Friends Central Government ... vs Registrar, Co-Operative ...
1989 Latest Caselaw 315 Del

JUDGMENT

S.S. Chadha, J.

(1) Soon after the filing of Writ petition a question arose as to the list of members of the Society. The matter was discussed at several hearings and ultimately a list of members Annexure P-23 to the affidavit filed by the petitioner, was sent to the Register of Co-operative Societies for verification of the membership. The Registrar was directed in the Court's order dated November 26, 1980 to hear all the parties in respect of this list and to submit his report. The report on the verification of the list of members filed by the petitioner, Annexure P-23, was made on January 20, 1981 and filed in this Court on January 21, 1981.

(2) A final list of the members, verified by the Registrar, was filed and copies of the same were given to the counsel appearing. Ultimately, this Court issued Rule D.B. in this Court's order dated March 29, 1981. A number of applications were pending for the grant of interim relief and the case was discussed regarding settlement of the matter on a number of hearings. The Court in the order dated 1st of April, 1981 directed the Counsel for the Society to file a list of members containing certain information, which had been orally indicated. In pursuance of the order of the Court an affidavit Along with the various lists were filed. Annexure P-30 has the following particulars -

Total No. of plots. 240 Plots already allotted 133 ____ Remaining plots to be allotted 107 ____ No. of members eligible for elections and allotment of plots as shown in Annexure P -27. No. of members already allotted plots. 270 Remaining members out of the list given in Annexure P-27 yet to be allotted plots on the basis of seniority and other conditions prescribed in the compromise agreement in the High Court. 137 ____ Category of size of Amount demanded by the plot in Sq. Yds. Society. ___________________ _____________________ 331-400 22,700.00 220-265 15,500.00 161-201 11,500.00 133-153 9,500.OO

(3) It also contains a list of 137 members who had yet to be allotted posts in the serial order. Counsel indicated entitlement of category of size of plot as well as the amount paid.

(4) Later in the Court's order dated 24th of April, 1981 the Society was asked to file a further affidavit annexing a statement in which it would be stated with respect to those persons to whom plots had not then been allotted, the amount due on 1st January, 1979 and interest payable on the said amount till 30th of April, 1981 or till the date of the Court's order realization in full, if it be not earlier. In pursuance of the Society filed Annexure P-31 and Annexure P-32. It was the final list of members entitled for plots and elections subject to the submission of requisite affidavit and payment of dues as to be then intimated by the Society and other conditions specified in the compromise to be filed in the case. Annexure P-32 Along with the supplementary affidavit shows the amount required to be deposited, amount actually paid up to 1st January, 1979, amount paid subsequently to the said date, the balance principle amount due and amount of interest due from 1st of January, 1979 during which the member was in default. In the last column the total amount then due was mentioned. These two Annexures P-31 and Annexure P-32 is the basis of the compromise record in Court on 22nd May, 1981. For the purpose of easy reference, clause (i) to (v) are reproduced below : COMPROMISE: (I)That a fresh election to elect a new Managing Committee of the petitioner Society will be held under the supervision of a Chairman to be appointed by this Court; (ii) That the electoral roll for the said election will comprise the 270 persons mentioned in the list at Annexure P-31, Shri Y.K. Grover (S. No. 207), Shri S.C. Grover (S. No. 208). Miss Geeta Abuja (S. No. 230) shall, however, be eligible to vote and obtain allotment of a plot only if they produce certificates from their respective employers that they were in Government employment on the dates of their applications for membership; (iii) That the Society will send notices by registered post acknowledgement due to all the persons who are in arrears with the Society in respect of an amount exceeding Rs. 500.00 . By this notice these persons will be asked to file the requisite affidavits and pay the balance of the amount due from them as shown in column 9 of Annexure P-32 for the plots proposed to be allotted to them, which amount includes interest at the rate of 15% per annum from 1st January, 1979 up to 30th April, 1981 or an earlier date till which they were in default. The requisite affidavits and the crossed bank drafts in favor of the petitioner society for the amounts demanded in the notices (as shown in column 9 of Annexure P-32) must reach the society within one month from the date of dispatch of the said notices. The failure to submit the requisite affidavits or to make payment within that time shall finally disentitle the persons in default from participating of in the elections as also from getting the allotment of a plot. No further relaxation, whatsoever, shall be made, and the present relaxation shall not be treated as a precedent; (iv) All the members of the society who are on the waiting list for a plot shall be required to pay an amount of Rs. 9,500.00 , being the minimum sum payable for the smallest size of plot, and those of them who are not ultimately offered a plot will be entitled to the refund of the said amount paid by them along with interest at the rate of 15% per annum till the date of refund. No interest will be paid to any member who makes payment but becomes ineligible for allotment of a plot on account of non-submission of the requisite affidavits. No deviation in this respect shall be made for any reason whatsoever; (v) All the 270 members mentioned in Annexure P-31 shall constitute the final list of members eligible for allotment of plots according to their seniority in enrolment in chronological order, subject to their submitting the requisite affidavits and payment of dues as demanded by the society and fulfillment of other conditions mentioned above."

(5) After the compromise a considerable time of the Court was taken in settling the list of members of the Society or the objections against some members or applications filed by persons who were allegedly excluded from the membership of the Society. It took almost 8 years to settle payment that list.

(6) The Society had carved out plots for allotment to its members in category I, Ii, Iii and IV. In the first draw of lots made in May, 1979 the plots had been allotted. The total number of plots available for second allotment were 10 sq. There are six plots in category 1, 40 plots in category Ii, 48 plots in category lit and 13 plots in category IV. Several applications were pending raising claims for entitlement to various categories of plots. Some applicants had asked for the charge of the category while others claim that they are entitled to a higher category. The Court had earlier deferred hearing of the disputes relating to the sizes of the plot. The matter came up before this Court for the first time for hearing on 20th of February 1989. We have heard the applicants as well as their counsels. The plots Entitlement Committee of the Society held a meeting in January, 1978 and fixed the entitlement of the plots in respect of the members and the members were duly communicated the decision taken by the Society. The size of plots, as found by the Entitlement Committee of the Society have been recorded in Annexure P-31 and Annexure.P-32. We did not go behind the entitlement as found by the Committee and as recorded in Annexure P-31 and Annexure P-32. That was the basis on which the whole case has proceeded. Some objections against the entitlement were considered and decided in the order dated 20th of February, 1989. Some vacancies existing in category Iii were filled in by upgrading those persons in the list of category Iv and who had applied to the Society for upgradation.

(7) We appointed Shri S.S. Sahni, an ex Joint Registrar of this Court and an advocate as an officer to supervise the draw of lots. The draw of lots has been held. The prayer made by the Society and some of the members is for confirmation of draw of lots while several objections have been filed against the draw of lots. None of objectors have raised objections either to the want of notice convening the meeting for holding the draw of lost or any irregularity or illegality in the publishing the notices or conduct in draw of lots.

(8) We will now deal with the separate objections.

(9) Objections of Shri J.P. Singh : (C.M. 1077/89) In the order dated February 20,1989 this Court bad directed that one clear vacancy for category-II would go in the order of seniority between S/Shti J.P. Singh and R.K. Kaushal and other will get it only if one Ms. G.L. Mall loses. The claim of Ms. G.L. Mall has been accepted later. Later on the Society, has, however, included the name of Shri R.C. Kaushal for category-If instead of Shri J.P.Singh. In our view, this is not in accordance with the order of seniority between Shri J.P. Singh and Shri R.K. Kaushal. In the list, Annexure P-31, the date of enrolment of both Shri J.P. and Shri R.K. Kaushal is given as 30th of January, 1978 but the name of Shri J.P. Singh appears above the name of Shri Kaushal. The entitlement of plots of Shri J.P. Singh is given for an area of 220-265 sq.yds. and that of Shri R.K. Kaushal is given as 161-201 sq. yds. In the list Annexure P-32, again the name of Shri J.P. Singh appears in order of seniority over Shri R.K. Kaushal. In the subsequent list issued namely annexure P-44, Annexure P-48, Annexure P-56 and Annexure P-60 the name of Shri J.P. Singh appears above Shri R.K. Kaushal. The Entitlement Committee had cleared the names of Shri J.P. Singh for category-III and Shri R.K. Kaushal for category-IV, but both had later applied for and paid for category-II. The application of Shri J.P. Singh for upgradation was made on 1st of December, 1980 when a sum of Rs. 5.000.00 was paid by him. The amount was accepted by the Society. Shri Kaushal applied later on 6th of August, 1981 for upgradation and paid an additional amount of Rs.3.000.00 .Thus Shri J.P.Singh is not only senior but has preferential claim to the allotment of Category-II plot against Shri R.K. Kaushai. We, therefore, direct that the plot which has come in the draw of lots in the names of Shri R.K. Kaushal and J.P. Singh would be enter changed.

(10) Objections of Sbri Ashok Kumar, Shri S.K. Arora and Smt. Krishna Kumari : They made a joint application alleging that they had deposited some amounts in Saving Bank Account No. 5874 of the Society with the Grindlays Bank, New Delhi and they were thus not defaulters when the consent order dated 22nd of May, 1981 was made. When the consent order dated 22nd of May, 1981 was made a sum of Rs. 700.00 was shown as due from Shri S.K. Arora in respect of category-IV plot which was proposed to be allotted to him. Pursuant to the said order a notice was sent by the Society to Shri S.K. Arora to pay Rs. 700.00 and also to file an affidavit in the prescribed from. Shri S.K. Arora did not comply with the notice. He, however, contended that if the sum of Rs. 5.000.00 deposited by him had been taken into account then nothing was due from him. He had also submitted that he wanted a larger plot and went to Shri Naunihal Singh, General Secretary of the Society on 24th of June, 1981 and offered Rs. 4000.00 to him. As Shri Naunihal Singh refused to accept the same, Shri Arora deposited Rs. 4.000.00 in the account of the Society with Grindlays Bank and deposited the pay-in-slip. This Court in the order dated 9th of September. 1983 condoned the default of Shri S.K. Arora and treated him as a member of Society. The case of Smt. Krishna Kumari and Shri Ashok Kumar are identical to the case of Shri S.K. Arora. Each of them received a notice from the Society pursuant to the order of the Court dated 22nd May, 1981. The name of Smt Krishna Kumari is included in Annexure P-31 and Annexure P-32 in category-IV. She made a payment of Rs. 6,400.00 and another payment of Rs. l,300.00 . The demanded made against her was for the balance of category-IV i.e. Rs. 1,800.00 plus Rs. 646.00 towards interest in all Rs. 2.446.00 . Even according to the allegations in the present application objections filed by her, the total deposit is for category-IV and not for category Iii plot.

(11) Shri Ashok Kumar was registered as category-III and in annexure P-31 and annexure P-32 it Is shown as category-III. The amount demanded was Rs. 11,500.00 and he had already deposited Rs. 11.000.00 . The balance with interest was Rs. 700.00 which was demanded in the notice pursuant to the order of the Court dated 22nd of May 1981.

(12) It may be that S/Shri Ashok Kumar and S.K. Arora had deposited certain excess amount, but that was not in pursuance of the notice issued by the Society pursuant to the order dated 22nd of May, 1981. The payment was not made to the Society but was made by a deposit in the Saving Bank Account of the Society with Gaindlays Bank, New Delhi. The Society was not operating that bank account and, therefore, it cannot by any stretch of imagination be treated as an estoppel against the Society. Shri S.K. Arora is already in category-III even though he had made payment for category-IV plot. Apart from the fact that the entitlement of the plots was settled on 20th February, 1989 but we are not basing our decision on that alone and have again gone into the entitlement to the claim of a higher category of plot.

(13) The claims of S/Shri Ashok Kumar, S.K. Arora and Smt. Krishna Kumari hereby rejected.

(14) Objections of Shri D.L. Kataria : In Annexure P-31 and Annexure P-32 Shri D.L. Kataria is shown as a member entitled to a plot of 133-153 sq. yds. He made a payment of of Rs. 4.400.00 and there was demand against him for a sum of Rs. 7,345.00 In the letter dated 26th of April. 1981 though the amount demanded is the same together with interest, it has been mentioned that it is for the plot in the category 151'201sq.yds Obviously it was a clerical error. Shri Kataria never paid for the category-ill plot and is not entitled to category-III plot.

(15) His objections are rejected. Objections of Shri G.P. Dudeja :

(16) Against the order of this Court dated 20th of February, 1989, he filed S.LP. 3419/89 before the Supreme Court and the same was rejected by the Supreme Court on 15 of March. 1989. Since there is a reservation of vacancy in category-III in pursuance of the orders passed by the Supreme Court for reserving one plot in category-III in favor of Shri R S. Hardas, and we are allowing the objection Shri J. L. Malhotra, Shri Dudeja will be considered in category-IV.

(17) Objections of Shri J.L. Malhotra : Shri.J L. Malhotra is alleged to have become a member of the Society in 1963. His name was deleted from the list of members of the Society in the year 1967 on account of his failure to pay the amount demanded by the Society. His membership was restored under the orders of this Court dated February 3, 1989. It was directed that the name of Shri Malhotra will be included in the waiting list of members of the Society and he would get precedence on the waiting list over those who were enrolled after August 4.1967.

(18) The stand of the Society is that Shri Malhotra became a member of the Society and bids entitlement was for a plot of 200 sq. yds. His name could not be included in Annexure P-31 and Annexure P-32 as his membership was in dispute. However, in the subsequent lists, filed by the Society from time to time including Annexure P-47, Annexure P-48, Annexure P-59 Annexure P-60. his entitlement to the plot was given as 161-201 sq. yds i.e. on category-III. It is not clear how his entitlement ha? been reduced to category-IV when the Society filed the final list. We, therefore, direct that the name of Shri J.L. Malhotra will be included for the draw of lots in category-III.

(19) It was represented to us on February 20, 1989 that in category-IV there are 12 plots available and there are 23 persons 12 of them had not applied for upgrading and they were to be allotted plats in category-IV and the rest of the members were upgraded to category-I I I. The last of the persons upgraded is Shri D.K.Mebra. The Society later found that there was one plot less available in category-I I I and, therefore, the name of Shri D.K. Mehra was kept in category-IV. The next junior most member is Shri G.P.Dudeja and the next senior to him is Shri M.M.L, Garg. These two persons were included in category Iii as they had come up within the number of available plots in category-III. These two persons namely Shri M.M.L. Garg and Shri G.P. Dudeja are hereby revered back in category IV. One of the plots in category-I I I is left un-allotted because of the orders of the Supreme Court in favor of Shri R .S. Hardas. The other plot will go to Shri J.L. Malhotra.

(20) The result of the above order is that the draw of lots held on 1st March, 1989 is upheld except to the extent indicated hereinabove. The Society will, however, not grant sub-lease in favor of Shri S.C. Jain who is junior most in category-IV. Shri M.M.L. Garg will get the plot allotted to Shri J.L. Malhotra who has been upgraded to category-III. Shri G.P. Dudeja will get plot allotted to Shri S.C. Jain in the draw of lots. The Society will also execute sub-leases in favor of the members in accordance with law. Except wherever it is indicated, specifically, there will be no order as to costs of the proceedings.