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2013 Supreme(Bom) 2436
High Court of Judicature at Bombay
V.M. KANADE & S.C. GUPTE, JJ.
Shishir Realty Private Ltd. & Others
Versus
The Vice Chairman & Managing Director, City and Industrial Development Corporation of Maharashtra Ltd. & Others
Writ Petition No.702 of 2011, Alongwith Appellate Side Writ Petition No.5245 of 2011, Alongwith Appellate Side Public Interest Litigation No.55 of 2011
Decided on : 06-12-2013
For the Petitioners:R.A. Dada, F. D'vitre, Aspi Chinoy, Senior Counsels with M.S. Doctor, N. Engineer, Ms. Misbah, Dada, Ajay Vazirani, Dinesh Pednekar, Shailesh Poria, Swapnil Gupte i/b Hariani & Co., Ms. Chandana Salgaonkar, M.J. Bhatt, Advocates.
For the Respondents: R1, R2, V.A. Thorat, Senior Counsel with G.S. Hegde, C.M. Lokesh, C.M. Lokesh, R3, R4, D.A. Nalawade, Government Pleader, Sameer Patil, AGP.
Headnote:Navi Mumbai Disposal of Lands Regulations, 2008 - Regulation 10 - Breach of condition. - Where transfer and sub-division of land by lessee and change of user was not in violation of any statutory condition therefore cancellation of same by CIDCO after 3 years of execution of agreement, impermissible. - It is therefore clear that CIDCO had the authority to grant such change of user under the General Policy Resolution dated 8.12.1997. CIDCO authorities having allowed the application for chance of user and acted on it by accepting administrative/miscellaneous charges and the premium paid by M/s. Metropolis Hotels, they are now estopped from contending that their decision was invalid or the said decision could be set aside after it was acted upon by the petitioners. Therefore, the CIDCO authorities had power and authority to grant change of user in view of the general policy Resolution dated 8.12.1997 since they had allowed the application of the petitioners and had acted upon it and therefore they could not have impugned the order of allotment on this ground.
It can be seen that if the impugned order is examined from any angle, all the reasons which have been given for cancelling the allotment will have to be held to be illegal and the Corporation is precluded and estopped on the doctrine of promissory estoppel from cancelling the allotment on the aforesaid grounds.
Navi Mumbai Disposal of Lands Regulations, 2008 - Regulation 10 - Violation of Regulation 10. - Where lessee transferred land with prior permission of CIDCO therefore subsequently CIDCO cannot raise plea that permission was contrary to Regulation 10. - There is much substance in the said submission made by both the senior counsels appearing on behalf of the petitioners. It is a matter of record that this submission was made for the first time across the bar and it does not find place in the averments which are made in the petition by PIL petitioners or in the affidavit-in-reply filed by CIDCO. It is a well-settled position in law that, a quasi -judicial authority cannot be permitted to raise such a plea for the first time. This position is well-settled by the Supreme Court in several cases including Mohinder Singh Gill v. Chief Election, (1978) 1 SCC 405 and Commissioner of Police v. Gordhandas Bhanji, AIR 1952 SC 16. The Apex Court also has in a similar case of cancellation of agreement to lease by CIDCO has precluded them from raising the additional grounds which are not mentioned in the impugned order. Apex Court in Ambika Developers v. State of Maharashtra. Civil Appeal No. 7581/2012 on pages 6 to 10 has in terms not allowed the CIDCO to raise such plea. Similarly, in Chandra Singh v. State of Rajasthan, (2003) 6 SCC 545 (para 47, p. 561) reaffirmed the principles laid down in the case of Mohinder Singh Gill, (1978) 1 SCC 405. Apart from that, perusal of Regulation 10 itself indicates that restriction against transfer of rights derived under the agreement to lead subject to satisfaction of the conditions imposed by the Corporation.
(V.M. Kanade, J.)
1. Heard.
2. Rule. Rule is made returnable forthwith. Respondents waive service. By consent of the parties all the three Petitions are taken up for final hearing.
3. These three Petitions can be disposed of by a common judgment since the issue involved in all these Petitions is common. Out of these three Petitions, two Petitions are filed challenging the show-cause notice dated 06/12/2010 issued by the Vice Chairman of CIDCO and final order dated 16/03/2011 of termination of lease by CIDCO and a PIL has been filed challenging the said allotment of plot and subdivision of the said plot and change of user granted by CIDCO and for other consequential reliefs. [Wherever reference is made to the Petitioners, it refers to M/s Metropolis Hotels and Shishir Realty Private Ltd & Anr and wherever reference is made to PIL Petitioner, it would refer to the Petitioners who have filed the PIL].
4. Petitioners - M/s Metropolis Hotels in Writ Petition No.5245 of 2011 were allotted Plot No.5 by the Respondent – CIDCO for being used for the purpose of establishing a Five Star Hotel in pursuance of the Tender in which the Petitioners (hereinafter referred to as “M/s Metropolis Hotels”) in Writ Petition No.5245/2011 were the highest bidders. Thereafter, they applied for and were granted change of user of the plot from the use of hotel purposes to partly for commercial-cum-residential purposes and partly establishing a Five Star Hotel. They also applied for subdivision of the plot and for assignment of their interest in respect of the plot on which commercial-cum-residential user was permitted. This plot was assigned to Shishir Realty Private Ltd who are the Petitioners in Writ Petition No.702 of 2011.
5. CIDCO, thereafter, executed two separate lease deeds in respect of the said two plots viz Plot No.5 and Plot No.5A. Shishir Realty Private Ltd. took further steps for mortgaging their plot with the permission of CIDCO and obtained loan for development of the said plot for commercial-cum-residential user and third party rights were also created.
6. Some complaints were received by State of Maharashtra regarding transfer of plots by CIDCO during the tenure of the then Vice Chairman B.M. Lal and an inquiry was held by the Chief Secretary. Thereafter, new Vice Chairman of CIDCO issued a show-cause notice dated 06/12/2010 to M/s Metropolis Hotels and Shishir Realty Private Ltd – Developers, as to why the lease deeds which were executed in their favour should not be cancelled on account of breach of tender conditions by M/s Metropolis Hotels. An inquiry was held by the new Vice Chairman and he passed the impugned order dated 16/03/2011 cancelling the lease deeds which were executed by M/s Metropolis Hotels Ltd and Shishir Realty Private Ltd – Developers. Being aggrieved by the said order, Petitioners have invoked writ jurisdiction of this Court for quashing and setting aside the said order.
7. PIL has been filed by Social Activists, challenging the allotment of plot No.5 to M/s Metropolis Hotels and for cancellation of lease agreements dated 30/03/2010 executed by CIDCO in favour of M/s Metropolis Hotels and Shishir Realty Private Ltd. – Developers. They also challenged subdivision of plots of land and for consequential reliefs.
8. After the PIL was filed in February, 2011 CIDCO had cancelled the lease deeds which were granted in favour of the two Petitioners by order dated 16/03/2011 and, as such, the said PIL has practically become infructuous. We have, however, heard the learned Counsel appearing on behalf of the PIL Petitioners at great length and have also heard the learned Senior Counsels appearing on behalf of M/s Metropolis Hotels and Shishir Realty Private Ltd – Developers and the learned Senior Counsel appearing on behalf of CIDCO and also the learned Counsel appearing on behalf of the State of Maharashtra.
9. During the course of arguments, the learned Counsel appearing on behalf of PIL Petitioners has tendered a
