S.C. Dharmadhikari, J.
1. Rule. Learned counsel for the Respondents waive service. By consent, the Rule is made returnable forthwith. The writ petition is taken up for hearing and final disposal.
2. By this writ petition under Article 226 of the Constitution of India, the Petitioners seek a writ of certiorari or any other appropriate writ, order or direction under Article 226 of the Constitution of India calling for the records of the impugned order dated 4 March 2014 (Exhibit-I to the petition) and quash and set aside the same.
3. The facts necessary to appreciate the rival contentions are that the Petitioner no.1 is a partnership firm registered under the Indian Partnership Act, 1932 and Petitioner no.2 is a partner of Petitioner no.1. The Respondent nos.1 and 2 are the State Government and the Secretary in the Department of Housing and Special Assistance. The Respondent no.3 is a statutory authority constituted under the Maharashtra Housing and Area Development Act, 1976 and Respondent no.4 is the Chief Officer of the Mumbai Building Repairs and Reconstruction Board, a unit of Respondent no.3. The Respondent no.5 is the Municipal Corporation of Greater Mumbai (`MCGM') constituted under the Mumbai Municipal Corporation Act, 1888.
4. The subject matter of this petition is a land which is part of City Survey Nos.251, 252 and 253 of Tardeo Division and the buildings standing thereon situate at Dr.Dadasaheb Bhadkamkar Marg, Mumbai.
5. On these city survey numbers, there are three buildings known as Calcuttawala Estate, Jariwala Chawl and Dwarkadas Building. The total number of occupants of these buildings and divided into residential/commercial/nonresidential, are set out in paragraphs 2.2 to 2.4 of the petition.
6. Annexures-A and B are the plan and letter of Respondent no.3 declaring the structures/buildings on the said property as dangerous.
7. It is the case of the Petitioners that 164 families are, therefore, to be taken care of and who are the occupants of these buildings. A reference is made to Regulation 33(7) of the Development Control Regulations for Greater Mumbai, 1991, as modified (`DCR'), and it is submitted that the occupants approached the Petitioners and requested them to undertake the redevelopment/ reconstruction of the buildings in question. That is how, the Petitioner no.1 submitted a proposal for joint redevelopment of the said property. It is stated that there is an agreement appointing the Petitioner no.1 as a developer. A reference is made to DCR 33(7) and the benefits that would flow from the same and it is then submitted that convinced by the proposal so submitted, the Respondent no.3 issued a Letter of Intent (`LOI') dated 29 October 2010, which is at Annexure-D to the paper book. Since heavy reliance is placed by both sides on this LOI, copy whereof is at pages 38 to 40 of the paper book, we deem it appropriate to reproduce it verbatim :
"MUMBAI BUILDING AND REPAIRS AND RECONSTRUCTION BOARD
(A MHADA UNIT)
No.R/J.V.-LOI-33(7)/4374/MBRRB-10
Date : 29 October 2010
To,
M/s.Darshan Jayant Builders,
109, Sankeshwar Darshan,
Sheth Motisha Lane,
Mazgaon, Mumbai400
010.
Subject : Joint Redevelopment of property bearing C.S.No.251(pt), 252(pt) and 253(pt) of Girgaon Divn, Building No.71-71A Culcuttawala Chawl, 79-81 Jariwala Chawl and 91 Dwarkadas Chawl, situated at Dr.Bhadkamkarr Marg, Mumbai-400 008 under DCR 33(7).
Reference : 1) Government of Maharashtra/Urban Development
Department Notice No.TPB 4309/968/CR-127/09/UD-11, dated 19.05.2009.
2) Your application dated 09.12.2009.
3) Executive Engineer "D2" Divn/MBRRB's letter No.EE/D-2/1032/2010, dated 26.03.2010.
4) Dy.Chief Engineer (Zone-II)/MBRRB's office note No.1011 dated 30.03.2010.
5) Your application dated 17.08.2010.
The Government of Maharashtra, Urban Development Department vide above referred Notice has published the proposed modification to Regulation No.33(7) for Reconstruction or Redevelopment of cessed buildings in the Island City of Mumbai acquired under MHAD Act 1976 undertaken by MHADA with Joint Venture with private developer.
In pursuance to this notice, you are hereby informed that this office has No Objection to get the proposed building plans approved for the Joint Venture Redevelopment Scheme of the captioned property from MCGM with FSI for rehab + 60% incentive FSI as per provision of DCR 33(7) subject to the conditions mentioned in the above notice and following terms and conditions.
1. The plans of proposed buildings shall be prepared by the Architect and Structural Engineer appointed by you and submit the same to the Building Proposal Department of MCGM, in concurrence of the Dy. Chief Engineer (Zone-II)/MBRRB, a unit of MHADA.
2. You will have to plan to rehabilitate all the existing tenants/occupants of all the old buildings. Each occupant shall be given the carpet area occupied by him for residential purpose in the old buildings subject to the minimum carpet area of 27.88 sq.mtrs (300 sq.ft.) and equivalent Carpet area if it is more than 300.00 sq.ft. subject to maximum Carpet area 70.00 sq.mtrs. (753.00 sq.ft.) as provided in the MHAD Act, 1976. In case of non-residential occupiers, the area to be given in the reconstructed building will be equivalent to the area occupied in the old building.
3. 60% incentive FSI on rehab area shall be granted to the developer who will have to hand over 20% of the incentive FSI to MBRRB in the form of tenements of 300 sq.ft. and remaining 80% will be available for free sale to the Developer. The actual number of tenements to be handed over to the MBRRB will be communicated after final approval of the policy of Joint Venture by the Government.
4. It shall be binding upon you to display the plans of proposed Joint Venture Scheme of Redevelopment and the list of amenities to be provided to the existing tenants at suitable places for the information of all tenants at the captioned property. The said display should clearly indicate the proposed building for the rehabilitation of existing tenants, for MBRRB and for free sale.
5. As far as possible you will plan separate building(s) for rehabilitation of existing tenants, for MBRRB and for the purpose of free sale, taking in to account the plot area of the captioned property.
6. The proposal should be processed in accordance with Development Control Regulation 33(7), D.P. Reservations etc. and you should obtain MCGM's approval for the same.
7. The plans of the proposed building will be processed and sent to MCGM for the approval by Dy. Chief Engineer (Zone-II)/MBRRB and the Developer Jointly. The plans prepared shall clearly show the rehab tenements and area to be surrendered to MBRRB.
8. All the above terms and conditions shall exclusively be applicable for the captioned property only.
9. Since the development of the captioned property is to be carried out jointly, an agreement for Joint Venture Scheme will have to be executed between you and MBRRB, such agreement will have to be executed after final approval of the Joint Venture policy by Government.
10. The modifications in Regulation DCR 33(7) as may be finalised by Government, shall be conclusive and binding on you.
11. The MCGM shall not grant Commencement Certificate till final NOC and agreement to that effect is executed by developer with MBRRB.
12. The terms and conditions for Joint Venture Policy as may be finalized by Government and MBRRB shall be conclusive and binding on the developer and shall become part of the NOC and agreement. No third party rights shall be created without express permission of MBRRB.
13. If it is noticed that some more additional tenants/occupants of the old acquired buildings apart from the 12 tenants already mentioned by you are found to have been given alternate accommodation in newly reconstructed building under PMGP Scheme or any other reconstructed building of MBRRB, then in that case, you will have to hand over the equivalent number of tenements in the new buildings to be constructed. This Letter of Intent should not be construed as NOC but only a letter to apply to MCGM for getting the proposed building plans approved from the MCGM.
Sd/-
Chief Officer,
M.B.R. and R. Board, Mumbai."
8. On 29 October 2010, this LOI was issued and on receipt thereof, the Petitioners claim to have taken steps mentioned at paragraph 3.6 of the petition.
9. The Petitioners, therefore, claim that they acted in terms of the LOI. The whole scheme was to the knowledge of the statutory authorities. It is in these circumstances, they rely upon the letter of Respondent no.4 dated 1st November 2011 asking the Deputy Engineer, Building Proposals of Respondent no.4 to approve the building plans submitted jointly by the Petitioners and Respondent no.4.
10. At the stage when the Petitioners were awaiting the clearances and approvals in terms of this LOI and the communication dated 1st November 2011, they were surprised to receive a communication/letter dated 29 November 2012. It is claimed that this was not just any letter or communication but there is a direction therein cancelling the LOI issued in favour of the Petitioners.
11. Aggrieved by this order/action, the Petitioners approached this Court and filed a Writ Petition bearing No.838 of 2013. On that writ petition, a detailed order was passed after hearing both sides on 19 June 2013. This Court quashed the letter/direction dated 29 November 2012 by taking a view that before the statutory authorities reach such a conclusion, they must issue a show cause notice to the parties like the Petitioners and thereafter comply with the principles of natural justice. Meaning thereby, they must be given an opportunity of a hearing or a personal hearing or forwarding their representations and on which the statutory authorities must pass a detailed order assigning reasons.
12. The Petitioners, therefore, submit that they were expecting a fresh action to be taken only on issuing a show cause notice. However, that was not issued. The Petitioners were informed in writing that there would be a hearing on 17 January 2014. The Petitioners appeared on 17 January 2014 and prayed for time. Thereafter they furnished their written submissions raising all the contentions and objections. It is on such material that the impugned order dated 4 March 2014 cancelling the LOI came to be passed. It is this order, a copy of which is at Exhibit-I of the paper book, which is challenged in this writ petition.
13. Mr.Virag Tulzapurkar, learned Senior Advocate, appearing for the Petitioners would submit that the impugned order is contrary to law. The impugned order and decision is arbitrary, unreasonable, unfair and unjust. It violates the mandate of Article 14 of the Constitution of India. It is also contrary to the specific order and direction of this Court in Writ Petition No.838 of 2013. Mr.Tulzapurkar would submit that no show cause notice containing specific grounds and allegations was ever issued to the Petitioners. The Petitioners, therefore, were handicapped as they had no knowledge of the grounds on which the LOI is being cancelled. Once the order and direction of this court is violated, then, on that ground alone, the impugned order be quashed and set aside.
14. Mr.Tulzapurkar then submitted that the reasons assigned in the impugned order are not supportable by the record. In that regard, Mr.Tulzapurkar would rely upon the averments in the writ petition and specifically the grounds. He would submit that Resolution No.6636, dated 24 October 2013 of Respondent no.3 states that it has decided to redevelop the properties in question acquired by it. The subject properties were acquired by Maharashtra Housing And Area Development Authority (`MHADA') more than three decades back. Though the buildings standing thereon were declared as dangerous, MHADA was unable to take-up the redevelopment. Therefore, the joint venture by MHADA with private developer like the Petitioner no.1 came into effect. If the principal reason for cancelling the LOI is the notice dated 19 May 2009, then, that cannot be relied upon. What has been informed by the Housing Department vide letter dated 23 August 2012 is that the proposed modification dated 19 May 2009 to DCR 33(7) is cancelled. The letter at Annexure-F to the writ petition does not speak of any such cancellation. It is not possible for the Housing Department of the Government to cancel the notice which is issued by the Urban Development Department of State Government. Mr.Tulzapurkar would submit that the authorities could not have proceeded on the basis that there is any government direction. The Government has not said that modification is cancelled. It only says that MHADA ought to take a policy decision. Mr.Tulzapurkar then submitted that participation of a private developer is not ruled out by DCR 33(7). There is no directive of the Government to exclude private developers. In these circumstances, the decision is also contrary to the Development Control Regulations in the field.
15. It is on such a foundation that Mr.Tulzapurkar would submit that the Petitioners have a legitimate expectation. That legitimate expectation is that the LOI was issued and the Petitioners were allowed to take further steps including presentation of plans for approval of MCGM. If MCGM were to approve the plans and that is how even the Respondent no.4 acted, then, all that remained was a No Objection Certificate (`NOC') from MHADA. Mr.Tulzapurkar invited our attention to several clauses of LOI, a copy of which is at Annexure-D, to submit that once the Petitioners were assured in terms of the LOI, which is a written communication by a statutory authority, that it can undertake and complete the work of redevelopment of the properties belonging to that statutory authority, then, legitimate expectation is that the statutory authority will allow the Petitioners to take all steps in furtherence thereof, including a belief that the statutory authority will not abruptly cancel such a LOI or approval which may be conditional. The LOI is not cancelled on the ground that any conditions were breached or violated by the Petitioners. It is not cancelled on the ground that the Petitioners were unfit to take-up the redevelopment work or that any deliberate or intentional act of the Petitioners is responsible for the delay allegedly in implementation of the scheme. In these circumstances, the doctrine of legitimate expectation applies with full force.
16. Alternatively and without prejudice, it is submitted that the decision impugned in this writ petition must be given a prospective effect. If that decision contains a policy which has been brought into effect now, then, all the more it can have no retrospective effect. For these reasons, Mr.Tulzapurkar would submit that the petition be allowed.
17. He places reliance on a decision of Hon'ble Supreme Court of India in the case of Gorkha Security Services Vs. Government (NCT of Delhi) and others (2014)9-SCC-105).
18. The contesting Respondents to this writ petition are Respondent nos.3 and 4 MHADA. They have filed an affidavit of their Resident Executive Engineer. That deponent of this affidavit is working with Respondent no.4 Board. He states that there is no dispute that the buildings in question were acquired. There is no dispute that the Petitioners applied on 9 December 2009 for redevelopment of the complex under DCR 33(7). However, the Government proposed to alter DCR 33(7) in regard to permitting a joint venture. That would be undertaken by MHADA wholly with private developer. Accordingly, a notice at page 36 of the paper book was issued by the Government on 19 May 2009 for considering the change in DCR 33(7). The Government invited objections and suggestions from the public in relation to the proposed change in DCR 33(7). It is submitted that the Development Control Regulations are framed in accordance with the proposals of the development plan. In that regard, they are traceable to Section 22(m) of Maharashtra Regional and Town Planning Act, 1966 (`MRTP Act'). Any change or modification in the DCRs would tantamount to a modification or change in the development plan itself. Therefore, the procedure prescribed by Section 37(1)(AA) of the MRTP Act will have to be undertaken and completed. Since MHADA had issued a LOI to the Petitioners proposing a joint venture for redevelopment, it has taken care to impose such conditions as are permissible in law. There was never any firm assurance or promise and it was for a limited purpose to enable the Petitioners to approach MCGM for approval of building plans, that the LOI was issued by MHADA. It was clarified that proposed joint venture would be in accordance with the suggested modification to DCR 33(7) and not DCR 33(9), as erroneously alleged. It is only on the finalization of the joint venture policy by the Government, that an agreement will be executed between MHADA and the private developer. This would be in consonance with the conditions stipulated in the joint venture policy as determined by the Government. Therefore, any modification or change in DCR 33(7) by the Government, will bind the authorities. It was, therefore, clarified at the end of the letter that after compliance with the said conditions, the LOI may be issued. In such circumstances, when a policy decision has now been taken not to allow any private participation, but to complete the redevelopment by MHADA itself and which MHADA is competent to undertake, then, all the more, the order under challenge cannot be quashed and set aside on the ground that it violates the principles of natural justice or that the Government's action or letter does not prohibit undertaking of development by participation of a private developer. Consistent with this stand on affidavit, Ms.Anklesaria, learned Senior Advocate appearing for the contesting Respondents, would submit that the LOI does not create or vest any right in the Petitioners. The Petitioners are private builders and developers. The builders and developers may have been approached by the occupiers and residents of the buildings in question, but the property as such belongs to MHADA. Once the land and buildings vest in MHADA and it is MHADA which alone can take a decision in terms of its policies of redevelopment and reconstruction of buildings at site, then, any private arrangement between the occupants and the developer and the builder, will not enable it to approach a competent Court and seek any reliefs. The foundation of the relief itself is untenable in law. There is no right, title and interest created in favour of the Petitioners in respect of the three buildings or the land beneth the same.
19. Ms.Anklesaria, therefore, would submit that the argument of Mr.Tulzapurkar by relying on the doctrine of legitimate expectation deserves to be rejected. She relies upon clauses 9 to 12 of the LOI. she would submit that other argument of Mr.Tulzapurkar that the impugned order contravenes the direction of this Court in earlier proceedings, is equally unsound and untenable. The earlier letter dated 29 November 2012 was received by the Petitioners. That letter was challenged by them in Writ Petition No.838 of 2013. The Petitioners knew as to why MHADA proposed to cancel the LOI. Once this court quashes that letter but permits MHADA to go ahead with its action, then, this letter dated 29 November 2012, at page 41 of the paper book, can very well be treated as a show cause notice. There are two reasons given by MHADA and through out. First is that it desires to have expeditious implementation of the project. In that regard, Ms.Anklesaria would submit that the Petitioners could not gather support of requisite number of occupants or percentage of the residents. She would submit that a policy decision was taken by MHADA and it was subject matter of the earlier order. Therefore, the Petitioners are not taken by surprise at all. They have participated in the hearing. They have tendered written submissions, which have been duly considered. If the overriding public interest demands cancellation of LOI and in terms of DCR 33(7), the benefits can be obtained by MHADA for itself and for the public, then, it is entitled to change its policies and bring them in tune with the requirement of public interest. Today, MHADA would gain in terms of FSI, which is unrestricted and uncapped. There are several buildings and properties acquired by MHADA which are awaiting redevelopment. Therefore, a larger policy decision led to the impugned order being passed. Such an order deserves to be upheld. It should not be quashed and set aside on the spacious ground of a private developer's hope and expectation that he/she would obtain commercial benefits, if permitted to redevelop the property, either solely or partially with MHADA. With these submissions, Ms.Anklesaria requests to dismiss the petition.
20. Ms.Anklesaria brings to our notice the decision of Hon'ble Supreme Court of India in case of Jayant Achyut Sathe Vs. Joseph Bain D'Souza and others (Civil Appeal No.2970 of 2006 and connected Appeals decided on 4 September 2008).
21. We have, with the assistance of both learned Senior Advocates, perused the petition, the affidavit-in-reply filed by contesting Respondents and annexures thereto. We have carefully considered the rival contentions. We have also perused the relevant provisions of law.
22. It is common ground that Maharashtra Housing and Area Development Authority collects the cess on buildings located in the Island City of Mumbai. The cess is collected to subserve a larger public interest and public good. That is to ensure the occupants and residents of such buildings that in the event repairs, up keep and maintenance of these buildings is neglected by the owners, then the Housing Board will come to their aid and assistance. It would undertake structural repairs, if required, to the buildings. It would equally acquire them and redevelop the properties in terms of the powers conferred in it by Maharashtra Housing and Area Development Act, 1976 (`MHAD Act'). It is, therefore, entitled to take such policy measures and decisions so as to carry forward the object and purpose of the MHAD Act and collection of cess. Eventually, the State Government has enacted MHAD Act and amended it from time to time so as to unify, consolidate and amend the laws relating to housing, improving and reconstructing dangerous buildings and carry out improvement works in slum areas. The MHAD Act subserves the larger constitutional mandate enshrined under Articles 21 and 39 (b) and (c) of the Constitution of India.
23. In the instant case, three buildings and the land beneath them were acquired by MHADA. True it is, the buildings are occupied by the occupants who are using the tenements for residential and non-residential purposes. True it is that DCR 33(7) has been enacted and it is applicable to the reconstruction or redevelopment of cessed buildings in the Island City of Mumbai by co-operative housing societies or old buildings either belonging to the MCGM or as specified in DCRs of the category stated therein. The Government in its Urban Development Department's Notification dated 25 January 1999 further modified this DCR. The Government has decided to modify DCR 33(9) regarding reconstruction or redevelopment of cessed buildings/urban renewal schemes. The Housing Department has brought to the notice of the Government that it has filed an affidavit in one of the Court proceedings that guidelines for joint venture shall be issued regarding development of cessed buildings which are acquired under MHAD Act, 1976. Since the modification is in the public interest, Government finds it necessary to modify the DCRs. That is how a notice at pages 36 and 37 of the paper book notifying the proposed modification came to be issued. The proposed modification sought in the notice at pages 36 and 37 reads as under :
" ... ... ... ... ...
... ... ... ... ...
.. ... ... ... ...
And whereas, Government has decided to modify the Regulation No.33(9), regarding reconstruction or redevelopment of cessed buildings/Urban Renewal Schemes (hereinafter referred to as "the said proposed modification");
And whereas, Housing Department has brought to the notice that Housing Department has filed an affidavit in one of the Court case matter that the guidelines for joint venture shall be issued regarding the development of cessed buildings which are acquired under MHADA Act, 1976;
And whereas, the modification is in public interest, govt. finds it necessary to modify the said regulation. Now, therefore, in exercise of the powers conferred under sub-section (1AA) of Section 37, Government is pleased to issue the notice for inviting suggestions/objections from public.
The Government is further pleased to inform that any objections/suggestions upon the said proposed modification be forwarded within 30 days from the date of publication of this notice in the official gazette to the Deputy Director of Town Planning, Greater Mumbai having his office at ENSA Hutments, E-Block, Azad Maidan, Mahapalika Marg, Mumbai-400 001 who is being appointed as an officer under section 162 of the said Act. The said officer shall submit his report to Government after scrutinising the suggestions and objections over the proposed modification and say of the said Corporation and after granting hearing to the concerned persons including the said Corporation.
PROPOSED MODIFICATION
Following provisions shall be added in the Regulation 33(7).
Reconstruction or redevelopment of cessed buildings in the Island City acquired under MHAD Act, 1976, undertaken by MHADA with joint venture with private developer shall be permissible subject to following conditions â“
1. Rehabilitation of all cessed buildings with tenement size 300 sq.ft. carpet area.
2. 50% incentive FSI shall be granted to the developer who will hand over 10% of incentive FSI to MHADA in the form of built up tenements of 300 sq.ft. carpet area and remaining 40% be sold as free sale by the developer.
3. FSI remaining out of 2.5 after deducting the rehabilitation area and incentive FSI will be shared in ratio 2:1 between MHADA (2) and the developer (1).
4. The scheme shall be completed on time bound basis within 2 years or period prescribed by MHADA.
5. The monitoring shall be done by MHADA. By order and in the name of Governor of Maharashtra.
Sd/-
(Abhiraj Girkar)
Under Secretary to Government."
24. Thus, reconstruction or redevelopment of the cessed buildings in the Island City of Mumbai acquired by MHADA can be undertaken by MHADA with joint venture of the private developer, subject to the conditions proposed.
25. It is then common ground that on 29 October 2010, MHADA through its Mumbai Building Repairs and Reconstruction Board (`Unit') considered the application of the Petitioners made on 9 December 2009. It considered the letter dated 26 March 2010 of the Executive Engineer of MuWP.1805mbai Board. It also considered the note No.1011, dated 30 March 2010 of the Deputy Chief Engineer of Mumbai Board and further application of the Petitioners dated 17 August 2010. It, therefore, addressed a letter/communication to the Petitioner no.1, a copy of which is at Exhibit-D, which we have reproduced. This letter specifically refers to the Government's decision proposing modification or change in DCR 33(7) whereunder reconstruction or redevelopment of the cessed buildings in the Island of City of Mumbai acquired by MHADA can be undertaken by MHADA, jointly with private developer. Therefore, this letter clearly states that Petitioners can approach for sanctioning building plans for this joint venture and that would be subject to the conditions mentioned in the notice dated 19 May 2009 issued by the Government, a copy of which is at pages 36 and 37 of the paper book and on the terms and conditions of LOI itself. It is thus a limited no objection to get the proposed buildings plans approved. It is only conditional upon the Government's sanctioning and approving the proposed changes or modifications in DCR 33(7). We are in complete agreement with Ms.Anklesaria that such a LOI does not create any right, title or interest in favour of the Petitioners in respect of subject property and buildings. The buildings continued to be owned and vest in MHADA. The policy was mooted by MHADA on the suggestion of the Government and that is to reconstruct the buildings and redevelop the property with participation of a private developer. The said LOI, therefore, by itself could not have been a foundation of the Petitioners' grievance made to this Court either earlier or now. Pertinently, the Petitioners raised more or less identical contentions in the earlier round of litigation. They were satisfied with the limited directions of this Court that the LOI will be cancelled, if at all, only after they were issued a notice and granted an opportunity of a personal hearing by the statutory authorities. It is that limited request which was considered and granted by this Court bearing in mind that the letter at Exhibit-D came to be issued on 29 October 2010. We have perused each and every condition of the letter at Annexure-A. We find that the reliance placed on the clauses thereof by Ms.Anklesaria is well founded. Condition no.6 clearly refers to the proposals and its processing in accordance with DCR 33(7). It also refers to the policy of the Government (Condition no.9). Therefore, it mandates execution of an agreement after the change or modification in DCR 33(7) is sanctioned and approved by the Government. Pertinently, no such agreement for joint venture ever came to be signed and executed between the Mumbai Building Repairs and Reconstruction Board and the Petitioners. Condition no.10 clearly refers to the modifications in DCR 33(7), which were to be finalized by the Government. The LOI also stipulates in condition no.11 that MCGM shall not grant commencement certificate till final NOC and agreement to that effect is executed by the developer with Mumbai Board. Condition no.12 is also to identical effect. The LOI ends by informing the Petitioners that it should not be considered as a no objection certificate. It reiterates that it is only a letter to apply to MCGM for getting the proposed building plans approved from MCGM.
26. Now that the Government has clarified that it does not propose to effect any change or modification in DCR 33(7) and left it open for MHADA to take proper action, then, in terms of the powers conferred in MHADA by the substantive provisions of MHAD Act of 1976, it could have taken a decision and hence passed a resolution to cancel the LOI granted to the Petitioners. It is a policy decision. If the Government and MHADA are of the view that greater benefit could be obtained for the public if the Housing Board/authority itself undertakes redevelopment of the land and reconstruction of the old and dilapidated buildings, then, such a decision of experts in the field of housing, is not liable to be interfered with by the Court in exercise of its powers under Article 226 of the Constitution of India. It is too well settled and does not require any reiteration that policy decisions cannot be questioned as if this Court possesses appellate power to scrutinize and verify the same. The wisdom of a policy decision cannot be questioned by this Court. Unless the policy is arbitrary, capricious, discriminatory or mala fide, it is beyond the powers of judicial review. This Court may think of a better option but that by itself and without anything more will not empower this Court to question the action of the statutory authority.
27. In the circumstances, we do not find that the impugned order which is based on a policy decision of MHADA requires any interference in our writ jurisdiction. The doctrine of legitimate expectation has also some limits and restrictions. The expectation must be legitimate. The expectation loses all its legitimacy and no action can be founded thereon, if the overriding public interest so demands. In a decision of the Hon'ble Supreme Court of India in case of Union of India and others Vs. Hindustan Development Corporation and others (AIR-1994-SC-988), this principle has been explained elaborately. The relevant portion of the said decision is reproduced as under:
"33-34. On examination of some of these important decisions it is generally agreed that legitimate expectation gives the applicant sufficient locus standi for judicial review and that the doctrine of legitimate expectation is to be confined mostly to right of a fair hearing before a decision which results in negativing a promise or withdrawing an undertaking is taken. The doctrine does not give scope to claim relief straightway from the administrative authorities as no crystallised right as such is involved. The protection of such legitimate expectation does not require the fulfillment of the expectation where an overriding public interest requires otherwise. In other words where a person's legitimate expectation is not fulfilled by taking a particular decision then decision-maker should justify the denial of such expectation by showing some overriding public interest. Therefore even if substantive protection of such expectation is contemplated that does not grant an absolute right to a particular person. It simply ensures the circumstances in which that expectation may be denied or restricted. A case of legitimate expectation would arise when a body by representation or by past practice aroused expectation which it would be within its powers to fulfill. The protection is limited to that extent and a judicial review can be within those limits. But as discussed above a person who bases his claim on the doctrine of legitimate expectation, in the first instance, must satisfy that there is a foundation and thus has locus standi to make such a claim. In considering the same several factors which give rise to such legitimate expectation must be present. The decision taken by the authority must be found to be arbitrary, unreasonable and not taken in public interest. If it is a question of policy, even by way of change of old policy, the courts cannot interfere with a decision. In a given case where there are such facts and circumstances giving rise to a legitimate expectation, it would primarily be a question of fact. If these tests are satisfied and if the court is satisfied that a case of legitimate expectation is made out then the next question would be whether failure to give an opportunity of hearing before the decision affecting such legitimate expectation is taken, has resulted in failure of justice and whether on that ground the decision should be quashed. If that be so then what should be the relief is again a matter which depends on several factors.
35. We find in Attorney General for New South Sales' case (1994 (64) Aus LJR 327), that the entire case on the doctrine of legitimate expectation has been considered. We also find that on an elaborate and erudite discussion it is held that the courts' jurisdiction to interfere is very much limited and much less in granting any relief in a claim based purely on the ground of `legitimate expectation'. In Public Law and Politics edited by Carol Harlow, we find an article by Gabriele Ganz in which the learned author after examining the views expressed in the cases decided by eminent Judges to whom we have referred to above, concluded thus:
"The confusion and uncertainty at the heart of the concept stems from its origin. It has grown from two separate roots, natural justice or fairness and estoppel, but the stems have become entwined to such an extent that it is impossible to disentangle them. This makes it very difficult to predict how the hybrid will develop in future. This could be regarded as giving the concept a healthy flexibility, for the intention behind it is benign; it has been fashioned to protect the individual against administrative action which is against his interest. On the other hand, the uncertainty of the concept has led to conflicting decisions and conflicting interpretations in the same decision."
36. Legitimate expectations may come in various forms and owe their existence to different kind of circumstances and it is not possible to give an exhaustive list in the context of vast and fast expansion of the governmental activities. They shift and change so far that the start of our list would be obsolete before we reached the middle. By and large they arise in cases of promotions which are in normal course expected, though not guaranteed by way of a statutory right, in cases of contracts, distribution of largesse by the Government and in somewhat similar situations. For instance in cases of discretionary grant of licences, permits or the like, carries with it a reasonable expectation, though not a legal right to renewal or non-revocation, but to summarily disappoint that expectation may be seen as unfair without the expectant person being heard. But there again the Court has to see whether it was done as a policy or in the public interest either by way of G.O; rule or by way of a legislation. If that be so, a decision denying a legitimate expectation based on such grounds does not qualify for interference unless in a given case, the decision or action taken amounts to an abuse of power. Therefore the limitation is extremely confined and if the according of natural justice does not condition the exercise of power, the concept of legitimate expectation can have no role to play and the court must not usurp the discretion of the public authority which is empowered to take the decisions under law and the court is expected to apply an objective standard which leaves to the deciding authority the full range of choice which the legislature is presumed to have intended. Even in a case where the decision is left entirely to the discretion of the deciding authority without any such legal bounds and if the decision is taken fairly and objectively, the court will not interfere on the ground of procedural fairness to a person whose interest based on legitimate expectation might be affected. For instance, if an authority who has full discretion to grant a licence and if he prefers an existing licence holder to a new applicant, the decision cannot be interfered with on the ground of legitimate expectation entertained by the new applicant applying the principles of natural justice. It can therefore be seen that legitimate expectation can at the most be one of the grounds which may give rise to judicial review but the granting of relief is very much limited. It would thus appear that there are stronger reasons as to why the legitimate expectation should not be substantively protected than the reasons as to why it should be protected. In other words, such a legal obligation exists whenever the case supporting the same in terms of legal principles of different sorts, is stronger than the case against it. As observed in Attorney General for New South Wales' case (1990 (64) Aus LJR 327). "To strike down the exercise of administrative power solely on the ground of avoiding the disappointment of the legitimate expectations of an individual would be to set the courts adrift on a featureless sea of pragmatism. Moreover, the notion of a legitimate expectation (failing short of a legal right) is too nebulous to form a basis for invalidating the exercise of a power when its exercise otherwise accords with law." If a denial of legitimate expectation in a given case amounts to denial of right guaranteed or is arbitrary, discriminatory, unfair or biased, gross abuse of power or violation of principles of natural justice, the same can be questioned on the well-known grounds attracting Art.14 but a claim based on mere legitimate expectation without anything more cannot ipso facto give a right to invoke these principles. It can be one of the grounds to consider but the court must lift the veil and see whether the decision is violative of these principles warranting interference. It depends very much on the facts and the recognised general principles of administrative law applicable to such facts and the concept of legitimate expectation which is the latest recruit to a long list of concepts fashioned by the courts for the review of administrative action, must be restricted to the general legal limitations applicable and binding the manner of the future exercise of administrative power in a particular case. It follows that the concept of legitimate expectation is "not the key which unlocks the treasury of natural justice and it ought not to unlock the gates which shuts the court out of review on the merits", particularly when the element of speculation and uncertainty is inherent in that very concept. As cautioned in Attorney General for New South Wales' case the courts should restrain themselves and restrict such claims duly to the legal limitations. It is a well meant caution. Otherwise a resourceful litigant having vested interests in contracts, licences etc. can successfully indulge in getting welfare activities mandated by a directive principles thwarted to further his own interests. The caution, particularly in the changing scenario, becomes all the more important."
28. If one tests the argument of Mr.Tulzapurkar in the backdrop of these principles, one finds that the Petitioners cannot claim any right higher than the one conferred by the communication at Exhibit-D. That itself being conditional and wholly dependent on the Government's decision and the policy is enunciated by the letter of Urban Development Department, Government of Maharashtra to be implemented by the statutory authority like MHADA, then, this argument that Petitioners' had a legitimate expectation cannot be accepted. The Petitioners cannot claim, on a limited authority under the LOI, a right by which they could have undertaken the redevelopment or reconstruction work on their own. If that was to be jointly undertaken with MHADA and MHADA being bound by the Government's policy decision taken in larger public interest, then all the more, the argument of Mr.Tulzapurkar cannot be accepted.
29. The other argument of Mr.Tulzapurkar is equally devoid of any substance. True it is that if somebody is sought to be deprived of a right vested or created by law, then, the principles of natural justice have to be adhered to. The application of the principles of natural justice would apply dependent upon number of relevant factors including the nature of right and the lis, power vested in the statutory authorities. Ordinarily, a show cause notice is issued so that the person proceeded against gets to know the reasons or grounds based on which the proposed action is taken against it. In the instant case, we find that the Petitioners are not prejudiced at all. They had complete knowledge of the fact that Government's policy would be guiding the MHADA and equally them in the redevelopment or reconstruction proposed at the site. Therefore, once the Government does not pursue a particular policy, then the Petitioners cannot claim to be joint developer with MHADA. If this is the ground on which essentially the matter proceeded, then prior communication dated 29 November 2012 furnished adequate reasons for the Petitioners to meet them in the subsequent proceedings. That is how they have placed on record the detailed written submissions. In the circumstances and when they question the merits of the impugned order, then all the more, we do not see as to how Mr.Tulzapurkar can place reliance on the decision in Gorkha Security Services (supra). In Gorkha Security Services (supra), the party approaching the Supreme Court was unaware that in the garb of cancelling a particular contract, the authority proposes to blacklist it. The consequences of such an action would be extreme and the party then would be unable to obtain any public contract. It is such a drastic act which should have preceded a proper show cause notice and proposing such blacklisting. That being not placed on record, the Hon'ble Supreme Court reiterated the principles on which a blacklisting action can be founded. Accordingly, the Supreme Court quashed the order challenged before it. The Supreme Court itself has clarified that the principles of natural justice cannot be put in a straight jacket formula. The applicability of the same would be dependent on facts of each case. In the circumstances, this decision is wholly distinguishable on facts.
30. As a result of the above discussion, we do not find any merit in the writ petition. We do not find any substance in the argument of Mr.Tulzapurkar that the reasons in the impugned order are not supportable by record. The impugned order amply clarifies as to why MHADA has cancelled the LOI. It assigns reasons and which refer to the Government's policy and the earlier steps. It also refers to the Court order and duly considers the written submissions in the light of the terms and conditions of LOI. We are, therefore, of the view that merits of the impugned order cannot be challenged by the Petitioners. The impugned order is essentially based on a policy decision. In the circumstances and when the Petitioners do not have any right which it can enforce in writ jurisdiction, then there is no question of giving any prospective effect to the impugned order either.
31. The writ petition, therefore, fails and is dismissed, but without any order as to costs.
32. At this stage Mr.Kadam prays that this Court on 14 November 2014 passed ad-interim order in terms of prayer clause (b). Inviting our attention to prayer clause (b), it was submitted that this Court restrained the statutory authorities from acting in furtherance of the impugned order. The ad-interim order is continued till date and must be continued for a reasonable period so as to enable the Petitioners to challenge this order in a higher Court. This request is opposed by Mr.Sawant. He would submit that MHADA cannot be restrained from redeveloping its own properties and reconstruction of buildings standing thereon so as to rehouse the occupants and eligible persons. He would submit that larger public interest would not be subserved by continuation of the ad-interim order.
33. Having heard the learned counsel, we are of the view that there is much substance in the objection of Mr.Sawant. Now restraining MHADA or Mumbai Board from giving effect to its order or to continue the ad-interim order granted on 14 November 2014 and after concluding that Petitioners' challenge to it has no merit, will be improper and contrary to public interest. The request of Mr.Kadam is, therefore, refused. The request of Mr.Kadam is also refused because the buildings are dilapidated and the occupants are evicted therefrom.