At, High Court of Judicature at Bombay
By, THE HONOURABLE MR. JUSTICE A.M. KHANWILKAR & THE HONOURABLE MR. JUSTICE R.G. KETKAR
For the Petitioner: Aspi Chinoy, Senior Counsel with Vinay Sonpal, Advocate. For the Respondents: R1, V.S. Gokhale, A.G.P, R2, A.M. Kulkarni, R3, A.G. Garge, Advocates.
A.M. Khanwilkar, J.
1. 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 No-objection 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 Municipal Corporation (for short 'Corporation') to permit additional FSI for development of proposed IT & ITES use.
4. Briefly stated, the petitioner-Society 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 petitioner-Society 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 petitioner-Society. 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, on payment of total lease premium of Rs. 15.49 crores, at the rate of Rs. 19,562/per square metre for plot area of 7916.13 square metres, from which, the premium of Rs. 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 petitioner-Society 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 petitioner-Society was also subject matter of the said inquiry. As a result, the petitioner-Society 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 allotment. This Court, by interim order dated 19th August, 2005, directed the Board of Dir
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ctors of CIDCO to consider the Representation to be made by the petitioner-Society 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 petitioner-Society 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 petitioner-Society 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 petitioner-Society 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 Services) of CIDCO, by his letter dated 25th June, 2008, informed the petitioner-Society that CIDCO may change the user of said land from commercial to IT, provided the Society pays the administrative charges of Rs. 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 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 direction-cum-order 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 petitioner-Society , vide letter dated 24th December, 2010, made request to CIDCO for grant of No-objection regarding 100% additional FSI for development of IT Park, as per the new policy. As the said application remained undecided, the petitioner-Society moved this Court by way of Writ Petition No. 2141/2011 seeking directions against CIDCO to issue the No-objection 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 petitioner-Society and has rejected the request of the petitioner-Society 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 petitioner-Society by the Manager (Town Services – I) under the cover of his letter dated 28th September, 2011. The petitioner-Society 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 petitioner-Society 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 No-objection Certificate to the petitioner-Society 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 petitioner-Society was entitled to develop the plot for Information Technology use. Further, the correspondence between CIDCO and State Government reinforces the stand of the petitioner-Society 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 No-objection certificate as applied by the petitioner-Society 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 SandeepSharadchandra Thakur vs. State of Maharashtra & Ors. inPIL No. 187 of 2007, decided on 29th July, 2010, which has adverted to the former decision.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 No-objection Certificate to allow the petitioner-Society to develop the said land for Information Technology use. He submits that the interdepartmental correspondence relied by the petitioner-Society is of no avail. Similarly, even the State Government direction dated 31st August, 2009 cannot create any right in favour of the petitioner-Society until CIDCO permits the petitioner-Society to develop the property for use other than the use specified in the letter of allotment and the agreement executed between the petitioner-Society 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 petitioner-Society , are eclipsed and the petitioner-Society can develop the property for use which is not consistent thereto. The counsel for CIDCO further submits that, even though CIDCO is only a 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 petitioner-Society is only lessee of CIDCO. The petitioner-Society, 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 Planning 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 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 Planning Authority is inclined to allow the petitioner-Society 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, Planning 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 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 petitioner-Society. 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 petitioner-Society 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 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 petitioner-Society 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 petitioner-Society, which is the prerogative of CIDCO. This Court can only examine the propriety and legality of decision-making 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 recorded in the impugned decision as to why NOC should not be granted to the petitioner-Society. 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 petitioner-Society. 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 petitioner-Society. After the allotment, the petitioner-Society 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 “Shops-cum-Godown” 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 petitioner-Society 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 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 petitioner-Society. 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; 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 SarojScreens 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 well-defined 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 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 “Shops-cum-Godown” 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 Rs.19,562/per square metre for a plot of 7916.13 square metres and deducting premium of Rs.6.72 crores paid earlier at the time of allotment of the plot for use of “Shops-cum-Godown”. The conversion of use of the plot to “Commercial” is not the subject-matter 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 “Shops-cum-Godown” to “Commercial”, the petitioner-Society has already availed of benefit of maximum permissible FSI to 1.5. The petitioner-Society 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 not germane. Rather, the stand of CIDCO sub-serves the public interest and is consistent with public policy. It is not in dispute that, after granting NOC for change of user from “Shops-cum-Godown” to “Commercial”, fresh allotment letter was issued and then Lease Agreement executed in favour of the petitioner-Society 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 petitioner-Society 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 petitioner-Society and CIDCO, it is not open to the petitioner-Society 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 petitioner-Society has now proposed to change the use from “Commercial” to “IT/ITES” with 100% additional F.S.I., which request 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 petitioner-Society wanted the plot to be developed as “IT / ITES”, nothing prevented the Society to apply for change of initial use of “Shops-cum-Godown” to be upgraded to “IT/ITES”, as the Government policy for IT & ITES of 2003 was in vogue in 2004-2005 when the application for change of use from “Shops-cum-Godown” to “Commercial General” was made by the petitioner-Society . Implicit in this observation is that the attempt of the petitioner-Society 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 petitioner-Society has already exercised the option and got the benefit of getting change of user from “Shops-cum-Godown” to “Commercial” with 1.5 F.S.I. If the request made by the petitioner-Society 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 “Shops-cum-Godown” to “Commercial” was allowed by CIDCO. The report records that it was an undue favour shown to the petitioner-Society, 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)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 petitioner-Society 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 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 petitioner-Society for grant of NOC for 100% additional F.S.I. for development of proposed 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 petitioner-Society. The right of the petitioner-Society 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 petitioner-Society cannot claim any right to develop the property for 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 SarojScreens 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 petitioner-Society 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 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.
2012 (4) AIR(Bom) R 418" == "2012 (4) ALL MR 393" == "2012 (5) MAH.L.J 147" == "2012 AIR(NOC) 379"