Written Argument On Behalf of The Respondent Hitesh D. Shah

NOTES OF ARGUMENT ON BEHALF OF THE RESPONDENT
1) The respondent states and submits that while the society was
issuing bills by way of society charges/maintenance charges at the
rate of Rs 2 per sq ft, to each of the flat holder members, it is
wrongly issuing the bills at the rate of Rs 4 per sqft and Rs 5 per
sq ft to the respondent in respect of the said Premises.
2) The respondent states and submits that no additional services
whatsoever was provided by the applicant to the respondent or to the

said Premises allotted to
the respondent nor was any additional amount spent for the
maintenance of the said premises and therefore the society was not
entitled to treat the respondent differently from other members.
3) The respondent states and submits that the applicants have a
brute majority and his lone voice is not heard. The applicant has
no authority in law to treat the members differently and levy the
charges for the commercial premises at a rate twice the rate of the
residential premises.
4) The Respondent/Opponent further states that the Applicant
Society failed and neglected to make the changes in record of the
society and also ignored the request and written applications of the
Respondent/Opponent instead the Applicant issued a letter to
Respondent/Opponent that they have levied the property tax from
commercial use to residential use. Hereto annexed and marked as
EXHIBIT "F" The copy of letter dated 28th November 2012 for
change in maintenance Bill. It was duly singed by the applicant
and contains an official stamp with date which clearly states that it
was acknowledged by the applicant.
5) There should be equality in sharing of the burden of expenses for
maintenance and common expenses which are recovered by the
society as service charges or maintenance charges. They should be
recovered equitably and equally from all the members. In support
of these submissions learned counsel for the petitioner relies upon
the decision of this Court in Venus Co-operative Housing Society
Ltd. v. Dr. J.Y. Detwani reported in 2004(5) Mh.L.J. 197 = 2003(3)
All. M.R. 570.
6) In case of Venus Co-operative Housing Society the premises of

different sizes, 284 small premises with two bedrooms and 39 large
premises with four bedrooms. The society passed a resolution
levying the different maintenance charges as per the area of the
premises and issued a circular to that effect to members.
Disputants who were the holders of the larger premises challenged
the circular as also the resolution by filing a dispute under Section
91 of the Act before a co-operative Court. The co-operative Court
declared the resolution of the society to be illegal and not binding
on the disputants. The decision of the co-operative Court was
confirmed by the appellate tribunal. The order was impugned by
the society by way of a Writ Petition. This Court held that the
resolution of the society levying differential charges on the basis of
the area of the premises was arbitrary, unreasonable, without any
rational and without any source of power. It held that services of
the society were enjoyed by all the members equally and there was
no reason for the society to make the large premises holders pay
more on the basis of the area of the premises. It held that though
the supremacy of the general body cannot be doubted, even the
supreme general body had to pass resolutions considering all facts
and circumstances of the matter. The general body cannot pass
arbitrary and unreasonable resolutions merely because it is
supreme and it has a large majority in favour of any issue on the
agenda.
7) The respondent states and submits that according to para 7 of the

rejoinder the applicant stated that by saying “since now I am going
to reside” does not mean the premises will be used for residential
purpose. This quote clearly states that respondent wanted to reside
in the premise. Meaning of reside “to dwell permanently or for a
considerable time”.
8) The Respondent/Opponent states that the society is charging
maintenance, Supplementary & Ledger Summary which is not as
per the laws, the Applicant Society is charging maintenance as in
square meters which is against the law, the Respondent/Opponent
have requested Applicant Society to regularize the bills issued by
them and charge as per the unit which is permissible under the
law, but t request of the Respondent/Opponent went in vain.
9) Respondent/Opponent state that the Applicant Society suddenly
have issued circular dated 22/11/2017 which refer about the
Respondent/Opponent states that the Applicant Society fail and
neglected to pass any resolution in respect of the applicability, GST
and without any meeting with the member's Applicant Society have
falsely started applying GST upon the members. According to the
circular No.109/28/2019- GST “The exemption from GST on
maintenance charges charged by a RWA from residents is available
only if such charges do not exceed Rs. 7500/- per month per
member. In case the charges exceed Rs. 7500/- per month per
member, the entire amount is taxable. For example, if the
maintenance charges are Rs. 9000/- per month per member, GST
@18% shall be payable on the entire amount of Rs. 9000/- and not
on [Rs. 9000 - Rs. 7500] = Rs. 1500”. This clearly states that the
GST charged by the applicant is not valid because the maintenance
charges are 6532/- only.
10) The respondent states and submits that with regard to para 4 of
the rejoinder filed by the applicant clearly states that they were
unaware about the said premises whether it is used as commercial
or residential. So, on what basis the applicant was charging the
maintenance charges to the respondent. It clearly states that the
applicant came to know about it after seeing the leave and license
agreement.

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NOTES OF ARGUMENT ON BEHALF OF THE RESPONDENT

whatsoever was provided by the applicant to the respondent or to the

6) In case of Venus Co-operative Housing Society the premises of

7) The respondent states and submits that according to para 7 of the

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