Delhi High Court
Sh. Paras Bansal And Ors. vs Registrar Of Cooperative ... on 4 September, 2002
Author: Khan
Bench: B Khan, J Kapoor
JUDGMENT
Khan, J.
1. Petitioners 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 of
this but they demanded gate money/entry fee from them
before letting them in which was paid and stands
deposited in the society's account which is also
reflected in its balance sheets under the heading
'Residents Welfare Fund'.
2. Petitioners'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 authority 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.
3. The society has filed a counter affidavit
denying that it had received any money from petitioners
or had issued any receipt to them. It is 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 barred 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.
4. Petitioners have filed a rejoinder also to
reiterate that they had paid the amount in question as
entry fee. They have also relied upon the counter filed
by the Registrar (R-1) stating that his directive dated
14.12.1999 was binding on the society and that charging
of any 'entry fee' by the society was illegal and was
required to be refunded wherever so charged. The
Registrar's counter is also on record which takes this
stand.
5. 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.
6. 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 fee' or 'welfare fund' was paid
by the petitioners and deposited in the society's
accounts or 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. The society 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.
7. By court order dated 26.9.2000 passed in CW
5726/2000, RW-4 were restrained from encashing the fixed
deposit made by R-2 society of the received amount. The
society had later given an undertaking not to encash
this. Be that as it may and since it is not possible
for us to hold an inquiry into the disputed questions of
fact raised by the rival parties, this petition is
disposed of by the following order:-
"R-1 (Registrar) shall conduct an inquiry
into receipt of amounts in question and ascertain
whether it was received by R-2 society from
petitioners as gate money/entry fee. In case it
is found that the money was paid by petitioners on
this account and on the demand of society's
committee, he shall direct the adjustment of the
respective amounts received from petitioners
against any society dues payable by them presently
or in future. Where no such adjustment is called
for, he shall direct refund of the amount to the
concerned. He shall also take steps to ensure
that his directives dated 14.12.1999 and
10.10.2001 were strictly enforced and observed by
the group housing societies and no unauthorised
charges were allowed to be levied or collected
from purchasers of flats from original members.
But wherever such purchasers seek transfer of
membership rights, it shall be open to the
society's committee to consider their case subject
to fulfillment of necessary conditions under rules
including charging of any prescribed requisite
transfer fee, if any.
Parties to appear before the Registrar on
18.9.2002.
