S.A. BOBDE, J.

1. Rule, returnable forthwith. Ms. Vidya Gharpure waives service for BMC. Heard finally by consent of the parties.

2. The petitioners have challenged the stop work notice issued by the respondent – Corporation in respect of the construction made by the petitioner in Khotachi Wadi, Girgaum. The undisputed facts are that petitioners are the owners of land bearing City Survey Nos. 577, 566 & 576 at Khotachi Wadi, Girgaum. The said property falls within the Heritage List Precinct Grade-III. The petitioners submitted a proposal for demolition and construction over these areas. The respondent – Corporation gave an IOD on 28/6/2006 and a Commencement Certificate on 3/8/2006. Acting thereon, the petitioners demolished the original building standing on Survey No. 566 and have constructed upto seven stories. Thereafter they sought to amalgamate Survey No.566 with Survey Nos.577 & 576 and applied for and were granted a composite NOC. The Municipal Commissioner approved the amalgamation on 16/10/2010 for construction of ground+18 storeyed structure.

3. Apparently, the Municipal Commissioner issued stop work notice on 1/12/2010 in respect of the petitioners’ structure and three other properties in the same area. The petitioners made a representation against the stop work notice. For no acceptable reason, the Municipal Commissioner has withdrawn the stop work notice in respect of three other properties and has maintained the stop work notice in respect of the petitioners property only. The petitioners have approached this court against the said stop work notice and the refusal to withdraw the said stop work notice.

4. Mr. Dhakephalkar, the learned Senior Counsel for the petitioners submitted that the petitioners started the work of demolition of the existing old structure on the property and made new construction on the property complying with all the requirements of law. They obtained a permission under Regulation 67.2 of the Development Control Rules which deal with heritage structures and the sanction to construct by way of IOD and also a Commencement Certificate. According to the learned counsel, therefore, any construction being carried out under such permissions granted by the appropriate authority, could not have been stopped by mere stop work notice without assigning a good reason in law. Further, it was contended by the learned counsel that the respondent has acted arbitrarily and with favourtism by withdrawing the stop work notice in respect of three other similarly situated properties in the same area.

5. Wefind that the stop work notice dated 1/12/2010 gives no reason whatsoever why the petitioners’ structure has become unauthorized or illegal, but simply directs the petitioner not to demolish any existing structure “till the issue of heritage precinct is resolved”. The confirmation of the said stop work notice states that Khotachi Wadi is declared as Heritage Precinct and it is necessary to comply with Regulation 67.7 which deals with maintaining sky line and reads as follows:-

“67.7 Maintaining Sky Line:- Buildings included in Listed Heritage Precincts shall maintain the sky line in the precinct (without any high-rise development) as may be existing in the surrounding area, so as not to diminish or destroy the value and beauty of the said listed Heritage buildings/Heritage precincts. The development within the precinct shall be in accordance with the guidelines framed by the Commissioner in consultation with Heritage Conservation Committee.”

6. It was also contended by Mr. Dhakephalkar that the stop work notice is vitiated by mala fides in law having been issued at the instance of a local MLA, who is not a party to the petition and who apparently complained to the Municipal Commissioner. According to Mr. Dhakephalkar, the complaint was made in respect of the four properties and there is no reason why stop work notice has been lifted in respect of other three properties and continued only in respect