1 ao794-11 sas IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.794 OF 2011 IN NOTICE OF AT EXHIBIT 2 IN S.C. SUIT NO.3079 OF 2008 Nipa Jayant Chheda & Ors. ..Appellants. V/s. Buddha Co-operative Housing Society Ltd. & Anr. ..Respondents. Mr. P.M. Shah for appellant. Mr. V.A. Thorat, senior Advocate with Sanjay Jain i/b. Chitnis & Co. for respondent No.1. Mr. P.J. Thorat i/b. L.D. Shah & Co. for respondent No.2. CORAM : SMT. R.S. DALVI, J. DATED : 25TH AUGUST, 2011 P.C. :- 1. The appellants are lessors of the suit land and the respondent is the lessee to whom the suit land has been leased and assigned for the period of 99 years and further extension of 99 years as contemplated in the original lease deed. The covenant in the lease allowed the lessee to construct building on the demised premises as permissible by the municipal authorities. However, under further covenant the lessee was not to transfer, assign and sub-lease the 2 ao794-11 demised premises to any one and assign the leasehold interest for the reminder of the lease period. 2. The building of the lessee was put up in about 1960. It has, therefore, remained for 51 years. This was pursuant to the covenant to construct in lease time. Since the building is dilapidated, the lessee desires to reconstruct the building. This re-construction includes exploitation of full FSI available as also the loading of TDR by leased plan. It would have been to seen whether the covenant to construct as permissible by the municipal authorities will include putting up a construction which may become permissible in future after the lease is entered into for exploiting the FSI and loading of TDR. 3. It will also have to been seen whether the construction which is to be put up for the dilapidated construction can be repaired, renovated or re-constructed to some extent. 4. The lessee has got the plan sanctioned in 2008. It filed the suit in 2008 restraining the appellants and other agents from preventing or obstructing the re-development which includes exploitation of the FSI as also loading of TDR apart from the re-construction of the building and use by the original members of the lessee. 3 ao794-11 5. The interpretation of clauses 9, 10 & 11 of the Lease Agreement would require to consider two aspects (1) putting up of new construction to the same extent as was put up pursuant to the covenant to construct in the lease agreement and (2) putting up any further construction which would be allowable under the other laws being B.M.C. Act and DC Regulations or other rights and to see who obtains the benefit of such further laws – the lessor or the lessee as the assignee. 6. For the first aspect of clause (9) is absolutely clear. When there is a covenant to construct the building on a leased plot of land, it would mean and include the building which is habitable. Therefore, the building which is dilapidated within a span of 50 years, which is part of the lease period, the covenant would mean to include its restoration either by repair, renovation or reconstruction. The case made out by the lessee in respect of the restoration of the said building by reconstruction as seen by the Court is correct. 7. The further case of the lessee is that it could carry out further construction, even for re-sale to third parties, by exploiting the full FSI which may be more than the FSI available at the time of the lease by loading of TDR. That would have to be decided in the suit. Hence the order allowing the re-development in accordance with law as sanctioned 4 ao794-11 by the B.M.C. or any other authorities which exceeds the reconstruction to re-house the original members would require further scrutiny and cannot be allowed at present. 8. Hence granting the entire prayer of the plaintiff permitting the re-development as per the sanctioned plan would be improper and that part of the order would be required to be stayed pending consideration of covenant in the lease deed. 9. I am told that the lessor has sued the lessee in the Rent Court and an application for interim injunction against the development has been heard and is kept for orders. That application would decide the interpretation of the lease deed itself. Consequently, the appeal is partly allowed as follows:- (i) The respondents shall be entitled to reconstruct the building constructed on the leased premises for housing the members of the Society. Sanctioned plan to that extent would be acted upon. (ii) Further exploitation of the FSI and TDR shall not be carried out pursuant to the impugned order. (iii) The impugned order is stayed to that extent. Appeal is disposed off accordingly. (SMT. R.S. DALVI, J) 5 ao794-11