Idpl Co-Op. Society Ltd. vs D.L. Katyal
1997 Latest Caselaw 1057 Del

JUDGMENT

Manmohan Sarin, J.

1. The petitioner/Society is aggrieved by the order dated 14.5.1996, passed by the Delhi Co-operative Tribunal, Delhi allowing the appeal under Section 76 of the Delhi Co-operative Societies Act holding that the respondent is a bona fide member of the petitioner Society entitled to the allotment of flat G-5 of Category A.

2. The relevant facts culminating in the filing of the writ petition may be noted:

(i) The respondent No. 1 was a bona fide member of IDPL Co-operative Group Housing Society Ltd., namely the petitioner. The petitioner, initially based in Delhi was transferred to Jaipur and then retransferred to Delhi. In response to notice received from the Society, the respondent applied for and deposited a sum of Rs.10,000/- with the petitioner Society for enrolment as a member. The waiting list by way of draw of lots was finalised by the petitioner/Society and respondent No. 1 came to be at S. No. 9 in the waiting list. There was one a vacancy which arose one Ms. Renuka Malhotra was enrolled as a member.

(ii) The case of the petitioner/Society is that since there was no vacancy and in pursance to the directive from the Registrar of Co-operative Societies under Rule 77, the waiting list was scrapped. The amounts received from all the persons in the wait-

ing list were returned. It is the petitioner/Society's case that the respondent No. 1 deliberately did not receive the amount when sent to him vide cheque No.636954 dated 9.7.1985. The respondent No.1, it is stated, vide his letter dated 10.9.1985, denied the receipt of the said cheque. The petitioner/Society claims that finally on 15.6.1989, it deposited the amount in the account of the respondent No.1, but respondent No. 1 continued to agitate his right to be enrolled as a member.

(iii) The case of the respondent No. 1 is that he continued to be in the waiting list that was drawn up in the year 1984. All other members had accepted the return of their deposit and accordingly all their rights had extinguished. It was respondent No. 1 only, who continued to press his claim for enrolment and whose deposit remained with the Society.

(iv) During the year 1987, a further vacancy arose due to the cessation of Dr. L.K. Behi being a member. The petitioner/Society instead of alloting the flat to the respondent No. 1 offered the membership to one Sh.Inderjit Singh. The claimant protested against it and represented to the Assistant Registrar, Co-operative Group Housing Societies. The Assistant Registrar, Co-operative Group Housing Societies, gave directions to the petitioner/Society to admit the respondent No.1 as a member. The said directions were reiterated vide letters dated 16.3.1989, 7.6.1989 and finally on 28.3.1990. The respondent No.1's claims that he was the sole member in the waiting list of the Society and was, therefore, entitled to the allotment of the flat. The respondent No. 1's claim after determination of dispute under Section 60 of the Delhi Co-operative Societies Act, was referred to Arbitrator Sh. U.K. Vohra under Section 61 of the Delhi Co-operative Societies Act. The learned Arbitrator rejected the claim of the respondent No. 1 holding that he had deliberately avoided to receive payment and continue on a waiting list, which did not exist. Further, the factum of not receiving refund of the deposit does not entitle him to the membership. The Arbitrator further held that even if it was to be assumed that the waiting list did not stand scrapped and resorted to fill up a vacancy, the same should operate strictly in accordance with seniority. He further held that the directive under Rule 77 to Group Housing for scrapping the waiting list could not be ignored. Besides, that the advice and directions given by the Assistant Registrar of Co-operative Group Housing Societies to made it the respondent No. 1 as a member, would be violative of the aforesaid directions under Rule 77.

3. The Co-operative Tribunal, in appeal, however, held that all other persons except the respondent No. 1 withdrew their names and got refund of the earnest money deposited by them and, therefore, the respondent No. 1 remained as a sole member on the waiting list. It further held that the directive of the Registrar on the waiting list had been mis-applied to the present case as it came much later in February, 1984. The appellant had not received the refund of the deposited amount and had staked his name for allotment of flat. The Tribunal further held that one flat was still await- ing allotment and there was a vacancy. Considering that the respondent had been agitating for allotment while all others had withdrawn, the Tribunal allowed the prayer of the respondent for allotment of the flat.

4. Having noticed the rival contentions and reasoning adopted by the Arbitrator as well as by the Tribunal, learned Counsel for the petitioner argued that the petitioner/Society had refunded the deposit of Rs. 10,000/- on 15.6.1989. Further that the waiting list stood scrapped, the directions issued under Rule 77 of the Delhi Co-operative Societies Rules were bind- ing. In the alternative, if waiting list was to be held as not scrapped, then the flat should be offered to all the persons senior to the respondent No. 1 in the waiting list. It was further argued that the Tribunal erred in not appreciating that the flat in question was required for office of the Society and efforts were being made to seek permission of the DDA for this purpose. It was further argued that the reference under Section 60 of the Delhi Co-operative Societies Act was not admissible. Lastly, it was con- tended that the impugned order violated the principles of natural justice as the petitioner/Society did not get a fair hearing.

5. I find no infirmity in the impugned order. The learned Tribunal has rightly noted that the respondent No. 1 did not accept the refund of the deposit and had challenged the same while all others in the waiting list had accepted the refund and thereby had foregone claims, if any to be in the waiting list. Further, it may be noticed that the petitioner/Society though claiming that the waiting list stood scrapped had on arising of the vacancy offered the flat to one Sh. Inderjit Singh, which offer was subsequently withdrawn. The offer by the petitioner/Society to Sh. Inderjit Singh shows that they were not treating the waiting list as scrapped. Learned Counsel for the respondent submits that the petitioner had protest- ed and had taken up the matter with the Assistant Registrar, Co-operative Group Housing Societies, who gave repeated directions to the Society to treat the respondent No. 1 as a member. This being on 15.7.1988, 16.3.1989, 7.6.1989 and 28.3.1990. The submission of the petitioner that they were denied an effective hearing is devoid of merit and not borne out from the record. The impugned order shows that the contentions of the petitioner were duly noticed and they were represented through Counsel. It also does not lie in the mouth of the petitioner to question at this stage that the respondent No. 1's claim under Section 60 of the Delhi Co-operative Societies Act was not admissible and not liable to be referred to arbitration having duly participated in the proceedings before the Arbitrator, who decided in the petitioner/Society's favour.

6. Coming to the plea of the petitioner that the waiting list stood scrapped by virtue of the directive dated 22.2.1984, issued under Rule 77 of the Delhi Co-operative Societies Rules, 1973, I find that the said directive would not be applicable. It would be pertinent to reproduce the said directive, which read as follows:

"Notice is hereby issued for the information of all the Presidents & Secretaries of all the registered Co-operative Group Housing Societies that this office had issued directives of the Group Housing Societies, that they shall not maintain any waiting list for the purpose of enrolment of members. Now all the Societies which have been registered in the year 1983 onwards and the House Building Societies which have undertaken group housing activities are also given this directive under Rule 77 that they should not maintain any waiting list for the purpose of enrolment of members.

All the Co-operative Group Housing Societies are further directed under the said Rule that the services of Architect and Contrac-

tors should be engaged only after the approval of the general body of their society and that as per Clause (2) of the annexure appended to the registered bye-laws of the registered Group Housing Societies. The flats constructed by them shall be allotted to their members by draw of lots in the presence of the representatives of the Co-operative Department, Delhi Administration and the Delhi Development Authority."

The said directive is applicable to all the Societies which have been registered in the year 1983 onwards and the House Building Societies which have undertaken Group Housing activities.

7. In the instant case, the Society was registered prior to the year 1983. Moreover, it is not a Housing Building Society which was engaged in allotment of plots or which had undertaken group housing activities. The petitioner Society is a Co-operative Society in the class of Housing Building Societies and, hence, the directive issued under Rule 77 is not applicable.

In view of this, it is not necessary to go into the submission of learned Counsel for the respondent that the directive issued under Rule 77 was otherwise illegal and not in confirmity with the provisions of the Act.

8. I find that the impugned order does not suffer from any infirmity or error. The impugned order is just and fair. The writ petition has no merit and is dismissed.