New India Co-Op. Housing
Society Ltd. Vs. Municipal Corpn. of Greater Mumbai & ANR.  INSC 1487
(2 September 2008)
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. ........OF 2008 [Arising
out of Special Leave Petition (Civil) No. 20670 of 2006] The New India
Co-operative Housing Society Ltd. .. Appellant -versus- Municipal Corporation
of Greater Mumbai & Anr. .. Respondents
Markandey Katju, J.
appeal has been filed against the impugned judgment of the Division Bench of
the Bombay High Court dated 01.9.2006 in Appeal No. 581 of 2006 which was filed
against the judgment of a learned Single Judge dated 10.7.2006 in Writ Petition
No. 1753 of 2006.
learned counsel for the parties and perused the record.
we deal with the facts of the case we may mention with due respect that the
judgment of the learned Division Bench of the High Court is very cryptic. The
entire judgment is as follows:
" We heard Mr.
Shekhar Shetye, the counsel for appellant Society.
The consideration of
the matter by the learned Single Judge regarding withdrawal of the Notice under
Section 354A of the Bombay Municipal Corporation Act cannot be said to suffer
from any legal infirmity.
We are informed that
dispute between petitioner and respondent No. 2 is already going on in
Obviously, the rights
of the parties shall be decided in that dispute.
Appeal is dismissed
perusal of the said judgment shows that even the facts of the case are not
mentioned therein. In our opinion, when a judgment is written, the learned
Judge/Judges should at least briefly mention the facts of the case and what was
the controversy about and then give its reasoning, but that has not been done
by the learned Division Bench.
counsel for respondent No. 2, Mr. Sunil Gupta, submitted that since it is a
judgment of affirmance, the facts and reasoning need not be 3 given. With
respect we cannot agree, otherwise every Letters Patent Appeal can be dismissed
by one sentence by saying that the Division Bench agrees with the judgment of
the learned Single Judge. The appellant court, even in a judgment of
affirmance, must show that it has properly applied its mind to the case, and
not acted as a rubber stamp. It must at least briefly give the facts of the
case, and its own independent reasoning.
we have perused the judgment of the learned Single Judge dated 10.7.2006
against which the aforesaid Letters Patent Appeal was filed in the High Court,
and we have also considered the facts of the case.
Hence, instead of
remanding the case we are deciding it on merits.
appellant is a Co-operative Housing Society registered under the Bombay Act VII
of 1925. Respondent No. 2 and one Tarla Patel were admitted as joint members of
the appellant-Society dated 25.11.2000, and a building plan dated 14.11.2000
was submitted by respondent No. 2 to the appellant-Society for approval, and
approval was granted by the appellant.
A true copy of the
building plan approved by the appellant-Society is at Annexure P-1 to this
31.5.1973, a lease was granted by the appellant-Society (the lessor) with
respect to the plot in question in favour of J.C. Patel, and it has been
provided therein that any structural alterations and additions by the lessee in
the building or buildings on the demised premises required previous consent in
writing of the appellant. The conditions of the Lease Deed dated 31.5.1973
between the appellant-Society and the lessee state that one of the terms of the
Lease Deed as mentioned in clause 3(6) thereof is as follows:
"That the plans
and elevations of any new building which may hereafter with the permission of
the lessor be proposed to be erected upon the demised premises shall be first
submitted and approved of in writing by the lessor and that no buildings of
erections now or at any time standing upon the demised premises shall be pushed
down or removed nor new buildings commenced nor to make or permit to be made
any structural alterations and additions in the building or buildings on the
demised premises except with the previous consent in writing of the
the conditions to be complied with before starting the work of building on the
plot in question, respondent No. 1 has mentioned (as condition No. 13):
5 "That the
N.O.C. from the Society along with extract of General Body Resolution for
development will be submitted before C.C."
under the terms of the Lease Deed, which has been also approved by respondent
No.1, the lessee could not have made any construction before getting the NOC
from the appellant-Society.
appears that the lessee made substantial changes in the original building plan
dated 14.11.2000 without getting NOC from the appellant- Society. In the
original plan dated 14.11.2000 which had been approved by the appellant-Society
and thereafter by respondent No. 1 the proposal was for building three floors
without stilt with built up area of 1135.86 square meters, but in the amended
plant dated 27.12.2004 what was proposed to build was four floors with built up
area of 1203.69 square meters, plus what has been described as stilt area. It
is alleged by the appellant that respondent No. 2 suppressed the subsequent
plan dated 27.12.2004 and was guilty of willfully deceiving the appellant by
giving false representation and false assurance which was not meant to be
fulfilled. Respondent No. 2 wrongly proceeded with the construction in
accordance with the amended plan dated 27.12.2004, as a result of which the
appellant convened a Special 6 General Meeting of the Society on 19.11.2005
expelling respondent No. 2 and Tarla Patel from the membership of the
terminating the lease dated 10.9.2005, the appellant-Society also initiated
eviction proceeding against the respondents which is pending.
appellant represented to respondent No. 1 that the amended plan was illegal as
it was against clause 3(6) of the Lease Deed, and also against the conditions
to be complied with before construction could be started. On receiving this
representation of the appellant-Society, respondent No. 1 issued a `stop work
notice' dated 30.12.2005 under Section 354A of the Bombay Municipal Corporation
is alleged in the representation that despite the `stop work notice' respondent
No. 2 continued to carry out construction work illegally in violation of the
terms of the Lease Deed and the original plan. However, subsequently, by the
impugned letter dated 22.6.2006, respondent No. 1 withdrew the `stop work
notice' dated 30.12.2005. Against this withdrawal order dated 22.6.2006, a writ
petition was filed in the High Court by the appellant-Society which was
dismissed by the learned Single 7 Judge and the judgment was upheld by the
Division Bench on appeal.
appeal has been filed before this Court.
our opinion, it is very clear that respondent No. 2 has violated clause 3(6) of
the Lease Deed dated 31.5.1973 and hence in our opinion construction as per the
amended plan dated 27.12.2004 was wholly illegal.
learned counsel for both respondent Nos. 1 & 2 submitted that all the
statutory requirements under the Bombay Municipal Corporation Act have been
complied with by respondent Nos. 1 & 2, and hence it cannot be said that
there was any illegality. With respect we cannot agree.
our opinion, when there is a specific stipulation in the Lease Deed dated
31.5.1973 that NOC from the lessor has to be obtained for the purpose of
obtaining sanction of the building plan from the Municipal Corporation such NOC
from the lessor would also be necessary for an amended building plan before the
Municipal Corporation can sanction the building plan. To take a contrary view
would make the said stipulation in the Lease Deed, which in this case is in
clause 3(6) of the Lease Deed, redundant.
Sunil Gupta, learned senior counsel for respondent No. 2 submitted that since
the building plan dated 14.11.2000 has been approved by the appellant, no fresh
approval or NOC is required from the appellant- Society for the amended
building plan. We cannot agree. If we accept this submission that would mean
that even if the NOC has been granted by the lessor for a one-storey building,
for constructing a 20-storey building fresh NOC or approval from the lessor
need not be taken. Such a view can plainly not be accepted. In our opinion in
view of the stipulation in clause 3 (6) of the Lease Deed, a fresh approval or
NOC would be required from the lessor if the lessee wants to amend the original
the present case, it may be noticed that the original plan of the lessee for
which NOC had been obtained from the appellant had been sought to be materially
changed by the lessee without taking a fresh NOC from the lessor, i.e. the
appellant-Society. In our opinion, a fresh NOC had to be taken from the
appellant-Society by respondent No. 2 (lessee) if she wanted to change the
original building plan. The matter was not between the lessee and the municipal
corporation alone, there was a third party interest which intervened, i.e of
the lessor. We, therefore, agree with Mr. V.A. Mohta, learned senior counsel
for the appellant that respondent No. 1, 9 the Municipal Corporation cannot
sanction the modified plan unless a fresh NOC had been obtained by the lessee
from the appellant-Society.
regards the observation in paragraph 3 of the impugned judgment of the Division
Bench dated 1.9.2006, we are of the opinion that the dispute between the
appellant and respondent No. 2 which is going on before the co-operative
authorities has nothing to do with the powers of the Bombay Municipal
Corporation which is a statutory body. We are concerned in this case about how
a statutory body, like the Bombay Municipal Corporation should exercise its
power. This has nothing to do with the dispute between the two private parties
viz., respondent No. 2 and the appellant. Hence, the observation in paragraph 3
was wholly irrelevant and misconceived.
view of the above, this appeal succeeds and the judgment of the learned Single
Judge as well as the Division Bench, are set aside. The writ petition filed
before the High Court is allowed and the order dated 22.6.2006 of the municipal
authorities withdrawing the `stop work notice' is quashed. The appeal stands
allowed. No costs.
J. (Altamas Kabir)
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