretary, Ministry of Environment and Forests requesting that the clarification issued vide paragraph 3 of the Government of India's letter dated 8th September 1998, would lead to harsh consequences and requesting that it may be notified suitably. The learned Counsel for the Union of India as well as the learned Advocate General representing the State Government of Maharash-tra both agree that, despite the letter of the Government of Maharashtra dated 1st February 1999, there has been no change in the stand of the Central Government with regard to the policy of application of the C.R.Z notification. Not only is this fact conveyed to the Court, but both the learned Advocate General and the learned Counsel for the Union of India strongly supported the contentions and stand of the first respondent Corporation.
Development Control Regulation 52(2)(d)
65. Mr. Singhvi, learned Counsel for the first respondent, contended that, apart from what he contended earlier, there are two hurdles in the way of accepting the proposal for regularisation made by the petitioners on 21st May 1998- First, it is pointed out that the petitioners' Restaurant is situated in 'Om Chambers' which is itself located on August Kranti Marg, in the R-2 Zone. Mr. Singhvi referred to the internal correspondence between Girish Gokhale, Municipal Commissioner, and K. Nalinakshan, Principal Secretary of the Urban Development Department, Government of Maharashtra letter dated 11th September 1998 which, though not part of the petition itself, was tendered to Court by the learned Counsel for the petitioners and relied upon. Mr. Singhvi points out that in this very letter there is clear enunciation that no new shops are permissible on August Kranti Marg under Regulation 52(2)(d) of the Development Control Regulation 1991. Though the then Municipal Commissioner had expressed a view that inasmuch as the petitioners, Restaurant was existing prior to Development Control Regulation, 1991 coming into force, the provisions of the Development Control Regulation, 1991 may not be made applicable, this would not be the correct position in law. Mr. Singhvi contends that the test to be applied for regularisation is, whether the application, if made under section 44 today, could have been entertained. Regulation 52(2)(d) clearly prohibits permission being granted for construction of new shops in the R-2 Zone which abut, inter alia, August Kranti Marg and that there is no provision in the Development Control Regulations by which this restriction could have been overlooked or exemption therefrom granted, by the Municipal Commissioner. The learned Counsel for the petitioners made a feeble attempt to press into service two provisions at the end of sub-regulation 52(2)(e). We are not satisfied that either proviso would be of use to the petitioners. The second proviso has no application, since the area is residential zone with shop line (R-2 zone). The first proviso also does not help the petitioners since the concerned building is situated, not exactly at the intersection of August Kranti Marg and another road, but at the intersection of August Kranti Marg and a private road leading to the Parsi Tower of Silence. In fact, the situation contemplated in the first proviso would be inapplicable since there cannot be access provided to any of the shops from the said private road. In our view, therefore, the contention of Mr. Singhvi that the application dated 21st May 1998, for whatever it was worth, also could not have been considered in view of the specific provision in Regulation 52(2)(d) is correct and needs to be upheld.
C.R.Z. Restriction
66. Mr. Singhvi then contended that the plot concerned is situated within a distance of 500 metres from the High Tide Line and, therefore, falls within the definition of "Coastal Regulation Zone" as defined in the Notification dated 19th February 1991. Petitioners do not dispute that the building as such is situated within Coastal Regulation Zone, but contend that as there is atleast one public road already in existence on the landward side of the High Tide Line and further since the petitioners' plot is further on the landward side; taken together with the fact that there has been considerable development activity already carried out in the locality, the area would fall within C.R.2. No. II as classified in the Notification dated 19th February, 1991 and subject only to the limitations and restrictions on the developmental activity contemplated therein. The Notification dated 19th February, 1991 was slightly modified by two subsequent Notifications dated 18th August 1994 and 9th July 1997. We are not much concerned with the amendment made by the 1994 Notification, but the 1997 Notification is relevant for our purpose since it deals with restrictions on development activity within the Coastal Regulations Zones. As far as CRZ No. II is concerned, the original Notification dealing with regulations of activities as contained in the 1991 Notification has now been substituted by the following:
"Buildings shall be permitted only on the landward side of the existing road (or roads proposed in the approved Coastal Zone Management Plan of the area) or on the landward side of existing authorised structures. Buildings permitted on the landward side of the existing and proposed roads/existing authorised structures shall be subject to the existing local Town and Country Planning Regulations including the existing norms of Floor Space index/Floor Area Ratio:
Provided that no permission for construction of buildings shall be given on landward side of any new roads (except roads proposed in the approved Coastal Zone Management Plan) which are constructed on the seaward side of an existing road";
67. It is contended by Mr. Singhvi that there was some doubt expressed in certain quarters with regard to the interpretation of this provision in the C.R.Z. Notification imposing restrictions on building activity in C.R.Z. II areas. The doubt was whether the Notification contemplated that buildings as permitted to the landward of the existing authorised structures/ existing and proposed roads were required to be subject to the local Town and Country Planning Regulations and the norms of Floor Space Index existing on the date of the Notification i.e. 19th February 1991 or existing on the date on which the building permission was applied for and sanctioned. In order to clear the doubt, the Ministry of Environment and Forests had issued a clarification dated 8th September 1998. Mr. Singhvi contended that, in fact, the Government of Maharashtra is also of the view that the restrictions and F.S.I. norms would apply as on the date of permission and that is why the Government had by its letter dated 1st February 1999 requested the Government of India to make a modification so that some of the permissions already granted would not become legal.
68. Mr. Singhvi contends that there .is good reason for accepting the view adopted by the Municipal Commissioner that the 'existing' local Town and Country Planning Laws and 'existing' Floor Space Index norms contemplated by the concerned C.R.Z. Notification were the ones in operation and current on the date on which the C.R.Z. Notification itself came into force and not the ones in existence on any given date in future when applications may be made for development permission. He referred to the Statement of Objects and Reasons of the Environment (Protection) Act, 1986 which show the growing concern of the Central Government about the decline in environmental qual-
ity as evidenced by the increase in pollution, loss of vegetal cover and biological diversity, excessive concentrations of harmful chemicals in the ambient atmosphere and in food chains, growing risks of environmental accidents and threats to life support systems. The world community's resolve to protect and enhance the environmental quality found expression in the decisions taken at the United Nations Conference on the Human Environment held in Stockholm in June 1972. Government of India participated in the said Conference and strongly voiced their environmental concerns. Taking stock of the existing legal provisions dealing with environment protection and finding them to be hazardously inadequate. Parliament enacted the Environment (Protection) Act, 1986. Under this Act, sections 3, 4 and 5 invest the Central Government with plenary powers to take all such measures as it deems necessary or expedient for the purpose of protecting and improving the quality of environment and preventing, controlling and abating environmental pollution. The statute also contemplates appointment of several officers for the purpose of overseeing the effective implementation of the environment protection policy envisaged in the Act. Section 5 gives specific powers to the Central Government for issuing directions in writing to any person or officer or any authority in connection with the Act which such person shall be bound to comply with. The Central Government is the authority to monitor the implementation of the Act. The Act is intended to put severe restrictions on untrammelled depredation of environmental resources. It is contended by the respondents that, if this background is kept in view while interpreting the C.R.Z. Notifications, then, irrespective of the clarification given by the Ministry of Environment and Forests dated 8th September 1998, it would be clear that what was being preserved, at least in the areas falling within the C.R.Z., was the status quo as on the date of the Notification. Any other view would not only dilute the provisions of the Environment (Protection) Act, 1986, but also reduce them into mere teasing illusion.
69. There appears to be great merit in the contentions of the respondents based on the C.R.Z. Notifications. We too are inclined to think that the purpose of imposing severe restrictions as done in the C.R.Z. Notification would be rendered nugatory if these restrictions are capable of being abrogated or watered down by subsequent amendments made by the local authorities or local town planning laws. We cannot lose sight of the fact that this is a salutary piece of Central legislation intended for the benefit of the entire country. That it might cause hardship to someone in some corner of the country, can hardly be a ground for tilting against it. True, that by the time the Central Government sat up and took notice and Parliament enacted this piece of legislation, considerable amount of development activity had already taken place all along the coastal areas, which are now technically defined as the Coastal Regulation Zones. It would have been eminently unjust to undo all that had already been done. Parliament, therefore, adopted what we may call as the "Doctrine of Toleration" that development activity already carried out and in existence in accordance with laws and norms then existed, had to be tolerated. Simultaneously, the legislative policy is also reflected in what we may style as the "doctrine of containment", which means that even though what existed on the date of the Notification is to be tolerated, it should not be permitted to grow beyond the dimensions upto which it was tolerated. When looked at from this point of view, particularly keeping in mind the responsi-
bilities of the country towards the world community as a whole and to its future generations, it appears to us that the construction sought to be put on the C.R.Z Notification by the respondents is perfectly justified and would have to be upheld irrespective of the clarification given by the letter dated 8th September 1998 by the Ministry of Environment and Forests.
70. In our view, the word "existing", as used in the concerned part of the Notification, cannot be read differently at different places within the same part. We have already quoted the material part on restriction of development activity in C.R.Z.-II. The word "existing" used in the material part of the Notification refers in several places to structures which were already physically existing on the date of the Notification and to roads existing already on the date of the Notification. If the intention of the Notification was to refer to and deal with local Town and Country Planning Regulation and F.S.I norms as on the date of the grant of permission for building activity, then it would have sufficed to say that the building permitted on the landward side of the existing and proposed roads/existing authorised structures "shall be subject to the local Town and Country Planning Regulations including the norms of Floor Space Index/Floor Area Ratio". The use of participle 'existing' to qualify "Local Town and Country Planning Regulations" and "norms of Floor Space Index/Floor Area Ratio" is, in our view, not merely accidental. It serves an important purpose, namely, to highlight that irrespective of what Local Town and Country Planning Regulations may provide for in future in any nook or corner of the country, and irrespective of how the norms of Floor Space Index/Floor Space Ratio might be revised at some future point of time, the building activity permitted under the Notification in C.R.Z.-II shall be frozen to the laws and norms existing on the date of the Notification. This interpretation, in our view, in perfectly is consonance with the legislative intention behind the Environment (Protection) Act, 1986.
71. Counsel for the petitioners contend that adopting this construction would mean that with regard to the C.R.Z., where development activity had already been permitted, all development activity would be put in a time-wrap, freezing as it were on the date of the C.R.Z. Regulation. Progress is reflected in change and not frozen action, contend the petitioners' Counsel. But, progress is a concept with deeper philosophical, ethical and moral overlones. One man's meat may be another's poison. So with progress too. Ultimately, it is for the collective will of the people, as expressed by law, to assert itself and answer this question. Whether depredation of environment is progress or regress is a matter of collective wisdom reflected in legislative policy. If Parliament intended that there shall be no "progress" of such type in future, one cannot demur or protest, at least in a Court of law. Considering the overall legislative policy behind the Act, we are in agreement with contention of Mr. Singhvi that the word "existing" used throughout the material part of the C.R.Z. Notification, should carry the same meaning, viz., existing as on the date of the Notification.
72. The petitioners rejoin that if we adopt such a rigid construction of the Notification it may lead to absurdity. If the local Town and Country Planning Regulation bring about a reduction in the F.S.I. norms in future, a plot of land falling within the C.R.Z.-II area may become entitled to F.S.I. higher than the ones in existence than on the date the application for development permission is made. In our view, this is not such an alarming or astounding situation as to found an argument of Reductio ad Absurdum. The situation contemplated is perfectly feasible and compatible with the legislative intent as we see it. After all, what the Notification intends is that the F.S.I. norms be pegged at the level at which they existed in February 1991. This was the extent to which the coastal area had already been built upon. If, therefore, even in future, notwithstanding reduction of the F.S.I. norms elsewhere, the C.R.Z.-II zone is given this benefit, we see nothing wrong or objectionable therein, nor any reason against such construction being adopted. At the highest, this may be a factor to be reckoned with in the future legislation. We decline to consider the construction of the C.R.Z. Notification done by the petitioners as arbitrary, absurd or irrational.
73. As a follow up, the respondents contend that the heritage T.D.R. which came into force only in the year 1995 would have no application whatsoever to the development proposed on the building already existing in the C.R.Z-II Zone. It cannot be disputed that what is really sought by the petitioners is that, because of the peculiar provision contained in the Heritage T.D.R. Regulation (Regulation 67), they should be given the benefit of additional F.S.I. in an existing structure. By virtue of the provisions of section 24 of the Environment (Protection) Act, 1986, the provisions of the Act, the rules or orders made therein shall take effect notwithstanding anything inconsistent therewith contained in any enactment other than the Act. Thus, whatever be the Heritage T.D.R. Regulation No. 67, brought into force in the year 1995, it can have no application in the areas falling within CRZ-II. Thus, in our view, the respondents were justified in rejecting the proposal made in the application dated 21st May 1998 on this ground also.
74. Finally, we notice something peculiar in the Development Right Certificate (DRC) dated 8th May 1998 submitted by the petitioners. Regulation 67(6) of the Heritage Regulations for Greater Bombay, 1995, in terms, provides, "If any application for development is refused under this Regulation or conditions are imposed while permitting such development which deprive the owner/lessee of any unconsumed F.S.I., the said owner/lessee shall be compensated by grant of Development Rights Certificate (hereinafter referred to as "T.D.R.").....". Thus, it is clear that no one is entitled to a T.D.R. under Regulation 67 unless : (a) there are restrictions on development of the plot on account of imposition of Regulation 67 and (b) as a result thereof the owner/ lessee is deprived of the use of some unconsumed F.S.I. Unless these two conditions are cumulatively satisfied, there cannot be a T.D.R. sanctioned under Regulation 67(6). When we turn to the Development Certificate dated 8th May 1998, Exhibit "O" to the petition, we find something curious. This T.D.R. is purported to have been issued subject to Regulations 34 and 67 read with Appendix VII-A of the Development Control Regulations for Greater Mumbai, 1991. It pertains to a plot of land CS-26/Malabar Hill Division, Banganga Road of 204.01 sq. mtrs. area. Clauses 1(d)(i), (ii) and (iii) indicate the built up area permissible on the plot as "271.33 sq. mtrs", the built up area of heritage structure allowed to be retained/reconstructed as "Not Applicable" and finally, unconsumed built up area due to Heritage Regulation sanctioned as T.D.R. "Not applicable". The way we read it, it appears to us that there was no unconsumed F.S.I, at all due to Heritage Regulations being imposed. If that be so, we fail to see how this T.D.R. could have been issued at all. Clause 3 indicates that there is a reservation on the plot since it is reserved for "recreation ground" and is in possession of the Municipal Corporation of Greater Mumbai. In other words, however good the T.D.R. might have been under any other Regulation, we think that this T.D.R. could not have been issued under Regulation 67. It is for the respondents to seriously look into this matter in detail and rectify the situation, if needs be.
75. We also noticed that the petitioners have not actually paid for or purchased the T.D.Rs. in the two Certificates produced by them, but have only entered into agreements for purchasing the T.D.Rs. towards which they have made part payments. The agreement dated 18th June 1998 says "that if for any reasons whatsoever the F.S.I. is not capable of being used by the user in the building known as Om Chambers wherein hotel China Garden is located and is not in a position to regularise the structures put up by the user on the said property, then in that event this Agreement will come to an end and the Vendor would be entitled to refund of the entire consideration."
76. For all the aforesaid reasons, we, after careful application of the Wednesbury test of rationality, are unable to say that the decision taken by the first respondent Corporation as conveyed to the petitioners by their letters dated 28th June 1999, Exhibit "DD" to the petition, and dated 9th July 1999, Exhibit "GG" to the petition, is irrational or perverse so as to frustrate the legitimate expectation, if any, that the petitioners had of their application dated 21st May 1998 being favourably considered and allowed. On the other hand, we are of the view that the respondent Corporation has correctly applied the provisions of law, including Regulation 67 of the Development Control Regulation reading it in the light of the restrictions on development in CRZ-II area as contained in the CRZ Notification dated 19th February 1991 as amended from time to time. We find neither irrationality, nor perversity in the decision taken by the respondent Corporation to reject the proposal made on 21st May 1998. Consequently, we find that the petition must fail and there is no reason why the respondent Corporation should be prevented from implementing its notice dated 15th March, 1994.
77. Finally, irrespective of all legal finesse, we strongly feel that this is not a fit case where the extra ordinary, equitable and discretionary writ jurisdiction of this Court under Article 226 of the Constitution should be permitted to be invoked. That Article is intended to do render succour to a deserving litigant when there are no other remedies available for relief from oppression and injustice and not intended for relief to a self-confessed law breaker with impunity. After careful consideration of the facts, circumstances and history of this case, we are of the view that our judicial conscience would be outraged if we were to grant any relief to the petitioners who, in our judgment, epitomise a person deserving no consideration under Article 226.
78. In the facts and circumstances, we dismiss the writ petition. Rule discharged. This is a fit case for costs. Respondents shall be paid a sum of Rs. 10,000/- (Rupees Ten Thousand only) each as costs.
79. Mr. Vahanvati, learned Counsel appearing for the petitioners, applies that the ad-interim order dated 19th July 1999 by which we had directed the Bombay Municipal Corporation to hold its hands pending hearing of this writ petition for admission, be extended for some time to enable the petitioners to carry the matter in appeal. After carefully considering the request, we are of the view that in the peculiar facts and circumstances of the case, this is not a request which we can accede to. This is a case where, for reasons which are not difficult to fathom, the petitioners have got away with an admittedly blatantly illegal act for a period of fourteen years from 1985 till today. Our conscience does not permit this illegality to be earned further under the blessing of our orders. Application rejected.
80. Despite our order, Mr. Vahanvati, with his characteristic power of persuasion, urges upon us to take a different view of the matter for two reasons. First, he says that in another matter pertaining to one Girish Vyas (Writ Petition No. 4433 of 1998 with Writ Petition No. 4434 of 1998 (B.N. Srikrishna and S.S. Parkar, JJ., dated March 6, 8, 9, 10, 11, 12 and 15, 1999), this Court had directed demolition of a structure contrary to the provisions of law, but stayed its own order. Second, he says that though the Restaurant has been running without even a licence from 1991, till the petitioners are able to approach the Supreme Court, they would voluntarily close the Restaurant.
81. We regret, neither reason appeals to us. With regard, to Girish Vyas's case (to which B.N. Srikrishna, J. was a party), we find that the construction housed a large number of tenaments which were already occupied by tenants and it would have been wholly harsh and unjust to demolish the building and dishouse the tenants without giving them an opportunity to challenge the judgment and order before the Supreme Court. As far as the petitioners are concerned, there is no such factor here. In fact, on their own admission, the petitioners have not only violated all norms of F.S.I. Development Control Regulations, all applicable laws, including Fire Safety Regulations, and are running a Restaurant and Bar without even a licence from the year 1991. The ad-interim order was made on 19th July 1999 only for the reason that at that point of time we were not aware of the full facts of the case and we were yet to hear all its nuances. After lengthy hearing, at which we were advised about the complete factual and legal matrix of the case, we are not impressed that this is a fit case where our equitable jurisdiction for continuing the ad-interim order could be invoked. For a second time, we decline the request. Application refused.
82. Petition dismissed.