Reportable 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

J U D G M E N T

Markandey Katju, J.

1. Leave granted.

2. This  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.

3. Heard learned counsel for the parties and perused the record.

4. Before 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 appropriate forum. Obviously, the rights of the parties shall be decided in that dispute.

Appeal is dismissed in limine”

5. A 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.

6. Learned counsel  for  respondent  No. 2, Mr.  Sunil  Gupta,  submitted

that since it is a judgment of affirmance, the facts and reasoning need not be

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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.  

7. However, 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.

8. The 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 Appeal.

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9. On  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 lessor”     

(emphasis supplied)

10. In 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):

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“That  the  N.O.C.  from  the  Society  along  with  extract  of General Body Resolution for development will be submitted before C.C.”

11. Thus,  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.

12. It  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

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General Meeting of the Society on 19.11.2005 expelling respondent No. 2

and Tarla Patel from the membership of the appellant-Society.

13. After  terminating  the  lease  dated  10.9.2005,  the  appellant-Society

also initiated eviction proceeding against the respondents which is pending.

14. The 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 Act.

15. It 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

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Judge  and  the  judgment  was  upheld  by  the  Division  Bench  on  appeal.

Aggrieved, this appeal has been filed before this Court.

16. In 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.

17. However, 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.

18. In 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.

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19. Mr.  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 building plan.

20. In 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,

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the Municipal Corporation cannot sanction the modified plan unless a fresh

NOC had been obtained by the lessee from the appellant-Society.

21. As 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.

22. In 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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…………………………J. (Markandey Katju)

New Delhi; 02 September, 2008

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