Devinder Gupta And Ors. And Smt. ... vs Registrar Of Cooperative ...
2002 Latest Caselaw 1530 Del

JUDGMENT

Khan, J.

1. Both petitions are similar in nature and raise identical issue and are being disposed of by this common order.

2. Petitioner are the purchasers of flats from original members of R-2 society. They claim that they had purchased these flats as bonafide purchasers on payment of consideration amount and on execution of relevant documents/conveyance deeds. Thereafter they had informed the President/Secretary of the Society who had demanded gate money/entry free from them before letting them in. The amount paid by them was later deposited in the society's account which is also reflected in its balance sheets under the heading 'Residents Welfare Fund'.

3. Petitioner's case is that since the original members of the society (vendors) had transferred all rights in these flats to them, the society's committee had no authoirty under law to charge any gate money/ entry fee from them. The action was violative of Registrar's directives dated 14.12.1999 and 10.10.2001 besides being illegal and without any authority of law. It is prayed by them that R2-4 be directed to refund the amounts deposited by them on this count with 18% interest.

4. The society first field an affidavit dated 16.3.2001 in response to some courts orders in both petitions admitting that it had collected the money in question from petitioners (380 lacs) by way of Residents Welfare Fund but not as any entry fee. But leter society filed a counter affidavit denying that it had received any money from petitions or had issued any receipt to them. it explained that the society's committee had passed a resolution dated 18.8.1996 for receiving donations from members of different categories and it was pursuant thereto that the amount was received from and on behalf of its original members. The rationale behind this was to take donation from the transferor of the flat for society's welfare fund who was earning a huge profit on the otherwise cost of the flat paid by him to the society. It is submitted that society's action of receiving donations for welfare fund is not bared by any provision of the Act or Rule and on the contrary is in consonance with the spirit of Rule 34-A of the Rules because the transferee was bound to pay transfer fee to the society which was to be credited to the 'common good fund' and since R-1 (Registrar) had not prescribed any transfer fee, the society was justified in charging the amount in question.

5. Petitioners have filed a rejoinder also that re-asserts that they had paid the amount in question as entry fee. They have also referred to the counter filed to these petitions by Registrar (R-1) stating that his directive dated 14.12.1999 was binding on the society and that charging of any 'entry fee' was illegal and wherever it was so charged, it should be refunded to petitioners. Registrar's counter is also on record in which he has taken the stand that society' action in charging of the 'entry fee' was illegal and contrary to his directive and any amount received by it on this count was liable to be refunded.

6. The issue of 'entry fee' allegedly charged by group housing cooperative societies was dealt with by us in CW 524/98 holding that its charging was illegal and without any authority of law. We follow and re-affirm this in the present case also for the reasons given in our judgment dated 9.8.2002 in CW 524/98 and the reasoning assigned in support is adopted here also.

7. But that does not end the controversy in the present case. Because parties have raised a disputed question of fact whether money deposited by petitioners under the label 'entry feel' or 'welfare fund' was paid by the petitioners and deposited in the society's account and whether it was received from and on behalf of the original members. The receipts on record only indicate the flat numbers and it is not shown whether the amount was paid by the petitioners directly or on behalf of the original members. All told, society has also taken conflicting stand. In the first common affidavit in these petitions filed pursuant to court orders, society has admitted to have taken this amount from petitioners and has justified the action as receipt of donations for society welfare fund. But later in its counter it has taken a different stand and has denied that it had received any such amount from petitioners though it has admitted that the amount in question was received from or on behalf of original members.

8. By court order dated 26.9.2000, R2-4 were restrained from encashing the fixed deposit made by R-2 society of the amount so received. The society had later given by undertaking not to encash this deposit.

9. Be that as it may and since it is not possible to hold an inquiry into the disputed questions of facts raised by the rival parties, these petitions are disposed of by the following order:-

"R-1 (Registrar) shall conduct an inquiry into receipt of amounts in question and find out whether this money has been received by R-2 society from petitions as gate money/entry fee. In case it is found that the money was paid by petitions on this account and on the demand of society's committee, he shall direct the adjustment of the respective amounts received form petitioners against any society dues payable by them and also direct refund of the amount with interest wherever petitioners are not required to discharge any liability, present or future. He is also ordered to ensure that his directive dated 14.12.1999 and 10.10.2001 is strictly observed by the group housing societies and no unauthorised charges are levied or collected from purchasers of flats from original members. Wherever the purchasers of flats from original members seek transfer of membership rights, it shall be open to the society's committee to consider their case and charge them requisite transfer fee, it any, and require them to satisfy any other requirements/ formalities under law.

The order dated 21.3.2001 shall remain in force till Registrar passes appropriate orders in the matter.

10. Parties to appear before the Registrar on 18.9.2002.