1999 Supreme(Bom) 562

IN THE HIGH COURT OF BOMBAY
(O.O.C.J.)
M.B. Ghodeswar B.N. Srikrishna, JJ.
Overseas Chinese Cuisine (India) Pvt. Ltd. another ..... Petitioners.
Versus
The Municipal Corporation of Greater Bombay others..... Respondents
Writ Petition No. 1761 of 1999, decided on 3 4-8-1999.
Advocates appeared :
V.R. Manohar with G.E. Vahanvati, Janak Dwarkidas with D.D. Madon, Cyrus Ardeshir and Ms. Kusum Joshi i/b Mulla Mulla Craigie Blunt Caroe, for the petitioners.
K.K. Singhvi with Mrs. N.V. Sanglikar, for the respondent Nos. 1 2.
C.J. Sawant A.G. with R.V. Govilkar, Government Pleader with A.L. Patki, for the respondent No. 3.
D.T. Plekar with H.V. Mehta, for respondent No. 4.

Headnote:Development Control Regulations for Greater Bombay (1991)

       Regulation 52(2)(d)-Regulation.-In this case it was held that application could not have been considered in view of Regulation 52(2)(d).

       Doctrines of promissory estoppel and legitimate expectation

       There being no promise made by corporation-Matter decided by Administrative Authority by applying provisions of law-Order not irrational or perverse-Both doctrines not applicable.

       Environment (Protection) Act, 1986

       -Section 3(2)(v)-Protection of environment-In this case it was held that word "existing" carrying the same meaning viz existing on the date of Notification.- The word "existing" as used in the concerned part of the Notification, cannot be read differently at different places within the same part. 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. The use of participle existing to qualify "local Town and Country Planning Regulations" and "Norms of Floor Space Index/Floor Area ratio" is, 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 book or comer 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 pemlitted under the Notification in CRZ-II shall be frozen to the laws and norms existing on the date of the Notification. This interpretation is perfectly in consonance with the legislative intention behind the Environment (Protection) Act, 1986.

       Progress is reflected in change and no frozen action, contend the Petitioners Counsel. But, progress is a concept with deeper philosophical, ethical and moral overtones. One mans meat may be anothers poison. So with progress too. Ultimately, it is for the collective will of the people, as expressed by law, to asset itself and answer this question. Whether depredation of the 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.

       What the notification intends is that the E.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 ES.I. norms elsewhere, the CRZ-II zone is given this benefit, it was seen nothing wrong or objectionable there in, nor any reason against such construction being adopted.

       Further, by virtue of the provisions of Section 21,1986, 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 TOR Regulation No. 67, brought into force in the year 1995, it can have no application in the areas falling within CRZ-II.

       Sections 47 and 53(3) - Regularisation of unauthorised construction-Municipal Corporation passed order-Such order being quasi judicial-No revision or review lies against-No scope for repeated applications under Section 53(3) of Act.-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 Commissioners 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 53o had already been made rejected and subject to an appeal, which also failed. Court is 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 v. S.S. Basha, 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 it was though by Court 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 MRTP 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. Court, therefore, agrees with the contention that an application under sub-section (3) of Section 53 of the MRTP 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 MRTP Act. Court is, therefore, unable to accept the contention urged by the petitioners that their application dated 21st May, 1998 must be deemed to be one under Section 53(3) of the MRTP Act nor are Court impressed by the contention that such applications can be entertained ad infinitum depending on the variation in the circumstances.