Mrs. Sunanda Janardan Rangnekar Vs the Rahul Apartment No.Ii Co-Operative Housing Society Ltd. and Ors.

 IN THE HIGH COURT OF JUDICATURE OF BOMBAY

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 ORDINARY ORIGINAL CIVIL JURISDICTION

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 WRIT PETITION NO. 1406 OF 2005

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 Mrs.Sunanda Janardan Rangnekar .. Petitioner

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 versus

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 The Rahul Apartment No.11 Co-op

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 Housing Society Limited .. Respondents

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 Mr.V.R. Walavalkar with S.R. Bhalekar for the

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 petitioner.

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 Mr.A.S. Desai for the respondent no.1.

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 Mr.Pradeep Jadhav AGP for the respondent nos.2 and 3.

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 CORAM : D.G. KARNIK,J.

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 DATED : 10th August 2005.

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ORAL JUDGEMENT :-

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 1. By this petition, the petitioner challenges

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 the judgement and order passed by the Divisional
 Joint Registrar, Bombay on 7th December 2004

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 dismissing the revision.

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 2. The respondent no.1 is a co-operative
 housing society (for short ’the society’) having 29
 members. There are 28 residential flats which are
 allotted to 28 members and one shop is allotted to
 the petitioner. The area of the flats varies between
 479 sq.ft and 657 sq.ft. The area of the shop
 premises in occupation of the petitioner is about 160
 sq.ft. i.e. to say that the petitioner’s shop is
 smaller than the smallest flat in the building of the
 respondent no.1 society. It appears that the society
 recovers from the members property tax, payable to
 the municipal authorities at the rate of Rs.30.81 per

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 sq.ft per annum of the area of the flat/shop. In
 addition thereto, the Society also levies and
 recovers from the members amount by way of society
 charges/maintenance at a flat rate of Rs.8,000/- per
 annum (Rs.2,000/- per quarter per flat). The society
 sought to recover from the petitioner society
 charges/maintenance at the rate of Rs.32,000/-per
 annum (Rs.8,000/- per quarter) for the shop occupied
 by him. According to the petitioner, this was
 illegal in as much as while only Rs.8,000/- per annum

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 were charged to the members occupying the residential
 flats Rs.32,000/- per annum were sought to be
 recovered from her by way of society charges/
 maintenance which was highly discriminatory. As the
 petitioner’s grievance was not addressed to she
 stopped making payment to the society. The society
 thereafter made an application for recovery of
 arrears of the dues with interest from the petitioner
 to the Asstt. Registrar of Co-operative Societies
 u/s.101 of the Maharashtra Co-operative Societies
 Act, 1961 (for short ’the Act’). The petitioner
 opposed the said application contending that the
 payment was withheld on account of excessive demand.
 She also contended that was liable to pay to

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 interest. On 23rd December 2002, the Asstt.

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 Registrar issued a certificate of recovery in favour
 of the respondent no.1 society in the amount claimed
 by it. Aggrieved petitioner challenged the recovery
 certificate by filing a revision before the
 Divisional Joint Registrar. By an order dated 7th
 December 2004, the Divisional Joint Registrar
 dismissed the revision application. That order is
 impugned in this petition.

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 3. Learned counsel for the petitioner submits

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 that while the society was issuing bills by way of
 society charges/maintenance charges at the rate of
 Rs.8,000/- p.a. (Rs.2,000/- per quarter) to each of
 the flat holder members, it was wrongly issuing the
 bills in the sum of Rs.32,000/- p.a. (Rs.8,000/- per
 quarter) to the petitioner in respect of the shop
 premises. She submits that no additional service
 whatsoever was provided by the respondent no.1
 society to the petitioner or to the shop allotted to
 the petitioner nor was any additional amount spent
 for the maintenance of the shop and therefore the
 society was not entitled to treat the petitioner
 differently from other members. Learned counsel for
 the society submits that the sum of Rs.32,000/- per
 annum consisted of two parts viz. Rs.16,000/- for
 society charges/maintenance charges and a sum of a
 Rs.16,000/- as non occupation charges. As regards
 the charges for society charges/maintenance charges,
 he submits that a resolution has been passed by the
 general body of the society in its meeting dated 1st
 July 2001 authorising the society to levy society
 charges/maintenance charges in respect of the
 commercial premiss at twice the rate of charges for
 the residential premises and therefore the soceity
 was entitled to recover Rs.16,000/- per annum instead

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 of Rs.8,000/- p.a. in respect of shop premises
 occupied by the petitioner. As regards the non
 occupation charges of Rs.16,000/- the counsel submits
 that the petitioner was not personally occupying the
 shop but had let it out and therefore the society was
 entitled to non occupation charges under the bye laws
 of the society.

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 4. In view of the rival submissions of the
 parties, two points arise for my consideration.

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 i) Whether under the Act, Rules or bye-laws the
 society is entitled to recover society
 charges/maintenance for commercial premises at twice
 the rate charged for the residential premises?

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 ii) Whether the society is entitled in law to
 recover non occupation charges as claimed by it?

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Regarding Point no.1.

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 5. Learned counsel for the petitioner submits
 that total number of members in the society are 29
 out of which 28 persons occupy the residential
 premises and only the petitioner occupies one non

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 residential unit. Therefore the residential flat

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 holders have a brute majority in the society and
 petitioner’s lone voice is not heard. Taking
 advantage of the brut majority the flat holders want
 to subsidise the charges for the maintenance of their
 flats by recovering higher maintenance charges from
 her - the holder of a commercial premises. The
 society has no authority in law to treat the members
 differently and levy the charges for the commercial
 premises at a rate twice the rate of the residential
 premises. Though the area of the shop is much
 smaller than the area of the smallest residential
 flat, the petitioner never objected for paying the
 society charges/maintenance at the same rate as that
 of the residential flat holders. There should be
 equality in sharing of the burden of expenses for
 maintenance and common expenses which are recovered
 by the society as service charges or maintenance

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 charges. They should be recovered equitably and
 equally from all the members. In support of these
 submissions learned counsel for the petitioner relies
 upon the decision of this Court in Venus Co-operative
 Housing Society Ltd. Vs. Dr.J.Y. Detwani reported
 in 2003 (3) All. M.R. 570.

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 6. In case of Venus Cooperative Housing Society
 the flats of different sizes, 284 small flats with
 two bedrooms and 39 large flats with four bedrooms.
 The society passed a resolution levying the different
 maintenance charges as per the area of the flats and
 issued a circular to that effect to members.
 Disputants who were the holders of the larger flats
 challenged the circular as also the resolution by
 filing a dispute u/s.91 of the Act before a
 co-operative court. The co-operative court declared

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 the resolution of the society to be illegal and not
 binding on the disputants. The decision of the
 co-operative court was confirmed by the appellate
 tribunal. The order was impugned by the society by
 way of a Writ Petition. This Court held that the
 resolution of the society levying differential
 charges on the basis of the area of the flats was
 arbitrary, unreasonable, without any rational and
 without any source of power. It held that services
 of the society were enjoyed by all the members
 equally and there was no reason for the society to
 make the large flat holders pay more on the basis of
 the area of the flats. It held that though the
 supremacy of the general body cannot be doubted, even
 the supreme general body had to pass resolutions

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 considering all facts and circumstances of the
 matter. The general body cannot pass arbitrary and
 unreasonable resolutions merely because it is supreme
 and it has a large majority in favour of any issue on
 the agenda.

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 7. In the present case the society is

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 recovering differential amounts by way of a property
 tax on the basis of the area of the flats at the rate
 of 30.81 per sq. ft. per annum of the area. That
 has rightly not been challenged by the petitioner, as
 the property tax payable to Municipal authority would
 obviously vary according to the area of a flat.
 However, so far as the charges for the society
 services or maintenance are concerned, no material
 was adduced before the Asstt. Registrar to show that
 any additional services were provided to the
 petitioner or any additional maintainence was
 incurred by the Society on account of petitioner
 being a holder of commercial premises. In the
 affidavit in reply filed in this Court also, it is
 not even be alleged that any additional services are
 provided to the petitioner by reason of her being the
 holder of commercial premises. In my view, the

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 society was not entitled to levy society
 charges/maintenance charges for commercial premises
 at twice the rate that of a residential premises. I
 am in respectful agreement with the view expressed by
 this Court in Venus Co-operative Housing Society Vs.
 Dr.J.Y. Detwani, (Supra) in this respect.

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Regarding point no.2.

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 8. Learned counsel for the society submits that
 under bye-law no.45 of the bye-laws of the Society, a
 member is required to take previous permission of the
 managing committee before letting out and giving or
 giving on leave and licence basis or caretaker basis
 his premises or any part thereof. Clause (2) of
 bye-law no.45 provides that no member shall be
 permitted to sub-let or give on leave and licence
 based or caretaker basis any part of the premises
 unless he makes an application in the prescribed
 format and in the application gives an undertaking
 that he would pay non occupancy charges to the
 society at such rate as is decided in the meeting of
 the general body of the society. He therefore

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 submits that the Society was entitled to levy non
 occupancy charges of Rs.16,000/- per month as claimed
 by it.

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 9. Learned counsel for the petitioner submits

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 that in the bills issued by the society, it has not
 claimed any non occupancy charges but had claimed the
 entire amount is claimed as society
 charges/maintenance charges and there is no basis for
 the contention that Rs.32,000/- were divided into two
 parts viz. Rs.16,000/- as society charges and
 Rs.16,000/- as non occupancy charges. He further
 challenges the validity of the bye-law and in any
 event submits that the charges were not claimed on
 the basis of this bye-law. He further submits that
 in any event as per the order dated 1st August 2001,
 issued by the Government by virtue the powers
 conferred on it u/s.79-A of the Act, the Government
 has directed that the non occupation charges cannot
 exceed 10% of the service charges. The learnedn
 counse, therefore, submits that the service charges
 could not be 100% of the society charges and would
 have to be restricted to 10% of the service
 charges/maintenance charges.

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 10. I have perused the copy of the application
 made by the respondent no.1 society to the Registrar
 for issuance of a certificate u/s.101 of the Act. In
 the said application, the society has not claimed non
 occupation charges at all but has claimed the amount
 under two heads i.e. society maintenance charges and
 service charges. Thus, the contention of the learned
 counsel for the petitioner that Rs.16,000/- per annum
 represent non occupation charges is not borne out
 from facts pleaded in the application. Assuming the
 bye law no.45 to be valid it says that the society is
 required to fix the non occupancy charges in the
 meeting of the general body. There is no pleading
 and there is no material on record to show that the
 general body meeting, the society had resolved to
 levy any non occupancy charges. The directions
 issued by the Government under section 79-A of the
 Act are binding on the society and their validity is
 not challenged before me. Under the said directions
 non occupation charges cannot be levied at a rate
 more than 10% of the service charges. In law, non
 occupation charges would mean charges for not
 personally occupying the premises i.e. either
 keeping the premises unused or locket or letting out
 or giving on license the premises. In view of the

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 Government order issued u/s.79-A of the Act the
 non-occupation cannot exceed 10% of the maintenance
 charges applicable to the concerned flat/unit. The
 society was therefore not entitled to recover the
 charges as claimed by it in the recovery certificate.

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 11. Neither of the authorities below appear to
 have applied their mind to these aspects. In the
 circumstances, their adjudication has to be set aside
 and is accordingly set aside and the matter is
 remanded back to the Asstt. Registrar for deciding
 it afresh in the light of the observations made by

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 this Court.

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 12. Rule is made absolute to the extent

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 mentioned above.

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 D.G.KARNIK, J

Mrs. Sunanda Janardan Rangnekar v. the Rahul Apartment No.Ii Co-Operative Housing Society Ltd. and Ors.

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Mrs. Sunanda Janardan Rangnekar v. the Rahul Apartment No.Ii Co-Operative Housing Society Ltd. and Ors.

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