Bombay High Court
M/S. Cosmopolitan-A (Safal Complex) ... vs Mr. Rakesh Talwar And Ors. on 2 September, 2025
Author: Milind N. Jadhav
Bench: Milind N. Jadhav
2025:BHC-AS:36753
WP.10183.2018.doc
HARSHADA H. SAWANT
(P.A.)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION No.10183 OF 2018
WITH
INTERIM APPLICATION NO. 4419 OF 2023
IN
WRIT PETITION NO.10183 OF 2018
Ms. Cosmopolitan-1 (Safal Complex) Co-
Operative Housing Society Ltd and Ors. .. Petitioners
Versus
Rakesh Talwar and Ors. .. Respondents
....................
Mr. Avinash Fatangre a/w Ms. Archana Shelar, Advocate for
Petitioners
Mr. S. S. Patwardhan, Advoate for Respondent No. 1,2 & 4 to 6
Ms. Tejas Kapre, AGP for State
...................
CORAM : MILIND N. JADHAV, J.
DATE : SEPTEMBER 02, 2025
P.C.:
1. Heard Mr. Fatangare, learned Advocate for Petitioners; Mr. Patwardhan, learned Advocate for Respondent Nos. 1,2 and 4 to 6 and Ms. Kapre, learned AGP for State.
2. Writ Petition is filed by Petitioner No. 1 - CHS. Petitioner Nos. 2 to 13 are Managing Committee members of Society. Respondent Nos. 1 to 6 are members of Society. Respondent No. 7 is Joint Registrar Co-operative Societies, CIDCO whereas Respondent No. 8 is the State.
3. Challenge in the petition is to judgment and order dated 20.10.2015 passed by Respondent No. 8 - State. Issue being agitated 1 of 12 ::: Uploaded on - 02/09/2025 ::: Downloaded on - 02/09/2025 21:21:44 ::: WP.10183.2018.doc before Court is of jurisdiction of Respondent No. 7 to dispose of complaint filed by Respondent Nos. 1 to 6 pursuant to remand by this Court or whether by the Cooperative Court under Section 91 of the Maharashtra Cooperative Society Act, 1960 ("MCS Act").
4. Brief facts pertaining to the dispute are as follows:-
Petitioner No. 1 is a 17 year old Society consisting of 12 buildings of 7 storey each having total 312 flats. In 2012, Petitioner Society carried out repairs in the society buildings pertaining to cracks, leakage and seepage and necessary expenditure was incurred. In Special General Body Meeting dated 27.09.2012 it was resolved that expenses incurred on internal repairs of concerned flat upto Rs.10,000/- will be recovered in one installment, expenses upto Rs.25,000/- in 2 installments, expenses upto Rs.50,000/- in 4 installments and expenses above Rs.50,000/- in 6 installment from members. Computation of this recovery from members was decided by General Body in Special General Body Meeting dated 15.08.2012. Total expense incurred were Rs. 61 lakhs and it was decided to recover the amount on the basis of rate per square foot over a period of 4 months. Petitioner No. 1 - Society accordingly issued monthly bills for recovery to its members.
5. Mr. Fatangare, learned advocate for the Society / Petitioners would submit that Respondent Nos. 1 to 6 members of Society refused to pay the bills and accordingly issued letter of objection dated 2 of 12 ::: Uploaded on - 02/09/2025 ::: Downloaded on - 02/09/2025 21:21:44 ::: WP.10183.2018.doc 23.08.2013 to the Society. He would submit that these Respondents filed complaint before Respondent No. 7 namely Joint Registrar, Cooperative Societies, CIDCO and challenged the resolutions passed by the Society and sought determination thereof. Show cause notices dated 13.09.2012, 04.10.2012 and 04.12.2012 were issued by Respondent No. 7 to the Society. By this time Society received representation from 24 of its members objecting to levy of repair expenses. These members were those who resided on the top floor i.e. floor No. 7 below the Society Building Terrace, which had undergone major overhaul and repair. Therefore Society called Special General Meeting on 06.01.2013. In that Special General Meeting it was resolved that Society will contribute 20 % of the expenses towards internal repairs of all 93 flats in which internal repairs were carried out subject to the Member not being a defaulter. Accordingly, resolution was passed.
6. Society brought the above resolution to the notice of Respondent No. 7 whereupon by order dated 14.03.2013 Complaint filed by respondent Nos. 1 to 6 was disposed of holding that Respondent No. 7 did not have the authority and jurisdiction to decide the same. Respondent No. 7 held that challenge to resolutions was not within his domain and it fell within the jurisdiction of the Cooperative Court. Respondent No. 7 directed Respondent Nos. 1 to 6 to approach the Cooperative Court.
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7. Being aggrieved Respondent Nos. 1 to 6 filed Revision Application before Respondent No. 8 - State. By order dated 03.01.2014 Respondent No. 8 - State condoned delay of 37 days and allowed the Revision Application. Respondent No. 8 set aside order dated 14.03.2013 passed by Respondent No. 7 and directed removal of the amount toward internal repairs incurred from bills raised by Petitioner No. 1 - Society.
8. Petitioner No. 1 - Society challenged the order dated 03.01.2014 in this Court in Writ Petition No. 2372 of 2014. By order dated 30.07.2015, this Court set aside the order dated 03.01.2014 passed by Respondent No. 8 and remanded the matter to Respondent No. 8 for fresh decision and directed him to decide the issue of jurisdiction.
9. According to Mr. Fatangare, learned Advocate for Society, unless and until the Special General Meeting resolutions hold the field and they stand, Petitioner 1 - Society is entitled to charge the amounts incurred for internal repairs from its members. He would vehemently argue that legality of resolutions can be challenged only under Section 91 of the MCS Act and therefore the same is within the domain of the Cooperative Court only. He would submit that Respondent No. 8 did not adhere to the direction of the High Court and did not decide the issue of jurisdiction and directed Petitioner No. 1 - Society to refund / 4 of 12 ::: Uploaded on - 02/09/2025 ::: Downloaded on - 02/09/2025 21:21:44 ::: WP.10183.2018.doc adjust the amount paid by Respondent Nos. 1 to 6 in the contentious bills. He would submit that there was delay of 37 days in filing the revision application before the Minister for which delay was not even condoned. He would submit that in the meanwhile Respondent Nos. 2 and 5 (members of the Society) addressed a letter to the Registrar, withdrawing their claim against the Society. He would submit that Respondent No. 8 did not decide who would be the Competent authority / forum to decide the dispute. He would submit that instead of deciding the forum to decide the dispute, Respondent No. 8 allowed the Application of Respondent No. 1 to 6 on merits. He would submit that thus the impugned order is in violation of the judgment and order dated 30.07.2015 passed by this Court in Writ Petition No. 2372 of 2014. He would submit that recovery is effected from members of Society for internal repairs as per resolutions passed by the General Body. He would submit that the resolutions are binding on all members. He would submit that unless the said resolutions are challenged and set aside, liability of members shall subsist. He would submit that only 4 out 312 members of the Society are objecting to pay the repair charges. He would therefore persuade the court to set aside the impugned order and direct Respondent No. 8 to decide the issue of jurisdiction to entertain the complaint filed by the 4 private Respondents (members of society) who have refused to pay the repair charges. In support of his submission he has referred to and relied 5 of 12 ::: Uploaded on - 02/09/2025 ::: Downloaded on - 02/09/2025 21:21:44 ::: WP.10183.2018.doc upon the decision of this court in the case of Indrasan Co-operative Housing Society Limited Vs. State of Maharashtra and Ors.1
10. Per contra Mr. Patwardhan, learned Advocate for private Respondents namely Respondent Nos. 1 ,2 and 4 to 6 would submit that the five members before court are those members whose flats are situated right below the Society Building Terrace and for which extensive repairs for seepage and leakage was carried out and substantial expenses were incurred. He would submit that prior to the resolutions which are agitated by the Society, on 29.07.2012 the General Body in its Special General Meeting unanimously resolved that repair expenses of Rs. 22 lakhs pertaining to members residing in the flats below the Society Building Terrace be excluded from the costs of repairs namely internal repairs. He would submit that this resolution was passed in consonance with Bye-Law No. 160(a)(xvii) and was also confirmed in the subsequent Special General Meeting held on 15.08.2012. He would submit that Bye-Law No. 160(a) pertained to damages to ceiling and to repairs and maintenance of Society property to be carried by the Society and to the damaged ceiling and plaster thereon in the top floor flats on account of leakage of rain water through the terrace. He would submit that the Society has levied these very expenses on the private Respondents whom he represents and therefore Respondent No. 8 in the impugned order has rightly 1 2014 SCC OnLine Bom 706 6 of 12 ::: Uploaded on - 02/09/2025 ::: Downloaded on - 02/09/2025 21:21:44 ::: WP.10183.2018.doc observed that such levy of recovery by Society was not in accordance with Bye-Law 160(a). He would submit that it is in this context that under Section 89A of the MCS Act, Respondent No. 7 issued 3 Show Cause Notices dated 13.09.2012, 04.10.2012, 04.12.2012 to the Society. He would submit that Petitioners did not reply to the Show Cause Notices. He would submit that in this context Respondent No. 7 directed Respondents to invoke remedy under section 91 of the MCS Act. He would submit that once Model Bye-Laws are adopted by the Society Respondent No. 7 is well within his powers to take steps against the Society for non compliance of Bye-Laws. He would submit that there is no inter se dispute between Petitioner Society and private Respondent (members). He would submit that neither is there any intense dispute between members of the Society. He would submit that private Respondents approached Respondent No. 7 with a specific complaint regarding non compliance of Bye-Law No. 160(a)(xvii) despite the Society resolution dated 29.07.2013. He would submit that if there is failure on part of Society to not comply with the Bye-Law then Respondent No.7 can direct appropriate compliance. He would submit that Respondent No.7 cannot direct private respondents to file a dispute application in the Cooperative Court under section 91 of the MCS Act in such a case. He would submit that it was this power of Respondent No.7 which has been correctly distinguished by Respondent No.8 while passing the impugned order in Revision 7 of 12 ::: Uploaded on - 02/09/2025 ::: Downloaded on - 02/09/2025 21:21:44 ::: WP.10183.2018.doc proceedings. He would submit that Respondent No.8 has correctly exercised his revision jurisdiction after recording finding that Respondent No. 7 failed to exercise his jurisdiction under Section 79(2) of the MCS Act. He would submit that once Petitioner No. 1 - Society adopts Bye-Law No. 160(a), then the impugned order is required to be held as correctly passed in law. He would submit that Society is also simultaneously guilty of practicing discrimination subsequent to the above incidents. He would submit that Petitioner No. 1 - Society has waived the said repair amounts in the case of Respondent No. 1 and 3 by reversing the amounts and interest and hence the same benefit needs to be extended to the other Respondents namely Respondent No. 4 and 6 who are now the only aggrieved Respondents. He would distinguish the decision in the case of Indrasan Co-operative Housing Society Limited (supra) relied upon by Petitioners and contend that the said case did not deal with external repairs to the terrace area and pertained distinctly to internal repairs of flats only. He would submit that repairs to the terrace area in the present case is squarely covered by Bye-Law No. 160(a)(xvii). He would therefore persuade me to dismiss the Petition and uphold the order dated 20.10.2015 passed by Respondent No. 8 in its Revisional jurisdiction.
11. I have heard the submissions advanced by Mr. Fatangare, learned Advocate for the Society, Mr. Patwardhan, learned Advocate 8 of 12 ::: Uploaded on - 02/09/2025 ::: Downloaded on - 02/09/2025 21:21:44 ::: WP.10183.2018.doc for private Respondents and Ms. Kapre, learned AGP for Respondent - State and perused the record of the case with their able assistance.
12. The grievance in the present case is now restricted to Respondent Nos. 4 and 6 only. As informed by Mr. Patwardhan admittedly flats belonging to these Respondents are situated on the top floor i.e. floor No. 7 below the Society Building Terrace. It is seen that the order dated 30.07.2015 remanded the matter back to the Revisional Authority (Respondent No. 8) for consideration of the Revision Application including the issue of jurisdiction qua Respondent No. 7 to decide the issue. It is seen that the Revisional Authority in the impugned judgment dated 20.10.2015 held that under Section 79(2) of MCS Act it is the duty of Registrar to confirm whether the Model Bye-Laws are adhered to by the Society. It is seen that under Bye-Law 160(a) there is a specific provision pertaining to expenditure for repairs and maintenance to be carried out by the Society at its cost and clause (xvii) pertains to such repairs carried out on account of leakage of water through the terrace. In this regard it is seen that the Petitioner Society in its Special General Meeting held on 29.07.2012, copy of which is appended at Exhibit A - page 25, in clause (h) passed the following resolution.
"h) The majority of members present approved the recovery of the costs of internal repairs incurred for the 93 flats amounting to Rs. 22 lacs (the cost of repairs of terrace flats in the open terrace exposed to the sky and the impact created in the ceiling slab due to the leakages through terrace of seventh floor flats to 9 of 12 ::: Uploaded on - 02/09/2025 ::: Downloaded on - 02/09/2025 21:21:44 ::: WP.10183.2018.doc be not included in the internal repairs definition.)"
13. From the above it is seen that majority members present in the said Meeting approved recovery of costs of internal repairs incurred on the 93 flats amounting to Rs. 23 lakhs excluding the costs of repair of terrace flats due to leakages through the terrace flats situated on the top floor i.e. floor No. 7 in the internal repairs definition. It is seen that flat premises of Respondent No. 4 and 6 are on the 7th floor below the Building Terrace. It is thus seen that after this resolution was passed all further resolutions in the Special General Meeting of the General Body dated 15.08.2012 appended at Exhibit B - Page 34 and dated 06.01.2013 appended at Exhibit D - Page 52 are consequential thereto. The subsequent resolution will have to be read alongwith the resolution dated 29.07.2019. It is seen that there are 24 terrace flat members in the Society out of whom 16 terrace flat owners represented to the Society. It is borne out from the record that the initial tender of repair works was estimated for internal repairs for Rs. 4.21 lakh but the Society incurred costs of Rs. 21 lakhs towards internal repairs for 93 flats and consequentially due to shortage of funds repairs in the remaining flats could not be carried out. The dispute in the present case prima facie pertains to internal repairs. Though the Society General Body agreed that internal repairs of flats will be carried out by incurring expenses from the members concerned 10 of 12 ::: Uploaded on - 02/09/2025 ::: Downloaded on - 02/09/2025 21:21:44 ::: WP.10183.2018.doc and that is correct, but the present dispute is specific and categorical as raised by private Respondents. It specifically pertains to application and implementation of Bye-Law No. 160(a)(xvii). Once Model Bye- Laws are adopted by the Society they have to be followed. There is a specific exclusion of terrace flats as the Society also approved of the same in its Special General Meeting dated 29.07.2012. It is seen that even for internal repairs below the terrace flat Society decided to contribute 20% of the amount qua the respective members, but where a terrace flat is situated, there is no member above the rooftop to share the costs of internal repairs. Hence the Bye-Law No. 160(a)(xvii) applies to such a case. If members of Society in the Special General Meeting by majority decide and resolve to collect repair funds contrary to Bye-Law No. 160(a), the same cannot be permitted. It is prima facie seen that order dated 20.10.2015 passed by Respondent No. 8 takes into account the aforesaid dispute inter alia pertaining to applicability and implementation of Bye-Law No. 160(a)(xvii). Further once the Society has resolved to exclude the 7 th floor terrace flat owners as per this Bye-Law, the Society cannot include costs of repairs of terrace in the maintenance bills of these terrace flat owners. In my opinion the reasons given in order dated 20.10.2015 are cogent and in accordance with the provisions of law. No fault whatsoever can be found in those reasons pertaining to giving directions for implementation of the Bye- Laws. The directions contained in the order dated 20.10.2015 to 11 of 12 ::: Uploaded on - 02/09/2025 ::: Downloaded on - 02/09/2025 21:21:44 ::: WP.10183.2018.doc reduce and refund the excess amount in the facts and circumstances of the present case are correctly passed. The said order does not call for any interference. This issue does not pertain to any inter se dispute between the members and the Society. It pertains to application of the Bye-Laws and nothing more. The order dated 20.10.2015 is confirmed and upheld. Resultantly Petition fails.
14. Writ Petition is dismissed. Interim Application is also disposed.
H. H. SAWANT [ MILIND N. JADHAV, J. ] Digitally signed HARSHADA by HARSHADA HANUMANT HANUMANT SAWANT SAWANT Date: 2025.09.02 11:37:22 +0530 12 of 12 ::: Uploaded on - 02/09/2025 ::: Downloaded on - 02/09/2025 21:21:44 :::