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
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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
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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 /
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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
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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
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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
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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
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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
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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
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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
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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. ]
HARSHADA by HARSHADA
HANUMANT
HANUMANT SAWANT
SAWANT Date: 2025.09.02
11:37:22 +0530
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