[Cites 1, Cited by 0]
Bombay High Court
Shree Mukund Cooperative Housing ... vs Smt. Damayanti @ Archana Mohan Kholkar ... on 16 December, 2025
Author: Amit Borkar
Bench: Amit Borkar
2025:BHC-AS:55365
32-wp2284-2020&15999-2024final.doc
MPBalekar
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.2284 OF 2020
WITH
INTERIM APPLICATION NO. 2348 OF 2023
Shree Mukund Co-Op. Hsg. Soc. Ltd.,
Thr. Secretary, Shri Dhananjay Ravindra
Namjoshi. ... Petitioner
V/s.
Smt. Damayanti @ Archana
Mohan Kholkar and Anr. ... Respondents
Mr. S. S. Panchpor for the petitioner - Applicant
Mr. Amit Singh along with Dominic B., Ms. Ashlesha
Suryawanshi along with J. Jadhav i/by Mr. A. Nevagi
for the Respondent No.2.
Mr. P. V. Nelson Rajan, AGP for the State - Respondent
No. 1.
CORAM : AMIT BORKAR, J.
DATED : DECEMBER 16, 2025
P.C.:
1. The present writ petition calls in question the judgment and
award passed by the Co operative Court in a dispute instituted by
the petitioner Housing Society. The dispute sought recovery of
possession of the plot alleged to be in unauthorised occupation of
Respondent No. 2.
2. The foundation of the dispute was the alleged breach of
lease conditions. According to the Society, the lease executed in
favour of its member imposed a clear obligation to obtain prior
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permission of the Society before transferring any right, title or
interest in the plot to a third party. The Society contended that the
erstwhile member transferred his interest in favour of Respondent
No. 2 without obtaining such permission. This act, according to the
Society, constituted a breach of the lease and rendered Respondent
No. 2 liable to be evicted.
3. The Co operative Court rejected the dispute on the reasoning
that the requirement of permission was a curable defect. The
Appellate Court affirmed this view and confirmed the judgment
and award passed by the Co operative Court.
4. Learned Advocate appearing for the petitioner Society
submitted that Clause 14 of the lease deed mandates prior
permission of the Society before any transfer of the plot. He
pointed out that non compliance with this condition is admitted.
According to him, the breach stands proved on record. He
therefore urged that the Courts below committed a serious error in
refusing the relief of possession sought by the Society.
5. In support of his submissions, reliance was placed on the
judgment of this Court in Om Jaishrigurukrupa Co operative
Housing Society Ltd. vs. Vasundhara Vasant Dhavale, reported in
2004 (4) Mh.L.J. 916. It was submitted that this Court has upheld
eviction of unauthorised occupants who were inducted in violation
of the society's bye laws. According to the petitioner, the said
principle squarely applies to the present case.
6. On the other hand, learned Advocate for Respondent No. 2
drew attention to Clause 14 of the lease deed in its entirety. He
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submitted that though the clause requires prior permission for
transfer, it simultaneously casts an obligation on the Society not to
refuse permission when applied for by a responsible and
respectable member. He argued that the latter part of Clause 14
curtails the discretion of the Society to deny consent arbitrarily. On
this basis, he contended that the Society cannot seek eviction of
the purchaser merely on the ground of breach. He further
distinguished the decision in Om Jaishrigurukrupa Co operative
Housing Society Ltd. by submitting that in that case the bye laws
imposed a strict and unqualified restriction on transfer without
prior permission. It was in that context that eviction was upheld.
According to him, the present case stands on a different footing.
7. The challenge before this Court arises from a dispute
initiated by the petitioner Housing Society seeking possession of a
plot occupied by Respondent No. 2. The Society alleges breach of
lease conditions and claims a consequential right to eviction. The
Courts below have rejected this claim. The correctness of those
findings falls for consideration.
8. The Society's case rests on Clause 14 of the lease deed.
According to the Society, this clause mandates prior permission
before any transfer of the plot. It is not in dispute that such prior
permission was not obtained before the erstwhile member
transferred his interest in favour of Respondent No. 2. On this
admitted position, the Society contends that breach stands
established and eviction must follow as a legal consequence.
9. This submission appears attractive at first glance. However,
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the Court cannot read Clause 14 in isolation. A contractual clause
must be read as a whole. It must be understood in its plain
language and in its proper context. Clause 14 does require prior
permission. In the same breath, it places a restraint on the Society.
It obliges the Society not to refuse permission when applied for by
a responsible and respectable member. This part of the clause is
not ornamental. It has a definite legal purpose.
10. The effect of the latter part of Clause 14 is significant. It
shows that the Society does not enjoy absolute discretion to deny
consent. The clause recognizes transfer as permissible. It only
regulates the manner in which it is to be done. The requirement of
permission is thus procedural in nature. It is intended to ensure
orderly management. It is not meant to create a forfeiture or an
automatic ground for eviction in every case of non compliance.
11. The Co operative Court took the view that the defect of not
obtaining permission is curable. This finding cannot be said to be
perverse. When the lease itself restrains the Society from
unreasonably refusing permission, it necessarily follows that the
breach is not of a fundamental nature. If permission could not
have been lawfully refused had it been sought, denial of possession
on that sole ground would be inequitable and contrary to the spirit
of the clause.
12. The reliance placed by the Society on the decision in Om
Jaishrigurukrupa Co operative Housing Society Ltd. does not
advance its case. In that matter, the bye laws imposed a strict
prohibition on transfer without prior permission. There was no
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corresponding obligation on the Society to grant permission. The
Court upheld eviction because the occupation was wholly
unauthorised under the governing bye laws. The factual and legal
setting of that case is materially different.
13. In the present case, the lease deed itself limits the Society's
power to refuse consent. Once this limitation is recognised, the
argument of automatic eviction loses its force. Eviction is a drastic
remedy. It cannot be granted merely because a procedural
requirement was not complied with, when the same requirement
could have been satisfied and could not have been lawfully denied.
14. The submission of Respondent No. 2 that the Society is
disentitled from seeking eviction solely on the ground of breach of
Clause 14, therefore, deserves acceptance. The Courts below have
examined the clause in its entirety. They have applied the correct
legal test. No error of law or jurisdiction is demonstrated.
15. Viewed from any angle, the judgments of the Co operative
Court and the Appellate Court do not suffer from infirmity. The
reasoning is sound. The conclusions are supported by the material
on record and the plain language of the lease deed. Interference
under writ jurisdiction is neither warranted nor permissible.
16. The writ petition fails. It stands dismissed. No order as to
costs.
17. All pending interim applications stand disposed of as
infructuous.
(AMIT BORKAR, J.)
