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6. Mr. Shriram Kulkarni, learned counsel for the Petitioner in Writ Petition No. 2968 of 2004 and Mr. Nitin Deshpande, learned counsel for Appellant in S.A.No. 223 of 1999 submitted that there was overwhelming evidence on record which was not even challenged by Upasani or society that the disputed plot was a common amenity in the form of pathway between the two plots, in terms of the layout approved by the local authorities. They submit that neither the general body nor the managing committee of the society were vested with any powers to convert such common amenities into private amenity of Upasani. They point out that by the impugned resolution, society had alloted a common amenity which was meant for the benefit of all the members of the society to Upasani for his exclusive use. They point out that the society was merely a trustee in respect of such common amenity and therefore, would never have permitted conversion of such common amenity to some exclusive privilege for Upsani. They point out that neither the society nor Upasni had lead any evidence before the wp-2968-2004.doc Cooperative Court. They point out that evidence lead by Madhukar was therefore virtually not challenged. They submit that in such circumstances, the dispute raised by Madhukar was required to be allowed.

15. The rival contentions now fall for determination.

16. At the outset, it is necessary to note that the most vital issue which arises in this matter is whether the disputed plot which came to be alloted by the society to Upasani, was indeed a "common amenity" i.e. pathway or open space between two plots in terms of the layout originally approved by the authorities, on the basis of which the development has proceeded was at least required to proceed. If the material on record indicates that the disputed plot was indeed a common amenity, then the next question which arises for determination is whether the society was then entitled to allot the disputed plot in favour of Upasani so as to wp-2968-2004.doc convert this common amenity into a private property of Upasani. These are the main issues which arise for determination in this matter.

17. The material on record, overwhelmingly indicates that the disputed plot was a part of the common amenities in the original layout. There are clear averments made in the dispute Petition filed by Madhukar before the Cooperative Court. There is no serious denial regards this aspect. As if this was not sufficient, from the documents produced on record by Madhukar which went unchallenged, this production stands established. Neither the society nor Upsani challenged the documents in the evidence before the Cooperative Court. Even these documents unmistakably establish that the disputed plot is nothing but a portion of the common amenities in the original layout. Though this common amenity is described as pathway between plots of Upasani and Madhukar, in fact this common amenity is nothing but a mandatory open space required to be maintained in terms of approved layout.

21. However, the fact remains that the common written statement was filed and even in the common written statement, there is repeated reference to 'pathways'. Only at one stage, it is stated that the pathway in-question was not 'common pathway', but it was a pathway adjacent to the plot of Upasani, who alone, could use it. Surprisingly, neither Upasani nor any other office bearers of the society stepped in the witness box before the wp-2968-2004.doc Cooperative Court to make good the averments in the written statement. That apart, it is not even the case of Upasani that pathway was a part of the plot which was allotted to him by the society initially. From the material on record, it is more than apparent that the pathway which the society purported to allot to Upasani was a common amenity between two plots. Such common amenity, which was meant for the benefit of all the plot holders in the lay out and consequently, all the members of the society could not have been sold, transferred or allotted by the society to any one or more members of the society to exclusion of all others. Resolutions to this effect are clearly incompetent even assuming that the same were supported by majority of the members.