By Dr. K. Shivaram, Ajay R. Singh, Advocates
New Page 1
4. Co-op. Housing Society : BMC cannot
sanction the modified plan without fresh NOC from society : Appellate Court,
must pass reasoned order : Bombay Municipal Corporation Act S. 354A.
The appellant is a co-op. hsg. society. A building plan was
submitted by the respondent No. 2 to the appellant society for approval and the
approval was granted by the appellant. Earlier a lease was granted by the
appellant society (the lessor) with respect to the plan in question in favour of
one Shri J. C. Patel and it has been provided therein that any structural
alternatives and additions by the lessee in the building required consent in
writing of the appellant. The condition to be complied with before the starting
of the work of building on the plot, the respondent No. 1 has mentioned that NOC
from the society along with resolution of general body for development will be
submitted before commencement certificate.
Thus the terms of the lease deed have been approved by the
respondent No. 1. The lessee made substantial changes in the original plan
without getting NOC from the appellant society. It was alleged by the appellant
that the respondent No. 2 suppressed the subsequent plan and was wilfully
deceiving the appellant by giving false representation.
The appellant expelled respondent No. 2 and Patel from the
membership of the appellant society. The appellant society terminated the lease
deed and initiated eviction proceeding against the respondents. The appellant
society represented to respondent No. 1 that the unamended plan was illegal. On
receiving the representation, the respondent No. 1 BMC issued a ‘stop-work
notice’ u/s. 354 A of the BMC Act.
Subsequently the respondent No. 1 withdrew the stop-work
notice against which the writ-petition was filed in the High Court by the
appellant society which was dismissed by the Single Judge and was upheld by the
Division Bench on appeal.
The Supreme Court held that respondent No. 2 had violated the
conditions of lease deed and the construction as the amended plan was wholly
illegal. There was 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 BMC. The BMC cannot sanction/modify the plan unless a fresh NOC
had been obtained by the lessee from the appellant society. The order of the
High Court is set aside and the order of the BMC withdrawing the ‘stop-work
notice’ was quashed.
The Court also observed that when a judgment is written, the
learned Judge should at least briefly mention the facts of the case, the
controversy and then give his reasoning. Even in a judgment of affirmance, he
must show that it has properly applied his mind to the case and not acted as a
rubber stamp. There must be own independent reasoning.
[The New India Co-operative Housing Society Ltd. v.
Municipal Corporation of Greater Mumbai and Anr. (unreported) Civil Appeal
No. 5426 of 2008 (Arising out of Special Leave Petition (Civil) No. 20670 of
2006) order dated 2-9-2008]
