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5. Between 1982 and 2003/2004, the statutory and legislative regime governing town planning in Mumbai had undergone, so to speak, a sea change. Town and Country Planning in Maharashtra is governed by the Maharashtra Regional & Town Planning Act, 1966 ("the MRTP Act"). That Act requires, inter alia, the designated planning authority -- in this case, the Municipal Corporation of Greater Mumbai ("MCGM") -- to prepare a draft Development Plan.2 This is to be sanctioned by the State Government following a statutorily mandated procedure. A development plan must be revised every 20 years.3 Till 1991, development in Mumbai was controlled by the Development Control Rules, 1967 ("the 1967 DC Rules"). The MCGM undertook a revision as required by the MRTP Act and published, for suggestions and objections, revised draft development control regulations in 1989. These were then Section 21 Section 38 4 of 33 OSWP1244-12-F taken through the statutory procedure for finalisation. On 20th February 1991, the revised Development Control Regulations for Greater Mumbai ("the 1991 DCRs") were notified, to come into effect on 25th March 1991.4 The 1991 DCRs contained, for the first time, special provisions in Regulation 58 ("DCR 58") regulating, controlling and governing future development on the cotton textile mill lands. This DCR 58 was amended on 20th March 2001, following which many privately owned mills have made proposals for development and re-development. We will return to the 1991 DCRs, the MRTP Act and DCR 58 presently; for the moment, we note only the date when they came into force.

27. In Suresh Estates31 the Supreme Court had before it a situation wholly unlike the present one. It is true that the Supreme Court was there also concerned with a development proposal for a residential hotel and a commercial project in a CRZ-II area in Greater Mumbai. But in that case, the only application made by the project proponents was under the 1967 DC Rules. 32 Here, as we have seen, TCI first made an application on 27th July 2004 to the State Government saying that DCR 58 did not apply to its Mukesh Mills lands not on account of the CRZ Notification but because it had settled the dues of all its workmen and was not under BIFR. It then made an application for development on 5th September 2006 under the 1991 DC Regulations. That application was refused for an entirely different reason, the want of an NOC from the Naval authorities. That issue is pending before the Supreme Court. TCI has, in parallel, also made a third application, this one for development under the 1967 DC Rules, and it did so without giving up its first application. This last application, too, has been rejected, and even on TCI's own showing a statutory appeal in that regard is UCO Bank v Rajinder Lal Capoor, (2008) 5 SCC 257; Bombay Dyeing, supra.

Supra Suresh Estates, supra, para 4 20 of 33 OSWP1244-12-F still pending. The Petitioners' reliance on Suresh Estates is, therefore, misplaced as it is, with the greatest respect, clearly distinguishable on facts.

28. In Suresh Estates, the Supreme Court rejected the submission that the 1967 DC Rules would not apply to development projects in CRZ-II areas. It held that the word "existing" in the CRZ Notification was a reference to the town and country planning regulations in force as on 19th February 1991, not on the date of grant of the permission. The CRZ Notification explicitly refers to "existing" structures and roads and, therefore, all building activity permitted under the notification is, in the words of the Supreme Court, "frozen to the laws and norms existing on the date of the notification". Since, on that date, 19th February 1991, the only building regulations in existence were the 1967 DC Rules, and since the CRZ Notification has a wide non-obstante clause, development applications for CRZ-II plots would be governed by the 1967 DC Regulations, not the 1989 draft regulations. We may note here that the Supreme Court upheld the decision of this Court in Overseas Chinese Cuisine (India) (P) Ltd v Municipal Corporation of Greater Mumbai33 to the same effect as regards the applicability of the 1967 DC Rules to CRZ-II lands. But the Supreme Court was also unambiguous in saying, in para 32, that the CRZ Notification has only frozen the FSI/FAR (Floor Area Ratio) norms. In Suresh Estates, the plot in question was under a reservation for a public purpose, viz., a playground for a secondary school. Would the CRZ (2000) 1 Bom CR 341; followed in Buildarch v Union of India, (2000) Supp Bom CR 564 and Kisan Mehta v State of Maharashtra, (2001) 1 Bom CR 451 21 of 33 OSWP1244-12-F Notification have the effect of ousting the operation of Section 127 of the MRTP Act, which deals with lapsing of reservations? The Supreme Court said that it could not, and Section 127 would continue to operate since all that the CRZ Notification does is to freeze FSI/FAR norms and pin these to the standards of the 1967 DC Rules. Thus, in Suresh Estates,34 the Supreme Court explicitly recognized the protective and preservative objectives of the CRZ Notification. We must note here that the decision of this Court in Overseas Chinese Cuisine is of 2000. It pre-dates TCI's first application of 27th July 2004 to the State Government to be exempted from the operation of DCR 58. It also pre-dates TCI's development application of 5th September 2006 under the 1991 DC Regulations. It seems to us entirely unlikely that TCI was, as it claims, "unaware" of the legal situation as regards the CRZ Notification and the 1967 DC Rules till the decision in Suresh Estates. There is no manner of doubt that TCI's first application of 27th July 2004 was on legal advice. Yet it made no claim invoking the applicability of the 1967 DC Rules although, four years earlier, this Court in Overseas Chinese Cuisine had already pronounced on the matter; and the decision in Suresh Estates was still three years in the future.

36. Under Rule 10(2) of the 1967 DC Rules, the Municipal Commissioner of the MCGM has the discretion to permit a higher or increased FSI. This discretion, it is settled, cannot be exercised in an arbitrary, capricious or whimsical fashion. It must conform to the requirements of Article 14 of the Constitution of India. There can be no doubt about this proposition; Suresh Estates says so in terms.41 We understand this to mean that the Municipal Commissioner must consider all relevant factors while exercising that discretion. His hands are not tied merely by citing examples of other projects where, in the past, additional FSI has been permitted under the 1967 DC Rules. Article 14 militates against arbitrariness and hostile Suresh Estates, supra, para 33 31 of 33 OSWP1244-12-F discrimination; it does not prohibit a rational and intelligible differentiation. The Mumbai of 2013 is not the Mumbai of 1967, let alone the Mumbai of the 1850's. There is far more development and growth already. There are requirements of public safety and public health, including fire-fighting norms that must, in the larger public interest, be considered. The Municipal Commissioner, while granting or refusing the application for additional FSI, must take into account all relevant facts and considerations, including the ones we have mentioned.42 He need not be limited to a consideration of whether some other project has previously been granted additional FSI. How much additional FSI is to be granted, if any, is a matter for him to decide after weighing in the balance all the relevant material, including the needs and demands of the city as he finds it today, and looking ahead to the requirements of tomorrow.