Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2008 Supreme(SC) 1318

2008(6) Supreme 458
Supreme Court of india
(From Bombay High Court)
Altamas Kabir and Markandey Katju, JJ.
The New India Co-operative Housing Society Ltd. — Appellant
versus
Municipal Corporation of Greater Mumbai & Anr. — Respondents
Civil Appeal No. 5426 of 2008
[Arising out of Special Leave Petition (Civil) No. 20670 of 2006]
Decided on : 02-09-2008

Advocates appeared:
For the Appellant :V.A. Mohata, Sr. Adv., P.R. Ramasesh and P.B. Amin, Advocates.
For the Respondents:Sunil Gupta, Shekhar Naphade, Sr. Advs., Jatin Zaveri, Atul Y. Chitale, Mrs. Suchitra Atul Chitale and Ms. Sunaina Dutta, Advocates.

Important Point
Any violation of the agreed lease terms is illegal.

Headnote:(a)Constitution of India,1950 – Article 226 – LPA – The appellate 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. (Para 6)
       (b)Transfer of Property At, 1882 – Section 108 – Construction in violation of lease deed is illegal. (Para 16)
       (c)Constitution of India,1950 – Article 26 – In a dispute concerning the Municipal Corporation and the respondent, observations of the High Court on dispute between the respondent and the appellant was wholly unwarranted. (Para 21)
       Facts of the case :
       1. The appellant is a Co-operative Housing Society. 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.
       2. On 31.5.1973, a lease was granted by the appellant-Society with respect to the plot in question in favour of J.C. Patel. 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.
       3. It appears that the lessee made substantial changes in the original building plan dated 14.11.2000 without getting NOC from the appellant-Society. As a result of this the appellant convened a Special General Meeting of the Society on 19.11.2005 expelling respondent No. 2 and Tarla Patel from the membership of the appellant-Society.
       4. After terminating the lease dated 10.9.2005, the appellant-Society also initiated eviction proceeding against the respondents which is pending.
       5.On receiving the 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.
       6. 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, respondent No. 1 withdrew the ‘stop work notice’ dated 30.12.2005.
       7.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 appeal.
       Finding of the Court :
       High Court judgment is not sustainable.
       Result : Appeal allowed.

Judgment

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 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 appellate 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.

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):

“That the N.O.C. from the Society al

Click Here to Read the rest of this document

2008 Supreme(SC) 1318

Important PointAny violation of the agreed lease terms is illegal.

Important Point
Any violation of the agreed lease terms is illegal.