Jitender Kumar Verma vs The Registrar Of Cooperative ...
1996 Latest Caselaw 785 Del

JUDGMENT

S.N. Kapoor, J.

(1) The petitioner by this petition seeks a writ of mandamus commanding the respondents to allot flat No. 41-C Ayodhya Enclave, Sector 13, Rohini, Delhi to the petitioner and not to allot the same to respondent No. 3 Shri Ram Pal.

(2) According to the petitioner, he is a member of Delhi Niwas Cooperative Group Housing Society Limited since 12th June, 1982 and has been regularly depositing the amounts demanded by the society. He has made the entire payments for fiat No. 41-C and more than Rs. 3 lakhs stand paid. Only the instalments of the loan which were payable by the year 2002 to Dchfs remain to be paid by the petitioner. He has also been assessed to House Tax. The respondent No. 3 has paid in all till date a sum of Rs. 68.077.00 . The last payment was made by him on 20th June, 1987. The respondent No. 3 Shri Ram Pal was expelled from membership on the ground, of non-payment and he had not paid any amount for the said flat No. 41-C. It is the only flat now available for allotment. Consequently, it could be allotted to the petitioner only and not to respondent No. 3.

(3) The respondent No. 3 has taken a preliminary objection that alternative adequate remedy should have been availed under the Cooperative Societies Act 1972. The petitioner is already having his own accommodation. It is not disputed that he was expelled from the membership of the society but that expulsion order has been set aside by the Lt. Governor (Annexure 'G atp. 100). He had become member on 25th May, 1981. On 17th August, 1988, an interim order in a reference under Sections 60 and 61 of Delhi Cooperative Societies Act, 1972 has also been passed in favour of 68 persons including Ram Pal-respondent No. 3 not to take any action against those 68 members if payment of Rs. 32,000.00 was not made by them till the decision of the application (vide Annexure G). On 4th September 1989, a dispute was referred under Section 60 of the Delhi Cooperative Societies Act for adjudication as to how much payment was to be made by the claimants of the society in terms of the orders dated 13th July, 1988 and whether the claimant was still entitled to the loan from Dchfs or not. This reference was decided on 28th December, 1989 in favour of the respondent No. 3 and he was to supposed to pay a sum of Rs. 53,000.00 in terms of order dated 13th July, 1988 of the Lt. Governor and he was held to be entitled to the loan from DCHFS. Against this order, a revision petition was filed by the society. The same was dismissed as not maintainable under Section 80 of the Act by order dated 17th August, 1990. On 19th August, 1992, Ram Pal again moved an application under Section 71 of the Delhi Cooperative Societies Act, 1972 for implementing the said award dated 28th December 1989. The amount of Rs. 53,000.00 was ordered to be sent along with order dated 19th August, 1992 to the Society. Thereafter another direction was issued. The Society had not handed over the possession to respondent No. 3. According to the respondent No. 3, he was senior to the petitioner and was very much entitled to flat No. 41-C.

(4) Neither counter-affidavit has been filed by the Registrar of Cooperative Societies nor by the respondent Society.

(5) The petitioner filed rejoinder reiterating his case, and denying allegations contrary to his case, made by espondent-No. 3 Ram Pal.

(6) We have heard the learned Counsel for the petitioner. Learned Counsel for respondent No. 3 did not appear when learned Counsel for the petitioner was heard. Later on, as mentioned in order sheet, learned Counsel for the respondent No. 3 appeared and wanted to argue. He was directed to file written submissions. He failed to file any written submissions till today.

(7) Three points arise for our decision in this writ petition:

(I)whether the petitioner or the respondent No. 3 has got preferential claim over the solitary flat? (ii) whether petitioner has earned any disqualification under Rule 25(c) of Delhi Cooperative Rules?; and (iii) whether the petition is liable to be dismissed on the ground that alternative remedy was available to the petitioner by way of reference under Sections 60 and 61 of the Delhi Cooperative Societies Act.

(8) As regards the first and second points, from the perusal of the Annexure I (at p.114) filed by the respondent, it appears that though the respondent No. 3 was senior to the petitioner, he was expelled on account of non-payment of the dues. After his expulsion was set aside, he disputed the demand raised by the society and .matter was disposed of vide Annexure I, p.114 by reference to arbitrator on 28th December, 1989. He kept quiet for nearly three years.He did not deposit the amount of Rs. 53,000.00 till 14th August, 1992 when he moved application under Section 71 of the Delhi Cooperative Societies Act vide Annexure K. This would indicate that there was virtually no compliance of the order of the Lt. Governor passed on 13th July, 1988. The amount due was to be paid within a period of two months. Thus, even clause (f)ofparal6of the counter creates animpression,asif Rs. 53,000.00 were paid on 28th December, 1989 by way of demand draft but Annexure I does not indicate any payment, by Bank draft. Order of Shri P;R. Meena dated 14th August, 1992 Annexure Kalso does not indicate so. Similarly, his own letter dated 18th September, 1992, Annexure L does not allege any such payment. Payment of Rs. 53,000.00 by Bank draft to the society was alleged for the first time vide letter dated 29th September, 1992,without giving any particulars of the Bank draft and without filing any photocopy of the same. Thus, it is evident that even after obtaining a clarificatory decision about the amount payable by under the orders of Lt. Governor from an arbitrator in his favour on 28th December, 1989, he did not deposit the amount within two months as was directed vide Annexure D at p.100. Thus, it is evident that respondent No. 3 has ceased to be the member of the Society for non-compliance and in terms of the order passed by the Lt.Governor (Annexure'G'atp.l00).ln this light, the order passed by Shri P.R. Meena on 12th August 1992, appears to be contrary to the orders of Lt. Governor even by extending the time by two months after the clarificatory decision on the issue of the amount due. These aspects were neither brought to his notice nor considered by him. As such, his order (Annexure 'K' at p.118) has to be quashed, being based on incomplete information and for doing complete, speedy substantial justice between the parties. He himself did not see the file and relied on the information given by his subordinate. He did not consider the impact of award of Lt. Governor dated 13th July 1988 as well as award dated 28th December, 1989.

(9) As regards disqualification under Rule 25(i)(c) of Delhi Cooperative Society Rules, 1973, the rule reads as under : "(E)in the case of membership of a housing society: (i) he owns a residential house of a plot of land for the construction of a residential house in any of the approved or unapproved colonies or other localities in the Union Territory of Delhi, in his own name or in the name of his spouse or any of his dependent children, on lease hold or freehold basis provided that disqualification as laid down in Sub-rule (l)(c)(l) shall not be applicable in case of persons who are only co-sharers of joint ancestral properties in congested localities (slum areas) whose share is less than 65.72 sq. meters (80 sq. yards) of land; (ii) he deals in purchase or sale of immovable properties either as principal or as agent in the union Territory of Delhi; or (iii) he or his spouse or any of his dependent children is a member of any other housing society except otherwise permitted by the Registrar.

(10) The respondent No. 3 has not given particulars of any house or residential accommodation to establish that the petitioner has earned disqualification under the said Rule. Petitioner in his rejoinder stated that he is living in the tenanted accommodation of his father alongwith his five more brothers. He is residing in House No. 401 Naya Bans, Khari Baoli, which falls in slum area. If by any stretch of imagination, it is believed that property belonged to his father, it would not lead to any disqualification at least in his father's lifetime.

(11) Besides, it has been repeatedly held that preference has to be given to those who had paid the amount due in time as compared to the defaulters (see A.V. Ashokan & Ors. v. The Registrar of Cooperative Societies, . In the present case, the respondent No. 3 has not only failed to pay in time, he was ceased to be a member of the society.

(12) As regards the plea of alternative efficacious by byway of arbitration, we feel that the respondent No. 3 has virtually abused provisions of Section 71 of the Delhi Cooperative Societies Act, we had to quash the orders passed by Shri P.R. Meena to give effect to the order of Lt. Governor, as has been mentioned above. Consequently, we feel that in view of the order passed by Shri P.R. Meena contrary to the order of Lt. Governor reference under Sections 60 and 61 could not be said to be efficacious remedy in the peculiar circumstances of the case. For the foregoing reasons, we reject the contention of the respondent No. 3 in this regard.

(13) In view of the foregoing discussion, the Cwp is allowed. We quash the order passed by Shri P.R. Meena under Section 71 of the Delhi Cooperative Societies Act, 1972 dated 19th August, 1992 vide Annexure 'K' atp.118. The Registrar, Cooperative Societies respondents No. I and the respondent-Society both are directed to take necessary steps to allot the flat No. 41-C Ayodhya Enclave Sector 13 Rohini, Delhi to the petitioner and hand over its possession to the petitioner subject to the condition that the petitioners files an affidavit to the effect that he has not till date earned any disqualification under Rule 25(1 )(c) of Delhi Cooperative Societies Rules. Parties are left to bear their own costs.