Saroj Kapur vs New Rajdhani Cooperative House ...
1995 Latest Caselaw 917 Del

JUDGMENT

S.D. Pandit, J.

(1) This application is filed by Maj.Vinod Kumar Dua, who has been added as a party to this suit as per my order dated 30.8.95. He has filed this application for setting aside the order passed by this Court on 9.11.1994 in IA.9712/ 94 in this Suit.

(2) It is the claim of the applicant that defendant No. 1 Society had already allotted plot No. 8 in his favor and on account of the passing of the said order of 9.11.1994 he is not getting the possession of the plot No, 8 allotted to him and this is causing hardship and inconvenience to him and, therefore, the said order should be set aside.

(3) Before considering this application it is necessary to mention in some detail the facts which give ground to the present application. Suit No. 162/87 is filed by Dr. Saroj Kapur against New Rajdhani Cooperative House Building Society Limited and others. It is her case that she had become the member of the said Society in the year 1967 as per the constitution of the said Society in the year 1967. But subsequently, the said Society amended its constitution and because of the said amendment they informed her that she ceased to be a member of the said Society. It is her contention that once she had become the member of the said Society her membership could be cancelled provided she earned the disqualification for being a member, as mentioned in the said Constitution. She has not earned any disqualification as per the constitution of the Society and merely because the constitution of the Society happened to be amended and it has been provided that only the residents of Delhi are to be the members of the said Society her membership could not be revoked. She has, therefore, come before the Court to get the declaration that her revocation of membership of the said respondent society is illegal and invalid and to get a further declaration that she continued to be a member of the said Society and to get a mandatory injunction to allot her a plot for raising a house as she had paid the necessary amount for getting the plot.

(4) At the time of filing of the said suit she had also filed an interim application, viz. IA.311/87 and in the said interim application an order was passed on 16.1.1987 as under: "NOTICE to the respondents for 12th March, 1987. The case of the applicant/plaintiff is that she was validly enrolled as a member of a Cooperative Society known as 'New Rajdhani Cooperative House Building Society Limited' in the year 1967. She has been paying from time to time the amounts asked for by the Society. In all it is averred an amount of Rs. 22,000 / - being the total price of the land to which she was entitled as a member has been deposited by her with the Society. It appears that plaintiff who is a Doctor was posted at the relevant time at Vellore. The Society has taken a view that she is not an ordinary resident of Delhi and, therefore, it not entitled to continue to be a member of the Society. That order by the Society was challenged by the plaintiff in a writ petition being CW.1553/85 entitled "Dr. (Mrs.) Saroj Kapur v. The Registrar of Cooperative Societies and Another". The Division Bench while disposing of the petition directed the Registrar, Cooperative Societies to give a hearing to the parties and then decide the controversy whether the petitioner was a resident of Delhi at the relevant time. One of the grievances raised in the suit as well as in this application is that the impugned order dated the 22nd December, 1986 has been passed by a Joint Registrar of the Cooperative "Societies who had heard the parties. Mr. P.C. Khanna, learned Counsel for the plaintiff/applicant points out that as per Sub-rule (4) of Rule 25 of the Delhi Cooperative Societies Rules, 1973, the question as to whether a member of the Society has incurred any of the disqualifications referred to in Sub-rule (1) is to be decided by the Registrar personally. His reliance is on the mandatory provisions contained in the sub-rule which reads "The power of the Registrar under this Rule shall not be delegated to any other person appointed to assist the Registrar."

AFTER hearing Counsel and keeping in view the averment made in the plaint as well as in the application, I direct respondent No. 1 i.e. New Rajdhani Cooperative House Building Society Ltd. to keep one plot of land vacant till the decision of this application. I may note that during the pendency of the writ petition, the Division Bench had also directed the Society to keep vacant one plot of land. dusty."

(5) Subsequently plaintiff filed another interim application, viz. IA.9712/94 alleging therein that inspite of the order of the Court the Defendant No. 1 Society has allotted plots to various members and only Plot No. 8 is yet to be allotted and that the possession of the same has not been handed over by the defendant No. I Society. Therefore, in these circumstances, action against defendant No. I Society be taken under Rule2(a) of Order Xxxix of the Code of Civil Procedure and at the same time a further order restraining the defendant No. 1 Society from handing over possession of the said plot No. 8 be passed. After considering the averments made in the said application IA.9712/94 my learned Predecessor was pleased to pass the following order on 9.11.1994 :- "NOTICE through Counsel for 11.11.1994. In the meantime, this Court already on 16.1.1987 directed the New Rajdhani Cooperative House Building Society Ltd., respondent No. 1, to keep one plot of land vacant till the decision of IA.No. 311/87. Mr. Khanna has averred that on the instructions of the Registrar of the Cooperative Societies, respondent No. 1 is contemplating to transfer the said plot No. 8, which is the only one plot available in the Society. Respondent No. 1 is directed to maintain status-quo in respect of the said plot."

The above order is being disputed and is being sought to be revoked by the application by way of the present application.

(6) It is the claim of the applicant that he was already a member of the said Society and as he was the member of the said Society he was entitled to get a plot and the Society, which is the lessee of the Delhi Development Authority, had informed the Delhi Development Authority to allot the plot in question to him. This order of the Delhi Development Authority has been passed prior to the order of this Court dated 9.11.1994 and he is entitled to get the possession of the same but because of the order of the Court he is not in a position to get the same.

(7) It is further contended on behalf of the applicant that the plaintiff had misled the Court by informing the Court that there was only one plot, i.e. plot No. 8, which was available with the Society. According to him, there are other six plots available with the Society and one out of them or even two could be allotted to the plaintiff.

(8) The claim of the applicant is resisted by the plaintiff and it is contended on behalf of the plaintiff that there is no misleading of the Court and what has been mentioned by the plaintiff in his application is correct and the order in question is necessary in order to give effect to the Court's earlier order dated 16.1.1987.

(9) Therefore, the only question which arises for my consideration is as to whether IA.9441/95 is to be allowed. My finding on the same is in the negative for the reasons hereinafter stated.

(10) Defendant No. 1 Society in para No. 2 of their reply to plaintiff's application under Order Xxxix Rule 2(a), viz. IA.9712/94 had mentioned as under : "PARAGRAPH2 is a matter of record and save and except what appears from the record, the contents of the paragraph under reply are wrong and denied. It may, however, be pointed out that in the order then' was no specific direction to keep a plot of 400 sq.yards vacant. The direction was to keep one plot of land vacant. It may be pointed out that, as is evident from the letter dated 26.4.1984 to the D.D.A. by the Defendant No. 1 apart from one plot No. 8 measuring 400 sq.yards allotted to Major Vinod Dua, there are five other plots still lying vacant. One plot measure 300 sq.yards, one measure 250 sq.yards and three plot measures 174.44 sq.yards. It may also be pointed out that another plot No. 88 measuring 400 sq.yards is a subject matter of dispute in another Civil Writ Petition of 1990 and is still vacant."

(11) It is true that in the above para the Society has mentioned that there are in all seven plots available with the Society, but at the same time the Society has mentioned that there are only two plots of 400 sq.yards and it has been further mentioned that out of these two plots, one plot is already subject matter of another suit in this Court and this Plot No. 8 is allotted to the present applicant. It is contended by the Society as well as the applicant before me that in the order dated 16.1.1987 it has not been mentioned as of what dimension the plot was to be reserved for allotment to the plaintiff. I have already quoted above the order passed by my learned Predecessor and it is quite clear that in the said order there is no specific mention about the dimension of the plot to be reserved for the plaintiff. But it does not lie in the mouth of either the applicant or the Society to contend that because there is no mention of the dimension of the plot the Society is entitled to reserve a plot of any dimension. As per the constitution of the said Society there are various categories of the membership and as per the said categories they are to have the plots of 400 sq.yards, 300 sq.yards, 250 sq.yards and 74 sq.yards. The plaintiff was already a member of defendant No. 1 Society and her membership has been subsequently cancelled by the defendant No. 1 society and, therefore, plaintiff is forced to come before the Court. Plaintiff has paid the amount to the tune of Rs. 22,000.00 towards the purchase of the plot as per the directions of defendant No. 1 society. Defendant No. 1 Society knows it very well as to what category the plaintiff is entitled. It is not disputed that if the plaintiff ultimately succeeds then she is entitled to get a plot of 400 sq.yards. When the plaintiff is entitled to get a 400 sq.yards plot, it was incumbent on the defendant No. 1 Society to keep one plot admeasuring 400 sq.yards available for allotment to the plaintiff. Therefore, merely because the defendant No. 1 Society is having other six plots of lesser dimensions it could not be said that the plaintiff has misled the Court by contending that only one plot if available. At the cost of repetition it must be said that defendant No. 1 Society has clearly stated in its reply that the other plot of 400 sq.yards is already the subject matter of another writ petition and because of the same they are not in a position to allow it. When that is the position the plot in question must be preserved for the plaintiff.

(12) Learned Counsel for the applicant has drawn my attention to the annexures annexed by him to his application. Those annexures do show that he had become member on account of the demise of his father in the year 1981-82 and then there are subsequent letters written by defendant No. 1 Society to the Registrar of Cooperative Societies as well as to the Dda prior to 7.101994 for allotting the plot in question to the plaintiff. Therefore, it is obvious that the steps for the allotment of plot in question were taken prior to the passing of this order on 9.11.1994. But the question arises as to whether this order of allotment could be said to be creating any interest in favor of the applicant. Similar question had arisen before the Apex Court in the case of Maj. Gen. B.M. Bhattacharjee (Retd.) and Another v. Russel Estate Corporation and Another In that case there were already orders of allotment of the plots in favor of the members prior to the Court order but the sale deeds were executed and possession was delivered after the orders of the Court and it has been held that these acts of executing the sale deeds and delivery of possession are act of Contempt of Court as they were against the order of the Court by which they were prevented from allotment of plots to members. This case is application on all fours to the facts before me. That would be quite clear from the following head-note of the said case :- "HELD that the same amounted to gross Contempt of Court. In the context and circumstances, the word "allotment" in the said order meant making over of the flats. In other words, it meant delivery of possession and registration of the sale deeds. Even assuming that agreements of sale in favor of third parties were executed prior to passing of the interim order by Supreme Court such unregistered agreements had no significance in the context. The Supreme Court could not be presumed to have interdicted such an uncertain thing. Even according to the persons executing sale deeds they had represented to the Supreme Court, at the time the said order was passed, that they have already entered into agreements of sale in respect of the flats and yet the Court chose to pass the said order. In the circumstances, it cannot mean anything else than delivery of possession of flats and their sale. It may also mean an agreement of sale but its meaning would certainly not be confined to an agreement of sale."

(13) There is another circumstance not to accept the contention of the plaintiff because the allotment letters issued by defendant No. 1, the orders passed by the Registrar of Cooperative Societies, who is also a party to this proceeding and the letter issued by the Dda are issued after the first order passed by this Court on 16.1.1987. By the order dated 16.1.1987 the defendant No. 1 Society was ordered by this Court to preserve one plot for allotment to the plaintiff after the ultimate result of the suit. When that order was in force it was not open either to defendant No. 1 or the Registrar to issue orders for allotment of the said plot in favor of the present applicant. Those acts of defendants 1 & 2 are clear acts of contempt of Court.

(14) Applicant in question is a assignee after the order in question. He being a assignee after the order in question dated 16.1.1987 the orders in his favor are hit by the principle of Us pendence. Thus, merely because the orders are in his favor prior to 9.11.1994 he cannot contend that he has got a better title than the plaintiff.

(15) I have already considered the contentions raised on behalf of the defendants as well as the present applicant that there is no specific order of the Court regarding a particular plot. I have made it quite clear that when the Court pass an order the order must be read in its spirit and not by mere vague words. Defendant No. I was aware as to what plot the plaintiff was entitled to and, therefore, it was incumbent on defendant No. 1 to preserve one plot which was to be allotted to the plaintiff if the plaintiff ultimately happened to succeed in this case. It was contended by learned Counsel for the applicant that plaintiff could have another plot or two plots in lieu of her claim but if that could be the position he may also apply to the Society for getting those plots and if the Society was pleased to give him those plots then he would be at liberty to take them. But the possession of Plot No. 8 must not be handed over to the applicant by the Society and the orders passed by this Court in IA.9712/94 on 9.11.1994 must be made absolute as regards restraining defendant No. 1 from not handing over the possession and maintaining status-quo in respect of plot No. 8.

(16) Thus, I hold that there is no merit in IA.9441/95 and dismiss the same but in the circumstances of the case there will be no order as to costs.

(17) Issue notice to defendants 1 & 2 once again in IA.9712/94 as to why action under Rule 2(a) of Order Xxxix of the Code of Civil Procedure, should not be taken against them and also issue suo motu notice to them as to why they should not be held guilty for Contempt of Court. Notices are returnable on 22.1.1996.