THE NEW INDIA CO-OPERATIVE HOUSING SOCIETY LTD. versus MUNICIPAL CORPORATION OF GREATER MUMBAI & ANR.

Citation: [2008] 12 S.C.R. 1133 · Decided: 02-09-2008 · Supreme Court of India · Bench: ALTAMAS KABIR · Disposal: Appeal(s) allowed

Judgment (excerpt)

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[2008) 12 S.C.R. 1133 
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THE }'.'JEW INDtACO-OPERATIVE HOUSING SOCIETY 
A 
if ~ 'i 
LTD. 
v. 
MUNICIPAL CORPORATION OF GREATER MUMBAI & 
ANR. 
, (Civil Appeal No. 5426 of 2008) 
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SEPTEMBER 2, 2008 
[ALTAMAS KABIR AND MARKANDEY KATJU, JJ.] 
Bombay Municipal Corporation Act; S. 354A: 
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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 
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was illegal - No objection certificate from the society was 
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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 
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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 
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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 
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1134 
SUPREME COURT REPORTS 
[2oosi 12 s.c-.R. 
A 
a representation to respondent No. 1 stating that 
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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 
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filed by the appellant-Society in the High Court, which 
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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 
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approved by the appellant, no fresh approval or NOC is 
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required for the amended ,building plan. 
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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] 
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1.2 When there is a specific stipulation in the Lease 
Deed that NOC from the lessor has to be obtained for the 
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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. 
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(Para - 18) [1139,D-F] 
'1.3 The matter was not between the lessee and the 
H municipal corporation atone, there v.tas a third party 
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THE NEW !NOIA CO-OP HOUSING SOCI. LTD. v. MUNI-
1135 
CIPAL CORP OF GREATER MUMBAI &ANR. [MARKANDEY KAT JU, 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 
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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] 
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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 
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V.A. Mohata, P.R. Rarnasesh and

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