- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1270 OF 2005 ... Deonar Anudeep Co.op.Hsg.Soc.Ltd. ...Petitioner v/s. Dr.B.L.Gupta and ors. ..Respondents ... Mr.B.G.Vaidya i/b M/s.Shelke & co. for the Petitioner. Mr.M.R.Phal for Respondents Nos.1 to 5. ... CORAM: D.K.DESHMUKH, J. DATED: 29TH FEBRUARY, 2008 P.C.: 1. By this petition the Petitioner challenges the order passed by the Maharashtra State Co.operative Appellate court, Mumbai allowing the dispute filed by - 2 - the Respondents and directing the Society to abide by the Resolution of the General Body dated 12-1-1982. 2. The Respondents filed a dispute i.e. Dispute No.5 of 1983 claiming that the resolution was passed by the General Body of the Society dated 12-1-1982 for distribution of the plots held by the society in a particular manner. It was claimed in the dispute that the members of the society are making attempt to change that resolution and therefore prayer was made for directions to the society to implement that resolution and there was also prayer made for orders restraining the society from changing that resolution. 3. The dispute, it appears, was filed in the year 1983. The society filed its written statement. In paragraph 9 of its written statement the society stated that the society subsequently found that, considering the land that is available with the society, making distribution of the plots according to the resolution of the General Body dated 12-1-1982 is unrealistic and therefore in the Special General Meeting held on 20-4-1986 the resolution was passed cancelling the resolution dated 12-1-1982 and - 3 - deciding a new method of distribution of the plots of the society. A copy of that resolution was also annexed to the written statement. 4. It appears that even though the society came out with a positive case that during the pendency of the dispute the Resolution dated 12-1-1982 has been cancelled by the society and the copy of the resolution of the society cancelling that resolution was also placed on record, the disputants did not amend their dispute and challenge subsequent resolution. It appears that the trial court did not frame an issue as to whether inspite of subsequent resolution earlier resolution can be enforced, though the trial court in paragraph 3 of its judgment had subsequently referred to the stand taken by the society in its reply that the earlier general body resolution dated 12-1-1982 stands cancelled by subsequent General Body Resolution dated 20th April, 1986. The trial court, however, dismissed the dispute for the reasons given by it. 5. The order of the trial court was challenged before the Co.operative Appellate Court. The appeal was registered as Appeal No.82 of 2001. The - 4 - Appellate Court by its order dated 4th August, 2004 set aside the order of the trial court and allowed the dispute. It directed the Society to implement the resolution dated 12-1-1982. It is this, order which is challenged in this petition. 6. The learned Counsel appearing for the Petitioner submits that it was a specific case of the society in the written statement that the Resolution dated 12-1-1982 of which enforcement was sought by the Disputants was cancelled by subsequent resolution dated 20-4-1986. Therefore, unless and until the disputants challenge that resolution in its dispute, the co.operative court could not have pronounced on validity or otherwise of that resolution. In any case without setting aside the resolution dated 20-4-1986, the appellate court could not have directed implementation of the resolution dated 12-1-1982. 7. The learned Counsel appearing for the disputants, on the other hand, is not in a position to point out that the resolution dated 20th April, 1986 has been challenged at any point of time. He submits that, that resolution was passed during the pendency of the - 5 - dispute. He also pointed out that by virtue of the order passed by this court in proceedings arising out of interim order, some land was directed to be kept aside for the Petitioners. 8. Now, in the light of these rival submissions, if the record of the case is perused, it becomes clear that in the dispute the disputants were claiming implementation of the resolution dated 12-1-1982. In paragraph 9 of its reply the society stated thus:- 9............It is here that the Disputants are twisting the resolution that was passed in the first constituted General Body meeting of the Society held on 12-1-1982. This opponent further submits that in view of the fact that a substantial portion of the land originally contracted to be purchased was not available for the reasons pointed out hereinabove, the resolution that was passed in the first constituted General Body Meeting of the Opponent Society held on 12-1-1982 had no longer remained realistic and that it had therefore to be cancelled or revoked which was actually done in a Spl.General Meeting of the - 6 - Opponent Society held on 20-4-1986. It is, thus, clear that the society had taken a categorical stand that the resolution dated 12-1-1982 has been cancelled by the society. A copy of that resolution was also annexed to the written statement. That resolution reads as under:- R E S O L U T I O N "It is resolved that in view of the fact that the land acquired by the society is much smaller than the land contracted by the society and a part of it is encroached by hutments, the resolution No.5, passed in the First constituted General Body Meeting held on 12-1-1982 is hereby cancelled. It is further resolved that the layouts of the plots should be prepared in such a way that no member gets a plot of land less than 200 sq.yds. (Two hundred Square yards) It is further resolved that this resolution be submitted to the Co.operative Court No.1 for - 7 - approval." Thus, resolution dated 12-1-1982 was clearly cancelled by the subsequent resolution dated 20-4-1986. Perusal of the order of the trial court shows that though the trial court has subsequently referred to the stand taken by the society in its reply, in paragraph 3 of the written statement, it has neither framed any issue on that nor has referred to that aspect of the matter in the order. But the trial court dismissed the dispute because the trial court found that due to change of circumstances, it was not possible for the society to implement the resolution dated 12-1-1982. Perusal of the order of the Appellate Court shows that the Appellate Court has framed point No.3, which reads as under:- "Whether the decision of the society dated 20-4-1986 to revoke the decision dated 12-1-1982 was justified?" Now, really speaking the appellate court could not have framed this point in the absence of any challenge being raised by the disputants to the Resolution dated 20th April, 1986. The question - 8 - whether the resolution dated 20th April, 1986 was a valid resolution or invalid resolution would arise only if the validity of that resolution is challenged by amending the dispute. In the absence of any challenge to the resolution dated 20th April, 1986, the appellate court could not have directed the society to implement its earlier resolution dated 12-1-1982, because as a result of passing of the resolution dated 20th April, 1986 the resolution dated 12-1-1982 did not exist. The result being that the appellate court has directed the society to implement the resolution which does not exist. 9. It is, thus, clear that the order of the Appellate court suffers from total non-application of mind and therefore, it is liable to be set aside. 10. In the result, therefore, petition succeeds and is allowed. Rule is made absolute in terms of prayer clause (a). No order as to costs. ...