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Judgment
S.G. Shah, J.—Both these Letters Patent Appeals are by the same appellant being a Co-operative Society against its few members. Though
respondents-members are not same in both the appeals, more or less the dispute in both the appeals are common, which is pertaining to the
decision by the appellant-Society regarding maintenance charges etc. Though both the appeals are arising out of two different proceeding, right
from Board of Nominees till this Court, considering the common issues and common appellant in both the appeals, though both the appeals were
not consolidated, they were heard together and practically one set of arguments are advanced. Therefore, it would be appropriate to deal with
both the appeals jointly and to decide it together by this common judgment. Both the appeals are listed for admission, however, learned advocates
appearing in both the appeals, since they are common, have agreed to decide the appeals finally considering the fact that the original issue is
pending since almost two decades. Hence, both the appeals are admitted. Learned advocate Mr. A.K. Clerk waives service of notice of
admission for the respondents in both the appeals.
Heard learned senior counsel Mr. Tushar Mehta assisted by Ms. R.V. Acharya, learned advocate for the appellant, namely, Satyagrah Chhavni
Co-operative Housing Society Ltd. being common appellant in both the appeals and learned advocate Mr. A.K. Clerk for respondents in both the
appeals.
This being third stage of litigation between the parties, wherein throughout the litigation, present appellant lost and, therefore, in these intra-Court
appeals, this Court could not re-evaluate the factual aspect. Thereby, the scope of present appeals would be practically restrained and limited to
examine that whether there is any illegality or arbitrariness or perverseness at any stage throughout the litigation, which has ultimately resulted into
substantial injustice and miscarriage of justice at all. Thereby, if there is no illegality or arbitrariness throughout the proceeding, it would not be
appropriate for this Court to re-examine the entire evidence for coming to a different conclusion than the conclusion which has been arrived in the
three stages of litigation till date.
In view of settled legal position, it would not be necessary to reproduce the factual details of both the appeals at this stage. However, atleast to
substantiate the above observation, it may be recollected that, initially, respondents of Letters Patent Appeal No. 1662 of 2012 have filed Lavad
Case No. 597 of 1989 claiming three different reliefs regarding;
(1) Transfer charges to be levied from the members at the time of transfer of property;
(2) Maintenance charges;
(3) Regarding legality of Resolution No. 8 dated 20.11.1988.
Such suit was decreed in terms of first two reliefs only on 3.7.1995, mainly on the ground that appellant-Society has failed to prove anything in its
favour and also failed to prove the contentions of the plaintiffs or to disprove the factual details proved by the respondents-plaintiffs before the
Board of Nominees. In fact, appellant-Society has failed to file written statement at all and has chosen to remain away from the actual trial and did
not cross-examine any witness of the plaintiffs and did not produce any evidence. Thereby, though the appellant has failed to defend the suit
properly, it is sufficient to note that the Board of Nominees has not decreed the suit in toto, but allowed only two prayers. The appellant has
challenged such decree dated 3.7.1995 before the Gujarat State Co-operative Tribunal by filing Appeal No. 349 of 1995. The Tribunal has also
considered the entire record properly and discussed the issues before it in detail and allowed the appeal partly i.e. to the effect that prayer
regarding transfer charges has been set-aside. However, second prayer regarding maintenance was confirmed in favour of the respondents i.e.
against the appellant. Therefore, first the trial Court and then the appellate Court has confirmed that the decision of the appellant for charging
maintenance per sq. meter of the plot of the individual member of the Society is not proper and hold that the appellant-Society can charge
maintenance per plot i.e. per member and not as per the area of the plot, thereby, plot holder whose area is big has to pay more charges than the
plot holder whose area is less So far as charges are concerned, it was increased by the disputed resolution to Rs. 20 per sq. mtr. against fixed
charges from the member. This issue has been dealt with by all the Courts i.e. trial Court, appellate Court and learned Single Judge of this Court.
The learned Single Judge has in the impugned judgment and order dated 25.4.2012 dealt with in detail about each and every aspect of the issue on
hand and rightly came to the conclusion that the impugned order before it does not suffer from any infirmity or error of jurisdiction or error of law
and does not call for any interference. We also do not find any illegality or arbitrariness throughout the proceeding so as to result into injustice to
the appellant.
In view of above clear position, it would not be necessary to reproduce the factual dispute and details between the parties. It is clear that the
appellant has failed to prove their case before the trial Court as well as appellate Authority and they have even failed to take necessary steps even
before the learned Single Judge. We have reason to say so, because it seems that after filing the present appeal, appellant has realised that where
they have failed and, therefore, in both the appeals, appellant has preferred separate Civil Application No. 886 of 2013 and Civil Application No.
1331 of 2013 for the same relief in both the appeals i.e. for placing additional documents on record at appellate stage. By such applications, now
for the first time the appellant has came forward to produce on record their bye-laws and resolution dated 23.12.2001. Suffice it to say that right
from 1989 in one matter and since 1994 in the another matter, nobody has ever restrained the appellant to come forward with such evidence by
producing and proving it on record in accordance with law.
In our opinion, now, at this stage i.e. almost after two decades, it would not be proper to allow such application even if we consider that
otherwise transfer under Order 41 Rule 27 of the CPC certainly permits to file additional document and evidence even at appellate stage. But,
considering the facts and circumstances of the present case, appellant is not entitled to get benefit of such provision. If we allow such evidence to
be produced at this stage, almost after two decades, then practically, it is allowing to adduce fresh evidence before the main trial and thereby
practically there would be retrial of the litigation, which is pending for almost two decades. Therefore, we are not inclined to allow such Civil
Applications for placing additional documents on record at appellate stage. So far as Letters Patent Appeal No. 1661 of 2012 is concerned, the
Lavad Suit No. 2136 of 1994 was decided by judgment and order dated 22.2.1994 wherein the only issue was regarding maintenance charges
per sq. yard instead of per member wherein also the judgment by the Board of Nominees confirms that appellant-Society has only filed written
statement and has remained away from the proceeding, but after the judgment, preferred Appeal No. 441 of 1995 before the Gujarat State
Coperative Tribunal. The Tribunal has also, after considering the evidence on record determined that appellant-Society is not empowered to
charge maintenance per sq. yard of the plot held by individual member of the Society as maintenance and administration charges in view of
resolution passed by them, considering the fact that practically each member of the Society are practically of the Society and they are getting equal
member of the Society and they are getting equal facility and support from the administration of the Society by its elected body. Therefore, elected
body of the Society cannot increase or levy maintenance charges, which is otherwise discriminatory or irrational considering the facilities being
provided to each of the member. In Special Civil Application No. 4754 of 2012 also the learned Single Judge has confirmed the judgment and
order of the trial Court as well as appellate Court and factually as stated herein above, appellant has failed to prove its case in this second matter
also right before the Board of Nominees till the present appeal and has preferred Civil Application No. 1331 of 2013 for producing additional
evidence and document, which cannot be allowed as discussed herein above.
Therefore, though the appeals deserve to be dismissed on such preliminary ground only that there is no arbitrariness or illegality in the
determination and decision by any of the Court below, even if we consider the factual position and arguments of both the sides, the decision would
be the same. To avoid an imputation that facts are not considered, let it be cleared on record that the case of the appellant is simple is that yearly
expenditure for common amenities like streetlight, maintenance of road, electricity charges and supply of water is almost Rs. 60000/- whereas by
way of contribution from the members-Society is receiving only Rs. 27000/- and, therefore, to cope-up such shortfall in the General Meeting of the
Society, a resolution was passed having majority that the maintenance shall be charged not per member or per plot, but as per area occupied by
the individual member and thereby if particular member is holding bigger plot, he has to pay more charges towards maintenance for the above-
referred common amenities. Since neither of the parties have bothered to led proper evidence so far as plot areas and also the amount to be
recovered from the Society, may be because of the reason that when Society has failed to file written statement in both the cases and failed to take
part in the actual hearing and failed to adduce necessary in support of their case, we do not have proper details that even if charges are levied per
sq. yard what would be the collection and what would the balance or shortfall. Learned senior advocate Mr. Mehta for the appellant has
vehemently argued that atleast for water charges, maintenance should be per sq. yard considering the fact that the holder of the bigger plot must the
utilizing more water than the holder of small plot since they have to use the water for gardening also. However, such submission and argument does
not impress the Court for reasons that-(1) It is not necessary that small plot holder would not utilize more water may be for gardening or by way of
practice to utilise more water than required and usage of water may depend not only upon the area of the plot, but also depends upon total
member of the family residing in one plot; and (2) in absence of actual details about size of plot and whether gardens are of bigger size and that
whether small plot holders have garden or not, all such issues cannot be determined at this stage of appeal.
The second submission regarding admission of the respondents so far as separate charges for water is concerned, as discussed at bar,
practically, whoever member wants more water are eligible to ask for second connection and water charges are being separately recovered per
connection per annum. Therefore also, there is no substance in the argument by the learned senior counsel Mr. Mehta for the appellant that atleast
for water charges they may be permitted to charge different amount for maintenance from the members, who hold bigger plots.
It is not disputed that all the members of the Society are entitled to utilise the road equally and streetlight is not meant for a particular member,
but it is meant for benefit and safety of all the members in respect of their plot areas. Therefore, it is absurd to say that there would be more poles
of streetlight near bigger plots and, therefore, they should pay more maintenance charges. So far as legality of the resolution in dispute and right and
powers of the elected body of the Society is concerned, same would be followed from the bye-laws of the Society, which was not on record till
date and as we have decided herein above, we are not inclined to allow the appellant to produce such bye-laws on record at this stage. However,
even if for the sake of argument, it is believed that bye-laws are permitting the general body to take any decision and such decision becomes the
rule of law. For the administration of the Society, it goes without saying that if any decision even by majority is found illegal, arbitrary,
discriminatory or improper in any manner, it is always subject to scrutiny by competent authority as provided under the statute. Therefore, it is
simple that majority view alone cannot make the discriminatory or arbitrary action lawful. It would not be out of place to remember here that the
administration of the Society may be by the majority of the members or by the elected body of the Society, has failed to take proper care of
litigation before the Board of Nominees and drag the matter upto this Court for which properly they may not use the funds of the Society and,
therefore, it cannot said that whatever decision is taken by the majority may be treated as the correct decision. Therefore, though we are not
inclined to allow this appeal, it would be necessary to make it clear that since the issue of maintenance is recurring and since cost of everything has
increased one after another, certainly it would be the necessity of any administration, who is taking care of maintenance of any such Society to
increase the maintenance charges from time to time. Therefore, it would be open for the appellant to increase the maintenance charges considering
their cost of maintenance against required amenities. However, it should be done strictly and only in accordance with law without any arbitrariness
or discrimination amongst the members on any count. It also goes without saying that maintenance charges may depend upon the actual usage of
different members, thereby if particular member is using particular amenity in excess of normal amenities available to all other members, if law
permits, the Society may levy more charges for such amenities, but strictly in accordance with Rules. It is just like charges as per consumption of
electricity or water etc. but, there cannot be different charges from different members when amenities are common for all of them.
In view of above facts and circumstances and discussions, these appeals are dismissed with above observation. In view of the order passed in
Letters Patent Appeals, the Civil Applications also do not survive and stand dismissed.