Full Text
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 456 OF 2024
Gufran Suleman Qureshi, Age: 38 Yrs, Occ: Business, Being the
Proprietor of M/s Sirsiwala Realty, having its office at Building No. 97/A, Ground
Floor, Shuklaji Street, Mumbai Central (E), Mumbai 400 008. …Petitioner
~
1. Municipal Corporation of
Greater Mumbai, Through the Legal Department, Having office at Mahapalika Marg, Opp. CST
Mumbai 400 001.
2. The Assistant Engineer
(City), D-Ward, Building Proposal
Department, Bhagwan Walmiki Chowk, Vidyalankar Marg, Salt Pan Road, Antop Hill, Wadala (E), Mumbai 400
037.
3. Municipal Commissioner, MCGM, Having office at Mahapalika Marg, CST, Mumbai 400 001. …Respondents
ASHWINI
H
Qureshi, i/b Akil Kupade. for respondent- mcgm
Mrs Uma Palsuledesai, with Rupali
Adhate, i/b Sunil Sonawane. present in person Mr Amit Mali, Sub-Engineer, Maintenance Department,‘D’
Ward.
DATED : 23rd February 2024
ORAL JUDGMENT
1. Rule. There are Affidavits in Reply. Rule returnable forthwith.
2. This Petition reflects the kind of bureaucratic morass that might well have been an inspiration for Franz Kafka.
3. There is a road. Like many roads in Mumbai, it is narrower than it should be. The Municipal Corporation grants permission for redevelopment of a tall structure, one large enough to reaccommodate over a hundred tenants. It does so knowing that the road is not as wide as it should be. All 110 tenants vacate their homes. Construction commences. It comes up to the seventh floor. This is not sufficient to accommodate all the tenants. Nor is it the original proposal, which was for much more built up space. But it is only now that some functionary in the Ward Office awakens to the road width. He refuses permission to build higher. He says, astonishingly, that the road ‘is too narrow’. But the road is what it always was. It is not a living thing. It has neither expanded nor contracted since the time the original permission was sought and granted.
4. Implicit in this refusal is that the Municipal Corporation of Greater Mumbai (“MCGM”) is a complete stranger to its own roads and their widths. If this road was insufficiently wide to permit a development enough to accommodate all tenants, then no permission ought to have been granted to begin with.
5. In refusing permission, the MCGM is completely oblivious to every aspect of the law and by this we mean the relevant provisions of the Development Control and Promotion Regulations, 2034 (“DCPR”) and settled jurisprudence in this country, including the law on promissory estoppel, a branch of law that has held the field for the better part of six decades. We would be very surprised to hear from the MCGM that this law, almost all of it in pronouncements of the Supreme Court, is not binding on the MCGM. The MCGM is wrong. The law declared by the Supreme Court is not meant only to bind courts. It is binding on the MCGM too.
6. We do not propose to hold, nor even to suggest, that the MCGM must disregard entirely road widths. It cannot. But where it has granted permission on a given proposal for development set on a road with a known width, that permission cannot be refused at a later stage after the owner or the developer has spent money and acted on that permission to his or its prejudice by saying that the road width is insufficient. The MCGM would be fully entitled to refuse permission to an amended proposal for a higher structure or more built up space than originally proposed. But the MCGM cannot grant further permissions for the same/original proposal on the ground of insufficient road width if it has granted initial permissions to that very same proposal to begin with.
7. The Petitioner is the unfortunate owner of this property at CS Nos 211 and 1/211 of the Tardeo division. The plot stands on Bapty Road, Mumbai 400 008. It is a cessed structure. It had 110 tenants or occupants. The development is under DCPR 33(7) which governs the redevelopment of cessed structures. Cess in this case obviously is a reference to the levy of repair cess under the provisions of the Maharashtra Housing Area and Development Authority Act, 1976 (“MHADA Act”).
8. The challenge in the Petition is to a communication of 10th January 2024 by the Assistant Engineer ‘D’ Ward, the 2nd Respondent, saying that since Bapty Road does not meet the required minimum width of 9 mts therefore, further permissions cannot be granted. The impugned order demands that the Petitioner comply with all Intimation of Disapproval (“IOD”) conditions and to resubmit the proposals.
9. Nobody knows what this is supposed to mean. We can make neither head nor tail of it. There is no case of non-compliance with an IOD condition. What seems to be suggested is that the Petitioner must somehow arrange to have Bapty Road widened on his own to a minimum width of 9 mts, notwithstanding the fact that this is a municipal road vested in the Municipal Corporation and private parties cannot in this city go about altering road lines as they please. When such a proposal is to be submitted and subject to what is also unknown.
10. Briefly, the Maharashtra Housing and Development Authority issued a No Objection Certificate (“NOC”) on 22nd August 2017 and a revised NOC on 28th October 2021. MCGM’s IOD was of 14th March 2022. A Commencement Certificate (“CC”) to the plinth level came to be issued on 31st March 2022. Importantly, a Fire Brigade permission was granted on 23rd September 2022. A revised IOD followed on 13th January 2023. The CC was revised on 3rd March 2023.
11. From 2017 till January 2023, Bapty Road was Bapty Road, of less than 9 mts. Everybody knew this. Even the Assistant Engineer of D Ward knew this.
12. Then, MCGM issued a further CC to the 7th floor on 2nd June 2023.
13. Bapty Road remained Bapty Road, less than 9 mts wide.
14. Now that the Petitioner needs to go above the 7th floor, the MCGM’s Assistant Engineer suddenly believes that Bapty Road’s width of less than 9 mts — unchanged throughout — must become something else. It must suddenly be widened. Otherwise, permission cannot be granted to complete the project. Never mind that the Petitioner’s 110 occupants will suffer. It matters not that they will not see their redeveloped homes. Previous permissions granted by the authorities and on the basis of which the Petitioner acted to his prejudice are all matters of monumental irrelevance to this instrumentality of the state.
15. That the Petitioner had never made any representation other than the proposal to re-accommodate all 110 tenements is well known. The minimum size of redeveloped premises is specified in DCPR 33(7) itself. Larger premises may be provided if fungible Floor Space Index (“FSI”) is made available, also under the DCPR.
16. None of these considerations have weighed with the MCGM.
17. What is the position on the ground? We can glean this from a scan of the sketch plan with handwritten markings, a copy of which is at page 161 at Exhibit “A” to the MCGM’s further Affidavit. On this, as we can see, the Petitioner’s plot is marked. The green diagonal portion shows the land that is being surrendered by the Petitioner for setback. Bapty Road is clearly marked as well. To the east of the Petitioner’s plot is the intersection with Shuklaji Street. Immediately abutting the Petitioner’s plot on the west is CS No 212 which is a bakery that has given an undertaking to remove the dark green shaded portion when called upon by the MCGM. We are told that there is no proposal presently to enforce this undertaking.
18. After that, to the west is CS No 213 which is an old ground plus three storey structure that still exists at site. Further to the west are CS Nos 214 and 200. The shaded portion in hatched blue lines here is already merged in the road after a setback was taken as a condition to that redevelopment.
19. This tells us that it is only CS No 212 (where there is an undertaking) and CS No 213, where there is no undertaking, that come in the way of the expansion of Bapty Road to a 9 mts width.
20. The MCGM Affidavit says there is currently ‘no proposal’ to widen the road. Therefore, it seems to be suggested nothing can be done. The tenants may suffer. That, it seems, is not the MCGM’s concern.
21. We are making it the MCGM’s concern. The MCGM exists, and we state this now plainly, to serve the interests of ratepayers of the city, not developers and builders. The primary focus is and will forever be the concern of residents and citizens, and those alone. Not of profit-making enterprises. The welfare of our citizens and residents is paramount. It will override every other concern.
22. It is not an answer to say that the MCGM will face a ‘financial burden’ if we compel the road widening. The object of town planning is not to enrich planning authorities. It is not to permit planning authorities to monetize either the Development Plan, the Development Planning Regulations or the immovable assets vested in the planning authority.
23. We trust our meaning is now abundantly clear.
24. The MCGM has conveniently turned a blind eye to its controlling statute, the DCPR 2034, a delegated legislation.
25. Mr Engineer for the Petitioner points out that DCPR 30 deals with the FSI. This is sometimes called the Floor Area Ratio in other planning regimes. It is simply the ratio of the plot area to the built up area. DCR 30 stipulates FSI differently for different zones. What is of immediate relevance is Note 1 below table 12 in DCPR 30 which is part of Part V of the DCPR 2034. Note 1 reads as follows: “Note: 1) The plots abutting public roads having existing width of minimum 6 m but less than 9 m which are proposed to be widened to 9.0 m or more then permissible FSI shall be as admissible for 9 m road width.” (Emphasis added)
26. It cannot be suggested that if there is no proposal to widen the road, then this note will not apply. The reason is this. DCPR 19 is part of Part IV (“Requirements of site and layout”). It deals with public streets and means of access. Sub-regulation (1) says that every site is to have access free of encroachment. Sub-regulation (2) deals with high rise and special buildings. There are two provisos and then there is the reference to a technical committee. Notes 1 and 2 of DCPR 19 read: “Note:-
1. MCGM shall convert all roads of width less than 9 m to 9 m and above as per site condition through MR&TP Act or MMC Act.
2. Roads excluding existing public road/Municipal road, reflected in DP shall not be treated as public Road, unless and until declared under appropriate section of MMC Act & shall not be subjected to acquisition.”
27. Mr Engineer correctly submits that Note 1 of DCPR 19 has to be read with Note 1 of DCPR 30. This is especially so when permission has already been granted; for that permission could only have been granted on the basis that the MCGM does have a proposal to widen the road from 6 mts to 9 mts. The grant of the permission is an express representation that the existing road is wide enough to permit the proposal; implicit in which is the representation that there is indeed a proposal to widen the road. Widening all roads is the statutory mandate of the MCGM under the DCPR.
28. Even read together, these two DCPRs make it abundantly clear that there is no question of the MCGM saying that it currently has no proposal to expand the road.
29. Note 1 of DCPR 19 also uses the word ‘shall’. This requirement is, as Mr Engineer says, mandatory. The MCGM has to convert all roads of less than 9 mts to 9 mts.
30. Equally, Note 1 below DCPR 30 uses the word ‘shall’ in regard to admissibility of additional FSI.
31. There is a logical reason for this. With higher FSI proposed inter alia in DCPR 33, and there are at least four subspecies or categories of higher FSI, obviously the supporting infrastructure must be able to take the additional load. This is the concept of what is called a ‘carrying capacity’. We would expect that the MCGM as a planning authority would not be a complete stranger to fundamental concepts in town and country planning. It is entirely impermissible for a planning authority to grant more and more building permissions but to have no regard whatsoever for the supporting infrastructure required to sustain these constructions and their use.
32. It is for this reason, contemplating that structures will go higher, that the DCPR 2034 requires the expansion of roads and requires the grant of permissions for constructions while those roads are being expanded.
33. If there is any doubt about the conferment of discretionary powers in the Municipal Commissioner this is surely put to rest by DCPR 6, which reads: “6. Discretionary powers (a) In conformity with the intent and spirit of these Regulations, the Municipal Commissioner may:—
(i) modify the limit of a zone where the boundary line of the zone divides a plot, village boundary, CS/CTS No. as per records of revenue by a special permission; and
(ii) authorize the erection of a building or the use of premises for a public service undertaking, Government, Semi-Government, Local Bodies for public utility purposes only, where he finds such an authorization to be reasonably necessary for public convenience and welfare, even if it is not permitted in any land use classification/zone by a special permission.
(iii) decide on matters where it is alleged that there is an error in any order, requirement, decision, determination made by any municipal officer under delegation of powers in application of the Regulations or in interpretation of these Regulations:
(iv) interpret the provisions of these Regulations where a street layout actually on the ground varies from the street layout shown on the development plan; (b) In specific cases where a clearly demonstrable hardship is caused, the Commissioner may for reasons to be recorded in writing, by special permission permit any of the dimensions prescribed by these Regulations to be modified, except those relating to floor space indices unless otherwise permitted under these Regulations, provided that the relaxation will not affect the health, safety, fire safety, structural safety and public safety of the inhabitants of the building and the neighbourhood.
(c) Any discrepancy/error in regard to location/size/ use of designations and any relocation of reservation approved by the competent authority along with its development at its relocated position if not reflected in this Development Plan and that are brought to the notice of MCGM may, after due enquiry, be corrected with the special permission of the Municipal Commissioner. Provided that the Municipal Commissioner shall issue a well-reasoned order of such correction, along with the authenticated part plan showing the location under his seal and signature, with a copy to the Govt., Director of Town planning, Maharashtra State, Deputy Director of Town Planning, Greater Mumbai for information and record purpose. The proposal of Development Plan shall stand modified to that effect.”
34. Of particular interest is the expression ‘clearly demonstrable hardship’. Our experience in this Court is that this is a clause most frequently invoked by, unsurprisingly, developers who claim that their financial loss is a ‘clearly demonstrable hardship’.
35. It is not.
36. The ‘clearly demonstrable hardship’ is the hardship of the occupants and residents of the city.
37. In the present case, from this very first paragraph to the prayers, this Petition is nothing but a demonstration of the clearest possible hardship. The Petitioner is not seeking this only for himself. That he may avail of additional benefits is perhaps incidental. He does not deny that there are 110 tenants or occupants who have to be rehoused. He mentions clearly the amounts that he is already paying monthly to sustain this enterprise.
38. We view this differently. If what MCGM’s Assistant Engineer now says is correct, then surely that very department knew of the width of Bapty Road in 2006 and at every date thereafter. Permission ought to have been refused. Had that been done, the Petitioner would have sought his remedies elsewhere, including perhaps repairs, a restoration, or perhaps even a reconstruction rather than the redevelopment of the building. We do not see how it is even remotely possible for the MCGM as a planning authority to act as it has done by first granting permission for redevelopment and then, midway stopping that redevelopment on a ground that was known to it before it granted the first permission.
39. Then there is this: the MCGM has exercised its powers under Section 297 of the Mumbai Municipal Corporation Act 1888 (“the MCGM Act”) and fixed the proposed Road Line of Bapty Road as
18.18 mts. Under Section 298, the MCGM has enough power to remove any structures that obstruct the stated road line. There is no question of the MCGM turning around and saying it has no ‘current’ proposal for road widening.
40. Even worse, the adjacent bakery that gave the undertaking to surrender the setback area for road widening was granted ‘repair’ permission as a result of which the original structure was demolished and then reconstructed consuming the setback area. The MCGM has done nothing about this. Though pleaded in Ground H of the Petition, there is no effective traverse of this. The consequences of this default cannot be visited on the Petitioner and his 110 tenants.
41. Mr Engineer points out quite correctly that when the permissions were sanctioned the MCGM asked for a setback. This set back was precisely for road widening, i.e., to increase the width of Bapty Road. The setback provision was insisted on and acted on based on an 18 mts road width proposal (page 82 of the Petition)
42. The impugned communication from the MCGM entirely overlooks a critical and material factor. The MHADA NOC demands that the project be completed in three years. Withholding MCGM permission will result in a violation of that condition — for no fault of the Petitioner or his 110 tenants.
43. The MCGM has entirely overlooked several material factors, including: the grant of initial permissions with the same road width; periodic renewals; various other permissions; the fate of 110 tenants who are already dishoused; the impermissible consumption of a setback area by a neighbouring plot holder; the provisions of the DCPR 2034 adverted to above.
44. Three aspects of law will come into play: Wednesbury unreasonableness; proportionality; and promissory estoppel. We discuss these briefly.
45. Both Wednesbury unreasonableness and proportionality relate to judicial review of administrative action. The law in this regard is well settled. ‘Wednesbury unreasonableness’1 speaks of a decision ‘which is so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to
1 Associated Provincial Picture Houses Ltd v Wednesbury Corporation, [1948] 1 KB 223 the question to be decided could have arrived at it.’: per Diplock LJ in Council Of Civil Service Unions & Ors v Minister for the Civil
46. Even as Wednesbury unreasonableness continued to inform decisions of Courts with the power of judicial review, not only here but in many other jurisdictions, there came into ascendance a parallel doctrine of proportionality. This is not necessarily linked to the award of punishment. It may be a facet of reasonableness. Its tests are slightly different from those of Wednesbury unreasonableness. The doctrine tells us that in any executive or administrative action, the act or thing done or ordered to be done cannot be so disproportionate to the cause for that order. To put it more colloquially, an administrator or an executive cannot use our hammer to kill an ant.[3]
47. The CCSU standard was accepted in Union of India & Anr v G Ganayutham.[4] The two doctrines received an elucidation in Om Kumar & Ors v Union of India,[5] particularly on the question of primary judicial review (where fundamental rights are involved) and 2 [1983] UKHL 6: [1984] 3 All ER 935: [1984] 3 WLR 1174.
3 See: R v Goldstein, [1983] 1 WLR 151: [1983] 1 All ER 434: per Diplock LJ: “This would indeed be using a sledge-hammer to crack a nut.” Or a paring knife, not a battle axe: Central Cooperative Bank v Coimbatore District Central Cooperative Bank Employees Association & Anr, (2007) 4 SCC 669. In CCSU, Diplock LJ foresaw the advent of the proportionality doctrine. secondary judicial review (where they are not).[6] The scope of the proportionality principle came to be examined in Coimbatore District Central Cooperative Bank v Coimbatore District Central Cooperative Bank Employees Association & Anr.[7] The Supreme Court said:
17. So far as the doctrine of proportionality is concerned, there is no gainsaying that the said doctrine has not only arrived in our legal system but has come to stay. With the rapid growth of administrative law and the need and necessity to control possible abuse of discretionary powers by various administrative authorities, certain principles have been evolved by courts. If an action taken by any authority is contrary to law, improper, irrational or otherwise unreasonable, a court of law can interfere with such action by exercising power of judicial review. One of such modes of exercising power, known to law is the “doctrine of proportionality”.
18. “Proportionality” is a principle where the court is concerned with the process, method or manner in which the decision-maker has ordered his priorities, reached a conclusion or arrived at a decision. The very essence of decision-making consists in the attribution of relative importance to the factors and considerations in the case. The doctrine of proportionality thus steps in focus true nature of exercise—the elaboration of a rule of permissible priorities. …
21. The doctrine has its genesis in the field of administrative law. The Government and its departments, in administering the affairs of the country, are expected to
6 See also: Kerala State Beverages (M&M) Corporation Ltd v PP Suresh & Ors, (2019) 9 SCC 710.
honour their statements of policy or intention and treat the citizens with full personal consideration without abuse of discretion. There can be no “pick and choose”, selective applicability of the government norms or unfairness, arbitrariness or unreasonableness. It is not permissible to use a “sledgehammer to crack a nut”. As has been said many a time; “where paring knife suffices, battle axe is precluded”.
48. As the Supreme Court itself noted, the proportionality principle is a test of whether the decision-maker has achieved the correct balance: Chairman, All India Railway Recruitment Board & Anr v K Shyam Kumar & Ors.[8] In Ganayutham, the Supreme Court said: To arrive at a decision on “reasonableness” the Court has to find out if the administrator has left out relevant factors or taken into account irrelevant factors. The decision of the administrator must have been within the four corners of the law, and not one which no sensible person could have reasonably arrived at, having regard to the above principles, and must have been a bona fide one.
49. At least one decision of the Supreme Court reviews more recent thinking in England that the doctrine of proportionately has supplanted Wednesbury unreasonableness but our Supreme Court held that there is no such clear-cut division: Jitendra Kumar & Ors v
State of Haryana & Anr.[9] In given cases both will apply. Wednesbury unreasonableness will speak to the rationality of a decision-making process. It has distinct components. One of these is a test of procedural irregularity. Another test is one of reasonableness, to test whether the decision is of a kind that no reasonable person could ever take. In the words of Diplock LJ in CCSU, the Wednesbury principle, formulated by Lord Greene, is whether the decision is so outrageous in its defiance of law or logic that it cannot possibly be sustained. Proportionality will speak to, as the Supreme Court said in All India Recruitment Board, examining if the decision achieves the required balance. In a complete analysis, the Supreme Court held: Wednesbury and Proportionality
36. Wednesbury [Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn., (1948) 1 KB 223: (1947) 2 All ER 680 (CA)] applies to a decision which is so reprehensible in its defiance of logic or of accepted moral or ethical standards that no sensible person who had applied his mind to the issue to be decided could have arrived at it. Proportionality as a legal test is capable of being more precise and fastidious than a reasonableness test as well as requiring a more intrusive review of a decision made by a public authority which requires the courts to “assess the balance or equation” struck by the decision-maker. Proportionality test in some jurisdictions is also described as the “least injurious means” or “minimal impairment” test so as to safeguard the fundamental rights of citizens and to 9 (2008) 2 SCC 161: “We, with greatest respect, do not have any such problem. This Court not only has noticed the development of law in this field but applied the same also.” ensure a fair balance between individual rights and public interest. Suffice it to say that there has been an overlapping of all these tests in its content and structure, it is difficult to compartmentalise or lay down a straitjacket formula and to say that Wednesbury has met with its death knell is too tall a statement. Let us, however, recognise the fact that the current trend seems to favour proportionality test but Wednesbury has not met with its judicial burial and a State burial, with full honours is surely not to happen in the near future.
37. Proportionality requires the court to judge whether action taken was really needed as well as whether it was within the range of courses of action which could reasonably be followed. Proportionality is more concerned with the aims and intention of the decision-maker and whether the decision-maker has achieved more or less the correct balance or equilibrium. The court entrusted with the task of judicial review has to examine whether decision taken by the authority is proportionate i.e. well balanced and harmonious, to this extent the court may indulge in a merit review and if the court finds that the decision is proportionate, it seldom interferes with the decision taken and if it finds that the decision is disproportionate i.e. if the court feels that it is not well balanced or harmonious and does not stand to reason it may tend to interfere.
38. Leyland and Anthony in Textbook on Administrative Law (5th Edn. OUP, 2005) at p. 331 has amply put as follows: “Proportionality works on the assumption that administrative action ought not to go beyond what is necessary to achieve its desired results (in everyday terms, that you should not use a sledgehammer to crack a nut) and in contrast to irrationality is often understood to bring the courts much closer to reviewing the merits of a decision.”
39. The courts have to develop an indefeasible and principled approach to proportionality, till that is done there will always be an overlapping between the traditional grounds of review and the principle of proportionality and the cases would continue to be decided in the same manner whichever principle is adopted. Proportionality as the word indicates has reference to variables or comparison, it enables the court to apply the principle with various degrees of intensity and offers a potentially deeper inquiry into the reasons, projected by the decisionmaker. Application of the principles
42. We will now apply the proportionality test to the three alternatives suggested. Principle of proportionality, as we have already indicated, is more concerned with the aims of the decision-maker and whether the decision-maker has achieved the correct balance. The proportionality test may require the attention of the court to be directed to the relative weight according to interest and considerations. When we apply that test and look at the three alternatives, we are of the view that the decisionmaker has struck a correct balance in accepting the second alternative. The first alternative was not accepted not only because such a process was time-consuming and expensive, but nobody favoured that option, and even the candidates who had approached the court were more in favour of the second alternative. Applying the proportionality test also in our view the Board has struck the correct balance in adopting the second alternative which was well balanced and harmonious.
43. We, therefore hold, applying the test of Wednesbury unreasonableness as well as the proportionality test, the decision taken by the Board in the facts and circumstances of this case was fair, reasonable, well balanced and harmonious. By accepting the third alternative, the High Court was perpetuating the illegality since there were serious allegations of leakage of question papers, large scale of impersonation by candidates and mass copying in the first written test.
50. The doctrine of promissory estoppel is firmly part of the jurisprudence in this country. In Manuelsons Hotels Private Limited v State of Kerala And Ors,10 there was a comprehensive review and survey authored by Justice Rohinton Fali Nariman of the law on promissory estoppel and, in that context and in the context of administrative law, the scope of and grounds for judicial review. The discussion covers all the relevant case law on promissory estoppel, Wednesbury unreasonableness and judicial review including Wednesbury,11 Union of India v Anglo-Afghan Agencies,12 Turner Morrison And Co Ltd v Hungerford Investment Trust Ltd,13 and Motilal Padampat Sugar Mills Co Ltd v State of UP.14
51. The principle was enunciated in the context of taxation. The Supreme Court held that where a Government makes a promise 10 (2016) 6 SCC 766. 11 (1948) 1 KB 223. (CA) 12 1967 SCC OnLine SC 12: AIR 1968 SC 718.
14 (1979) 2 SCC 409: 1979 SCC (Tax) 144: (1979) 2 SCR 641 knowing or intending that it would be acted on by the promisee and, in fact, the promisee acting in reliance on it, alters his position, the Government would be held bound by the promise. That promise is then enforceable against the Government at the instance of the promisee and this is so even if there is no consideration for the promise and even if that promise is not formally recorded in a contract. The Supreme Court placed this on a fundamental principle that in a republic governed by the rule of law no one is above the law. The Government is no exception to the application of the rule of law. The principle does not demand that the petitioner must show that it has suffered any detriment. It is enough for the invocation of the principle to show that the petitioner relied on the promise or the representation that was held out by the Government and altered its position relying on this assurance.
52. Of necessity, the doctrine of promissory estoppel is an evolution of the more commonplace rule of estoppel. No party may resile from a commitment once made nor may that party approbate and reprobate. The law will not allow an unconscionable departure by one party from the subject matter of even an assumption, whether that assumption is of fact or of law, is of the present or of the future, if that assumption is the basis on which the other party conducted itself. The relief to be fashioned in such cases is necessarily flexible to ensure that justice is done to the party aggrieved. Courts will not permit an unconscionable departure from a promise solemnly made and which the other party adopted, accepted, and acted on.
53. It is well known that the origins of the doctrine can probably be traced to the legendary dictum of Lord Denning in Central London Property Trust Ltd v High Trees House Ltd.15 Where a promise was made which was intended to create legal relations and which, to the knowledge of the person making the promise, was going to be acted on by the person to whom it was made and which was in fact so acted on, estoppel would apply. Although it has been pointed out that the significant parts of the decision are obiter, it is nonetheless a reaffirmation and extension of the doctrine of promissory estoppel. Many advances have been made in that jurisprudence since then.
54. Estoppel is both a rule in equity and a rule in evidence. Because it is foundationally in equity, it is necessarily flexible. In India, our jurisprudence recognizes promissory estoppel as a valid basis of an independent cause of action: the famous dictum that it can act as a sword, not merely a shield.16 In pursuing such a cause of action, the Petitioner need not show actual prejudice or detriment. It is enough for the party to show two things: (i) that a representation was made; and (ii) that the party acted on that representation and altered its position. Where there is a failure to abide by the representation that is made, a writ court will necessarily step in and a mandamus will necessarily be issued to compel the promisor Government to fulfil its commitments and to perform what it said it would perform and on the basis of which assurance the other party altered its position. 15 [1947] 1 KB 130.
55. The law in this regard was considered extensively and more recently by the Supreme Court in State of Jharkhand & Ors v Brahmaputra Metallics Ltd, Ranchi & Anr.17 The Brahmaputra Metallics case dealt with a State Government Notification also in the context of taxation. The decision covered the jurisprudence on promissory estoppel and also legitimate expectations. As Section H.[2] of the Brahmaputra Metallics decision shows, the Motilal Padampat Sugar Mills’ ratio has been steadily evolved and expanded. The Brahmaputra Metallics decision deals with an important facet running in parallel, that of legitimate expectations. As the Supreme Court observed, these two doctrines, promissory estoppel and legitimate expectation, are often conflated in India. There is a telling comment that this doctrinal confusion has robbed the law of clarity but always citizens have been victims (paragraph 41). The Supreme Court said that the representations by public authorities need to be held to scrupulous standards since citizens continue to live their lives based on the trust they repose in the State as well. Importantly for our purposes the observations albeit of a general nature in paragraph 41 are most apposite. “41. While this doctrinal confusion has the unfortunate consequence of making the law unclear, citizens have been the victims. Representations by public authorities need to be held to scrupulous standards, since citizens continue to live their lives based on the trust they repose in the State. In the commercial world also, certainty and consistency are essential to planning the affairs of business. When public authorities fail to adhere to their representations 17 2020 SCC OnLine SC 968. This has been considered in Indian Exservicemen Movement & Ors v Union of India & Ors, (2022) 7 SCC 323. without providing an adequate reason to the citizens for this failure, it violates the trust reposed by citizens in the State. The generation of a business friendly climate for investment and trade is conditioned by the faith which can be reposed in government to fulfil the expectations which it generates. Professors Jain and Deshpande characterize the consequences of this doctrinal confusion in the following terms: “Thus, in India, the characterization of legitimate expectations is on a weaker footing, than in jurisdictions like UK where the courts are now willing to recognize the capacity of public law to absorb the moral values underlying the notion of estoppel in the light of the evolution of doctrines like LE (Legitimate Expectations) and abuse of power. If the Supreme Court of India has shown its creativity in transforming the notion of promissory estoppel from the limitations of private law, then it does not stand to reason as to why it should also not articulate and evolve the doctrine of LE for judicial review of resilement of administrative authorities from policies and long-standing practices. If such a notion of LE is adopted, then not only would the Court be able to do away with the artificial hierarchy between promissory estoppel and legitimate expectation, but, it would also be able to hold the administrative authorities to account on the footing of public law outside the zone of promises on a stronger and principled anvil. Presently, in the absence of a like doctrine to that of promissory estoppel outside the promissory zone, the administrative law adjudication of resilement of policies stands on a shaky public law foundation.”
56. The Supreme Court in Brahmaputra Metallics spelt out the foundational basis for the doctrine of legitimate expectations and clearly stated that it is not simply a doctrine that is parallel or analogous to the doctrine of promissory estoppel. The doctrine of legitimate expectations has a separate and independent existence. The weight of learning on legitimate expectations was considered. The Supreme Court looked at Indian decisions and the extent to which these were based on the doctrine as applied under English law.
57. One of the distinctions noted was that the application of the doctrine of the legitimate expectations has as its primary considerations, reasonableness and fairness in State action. Paragraph 45 of Brahmaputra Metallics says: “45. In a concurring opinion in Monnet Ispat and Energy Ltd vs Union of India (“Monnet Ispat”, [(2012) 11 SCC 1]), Justice H L Gokhale highlighted the different considerations that underlie the doctrines of promissory estoppel and legitimate expectation. The learned judge held that for the application of the doctrine of promissory estoppel, there has to be a promise, based on which the promisee has acted to its prejudice. In contrast, while applying the doctrine of legitimate expectation, the primary considerations are reasonableness and fairness of the State action. He observed thus: “Promissory Estoppel and Legitimate Expectations
289. As we have seen earlier, for invoking the principle of promissory estoppel there has to be a promise, and on that basis the party concerned must have acted to its prejudice. In the instant case it was only a proposal, and it was very much made clear that it was to be approved by the Central Government, prior whereto it could not be construed as containing a promise. Besides, equity cannot be used against a statutory provision or notification.
290. … In any case, in the absence of any promise, the Appellants including Aadhunik cannot claim promissory estoppel in the teeth of the notifications issued under the relevant statutory powers. Alternatively, the Appellants are trying to make a case under the doctrine of legitimate expectations. The basis of this doctrine is in reasonableness and fairness. However, it can also not be invoked where the decision of the public authority is founded in a provision of law, and is in consonance with public interest.” (emphasis supplied)”
58. Moreover, it had been earlier noted that the doctrine of legitimate expectations could not be claimed as a right in itself but could only be used or invoked when a denial of those legitimate expectations led to an Article 14 violation.
59. This then brought to the forefront the connection between Article 14 and the doctrine of legitimate expectations, a matter that fell for consideration before a three Judge Bench of the Supreme Court in Food Corporation of India v Kamdhenu Cattle Feed Industries.18 This is discussed in paragraph 48 of Brahmaputra Metallics: “48. As regards the relationship between Article 14 and the doctrine of legitimate expectation, a three judge Bench in Food Corporation of India vs Kamdhenu Cattle Feed Industries, speaking through Justice J S Verma, held thus:
60. Finally, the Supreme Court in Brahmaputra Metallics concluded that the doctrine of substantive legitimate expectation is one of the ways in which the guarantee of non arbitrariness enshrined under Article 14 finds concrete expression.
61. It is with these principles in mind that we hold that the actions of the MCGM and the impugned document are utterly irrational and ex facie arbitrary. No reasonable person could ever have refused the permission. The correct balance has not been struck. All relevant considerations — the grant of prior permission, the setting of the road line, the undertakings for setback, the fate of 110 tenants/occupants, and the provisions of the DCPR 2034 — have been utterly ignored. The doctrines of promissory estoppel will come into play not against the statute, but against the impugned administrative action in not correctly applying the statute. Once the MCGM had granted permission in a certain factual context — the width of Bapty Road being less than 9 mts — and once the Petitioner had acted on that representation and permission (in this case to considerable and demonstrable prejudice), the MCGM was clearly estopped from citing the unvaried width of Bapty Road as a reason or ground to withhold further permission. Independently of that doctrine, the Petitioner did indeed have a legitimate expectation that permission granted on that factual basis of the width of Bapty Road being less than 9 mtrs would not be refused on account of the road width.
62. It is not pleaded, so we will not address it, but had it been pleaded we might even have been moved to hold against the Assistant Engineer on clear mala fides, so egregious, irrational, and utterly perverse is the impugned refusal.
63. If there was ever a matter that cried out for judicial review of administrative action, this is it.
64. Most importantly we fail to see what public purpose is achieved by denying the Petitioner the relief that is sought. Conversely, we are wholly unable to see what possible prejudice is caused either to the MCGM or to the city at large if the permissions as originally planned, and which are now sought, are granted.
65. This is that one unusual species of matters that compels a Writ Court to exercise its discretion and direct the Municipal Corporation to forthwith withdraw and cancel the impugned orders. In any case they are quashed and set aside.
66. Prayer clauses (a), (b), (c) and (d) read as follows: “(a) That this Hon’ble Court may be pleased to call for the record and proceedings with respect to the Application dated 8th December 2023 filed by the Petitioner for grant of further CC up to 33rd Floor for the subject property bearing C.S. No. 211 & 1/211 of Tardeo Division and quash and set aside the Impugned Order dated 16th December 2023 and 10th marked as Exhibit A[1] and Exhibit A[2] January 2024 passed by Respondent No. 2 refusing to grant the same for purported failure to comply with IOD Conditions. (b) That this Hon’ble Court may be pleased to issue a writ of mandamus, a writ in the nature of mandamus, or such other appropriate writ, order or direction, directing the Respondents to allow the Petitioner’s Application dated 8th December 2023 for further CC up to 33rd Floor as per approved plan dated 13/01/2023 for the redevelopment of the subject property bearing C.S. No. 211 & 1/211 of Tardeo Division.
(c) That this Hon’ble Court may be pleased to issue a the Respondents to take all appropriate steps to demolish and remove any obstructions that it may feel exist to the Road width of Bapty Road being at least 9 meters including but not limited to removal of the extension of the Bakery structure on Bapty Road.
(d) That this Hon’ble Court may be pleased to issue a the Respondents to consider and decide the representations dated 15th December 2023 and 26th December 2023 preferred u/s. 298 of BMC Act, 1888, for removal of the extended structure erected in setback area affected by the sanctioned 60 feet regular line of the Bapty Road, situated at C.S. No. 212 & 213 of Tardeo Division, Bapty Road, Mumbai, within the stipulated period as this Hon’ble Court may deem fit and proper in the interest of justice and equity.”
67. As we have said, we are not concerned with prayer clause (c). The MCGM may take its own time. We are also not required to pass any order in terms of prayer clause (d) which is a reference to Section 298 of the MCGM Act.
68. It is sufficient to make Rule absolute in terms of prayer clauses (a) and (b).
69. The Petitioner’s application and the necessary permissions for a CC up to the 33rd floor as per the plans approved on 13th January 2023 for the redevelopment of the property on CS Nos 211 and 1/211 of the Tardeo division are to be granted no later than by 1st March 2024.
70. At this stage, Ms Yadav submits that our decision should be confined to the facts of this case and should not serve as a precedent. The submission has no merit. We have not held that the MCGM is bound to grant permission for development on a road of insufficient width. To the contrary, we have held, and we reiterate, if the road is insufficiently wide, no permission for development should be granted to begin with. We have not held that the MCGM must widen every road immediately. We have considered the fact that there are setbacks, undertakings, a declared road line under the MCGM Act, and that permissions have already been granted on the existing road width. In that situation, we have held, it is wholly impermissible for the MCGM to deny further permissions solely on the ground of insufficient road width. The apprehension expressed is, therefore, without basis.
71. List the matter on 4th March 2024 first on board for compliance. (Kamal Khata, J) (G. S. Patel, J)