1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.973 OF 2011 Byramjee Jeejeebhoy Pvt.Ltd. & Anr. .. Petitioners V/s The State of Maharashtra & Ors. .. Respondents Mr.Milind Sathye, Senior Advocate with Mr.Akram Bastivi i/by M/s.Harilal Thakkar & Co.for the Petitioners. Mr.D.A.Nalawade, Govt.Pleader for Respondent Nos.1 & 2. Ms.Priti Purandare for Respondent Nos.3 to 5. CORAM: D.K.DESHMUKH & R.G.KETKAR, JJ. DATE: 6th July, 2011. P.C.: 1. Rule. Rule is made returnable forthwith and heard finally by consent of the parties. By this petition filed under Article 226 of the Constitution of India, petitioners challenge the communication dated 13th May, 2011 issued by the the Municipal Corporation of Greater Mumbai. The relevant facts are that the petitioners had approached the Mumbai Municipal Corporation for permission to construct the multi-storied public parking lot on the plot bearing C.S. No.126 of Parel- Sewri Division, at G.D.Ambekar Road and Dinshaw Petit Road, Kalachowki, Mumbai as per the provisions of D.C.Regulation 33(24). It appears that the Corporation 2 approached the State Government for its in principal approval to this proposal. The State Government sent communication dated 10.11.2010 to the Municipal Commissioner stating “In this regards, I am directed to convey the Governments in principal approval for construction of multistoried public parking lot proposed in building under DCR 33 (24) for accommodating 1242 Nos. (38 HMV + 206 LCV + 998 LMV) of public parking spaces subject to the following terms and conditions.” 2. After receiving this letter, the Corporation by a communication dated 16.12.2010 granted Letter of Intent (LOI) for development of public parking lot. The relevant portion of the letter reads as under:- “With reference to subject proposal, this is to inform you that the Govt. has accorded in principle approval for construction of multi-storied / public parking lot under D.C.Reg.33(24) for accommodating total 1242 Nos. (38 HMV + 206 LCV + 998 LMV) of public parking spaces subject to terms and conditions mentioned therein. By direction of Municipal Commissioner, the Letter of Intent (LOI) is hereby granted for development of Public Parking Lot (PPL) as per provisions of D.C.Regn.33 (24) on plot under reference subject to following conditions.” 3. It appears that after receiving LOI, petitioners wanted to incorporate some amendments in the sanctioned building plan, and therefore letter dated 19.4.2011 was sent to the Corporation. 3 Corporation replied that letter by its communication dated 13.5.2011. The relevant part of that letter reads as under:- “Please refer to your letter dated 19.4.2011 regarding the above subject. In this case, it is to inform you that the amended plans submitted by you cannot be accepted since Government of Maharashtra has issued letter under No.CMS/TPB-4310/948/CR-289/2C of 9.3.2011, wherein it is directed to M.C.G.M., to cancel all sanctioned proposals under D.C.Regn.33(24) wherein commencement certificates have not been given.” 4. Corporation thus, because of letter of the State Government dated 4.3.2011 cancelled the LOI issued by itself. Communication dated 4.3.2011 from the State Government which is relied on by the Corporation in its communication dated 13.5.2011 reads as under:- “Dear Shri.Subodh Kumar, As directed in the meeting with Hon’ble C.M., on 03.03.2011, kindly send the proposal for amending Regulation 33(24) (Public Parking Regulation) incorporating:- 1. Limiting the height of the parking tower to G + 4. 2. Sharing a part of the “unearned income” with MCGM/Government. 3. Creating of a master plan for a new public parking areas with due regard to their need in the City. You may recall that it was also decided to cancel all sanctioned proposals under 33 (24) where commencement certificates have not been given.” 5. It is clear that the State Government has issued directions to the 4 Corporation to cancel all the sanctioned proposals under the D.C. Regulation 33(24), because the State Government wants to modify DC Regulations 33(24). Petitioners are before us challenging the communication dated 13.5.2011 cancelling the LOI granted in favour of the petitioners. 6. Learned Government Pleader appears for the State Government. Action has been taken by the Corporation for cancelling the LOI issued in favour of the petitioners only because of the directions issued by the State Government. We therefore asked learned Government Pleader as to under what power the State Government can direct Corporation to cancel the LOI which is granted pursuant to the approval given by itself only because the State Government proposes to modify the DC Regulations. Learned Govt.Pleader referred to the provisions of Section 154 of the Maharashtra Regional & Town Planning Act, 1966. Sub- section (1) of Section 154 reads as under:- S.154 Control by State Government:- (1) Every Regional Board, Planning Authority and Development Authority shall carry out such directions of instructions as may be issued from time to time by the State Government for the efficient administration of this Act. (2) If in, or his connection, with, the exercise of its powers and discharge of its functions by the Regional Board, Planning 5 Authority or Development Authority under this Act, any dispute arises between the Regional Board, Planning Authority or Development Authority, and the State Government, the decision of the State Government on such dispute shall be final.” 7. Perusal of the above quoted provision shows that the State Government under Section 154 can issue directions of general nature to the Planning Authority. But the State Government cannot issue directions to the Planning Authority to do something contrary to any law. The Supreme Court has considered the nature of similar power vested in the Government by Section 65 of the Bangalore Development Authority Act, 1976 in its judgment in the case of Bangalore Medical Trust V/s.B.S.Muddappa (1991) 4 SCC 54. The observations of the Supreme Court in paragraph 52, in our opinion are relevant, which read as under:- “Section 65 the overall power reserved in government to give such directions to the Authority as it considers expedient for carrying out any purpose of the Act was another provision relied to support an order which is otherwise insupportable. An exercise of power which is ultra vires the provisions in the statute cannot be attempted to be resuscitated on general powers reserved in a statute for its proper and effective implementation. The section authorises the government to issue directions to ensure that the provisions of law are obeyed and not to empower it itself to proceed contrary to law. What is not permitted by the Act to be done by the Authority cannot be assumed to be done by State Government to render it legal. An illegality cannot be cured only because it was undertaken 6 by the government. The section authorises the government to issue directions to carry out purposes of the Act. That is the legislative mandate should be carried out. And not that the provision of law can be disregarded and ignored because what was done was being done by State Government and not the Authority. An illegality or any action contrary to law does not become in accordance with law because it is done at the behest of the Chief Executive of the State. No one is above law. In a democracy what prevails is law and rule and not the height of the person exercising the power.” 8. The Supreme Court, in the above quoted paragraph has clearly held that directions can be issued by the State Government to ensure that the Planning Authority obeys the law. Directions cannot be issued to make the Planning Authority act contrary to law. There is no provision in the Act or the Rules which says that because the State Government proposes to incorporate amendments in the DC Regulations, the provisions of the existing Regulation should not be implemented or that the action taken under the existing provisions should be cancelled. It is clear from the observation of the Supreme Court quoted above that what is not permitted by the statute cannot be done by issuing direction under section 154 of the Act. In our opinion the minimum that should have been done by the State Government before issuing such general direction, was to hear the point of view of the person whose interest was likely to be adversely affected. No other 7 provision of statute was pointed out to us. The State Government was at all not justified in issuing the general directions under section 154 of the Act, directing the Planning Authority to cancel the LOI issued in favour of the petitioners only because the State Government contemplates modifying the DC Regulations. 9. In this view of the matter, therefore, in our opinion, following order would meet the ends of justice:- The communication dated 13.5.2011 impugned in the petition is set aside. The Executive Engineer, Building Proposal, City III of the Corporation is directed to consider afresh the proposal submitted by the petitioners for modification in the approved building plan in accordance with the law and in the light of the observations made above, without being fettered in any way by the directions from the State Government contained in the letter dated 4.3.2011. Rule is made absolute accordingly. Petition is disposed of. (R.G.KETKAR, J.) (D.K.DESHMUKH, J.)