Case: Shabi Construction Company Vs. City And Industrial Development Corporation And Anr

the Rules made thereunder to carry out the purpose of the Act and without prejudice to the generality of the power, lays down the specific fields in which it can make regulations 8. That brings us to the relevant provisions of the Regulations. Regulations 3.11 defines FSI to mean the ratio of the gross floor are of all the storeys of a building on a plot to the total area of the plot. Regulations 16 enumerates the various terms and conditions which are govern development of buildings for the various land use and Regulation 16.3.1(a) thereof prescribes the maximum permissible FSI 9. From the facts of the instant case as recorded earlier it is evident that when Respondent 1 issued the public notice in August 1985 inviting offers for lease of the plot in question, the maximum permissible FSI for divers land uses according to the final development plan was 1 and the minor modification proposed by it in respect thereof was awaiting sanction of the State Government. It is also evident, that before execution of the agreement by the appellant and Respondent 1, the State Government had issued the impugned notification in accordance with Section 37(2) of the Act sanctioning increase in the FSI to 1.50 and not to 2 as proposed by Respondent 1. The prior sanction of the State Government being the sine qua non for a final development plan as also for minor modifications thereof under Section 31 and 37 respectively, the agreement so far as it related to FSI did not, and could not, bestow any legal right upon the appellant. To put it conversely, only on such sanction could the inchoate right under the agreement crystallize into a legally enforceable right in favour of the appellant10. Building his argument on the doctrine of estoppel, the learned counsel for the appellant submitted that the prescription of FSI was not a statutory prescription but an administrative decision required to be taken by Respondent 1 from plan to plan under the provisions of Section 22(m) of the Act. He argued that since in the instant case Respondent 1, as the Planning Authority, took a decision to increase the FSI to 2 for business use of land and entered into a contract with the appellant on the basis thereof with open eyes it was estopped from repudiating the contract under Section 115 of the Evidence Act as also the general equitable doctrine of estoppel. He next contended that Regulation 16 of the Regulations made under Section 159 of the Act providing for FSI was ultra vires because the matters which could be brought within the ambit of the Regulations were serialised in the enabling section. According to the learned counsel when FSI has been specifically mentioned to be made a part of each development plan under Section 22(m) the fixation of FSI cannot be brought within the ambit of regulation-making power of the Development Authority and it had to be provided for by their executive orders to be determined in their discretion. The learned counsel contended that Respondent 1 could not resile from their contractual obligations by taking shelter behind a regulation which was ultra vires. He lastly contended that, assuming but without admitting, that FSI could fall within the ambit of regulation made under Section 159 of the Act, the fixation thereof was not a statutory prescription but the expression of an in-house policy declaration, which if deviated from by the holder of the Authority could not be used as a shield to retract from their contractual obligations. It was at best, according to the learned counsel, a violation of a rule and the proposition that there cannot be any estoppel against statute did not extend thereto11. Having regard to the scheme of the Act as reflected in the various provisions of the Act and the Regulations referred to earlier we are unable to accept the above contentions. Amongst various matters required to be included in a development plan under Section 22 of the Act, a provision for permission to be granted for controlling and regulating the use and development of land including imposition of conditions and restrictions in regard to the open space to be maintained about buildings and percentage of building are for a plot is required to be made under clause (m) thereof. To conform to the words "percentage of building are for a plot" appearing in that clause the FSI has been defined in the Regulations and maximum permissible limit fixed. Undoubtedly, to start with, fixation of FSI is an in-house exercise of Respondent 1, but it gets its legal sanctity only when the State Government grants its approval thereto under Section 159 of the Act. After the FSI is so fixed to comply with the requirement of Section 22(m), it becomes a part and parcel of the development plan which is to be submitted by the Planning Authority to the State Government under Section 21. Once the State Government grants approval to the development plan it becomes the final development plan and binds the Planning Authority under Section 31(6) of the Act. Therefore, any breach or violation of any of the terms or contents of the final development plan or modification in respect thereof without prior sanction of the State Government would amount to a breach of Sections 31 and 37, as the case may be, of the Act. That necessarily means, that in the instant case the increase in the FSI to 2 without obtaining approval of the State Government, is not only a breach of Regulation 159 but also of Sections 31(6) and 37(2) of the Act. In that view of the matter and in view of the well-settled law that the doctrine of promissory estoppel cannot be invoked to compel the public bodies or the Government to carry out the representation or promise which is contrary to law or which is outside their authority or power, none of the contentions raised on behalf of the appellant can be entertained

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]9. From the facts of the instant case as recorded earlier it is evident that when Respondent 1 issued the public notice in August 1985 inviting offers for lease of the plot in question, the maximum permissible FSI for divers land uses according to the final development plan was 1 and the minor modification proposed by it in respect thereof was awaiting sanction of the State Government. It is also evident, that before execution of the agreement by the appellant and Respondent 1, the State Government had issued the impugned notification in accordance with Section 37(2) of the Act sanctioning increase in the FSI to 1.50 and not to 2 as proposed by Respondent 1. The prior sanction of the State Government being the sine qua non for a final development plan as also for minor modifications thereof under Section 31 and 37 respectively, the agreement so far as it related to FSI did not, and could not, bestow any legal right upon the appellant. To put it conversely, only on such sanction could the inchoate right under the agreement crystallize into a legally enforceable right in favour of the appellant10. Building his argument on the doctrine of estoppel, the learned counsel for the appellant submitted that the prescription of FSI was not a statutory prescription but an administrative decision required to be taken by Respondent 1 from plan to plan under the provisions of Section 22(m) of the Act. He argued that since in the instant case Respondent 1, as the Planning Authority, took a decision to increase the FSI to 2 for business use of land and entered into a contract with the appellant on the basis thereof with open eyes it was estopped from repudiating the contract under Section 115 of the Evidence Act as also the general equitable doctrine of estoppel. He next contended that Regulation 16 of the Regulations made under Section 159 of the Act providing for FSI was ultra vires because the matters which could be brought within the ambit of the Regulations were serialised in the enabling section. According to the learned counsel when FSI has been specifically mentioned to be made a part of each development plan under Section 22(m) the fixation of FSI cannot be brought within the ambit ofpower of the Development Authority and it had to be provided for by their executive orders to be determined in their discretion. The learned counsel contended that Respondent 1 could not resile from their contractual obligations by taking shelter behind a regulation which was ultra vires. He lastly contended that, assuming but without admitting, that FSI could fall within the ambit of regulation made under Section 159 of the Act, the fixation thereof was not a statutory prescription but the expression of anpolicy declaration, which if deviated from by the holder of the Authority could not be used as a shield to retract from their contractual obligations. It was at best, according to the learned counsel, a violation of a rule and the proposition that there cannot be any estoppel against statute did not extend thereto11. Having regard to the scheme of the Act as reflected in the various provisions of the Act and the Regulations referred to earlier we are unable to accept the above contentions. Amongst various matters required to be included in a development plan under Section 22 of the Act, a provision for permission to be granted for controlling and regulating the use and development of land including imposition of conditions and restrictions in regard to the open space to be maintained about buildings and percentage of building are for a plot is required to be made under clause (m) thereof. To conform to the words "percentage of building are for a plot" appearing in that clause the FSI has been defined in the Regulations and maximum permissible limit fixed. Undoubtedly, to start with, fixation of FSI is anexercise of Respondent 1, but it gets its legal sanctity only when the State Government grants its approval thereto under Section 159 of the Act. After the FSI is so fixed to comply with the requirement of Section 22(m), it becomes a part and parcel of the development plan which is to be submitted by the Planning Authority to the State Government under Section 21. Once the State Government grants approval to the development plan it becomes the final development plan and binds the Planning Authority under Section 31(6) of the Act. Therefore, any breach or violation of any of the terms or contents of the final development plan or modification in respect thereof without prior sanction of the State Government would amount to a breach of Sections 31 and 37, as the case may be, of the Act. That necessarily means, that in the instant case the increase in the FSI to 2 without obtaining approval of the State Government, is not only a breach of Regulation 159 but also of Sections 31(6) and 37(2) of the Act. In that view of the matter and in view of thelaw that the doctrine of promissory estoppel cannot be invoked to compel the public bodies or the Government to carry out the representation or promise which is contrary to law or which is outside their authority or power, none of the contentions raised on behalf of the appellant can be entertained