[-1-] IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION LETTERS PATENT APPEAL NO.38 OF 2009 IN WRIT PETITION NO.1270 OF 2005 WITH CIVIL APPLICATION NO.109 OF 2008 IN LETTERS PATENT APPEAL NO.38 OF 2009 Dr.B.L.Gupta ..Appellant Vs. Deonar Anudeep Co-Operative Housing Society and Ors. ..Respondents .... Mr.V.R.Walawalkar i/b Gordhandas & Fozdar for Appellant Mr.U.G.Shelke i/b Shelke & Co.for Respondents .... CORAM: J.N.PATEL AND CORAM: J.N.PATEL AND CORAM: J.N.PATEL AND SMT.V.K.TAHILRAMANI, JJ. SMT.V.K.TAHILRAMANI, JJ. SMT.V.K.TAHILRAMANI, JJ. DATE : FEBRUARY 27, 2009 DATE : FEBRUARY 27, 2009 DATE : FEBRUARY 27, 2009 P.C. P.C. P.C. 1. Heard the learned counsel for the parties. 2. In this Letters Patent Appeal, the appellant has challenged the order of the learned Single Judge in Writ Petition No.1270 of 2005 filed by the Respondents-Co-operative Society, which came to be allowed by the learned Special Judge by order dated 29.2.2008. [-2-] 3. The Co-Operative Court dismissed the dispute filed by the Appellant and three other members against Respondent Co-Operative Housing Society. The Co-Operative Appellate Court set aside the order and directed that the Respondent-Society shall abide by the decision taken by the general body in the meeting dated 12.1.1982 subject to some clarifications given by the appellate Court. 4. There were originally 42 members of the respondent-society. Chief Promoter entered into agreement for purchase of land of 25000 sq.yards. As per resolution dated 12.1.1982, the said property was to be divided between the members into categories A, B and C, in such a way that Category A was to be given 500 sq.yards, category B was to be given 400 sq.yards and category C was to be given 200 sq.yards. However, subsequent to passing of resolution, it was found that after deducting the area relating to reservation for road and garden, only about 12,500 sq.yards was available for distribution and hence, the said plots of land as agreed upon under Resolution dated 12.1.1982, were not given. Hence, the dispute came to be [-3-] filed by some of the members including the appellant against the society before the Co-operative Court. 5. By order dated 19.4.2001, the Co-Operative Court dismissed the dispute holding that "A type" members of the society are not entitled for plot of 500 sq. yards as they have failed to show payment for the same. It was further held that disputants have failed to prove concluded contract between society and them for allotment of plot of 500 sq. yards and that disputants have failed to perform their part of agreement i.e. payment as demanded by Society, hence, dispute came to be dismissed. However, the Co-operative Appellate Court allowed the dispute and directed the Society to abide by the Resolution of the General Body dated 12.1.1982. 6. The case of the appellant is that a 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 and hence before the Co-operative Court, they prayed for directions to the society to implement that Resolution. In the said dispute, the society filed its written [-4-] statement. In para 9 of the said written statement, it is stated that subsequently it was found that the land available for distribution of the plots was much less and hence, distribution as stated in the Resolution dated 12.1.1982 was unrealistic. Therefore, in the Special General Meeting held on 20.4.1986 a Resolution came to be passed cancelling the Resolution dated 12.1.1982 and deciding a new method of distribution of the plots of land of the Society. A copy of the Resolution dated 20.4.1986 was also annexed to the said Written Statement. The said Resolution reads as under: RESOLUTION . "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.yards. [-5-] (Two hundred Square Yards). . It is further resolved that this resolution be submitted to the Co-Operative Court No.1 for approval." 7. Though the society came out with a positive case that the resolution dated 12.1.1982 had been cancelled by the Resolution dated 20.4.1986, the members did not amend their dispute and challenged the subsequent Resolution. The trial Court did not frame an issue as to whether inspite of subsequent Resolution dated 20.4.1986, earlier Resolution dated 12.1.1982 can be enforced. Though a reference has been made by the trial Court in its judgment regarding the stand taken by the Society in its written statement that the earlier General Body Resolution dated 12.1.1982 was cancelled by the subsequent General Body Resolution dated 20.4.1986, yet the trial Court has not framed any issue in relation to this fact nor it has decided the dispute in the light of this fact. 8. It is seen that it is the specific case of the society which is reflected in the written statement [-6-] filed before the trial Court that the resolution dated 12.1.1982 was cancelled by subsequent Resolution dated 20.4.1986. However, the said Resolution dated 20.4.1986 has not been challenged on any of the members. The learned Single Judge has rightly held that unless and until Resolution dated 28.4.1986 is challenged, the trial Court could not have pronounced on the validity or otherwise of the Resolution dated 12.1.1982. 9. The learned counsel for the Appellants was unable to point out that the Resolution dated 20.4.1986 has been challenged at any point of time. The Resolution dated 20.4.1986 is in force and has not been set aside. In such case, the Appellate Court could not have directed the implementation of the Resolution dated 12.1.1982. As a result of passing of resolution dated 20.4.1986, the resolution dated 12.1.1982 did not exist. The Appellate Court has directed the society to implement the resolution which infact, did not exist. It is thus, clear that the order of the Court suffers from total non-application of mind. As stated earlier, though the trial Court has referred to the stand taken by the society in its [-7-] written statement, it has neither framed any issue nor it has referred to that aspect of the matter in the order. The trial Court dismissed the dispute as according to it, due to change of circumstances, it was not possible for the society to implement the resolution dated 12.1.1982. However, 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?" 10. The appellate Court could not have framed this point in the absence of any challenge being raised by the members to the Resolution dated 20.4.1986. The question whether the resolution dated 20.4.1986 was a valid resolution or not, would arise only if the validity of the resolution is challenged by amending the dispute. The learned Single Judge has rightly held that in the absence of any challenge to the Resolution dated 20.4.1986, the Appellate Court could not have directed the society to implement its earlier Resolution dated 12.1.1982. On account of the Resolution dated 20.4.1986, [-8-] earlier Resolution dated 12.1.1982 ceased to exist and hence, the learned Single Judge has rightly held that the Appellate Court could not have directed the society to implement a Resolution which did not exist. We see no error or illegality in the order of the learned Single Judge. 11. Letters Patent Appeal is dismissed. Civil Application does not survive and is disposed of accordingly. [J.N.PATEL, J.] [J.N.PATEL, J.] [J.N.PATEL, J.] [SMT.V.K.TAHILRAMANI,J.] [SMT.V.K.TAHILRAMANI,J.] [SMT.V.K.TAHILRAMANI,J.]