Jvs. 1097611
IN THE HIGH COURT OF JUDICATURE AT BOMBAY.
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 10976 OF 2011
M/s. Shakti Commercial Premises
Society Ltd., a Society registered under
the provisions of Maharashtra Coop.
Societies Act, 1960
Having its office at H30,
APMC MarketI,
Mudi Bazar, Vashi, Navi Mumbai – 400703
through its Constituted Attorney
Mr. Mayur Ashok Bhanushali :Petitioner
versus
1. State of Maharashtra,
through The Secretary,
Urban Development Department,
Mantralaya, Mumbai – 400032.
2. The City and Industrial Development
Corporation Ltd., a company registered
under the Companies Act 1956 having
their Registered Office at Nirmal,
2nd floor, Nariman Point,
Mumbai 400032.
3. Navi Mumbai Municipal Corporation,
Having its office at 1st floor,
Belapur Bhavan, Sector 11,
C. B. D. Belapur,
Navi Mumbai – 400614. :Respondents
Mr. Aspi Chinoy, Senior Counsel, with Mr. Vinay Sonpal for the
Petitioner.
Mr. V. S. Gokhale, A.G.P., for Respondent No. 1.
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Mr. A. M. Kulkarni for Respondent No. 2.
Mr. A. G. Garge for Respondent No. 3.
CORAM: A. M. KHANWILKAR &
R. G. KETKAR, JJ.
Reserved on :30th
April, 2012
Pronounced on :11th
June, 2012
JUDGMENT :(
Per A. M. Khanwilkar, J.)
Rule. Rule made returnable forthwith. Counsel for the
respective respondents waive notice.
2. By consent, matter is taken up for final disposal, forthwith.
3. This Petition under Article 226 of the Constitution of India
has been filed principally against the decision of Respondent No. 2 City
and Industrial Development Corporation (for short 'CIDCO') declining
to grant Noobjection
certificate for grant of additional 100% FSI over
basic FSI of 1.5 already available on the land bearing Plot No. 1A in
Sector 19D, Vashi (for short 'said land'), despite the Government order
dated 31st August, 2009 enabling the Respondent No. 3 Navi Mumbai
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Municipal Corporation (for short 'Corporation') to permit additional FSI
for development of proposed IT & ITES use.
4. Briefly stated, the petitionerSociety
had applied for
allotment of 32 Shops, 3 Offices and 1 Canteen, constructed on the said
land, in the month of November, 2003. CIDCO accepted the said
Applications of the Society and issued separate letters of allotment for
each unit.
5. After the allotment, the petitionerSociety
moved
Application dated 16th November, 2004 for grant of permission to use
the units alloted to it for commercial user and for grant of unconsumed
F.S.I. on the basis of GDCR of Corporation, sanctioned by the State
Government vide Notification dated 27th May, 2004. That request was
considered by the Board of Directors of CIDCO. The Board, vide
Resolution No. 9142 dated 23rd December, 2004, accepted the request
of the petitionerSociety.
Accordingly, approval was granted for
allotment of balance unconsumed FSI on the said land and also to issue
NOC regarding change of user of the plot from existing Shops and
Godown to general commercial use like, Shopping Mall, Restaurant,
Multiplex, Marriage Hall, etc., subject to approval of the Corporation,
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on payment of total lease premium of ` 15.49 crores, at the rate of
` 19,562/per
square metre for plot area of 7916.13 square metres,
from which, the premium of ` 6.72 crores paid earlier was to be
adjusted. Consistent with the said decision, the Marketing Manager
(III) issued modified letter of allotment to the petitionerSociety
on 4th
January, 2005. The Corporation also granted permission for change of
user, vide letter dated 15th February, 2005.
6. However, since inquiry was conducted by the State
Government in respect of the allotment of land made contrary to the
established Rules, Regulations and conventions by CIDCO, during the
period 26th May, 2003 to 28th December, 2004, CIDCO did not accept
the balance payment of lease premium and also did not execute the
lease agreement as per the letter of allotment dated 4th January, 2005.
That was on account of the orders issued by the Managing Director of
CIDCO on 2nd May, 2005, pursuant to the directions of the State
Government. Inasmuch as, the allotment made to petitionerSociety
was also subject matter of the said inquiry. As a result, the petitionerSociety
filed Writ Petition No. 3970/2005 in this Court seeking
directions against CIDCO to accept the balance payment of lease
premium and execute the lease agreement as per the letter of
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allotment. This Court, by interim order dated 19th August, 2005,
directed the Board of Directors of CIDCO to consider the
Representation to be made by the petitionerSociety
in that regard. As
per the said directions, the Board of Directors, in its meeting held on 5th
October, 2005, reaffirmed the allotment of the said land to the
petitionerSociety
and approved the report to be submitted to the State
Government. The report from CIDCO was then submitted to the State
Government. The State Government having accepted the said report,
this Court disposed of the said Writ Petition on 12th December, 2005.
7. Consequent thereto, CIDCO executed the agreement of
lease in respect of the said land in favour of the petitionerSociety
on
29th March, 2006. The agreement specifies the land user for general
commercial use like, Shopping Mall, Restaurant, Multiplex, Marriage
Hall, etc. After execution of the said agreement, the Corporation issued
development permission in respect of the said land and
Commencement Certificate dated 23rd November, 2006.
After commencement of the construction, the petitionerSociety
made
application on 13th November, 2007 to CIDCO for grant of NOC /
Sanction for private IT Park, as per the Government Policy for IT & ITES
2003 with 100% additional FSI. In response, the Manager (Town
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Services) of CIDCO, by his letter dated 25th June, 2008, informed the
petitionerSociety
that CIDCO may change the user of said land from
commercial to IT, provided the Society pays the administrative charges
of ` 10,000/to
CIDCO and obtains permission of the Town Planner of
the Corporation for such change of use. Thereafter, the Manager (Town
Services) of CIDCO wrote letter dated 31st July, 2008 to the Principal
Secretary, Urban Development Department, inquiring about the
premium to be recovered for grant of 100% additional FSI to the plots,
initially alloted for some other purpose but subsequently use changed
for Information Technology. Even the Vice Chairman and Managing
Director of CIDCO wrote letter dated 23rd January, 2009 to the Principal
Secretary, Urban Development Department, making similar inquiry.
8. The State Government, vide direction dated 31st August,
2009, passed in exercise of powers under Section 37(1) read with
Section 154 of the Maharashtra Regional and Town Planning Act, 1966
(hereinafter referred to 'said Act'), directed CIDCO and Corporation to
initiate modification to include the Regulation as detailed out in the
Schedule appended to the said order. CIDCO and Corporation were
further directed to publish the requisite notice inviting the
suggestions / objections over the said modification within a period of
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90 days from the date of issuance of the said order. Further, after
completing the legal procedure as laid down under Section 37(1) of the
said Act, the stated modification proposal was to be submitted to the
Government for final sanction. The said directioncumorder
further
records that, pending sanction to the stated modification by the
Government under Section 37(2) of the said Act, the said modification
was to come into effect forthwith.
9. Taking cue from the said direction, the petitionerSociety,
vide letter dated 24th December, 2010, made request to CIDCO for grant
of Noobjection
regarding 100% additional FSI for development of IT
Park, as per the new policy. As the said application remained
undecided, the petitionerSociety
moved this Court by way of Writ
Petition No. 2141/2011 seeking directions against CIDCO to issue the
Noobjection
certificate and for consequential reliefs. The said Writ
Petition came to be disposed of on 21st June, 2011 with direction to
CIDCO to decide the application of the petitioner within time bound
period of three months.
10. Pursuant to the said directions, the Managing Director of
CIDCO gave personal hearing to the petitionerSociety
and has rejected
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the request of the petitionerSociety
for grant of 100% additional FSI
for development of proposed IT Park on said land, for the reasons
recorded in the impugned order dated 26th September, 2011
communicated to the petitionerSociety
by the Manager (Town
Services – I) under the cover of his letter dated 28th September, 2011.
The petitionerSociety
has, therefore, filed the present Writ Petition to
challenge the said decision.
11. The petitioners are challenging the impugned decision on
the ground that, in spite of the direction of this Court to consider the
Application of the petitionerSociety
and record reasons in case of
rejection thereof, the impugned order passed by the Managing Director
does not spell out any tangible reason whatsoever. Further, reliance
placed by the Authority on clauses 38(H) and 46.1(A) of GDCR
(NMMC) 1994 was completely inapposite. The Authority, in the
impugned order, has completely glossed over the fact that it had
already agreed to grant Noobjection
Certificate to the petitionerSociety
upon payment of administrative charges and subject to change
of use of the said land by the Corporation. It is contended that the
Planning Authority was competent to change the user of the land, and,
on grant of permission by the Corporation, the petitionerSociety
was
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entitled to develop the plot for Information Technology use. Further,
the correspondence between CIDCO and State Government reinforces
the stand of the petitionerSociety
that CIDCO was not opposed to
grant of NOC for using the said land for Information Technology use.
At any rate, after the State Government directions dated 31st August,
2009, CIDCO was bound to act upon the same and issue Noobjection
certificate as applied by the petitionerSociety
in anticipation of
modification of regulation to include regulation for development of
IT/ITES. According to the petitioner, once the change of user is
permitted by the Planning Authority, i.e., the Corporation, and the
petitioner pays premium as per the proposed amendment of regulation,
it is not open to CIDCO to defeat the right of the petitioner to develop
the plot for IT/ITES use. Further, CIDCO is only the lessor; and cannot
defeat the right accrued to the petitioner. To buttress these arguments,
reliance is placed on the decision of Division Bench Judgment of this
Court in the case of Bombay Environmental Action Group & Anr. vs.
State of Maharashtra, 2002( Supp.) Bom.C.R. 449, and another
unreported decision in the case of Sandeep Sharadchandra Thakur
vs. State of Maharashtra & Ors. in PIL No. 187 of 2007, decided on
29th July, 2010, which has adverted to the former decision.
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12. This Petition is stoutly opposed by respondent No. 2
CIDCO. The counsel for respondent No. 2 submits that the basis of
challenge to the impugned order passed by the Managing Director, is
illadvised.
He submits that detailed reasons have been given in the
impugned decision, as can be discerned from paragraph No. 10 of the
order. He submits that it is improper for the petitioner to contend that
CIDCO has committed itself to grant Noobjection
Certificate to allow
the petitionerSociety
to develop the said land for Information
Technology use. He submits that the interdepartmental
correspondence relied by the petitionerSociety
is of no avail. Similarly,
even the State Government direction dated 31st August, 2009 cannot
create any right in favour of the petitionerSociety
until CIDCO permits
the petitionerSociety
to develop the property for use other than the use
specified in the letter of allotment and the agreement executed
between the petitionerSociety
and CIDCO. It is submitted that the
direction of the State Government dated 31st August, 2009 cannot be
understood to mean that the conditions specified in the letter of
allotment and the agreement in respect of the said land, in favour of
the petitionerSociety,
are eclipsed and the petitionerSociety
can
develop the property for use which is not consistent thereto. The
counsel for CIDCO further submits that, even though CIDCO is only a
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lessor, yet it is within its right to refuse permission to develop the land
alloted to the lessee, for the purpose other than the conditions specified
in the letter of allotment and the agreement notwithstanding
the
Regulation permitting development of the land for some other use.
Learned Counsel further submits that the two decisions pressed into
service by the petitioner will be of no avail.
13. The foremost question that needs to be answered is:
Whether the change of user permitted by the Planning Authority or
modification of the Regulations by the State Government would create
any higher right in favour of the lessee, other than the condition
specified in the allotment of land by CIDCO? There is no dispute that
the said land is vested in CIDCO. The petitionerSociety
is only lessee
of CIDCO. The petitionerSociety,
therefore, can enjoy the land in
question only in consonance with the lease conditions, in terms of the
Allotment Letter and the Agreement executed by CIDCO in its favour.
No more and no less. The fact that the Planing Authority perceives that
the land can be used for some other purpose cannot create any right in
favour of the lessee of CIDCO, unless CIDCO also agrees to that change
of user of the land by relaxing the lease conditions. Similarly, merely
because the State Government decides to change the
Page 11 of 26
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Regulation permitting charging premium amount for change of user of
the land, that will be of no avail to the lessee of CIDCO so
long as the
condition specified in the Allotment Letter and the Lease Agreement
remains unchanged or modified. For, the right of the lessee springs
only from the Letter of Allotment and the Lease Agreement. In other
words, the Letter of Allotment as well as the Lease Agreement is the
source of contractual right created in favour of the lessee to enjoy the
land allotted to it on lease. The lessee is obliged to comply with and
adhere to the conditions of Letter of Allotment and Lease Agreement.
The lessee cannot compel the lessor, i.e., CIDCO, to allow it to use the
land for some other purpose than specified in the Letter of Allotment
and Lease Agreement, as the case may be.
14. A priori, we are in agreement with the argument of CIDCO
that the fact that the Planing Authority is inclined to allow the
petitionerSociety
to develop the plot for Information Technology or
that the State Government has expressed its intention to charge
premium for such change of user payable to the State Government,
Planing Authority and CIDCO, that, per se, would not create any right in
favour of the lessee of CIDCO. The lessee of CIDCO would,
nevertheless, be bound by the stipulations and conditions in the Letter
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Jvs. 1097611
of Allotment and Agreement of Lease.
15. Accordingly, the claim of the petitioner, which is essentially
founded on the permission given by the Planing Authority or the
direction issued by the State Government, is extraneous for answering
the point in issue.
16. The next question is: Whether CIDCO has tacitly or
impliedly committed itself to grant NOC? That is a question of fact. The
petitioner is relying on the communication sent by the Manager (Town
Services) dated 25th June, 2008 (Exhibit 'T') addressed to the petitionerSociety.
On bare perusal of the contents of this communication, we
cannot agree with the petitioner that it is in the nature of granting NOC
to the petitionerSociety
to develop the said land for Information
Technology use or is in the nature of any assurance or promise given to
the petitioner in that behalf as such. The Manager has only expressed
the hope that “it is possible” to change the user of the said land, provided
the petitioner pays administrative charges specified therein to CIDCO and
obtains permission of the Corporation in that behalf. Further, there is
nothing to indicate that the Manager (Town Services) was competent to
grant NOC on his own. Even the interdepartmental
communications
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between the officials of CIDCO and the Principal Secretary, Urban
Development Department, relied upon by the petitioner (Exhibits 'S' and
'T') will not take the matter any further. That cannot be considered as
commitment made by CIDCO in favour of the petitioner that
it intends
to or has agreed to permit the petitionerSociety
to convert the user of
the said land from “Commercial” to “Information Technology”. Suffice it
to observe that none of the above communications pressed into service
are suggestive of CIDCO having committed itself of issuing NOC for
change of use of the said land from “Commercial” to “Information
Technology,” in favour of the petitioner. Once this argument is negatived,
the petition ought to fail. For, in exercise of Writ Jurisdiction, this Court
cannot direct CIDCO to grant such NOC to the petitionerSociety,
which
is the prerogative of CIDCO. This Court can only examine the propriety
and legality of decisionmaking
process in dealing with the request of the
petitioner to grant such NOC.
17. The next question is: Whether the opinion recorded by the
Managing Director of CIDCO and the decision dated 26th September,
2011 rejecting the application preferred by the petitioner dated 24th
December, 2010 can be faulted on the grounds urged before us by
the petitioner? The first ground is that no reason whatsoever has been
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recorded in the impugned decision as to why NOC should not be granted
to the petitionerSociety.
We do not agree with this submission.
Paragraph 10 of the decision not only restates
the background in which
the matter was examined, but also specifically refers to the ground on
which NOC cannot be granted to the petitionerSociety.
The Managing Director of CIDCO has noted that the plot in question was
situated in the Notified Area earmarked for Agriculture Produce Market
Complex. From that plot, 32 shops, three offices and one canteen were
alloted to the petitionerSociety.
After the allotment, the petitionerSociety
made application on 16th November, 2004, requesting to permit
the change of user of the plot to “Commercial” use by constructing
shopping mall, along with multiplex, restaurants, hotels, marriage halls,
etc., after dismantling the existing structure, and, for that, would pay the
additional lease premium for balance unconsumed
F.S.I. for the change
of use from “ShopscumGodown”
to “Commercial”. That request was
considered and granted by the Board of Directors of CIDCO vide
Resolution dated 23rd December, 2004. Pursuant thereto, the Marketing
Manager (III) issued modified Letter of Allotment in favour of the
petitionerSociety
on 4th January, 2005. Directions were issued by the
Managing Director not to act upon the decision already taken regarding
allowing change of use of the plot in question. In clause (iii) of
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Jvs. 1097611
paragraph 10 of the impugned decision, the recommendation made in
the said inquiry report is adverted to. In that, if CIDCO was intending to
allow the change of user of the concerned plots (which included the suit
plot), it ought to have first permitted change of user of this plot and then
advertised the property along with the changed use. It is also noted in
the said report that the subsequent change of use of the plots being
“more profitable user”, the element of fairness will be breached. If this
recommendation was to be acted upon by CIDCO, the inevitable action
would be to cancel the allotment of the plot and invite public offer for
the said plot for IT / ITES use. This is one reason which has weighed
with the Managing Director in rejecting the subject application filed by
the petitionerSociety.
This reason is germane for not granting NOC by
CIDCO. Inasmuch as, it is common knowledge that, depending on the
nature of use of the plot, the potentials of the plot would change
dramatically. To wit, the valuation of the plot, which can be used strictly
for “Residential”, will be qualitatively different, if the same plot is
allowed to be used and let out for “Industrial” or “Commercial”, and, as
in this case, to IT / ITES purpose. What has been noticed during the
enquiry is that the valuation of the plot is done on the basis of use stated
in the Letter of Allotment of the plot to the lessee. If that use is
subsequently changed, it would change the potentials of the property;
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and, if that was to be done, the proper option to be exercised by CIDCO
would be to cancel the allotment, and issue advertisement by giving
public notice, so that the best price of the plot is realised. That approach
would be in consonance with the public policy and public interest.
The exposition in the recent decision of the Apex Court in the case of
Saroj Screens Pvt. Ltd. v. Ghanshyam & Ors., reported in 2012 (4)
SCALE 25, will be useful in this behalf. In paragraph 15, the Apex Court
observed thus:“
What needs to be emphasised is that the State and
/ or its agencies / instrumentalities cannot give largesse
to any person according to the sweet will and whims of
the political entities and / or officers of the State. Every
action / decision of the State and / or its agencies /
instrumentalities to give largesse or confer benefit must
be founded on a sound, transplant, discernible and welldefined
policy, which shall be made known to the public
by publication in the Official Gazette and other
recognised modes of publicity and such policy must be
implemented / executed by adopting a nondiscriminatory
and non-arbitary method irrespective of
the class or category of persons proposed to be benefited
by the policy. The distribution of largesse like allotment
of land, grant of quota, permit licence, etc. by the State
and its agencies / instrumentalities should always be
done in a fair and equitable manner and the element of
favouritism or nepotism shall not influence the exercise
of discretion, if any, conferred upon the particular
functionary or officer of the State.
We may add that there cannot be any policy,
much less, a rational policy of allotting land on the basis
of applications made by individuals, bodies,
organisations or institutions de hors an invitation or
advertisement by the State or its agency / instrumentality.
By entertaining applications made by individuals,
organisations or institutions for allotment of land or for
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grant of any other type of largesse the State cannot
exclude other eligible persons from lodging competing
claim. Any allotment of land or grant of other form of
largesse by the State or its agencies / instrumentalities by
treating the exercise as a private venture is liable to be
treated as arbitrary, discriminatory and an act of
favouritism and / or nepotism violating the soul of the
equality clause embodied in Article 14 of the
Constitution.”
18. Indeed, in the present case, the change of use from “ShopscumGodown”
to “Commercial” was granted by CIDCO on the basis of
the Government policy applicable at the relevant time of charging lease
premium of 15.47 cores , at the rate of `19,562/per
square metre for a
plot of 7916.13 square metres and deducting premium of `6.72 crores
paid earlier at the time of allotment of the plot for use of “ShopscumGodown”.
The conversion of use of the plot to “Commercial” is not the
subjectmatter
of this petition. In this petition, the challenge is to the
refusal to grant NOC for change of use, i.e., “Commercial” to “IT/ITES”.
On the basis of change from “ShopscumGodown”
to “Commercial”, the
petitionerSociety
has already availed of benefit of maximum permissible
FSI to 1.5. The petitionerSociety
has paid lease premium for that
purpose, but it is debatable that the lease premium so paid is
commensurate with the prevailing market price of a plot, if it were to be
auctioned for commercial use. If this consideration has weighed with
CIDCO for refusing to grant NOC, it cannot be said to be extraneous or
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not germane. Rather, the stand of CIDCO subserves the public interest
and is consistent with public policy. It is not in dispute that, after
granting NOC for change of user from “ShopscumGodown”
to
“Commercial”, fresh allotment letter was issued and then Lease
Agreement executed in favour of the petitionerSociety
on 29th
March, 2006. The conditions stipulated in the said Letter of Allotment
and Lease Agreement would be binding between the parties.
The petitioner has not contended before us that the said Letter of
Allotment or the Lease Agreement bestows right in the petitionerSociety
and corresponding obligation on CIDCO to permit change of user from
“Commercial” to other use, if applied by the petitioner. In absence of
such right flowing from the contract between the petitionerSociety
and
CIDCO, it is not open to the petitionerSociety
to compel the lessor, i.e.,
CIDCO, to allow it to enjoy the property for purpose other than the one
mentioned in the Letter of Allotment and Lease Agreement.
19. Further, in clause (vi) of paragraph 10 of the impugned
decision, it is noted that, after grant of Commencement Certificate by the
Planning Authority and before issuance of the Completion Certificate, the
petitionerSociety
has now proposed to change the use from
“Commercial” to “IT/ITES” with 100% additional F.S.I., which request
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was made vide letter dated 13th November, 2007. That is an indirect way
of exploiting the potentials of the plot, which was allotted to the
petitioner on the assumption that it will be used for “Commercial” use
only.
20. In clause (vii) of paragraph 10 of the impugned decision, the
Authority has noted that, if the petitionerSociety
wanted the plot to be
developed as “IT / ITES”, nothing prevented the Society to apply for
change of initial use of “ShopscumGodown”
to be upgraded to
“IT/ITES”, as the Government policy for IT & ITES of 2003 was in vogue
in 20042005
when the application for change of use from “ShopscumGodown”
to “Commercial General” was made by the petitionerSociety.
Implicit in this observation is that the attempt of the petitionerSociety
was to exploit the value of the plot to the optimum without
compensating CIDCO with commensurate prevailing market price to be
fetched in public auction for the use of IT / ITES. That was being done
in a subtle manner in the name of change of user. Even this reason
mentioned in the impugned decision is germane.
21. In clause (ix) of paragraph 10 of the impugned decision, it is
noted that the petitionerSociety
has already exercised the option and got
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the benefit of getting change of user from “ShopscumGodown”
to
“Commercial” with 1.5 F.S.I. If the request made by the petitionerSociety
for further change from “Commercial” to “IT & ITES” with grant
of 100% additional F.S.I., that would result in unfair situation. The
Authority has reminded itself of the observation made in the enquiry
report when the change of user from “ShopscumGodown”
to
“Commercial” was allowed by CIDCO. The report records that it was an
undue favour shown to the petitionerSociety,
and cancellation of
allotment was recommended.
22. In clause (x) of paragraph 10 of the impugned decision, the
Authority has adverted to the condition specified in the Letter of
Allotment issued by CIDCO in favour of the petitioner dated 4th January,
2005, in particular paragraph 16 thereof. The same mentions about the
conditions for development of the suit plot, which read as under:“(
i) The plots are offered on “as is where is basis”.
(ii) Sub division of the plots shall not be permitted.
(iii) The maximum permissible FSI will be 1.5.
(iv) The building on plot reserved for commercial purpose
shall be constructed for business and mercantile use like
shopping mall, marriage hall, restaurant etc.
(v) The GDCR of NMMC at the time of submission of
development proposal and plan to Town Planning Officer,
NMMC shall be applicable in additional to above conditions.”
(emphasis supplied)
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23. It is, thus, noticed that the petitioner accepted the said plot
on “As is where is” basis with clear understanding that it was not
amenable to subdivision
and the maximum permissible F.S.I. will be 1.5
only. The lease premium was collected from the petitioner on that
understanding. Clause (iv) makes it amply clear that the building to be
constructed on the plot must be for “Commercial” purpose only for
business and mercantile use like shopping mall, marriage hall,
restaurant, etc. It is certainly not for “IT & ITES”. Clause (v) of the letter
of allotment refers to GDCR of NMMC, but that is the “additional
condition” and cannot supplant the primary condition specified in the
Letter of Allotment of constructing building to be used for specified
“Commercial” purpose only.
24. In the same paragraph, the Authority has adverted to
provisions of GDCR (NMMC) 1994 (as published in April, 2006).
Reference is made to Regulations 38(H) and 46.1(A). The Authority
noted that, so long as the said Regulations were in force, it was not open
to allow the petitionerSociety
to use the land for purposes other than
“Commercial” use. Regulation 38(H) envisages that Information
Technology Land use is permitted in respect of land use zone other than
Regional Park Zone, and the maximum permissible F.S.I. in the respective
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zones will be applicable. Thus, the use of Information Technology is not
permitted in Regional Park Zone. The proviso below Regulation 38(H)
does not dilute this requirement. It only deals with the maximum
permissible F.S.I. to the extent of 100% over and above the F.S.I., to the
plots sold or leased out exclusively for IT / ITES development. In the
context of this provision and the conditions in Letter of Allotment, the
Authority has taken the view that benefit of 100% additional F.S.I. will
only be available to those registered under IT / ITES units located on
private IT Parks approved by Director of Industries. It has found as of
fact that the allotment letter specifically mentions the purpose in clause
(iv) as “Commercial purpose”, and not for purpose of “IT / ITES”. It has
also noted that plot has not been leased out exclusively for the purpose of
development of IT / ITES. For that reason, it is noted that, till the
provisions in Regulation 38(H) is not modified suitably, CIDCO will not
be in a position to give NOC for utilisation of additional F.S.I.
25. We fail to understand as to how the abovesaid reasons can
be said to be extraneous or no reason at all. We have no hesitation in
taking the view that the impugned decision is replete with germane and
tangible reasons as to why the application made by the petitionerSociety
for grant of NOC for 100% additional F.S.I. for development of proposed
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Jvs. 1097611
IT Park on the said plot cannot be granted. The same are
unexceptionable.
26. Reverting to the argument of the petitioner that CIDCO is
bound to take decision in consonance with the directions issued by the
State Government dated 31st August, 2009, even this ground is devoid of
merits. Inasmuch as, the direction issued by the State Government under
Section 37 read with Section 154 of the Act cannot create any higher
right in favour of the petitionerSociety.
The right of the petitionerSociety
springs from the Letters of Allotment and the Lease Agreement.
No more and no less. Further, the directions issued by the State
Government in no way undermine or eclipse the lease conditions
applicable to the suit plot as per the Lease Agreement. Indubitably,
CIDCO is not the Planning Authority to decide on the use of the plot.
The plot must be put to use as per the norm specified by the Planning
Authority. Nothing has been brought to our notice that the suit plot
cannot be used for “Commercial” purpose because of the proposed
change in the Regulation by the State. That user is not prohibited.
Therefore, so long as the conditions and stipulation specified in the Letter
of Allotment and the Lease Agreement prevail and are not modified, the
petitionerSociety
cannot claim any right to develop the property for
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Jvs. 1097611
purpose other than specified therein. In this view of the matter, the two
decisions pressed into service by the petitioner will be of no avail to the
petitioner.
27. As is noted earlier, it is open to CIDCO to grant NOC but
while taking decision on such request, CIDCO cannot be oblivious of the
legal position expounded by the Apex Court in the case of Saroj Screens
Pvt. Ltd. (supra). That is precisely the point noted even in the enquiry
report that, if change of user of the plot is to be considered, it would be
appropriate to cancel the allotment and auction the property along with
the changed use (more profitable user), by CIDCO, to observe fairness in
the disposal of plot.
28. Suffice it to observe that there is no legal right in favour of
the petitioner, which can be enforced by issuance of writ. Further, the
petitionerSociety
is bound by the contractual obligation flowing from the
Allotment Letter and the Lease Agreement in respect of the subject plot.
At the same time, there is no contractual or, for that matter, legal
obligation on CIDCO to accede to the request made by the petitioner to
convert the user of the plot for purpose other than the one mentioned in
the Letter of Allotment and Lease Agreement. The fact that the suit plot
Page 25 of 26
Jvs. 1097611
is capable of being used also for IT / ITES cannot be the basis to
disregard the contractual obligations of the parties flowing from the
Allotment Letter and the Lease Agreement.
29. In our opinion, the petition is devoid of merits.
30. Hence, dismissed with costs. Rule discharged.
R.G. KETKAR, J. A. M. KHANWILKAR, J.
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