1 wp5655-00j rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURSIDICTION WRIT PETITION NO. 5655 OF 2000 Smt. Pushpa A. Kathare .. Petitioner V/s. Bhalchandra Niwas Co. Operative Housing Society Ltd. .. Respondent ..... Mr. C. P. Deogirikar for the petitioner. Mr. S. M. Moholkar, advocate for respondent absent. Representative of respondent present. ..... CORAM : A.S.OKA, J. DATE : AUGUST 17, 2011. ORAL JUDGMENT : Heard the learned counsel appearing for the petitioner. The petitioner is the opponent in a dispute filed by the respondent under Section 91 of the Maharashtra Co-operative Societies Act, 1960 (hereinafter referred to as “the said Act”). 2. The respondent society filed a dispute in which a prayer was made inter-alia for directing the petitioner to hand over vacant and peaceful possession of flat No.15 in the of the respondent's building at 178-A, Hindu Colony, Dadar Mumbai 400 004. In the dispute, it is set out that one Mr. Bhosale was the owner of the Plot No.178-A at Hindu Colony, Dadar, Mumbai. The plot was held on a lease from the Mumbai Municipal Corporation. In the year 1978, the said 2 wp5655-00j Mr. Bhosale carried out construction of some additional rooms to the existing building on the said plot. Moreover, construction of third and fourth floors on the existing building was also made. According to the case of the respondent, the area of the additional construction was about 2920.06 square feet. The flat No.15 admeasuring 912 square feet on the newly constructed third floor was sold by Mr. Bhosale to the petitioner. After the respondent society was registered, the leasehold rights in respect of plot No.178-A were transferred by the said Mr. Bhosale to the respondent. Reliance is placed in the dispute on the letter dated 14th July, 1982 issued by the Municipal Corporation to the respondent demanding extra ground rent of Rs.2951/- per annum on account of excess floor area. The contention of the respondent is that it was decided that the extra amount payable on account of additional construction of 2920.06 square feet shall be recovered from the members on pro-data basis taking into consideration the additional area acquired by the respective members. 3. The case of the respondent is that considering the area of the flat held by the petitioner which was subsequently constructed, she was liable to pay a sum of Rs.922.16 per annum i.e. Rs.76.85 per month towards the excess amount. According to the case of the respondent, inspite of repeated demands, the petitioner failed and neglected to pay the said amount and, therefore, the respondent 3 wp5655-00j terminated the tenancy of the petitioner. The case of the respondent society is that the petitioner falsely contended that the additional ground rent amount should be recovered from all the members. Hence, the respondent was required to file the dispute seeking possession of flat held by the petitioner. 4. The petitioner filed the written statement and contested the dispute. It was contended in the written statement that what was increased by the Municipal Corporation was the ground rent which has nothing to do with construction of excess floor area. It was contended that the additional amount of Rs.2951/- per annum cannot be recovered only from six members who have acquired additional area. The petitioner denied that the area of the flat was 912.50 square feet and that the additional construction was admeasuring 2920.06 square feet. It was contended that ground rent is required to be recovered from all the members who are occupants of the premises in the building of the society. It was contended that the area of the flat occupied by the petitioner was 689.78 square feet and not 912.50 square feet. It was contended that the ground rent is payable by the respondent society which is the owner of the property. 5. The parties adduced evidence. The learned Judge of the Co- operative Court dismissed the dispute. However, he directed the 4 wp5655-00j petitioner to pay difference amount of Rs.2979.20 within a period of one month and to pay ground rent of Rs.23.32 per month from March 1995 to the respondent society. The learned Judge of the Co operative Court held that the respondent society has failed to prove that area of the flat No.15 was 912.50 square feet. The Co Operative Court has rejected the contention of the respondent that the enhanced amount of the ground rent has to be recovered on pro-data basis only from those members who have occupied the additional premises/area. 6. An Appeal was preferred by the respondent before the Co- Operative Appellate Court. The Appeal has allowed by passing following operative part of the order: “ The Society shall calculate the share of the Respondent assuming the are of her flat as 797.25 sq. ft. and the Respondent shall pay the same w.e.f. 12th July, 1979. The amount, which is already paid to the Society, shall stand adjusted.” 7. The learned counsel appearing for the petitioner submitted that what was demanded by the Municipal Corporation was ground rent and, therefore, the learned Member of the Appellate Court has committed an error by holding that what was claimed was not the ground rent but was akin to fine, premium or otherwise referred to in the lease deed. He submitted that the liability to pay ground rent is of the respondent society as the entire property was vesting in the 5 wp5655-00j respondent society. His submission is that any increase in the ground rent is required to be shared by all the members of the society irrespective of the fact whether they are the beneficiaries of the additional construction. He submitted that on the basis of the report of the Architect, the Co Operative Court found that the area of the flat held by the petitioner was not what was alleged by the respondent society, but the area was 679.75 square feet. He submitted that there was no reason to disturb the said finding. He submitted that the area of the flat as determined by the Appellate Court is excessive. His submission is that the entire approach of the Appellate Court is wrong and the liability to pay excess amount cannot be only of those who are benefited by the additional construction. I have heard the representative of the society who is personally present. The advocate appointed by the respondent is absent. 8. I have carefully considered the submissions. The learned Member of the Appellate Court has come to the conclusion that though the amount demanded by the Municipal Corporation is termed as a ground rent, in fact it was akin to fine, premium or otherwise on account of the additional construction. The learned Judge noted that the lease deed clearly provided that the ground rent was Rs.1/- per annum and on account of additional construction, the lessee would be liable to pay additional fine, 6 wp5655-00j premium or otherwise. Perusal of the letter of the Municipal Corporation dated 24th July, 1981 on which reliance is placed by the respondent society clearly records that the work of additions and alterations was completed and was assessed on 1st January, 1977. It is further stated that extra ground rent for excess floor area works out to Rs.2195/- per annum. It is stated that the society was in arrears of extra ground rent from 1st August, 1978 to 31st December, 1980 amounting to Rs.8241.75. This notice of the Municipal Corporation clearly says that the amount of Rs.2951/- per annum was being charged for excess floor area. The finding of the Co- operative Appellate Court is that the lease contemplates the ground rent of only 1/- per annum. That is why a finding has been recorded by the Co-operative Appellate Court that amount of Rs.2951/- per annum demanded by the Municipal Corporation was akin to the fine, premium or otherwise which was payable in terms of the deed of lease on account of the additional construction carried out on the plot. Therefore, it is difficult to find fault to the interpretation put by the Co-operative Appellate Court to the demand for ground rent. As the excess amount was was payable only on account of additional construction, the Co-operative Appellate Court rightly held that the liability to pay the same was of only those members who were the beneficiaries of the additional construction. Whatever be the nature or nomenclature of excess amount charged, the same was only on 7 wp5655-00j account of the additional construction and all the members were not the beneficiaries of the additional construction. 9. As far as the dispute regarding the area of the flat is concerned, the Appellate Court has made a reference to the evidence of Architect examined by the Petitioner, who stated that build up area of the said flat without balcony was 797.25 square feet. The respondent society relied upon area shown in the sanctioned plan. On the basis of the measurement report of the Architect, the Co- operative Appellate Court has come to the conclusion that the area of the flat held by the petitioner is 797.25 square feet. The society has been directed to calculate pro-data share payable by the petitioner on the basis of area of 797.25 square feet. 10. Therefore, in writ jurisdiction, it is not possible to interfere with the findings of fact recorded by the Appellate Court. The view taken cannot be said to be perverse. There is no merit in the petition and the same is accordingly dismissed. Rule is discharged with no order as to costs. (A.S.OKA, J.)