Allowed

Mr. Sudheer Sharma Goda, v. The Co-Operative Tribunal

Telangana HC10 Dec 2020WP/11339/2020

Case brief

AI extract

What is this about?

Writ petition challenging the High Court-Tribunal's review order in a dispute over maintenance charges calculation in a cooperative society. The High Court allowed the petition, setting aside the Tribunal's decision and remanding the matter for fresh disposal.

What did the court decide?

Set aside the Tribunal's order in Review Petition No.1/2020 and the common order in I.A.Nos. 158 and 162/2019; remand to the Tribunal for fresh disposal within four weeks.

Mr. Sudheer Sharma Goda, Vs The Co-Operative… — Writ and Judicial Review | Telangana HC (2020)

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HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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(Special Original Jurisdiction)

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THURSDAY ,THE TENTH DAY OF DECEMBER TWO THOUSAND AND TWENTY

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PRESENT

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THE HONOURABLE SRI JUSTICE P. NAVEEN RAO

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WRIT PETITION NO: 11339 OF 2020

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Between:

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lt4r. Sudheer Sharma Goda, S/o. Late Hari Hara Sharma Goda, Age 40 years, Occ. Software Engineer, R/o. Flat No.1001 , C-Block, Aditya Wiiz Lagoon Apartments, Nizampet, Ivledchal-Malkajgiri Dislrict-500090

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tt/r. Yogesh Ravindra Gathoo, S/o. Ravindra ShamraoGathoof Age 43 years, Occ. Software Engineer, R/o. Flat No.1002, C-Block, Aditya Wiiz Lagoon Apartments, Nizampet, Ir/edchal-Malkajgiri District-500090

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Mr. Satheesh Kumar Vanaharam,, S/o. V. Sita Ramachary, Age 43 years, Occ Software Engineer, R/o. Flat No . 810, A-Block, Aditya Wiiz Lagoon Apartments, Nizampet, l,4 ed c h a l- lr,4 a lkajg iri District-S00090

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[,4r. Prasannababu Eepi,, S/o. Late Apparao, Age 4'1 years, Occ. Software Engineer, R/o. Flat No.702, C-Block, Aditya Wliz Lagoon Apartments, Nizampet, tr/edcha l-lr/a lkajg irl D istrict-500090.

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Ir/r. Atluri Venkateswara Rao,, S/o. Late Umamaheswara Rao, Age 45 years, Occ. Software Engineer, R/o. Flat No .^'1002, A-Block, Aditya Wiiz Lagoon Apartments, Nizampet, lr/edchal-l,4alkajglri District-500090,

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...PETITIONERS

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AND

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1 The Co-Operative Tribunal, 7th Floor, Chandra Vihar Buildings, IV.J. Road, Nampally, Hyderabad-1 , Rep. by its Chairman

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2 Aditya Wiiz Lagoon Flat Owners' tr/utually Aided Cooperative Maintenance Society Ltd,, Regd. No. TSIVC/DCO/IVDCLl177l201B, Aditya Wiiz Lagoon Apartments, Nizampet Village, Bachupally Mandal, Medchal-Malkajgiri District-S0, 090' Represented by its secretary

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...RES'.NDENT.

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Petition under Article 226 of the Constitution of lndia praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue a Writ or direction or order more so in the nature of Writ of Certiorari calling for the record from the Honourable 1st Respondent Tribunal, relating to Review Petition No.01/2020 in lA.'158/2019 and 162/2019 in O.P.No.17 of 2019 and set aside its Order dated 26.06.2020 and consequently allow the petitions in 1A.158/2019 and 1A.16212019 in O.P,No.1712019 wilh costs.

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lA NO: 1 OF 2020

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to direct the 2nd Respond ent-society to collect the monthly maintenance charges equally from all the residents and restrain the 2nd Respond ent-society from collecting monthly maintenance charges based on built-up area wise, pending disposal of this Writ Petition.

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lA NO: 2 OF 2020

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to suspend the impugned order dated 26.06.2020 passed by the Hon'ble 1st Respondent-Tribunal in R.P.No.01/2020, pending disposal of this Writ Petition.

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lA NO: 4 OF 2020

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Between:

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Aditya Wiiz Lagoon Flat Owners' Mutually Aided Cooperative Maintenance Society Ltd, Regd. No. TSMC/DCOlMDCLl177l2O18, Aditya Wiiz Lagoon Apartments, Nizampet Village, Bachupally [r,4andal, Ir/edchal-Malkajgiri District-500 090. Represented by its Secretary.

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..Petitioner/Respondent

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AND

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I\rlr. Sudheer Sharma Goda, S/o. Late Hari Hara Sharma Goda, Age 40 years, Occ. Software Engineer, RJo. Flat No.100'1 , C-Block, Aditya Wiiz Lagoon Apartments, Nizampet, Medchal-Malkajgiri District.500090

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I,4r. Yogesh Ravindra Gathoo, S/o. Ravindra ShamraoGathoof Age 43 years, Occ. Software Engineer, R/o. Flat No.1002, C-Block, Aditya Wiiz Lagoon Apartments, Nizampet, N/edchal-lr/alkajgiri District-s00090

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tr/ r. Satheesh Kumar Vanaharam,, S/o. V. Sita Ramachary, Age 43 years, Occ. Software Engineer, R/o. Flat No . 810, A-Block, Aditya Wiiz Lagoon Apartments, Nizampet, Medchal-lt/alkajgiri District-500090

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Mr. Prasannababu Eepi,, S/o. Late Apparao, Age 41 years, Occ. Software Engineer, R/o. Flat No.702, C-Block, Aditya Wliz Lagoon Apartments, Nizampet, IVIedchal-Malkajgirl District-S00090.

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Mr. Atluri Venkateswara Rao,, S/o. Late Umamaheswara Rao, Age 45 years, Occ. Software Engineer, R/o. Flat No . 1002, A-Block, Aditya Wiiz Lagoon Apartments, Nizampet, l,4edcha l-l\4a lkajg lri District-500090.

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... RespondenUWrit Petitioners

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The Co-Operative Tribunal, 7rh Floor, Chandra Vihar Buildings, Ir/.J. Road, Nampally, Hyderabad-1, Rep. by its Chairman

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...Respondent No.1/ Respondent

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to vacate the interim order daied 2810712020 passed in W.P.No.'1 1339 ol 2020 and dismiss the writ petition with costs.

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Counsel for the Petitioner: SRI M. VENKAT DIVAKAR

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Counsel for the Respondent No.1:

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Counsel for the Respondent No.2: SRI K. RAVINDER REDDY

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The Court made the following: ORDER

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HONOURABLE SRI JUSTICE P.NAVEEN RAO

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WRIT PETITION No.11339 OF 2O2O

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ORDER:

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This writ petition is filed challenging the order of Co-operative Tribunal at Hyderabad in Review Petition No.l/2O2O in I.A.Nos 158 and 162 of 2Ol9 in OP.No.17 of 2079. By this order, the Tribunal held that petitioner-society can collect maintenance charges as per the earlier procedure i.e. as per super built-up arca, since^(]eneral Body resolvcd to collect the same in their meeting hcld on 20.1O.2O19 till disposal of the main OP in the interest ol tht socict-r.

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Petitioners are owners of Flats in the complex known as Aditya Wilz Lagoon Apartments, Nizampet. Petitioners filed OP.No. 17 of 2019 challenging the decision of FIat owners Mutually Aided Cooperative Society Maintenance Society charging maintenance charges on them based on the plinth area of Flats owned by petitioners. In substance, petitioners grievance is that whether a person occupies a Flat of bigger plinth area or smaller plinth area, services provided by the society are same and therefore, they should collect the same maintenance charges from atl the Flat owners.

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I.A.Nos 158 and 162 of 2O 19 filed in the said OP were considered and decided by common order dated 14.11.2019. In paragraph No.14 o[ the order, the Tribunal observed as under:

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" Thc Respondent counsel stated that as per the resolution ol General Body Meeting dated 20.10.2019, the Board of Directors in its meeting dated 22.1O.2O19 unanimously passed a resolution "the maintenance shall be charged/ collected as per the square feet model of the grven

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flat" and also mentioned that the amendment will be sent to DCO for ratifrcation after informing General Body Meeting and date to be auctioned by is aJter next General Body Meeting.

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On perusal of minutes book at Pg.No.87 of Respondent documents it is observed that AGM was held on 20.IO.2Ol9 and the minutes are published on 24.LO.2O19 wherein at point (5) formation of a committee for bye-laws amendment, it is resolved that a committee will be formed for amending bye-laws and the committee will submit the report within two months from the date of formation. Meanwhile the Directors of Board convened a meeting on 22.1O.2019 i.e. prior to publishing the Annual General Meeting minutes and before formation of committee and passed resolution amending bye-law 6.5 which is against the resolution of General Body. Further as per byelaw 7.3 (b) the power to amendment of bye-laws vests in General Body but not in Board of Directors from the records it is clearly observed that the board of directors hurriedly convened Meeting of Board of Directors to amend the byelaw against the resolution of Annua-1 General Meeting where a committee is constituted by them to look into the amendment of bye-laws."

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Thereafter in paragraph Nos i5 and 16, the Tribunal ordered as under:

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" 15. Keeping in view of the above discussions and considering the facts and circumstalces, this Tribuna.l is of the considered view that the petitioners are entitled to have the relief as prayed for by them in the petition and the Respondent Society shall collect maintenancc charges as per bye-law 6.5 but not based on super br.rilt up area. Accordingly the point is answered in fa'"'our of the petitioners.

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In the result the petitions are allowed and Temporary Injunction is granted restraining the Respondent/Respondent from collecting monthly maintena-nce charges based on super built-up area of each flat pending disposal of main O.P.No. 17l2019 in the

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interesl ofjustice. The Respondent can collect the charges from the petitioners as per ea-rlier procedure till the disposal of marn O.P."

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Stating that there is contradiction in the directions issued in paragraph Nos 15 and 16, the society filed Review Petition No.1 of 2020 seeking clarification from the Tribunal on the contradictions in the paragraphs 15 and 16 of the order. By the order impugned, the Tribunal considered the issue and holding that there is conflict in two paragraphs and requires clarification, went on clarify as under:

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"17. Therefore the common order dated 14.11.2019 is having contradictory paras 15 and 16. The petitioner Society car-r collect maintenance charges as per earlier procedure i.e.. as per super built up area since the General Body resolved to coliect the samc in their meeting on 20.1O.2019 till the disposal of thc main O.P. in the interest of society. Accordingll'the point is answered."

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In this writ petition, petitioner challenges the order primarily on the ground that the Tribunal has no power to review the earlier decision and therefore, order is ex facie lllegal. Pima facie, considering the merit in the said submission, this Court granted interim suspension of the order of the Tribunal. Aggrieved thereby, the society filed this writ petition to vacate the order.

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Having regard to the conflict of opinion expressed by the Tribunal in paragraph Nos 15 and 16 of the order dated 14.1 1.2019 made in the LA Nos 158 and 162 of 2Ol9 and the vieu, taken in the revieu, by thc Tribunal, both counsel agree to set aside the order in the Review Petition No.1 of 2O20, dated 26.06.2020 and the common order dated 14.11.2019 in I.A.Nos 158 and 162 of

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2019 and to remand the matter to the Tribunal for consideration^of I.A Nos 158 and 162 of 2019 in OP.No.l7 of 2Ol9 afresh after affording due opportunity to both sides. However, learned counsel submits having regard to fact that the issue is dragging on for long time, time frame may be fixed to the Tribunal for disposal of Interlocutory Applications.

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In vierv of the above submissions of learned counsel, no reasons are recorded.

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9 . The Writ Petition is allowed. The order of the Tribunal in Review Petition No.1 of 2020, dated 26.06.2020 as well as common order in I.A.Nos 158 and 762 of 2019 in O.P.No.17 of 2079 dated 14.1 1.2020 is set aside and the matter is remanded to the Tribunal for consideration of I.A.Nos 158 and 162 of 20 19 in OP.No.17 of 2079 afresh after affording opportunity to petitioners and respondents in the O.P. The Tribunal is directed to consider and pass appropriate orders, after affording due opportunitl,', r,",ithin four weeks from the date of receipt of a copy of this order. It is lurther directed that till the orders are passed by the Tribunal, no coercive action shall be taken against the petitioners. Pending miscellaneous petitions, if any, shall stand closed.

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Sd/.N.CHANDRA SHEKAR RAO ASSISTANT REGI R

//TRUE COPY//

SECTION OFFICER

To,

1 The Chairman, Co-Operative Tribunal,, 7th Floor, Chandra Vihar Buildings, M.J. Road, Nampally, Hyderabad-1 .

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2 The Secretary, Aditya Wiiz La{oon Flat Owners' tMutually Aided !99p^e1gt1v-e lt/qintenance^{Society Ltd,, Regd. No} TSMC/DCO/MDCLI 177 t2O1 B, Aciitya Wiiz f agoon Apartments, Nizampet Villagg, Bachupatty Mandal, Medchat-Matkajglri Distiict-sO0 090.

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3 One CC to Sri M. Venkat Divakar, Advocate-lopucl 4 One CC to Sri K.Ravinder Reddy, Advocate tOpUCl' 5 Two CD Copies

\ ;:--

HIGH COURT

DATED:101121202O

ORDER

WP.No.1 1339 ot 2020

1 HE sT,qrA
(
ooJ 19 DEC 2U0
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-;=;=-:

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ALLOWING THE WP

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WITHOUT COSTS

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@K';"

Mr. Sudheer Sharma Goda, v. The Co-Operative Tribunal

Case brief

What is this about?

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Mr. Sudheer Sharma Goda, v. The Co-Operative Tribunal

Case brief

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