Holding

The Municipal Corporation cannot sanction an amended building plan without a fresh NOC from the lessor, and construction without that NOC is illegal, rendering the withdrawal of the stop‑work notice void.

Summary

The New India Co‑op Housing Society Ltd. (appellant) expelled a lessee (respondent No.2) for constructing a building in violation of clause 3(6) of the 1973 lease deed, which required a written NOC from the society before any structural alteration. The lessee proceeded with an amended plan without obtaining such NOC, prompting the Municipal Corporation of Greater Mumbai (respondent No.1) to issue a stop‑work notice under Section 354A of the Bombay Municipal Corporation Act. The corporation later withdrew the notice, leading the society to file a writ petition, which was dismissed by the High Court. The Supreme Court held that the amended construction was illegal, that a fresh NOC from the lessor is indispensable for sanctioning any amended building plan, and that the municipal corporation cannot sanction the plan without it. Consequently, the order withdrawing the stop‑work notice was quashed and the appeal was allowed.

Issues considered

Whether construction under an amended building plan without a fresh NOC from the lessor violates the lease deed.
Whether the Municipal Corporation can sanction an amended building plan in the absence of such NOC.
Whether the withdrawal of the stop‑work notice under Section 354A is valid.

Legislation cited

Bombay Municipal Corporation Acts. 354A

Subjects

lease deedNOCbuilding plan amendmentco‑operative housing societymunicipal corporationstop‑work noticeSection 354Aconstruction violationeviction

Judgment

I [2008) 12 S.C.R. 1133
'I

-(·
if ~ 'i THE }'.'JEW INDtACO-OPERATIVE HOUSING SOCIETY A
LTD.
v.
MUNICIPAL CORPORATION OF GREATER MUMBAI &
ANR.
, (Civil Appeal No. 5426 of 2008) 8
.. "( SEPTEMBER 2, 2008
[ALTAMAS KABIR AND MARKANDEY KATJU, JJ.]

Bombay Municipal Corporation Act; S. 354A: c
Housing Society Plots - Lessee making construction in
violation of conditions of lease deed - Expulsion of- Issuance
of stop work notice and later its withdrawal by Municipal
Corporation and sanction of amended plan - Correctness of
- Held: Construction made in violation of terms of lease deed D
.,( was illegal - No objection certificate from the society was
condition necessary before obtaining sanction of the amended
~
building plan from Municipal Corporation - In absfJnce of
NOC, Municipal Corporation cannot sanction the amended
building plan - Order of Municipal Corporation withdrawing E
the stop work notice quashed.
Appellant, a registered Co-operative Housing
Society, admitted respondent No. 2 and another as joint
members. Under the terms.of the Lease Deed, which have
also been approved by the Municipal Corporation, the F
.. ~
lessee could not have made any construction before
getting the NOC from the Soch~ty. But the le,ssee, without
getting NOC from the appellant-Society, wrongly
proceeded with the construction as per amended plan.
The appellant convened a Special General Meeting of the G
.... ·--< Society and expelled respondent No. 2 and another from
the membership of the Society and terminated the tease.
The appellant also initiated eviction proceeding against
the respondents, which is pending.The appellant made
1133 H
1134 SUPREME COURT REPORTS [2oosi 12 s.c-.R.

A a representation to respondent No. 1 stating that
respondent No.2 started construction as per amended
~- -
plan in violation of clause 3(6) of the Lease Deed.
Respondent No. 1 issued a 'stop work notice' under Section
354A of the Bombay Municipal Corporation Act. However,
B respondent N_o. 2 continued to carry out construction
work. Later, respondent No. 1 withdrew the 'stop work
notice'. Against this withdrawal order, a writ petition was 'r -
filed by the appellant-Society
.I
in the High Court, which
was dismissed by the Sirigle Judge of the High Court
c and the judgment was upheld oy the Division Bench of
the High Court. Hence the present appeal.
Respondents submitted that all the statutory
requirements under the Bombay Municipal Corporation
Act have been complied with by respondent No. 2, 'and
D hence it cannot be said that there was any illegality
committed in making construction as per amenqed plaint;
)._
and that since the original building plan has been
approved by the appellant, no fresh approval or NOC is ?

required for the amended ,building plan.
E Allowing the appeal, the Court
HELD: 1.1 RespondeJt No. 2 has violated clause 3(6)
of the Lease Deed and hence construction as per the
· amended plan was wholly illegal. (Para - 16) [1139,B-C]
F 1.2 When there is a specific stipulation in the Lease
Deed that NOC from the lessor has to be obtained for the ""'-.
purpose of obtaining sanction of the building plan from
the Municipal Corporation, that NOC from the lessor would
also be necessary for obtaining sanction for an amended
G building plan. To take a contrary view would make the
stipulation, as in clause 3(6) in the Lease Deed, redundant. )>-- ~

(Para - 18) [1139,D-F]
'1.3 The matter was not between the lessee and the
municipal corporation atone, there v.tas a third party
H
r

THE NEW !NOIA CO-OP HOUSING SOCI. LTD. v. MUNI- 1135
CIPAL CORP OF GREATER MUMBAI &ANR. [MARKANDEY KATJU, J.]

~ interest which intervened, i.e of the lessor. Moreover, A
respondent No. 1, the Municipal Corporation cannot
sanction the modified plan unless a fresh NOC had been
obtained by the lessee from the appellant-Society. (Para
- 20) [1140,C-D]
2. In the facts and circumstances of the case, the 8
- ....(
judgment of the Single Judge as well as Division Bench
of the High Court, are set aside. The writ petition filed
before the High Court is allowed and the order of the
municipal authorities withdrawing the 'stop work notice'
is quashed. (Para - 22) [1140,G-H] c
CIVILAPPELLATEJURISDICTION: CivilAppeal No. 5426
of 2008
From the final Judgment and Order dated 1.9.2006 of the
High Court of Judicature at Bombay in Appeal No. 581 of 2006 D
.,/. V.A. Mohata, P.R. Rarnasesh and P.B. Amin for the

• Appellant.
Sun ii Gupta, Shekhar Naphade, Jatin Zaveri, Atul Y. Chitale,
Suchitra Atul Chitale and Sunaina Dutta for the Respondents. E
The Judgment of the Court was delivered by
. MARKANDEY KAT JU, J. 1. Leave granted.
2. This appeal has been filed against the impugned
judgment of the Division Bench of the Bombay High Court dated F
"* ' 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 G
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: H
1136 SUPREME COURT REPORTS [2008] 12 S.C.R.

A "We heard Mr. Shekhar Shetye, the co.unsel 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
B 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
c 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
0
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,
E submitted that since it is a judgment of affirmance, the facts
and reasoning need not be 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
F 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
G 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
H
THE NEW INDIA CO-OP HOUSING SOCI. LTD. v. MUNI- 1137
CIPAL CORP OF GREATER MUMBAI &ANR. [MARKANDEY KATJU, J.)
, .. ~
registered under the Bombay Act VI I of 1925. Respondent No. A
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- B
Society is at Annexure P-1 to this Appeal.
.---<
9. On 31.5.1973, a lease was granted by the appellant-
A
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
alteratio.ns and additions by the lessee in the building or c
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) ~hereof is as follows: D
"(
'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 E
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 buOdings on the demised
premises except with the previous consent in writing of F
.. + 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 G
., -1' has mentioned (as condition No. 13):
"That the N.O.C. from the Society along with extract of
General Body Resolution for development will be
submitted before C.C."
H
1138 SUPREME COURT REPORTS [2008] 12 S.C.R. I

A 11. Thus, under the terms of the Lease Deed, which has Y'
been also approved by respondent No.1, the lessee could not
have made any construction before getting the NOC from the
appellant-Society.
12. lt appears that the le.ssee made substantial changes
B 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
c 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
D 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 i.-;-
the amended plan dated 27.12.2004, as a result of which the
appellant convened a Special General Meeting of the Society
E on 19.11.2005 expelling respondent No. 2 and Tarla Patel from
the membership 'at the appellant-Soc1ety.
'
13. After terminating the lease dated 10.9.2005, the
appellant-Society also initiated eviction proceeding against the
respondents which is pending.
F
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-Soci~ty, respondent No. 1
G
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
H work illegally in violation of the terms of the Lease Deed and
THE NEW INDIA CO-OP HOUSING SOC!. LID. v. MUNI- 1139
CIPALCORP OF GREATER MUMBAI &ANR. [rvlARKANDEY KATJU, J.]
--~
the original plan. However, subsequently, by the impugned letter A
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
Judge and the judgment was upheld by the Division Bench on B
~ -< 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. c
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
D
.,(__ 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 E
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
,-t Lease Deed, redundant. F
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 G
~
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 H
1140 SUPREME COURT REPORTS [2008] 12 S.C.R.

A 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
8 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
C 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, the Municipal
Corporation cannot sanction the modified plan unless a fresh
NOC had been obtained by the lessee from the appellant-
D 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
E 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
F 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
G judgment of the learned Single Judge as well as the Division
Bench, are set aside. The writ petition filed before the Hig.h ~ ,_
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.
H S.K.S. Appeal allowed.