M/s. Bhosale Homes v. City and Industrial Development Corporation of Maharashtra Ltd.

1) By this Writ Petition under Article 226 of the Constitution of India, the Petitioners seek a writ of mandamus against the City and Industrial Development Corporation of Maharashtra (CIDCO) directing them to withdraw the impugned Stop Work Notice issued to them, restraining from carrying out any construction activity on Plot No. 15, Sector 9, admeasuring 950 sq.meters at Ulwe, Navi Mumbai.

2) The Petitioners are the lessee’s of the said plot. They acquired the leasehold rights under a Lease Agreement dated 6th August, 2008 between CIDCO, Shri Krishna Bama Thakur and Shri Hanumant Bama Thakur registered on 15th September 2008. The original owners’ names were recorded along with the Petitioners names by CIDCO under its Letter of Allotment (LoA) dated 4th August 2008. This plot came to be allotted under the Scheme of CIDCO, popularly known as the ‘12.5% Scheme’ introduced by the State in the year 1990 and 1994, under its two Resolutions bearing No. LQN/1985/1710/CR-217/85/NAVI-10 dated 6th March 1990 and No. CAD/1094/2094/PRAK-287/NAVI-10 dated 28th October 1994. These Schemes were issued by the Urban Development Department for distribution of the developed plot of lands to the Project Affected Persons (PAP) whose lands came to be acquired by the State Government and vested in CIDCO for development of twin city of Navi Mumbai. A final Order was issued by CIDCO on 16th September 2008 and the Petitioners since then have been in continuous, actual and physical possession of the subject plot.

3) The Petitioners proposed to develop the said plot in the name of ‘Bhosale Homes’ through their Licensed Architects M/s. Aakar Siddhi and consequently submitted a Development Proposal dated 6th March 2014 that was received by CIDCO on 14th March 2014 along with plans, designs, specifications and a schematic layout to the Respondent No.2 for their Commencement Certificate of the said project. The Petitioners, however received a Stop Work Notice on 31st August 2016 and not only that, their Development Proposal was rejected. The only justification, the Notice gave was that, the subject plot of land was allotted to one trust named Sir Mohammed Yusuf Trust under the 12.5% Scheme. It is in these circumstances that, the present Petition is filed for the reliefs as noted above.

4) Mr. Abhay Khandeparkar, learning senior counsel appearing for Petitioners submits that, Petitioners have incurred and invested crores of rupees for land and transfer charges to CIDCO, in addition to the lease premium, stamp duty and for appointing Architect and Structural Engineers. He submits that, the CIDCO had issued a similar Stop Work Notice to one M/s. Sai Krupa Builders, who had challenged it by Writ Petition No.952 of 2015 where similar questions of facts were involved. A Division Bench of this Court after hearing the parties, passed an Order dated 26th February 2018, quashing and setting aside the said Stop Work Notice. He submits that, in the said Petition too, the Stop Work Notice alleged that, the land belonged to the predecessors of the Petitioners i.e. Sir Mohammed Yusuf Haji Ismail Trust. He therefore submits that, this Petition being similar to one M/s. Sai Krupa Builders and therefore, it would be in the interest of justice to quash the Stop Work Notice, as there is error apparent on the face of the record. He submits that, the entire action to issue the Stop Work Notice is against the principles of natural justice. That, the entire action is arbitrary without issuing them a notice and affording them a hearing. He submits that, the prospective purchasers have already booked residential tenements and commercial units in the project and in turn have availed loans from financial institutions and banks. Therefore, issuance of such Stop Work Notice, without any rhyme or reason, would cause immense hardship not only to the Petitioners but also to the thirdparty purchasers and financial institutions. He therefore submits that, the Petition be made absolute.

5) Mr. Hegde learned senior counsel representing CIDCO submits that, this Petition deserves to be dismissed inasmuch as there are disputed questions of facts involved. He submits that, the State Government has acquired the Petitioners’ land and have vested in CIDCO for development. They were informed by letter dated 9th November 2012 that Sir Mohammed Haji Yusuf Trust was the owner of the concerned land and the Petitioners have no right, title and interest in the property. It is based on the instructions that, they have issued this Stop Work Notice and in fact rejected the proposal.

6) We have heard both the counsels and have perused the papers including the Judgment in the case of M/s. Sai Kripa Developers v/s. CIDCO dated 26th February 2018.

7) According to us, judgment in case of Sai Kripa Developers (supra) will not assist the Petitioners inasmuch as in that case CIDCO had not disputed the fact that, the Petitioners predecessor in title was a tenant in respect of the land belonging to Sir Mohammed Yusuf Haji Ismail Trust.

8) In this case, the Respondents have disputed that fact based on the letter received from Respondent No. 6-Collector. Thus, the issuance of the Stop Work Notice and rejection of the development permission to the Petitioners by the letter dated 31st August 2016 cannot be faulted. In view of the above, we find that, this would be a case where there is a dispute with regard to the title of the land, of which rights will have to be adjudicated before the jurisdictional civil Court and cannot be adjudicated in our writ jurisdiction under Article 226 of the Constitution of India.

9) We accordingly dismiss the Writ Petition by granting liberty to the Petitioners to avail the remedy before the Civil Court, if so advised. (KAMAL KHATA, J.) (A.S. GADKARI, J.)