Dr. Rakesh Kishore vs Registrar Coop. Societies And ...
2003 Latest Caselaw 628 Del

JUDGMENT

Dalveer Bhandari, J.

1. The petitioner, Dr. Rakesh Kishore, purchased Flat No. B-602 in Arur Cooperative Group Housing Society, Mayur Vihar-I Extension, Delhi-110091. The petitioner got the flat converted into freehold from the Delhi Development Authority and has also got the mutation done in his name by the Municipal Corporation of Delhi.

2. It is alleged in the petition that to obtain physical possession of the said flat in the society the management committee of society demanded Rs. 50,000/- as entry fee at the time of entry. The petitioner repeatedly requested the management committee that no entry fee can legally be charged from the petitioner. It is alleged that the management committee despite repeated requests insisted the petitioner to pay the amount of entry fee. Ultimately the petitioner had to pay Rs. 50,000/- vide two Cheque Nos. 0026590 & 0026591 of Rs. 25,000/- each which were duly withdrawn from the petitioner's account and deposited in the account of the society through bank transfer transactions dated 9.5.2000 and 17.5.2000. The petitioner after paying the amount requested the society to refund the amount but when no amount was refunded, the petitioner was left with no alternative but to approach the Court.

3. The petitioner filed a Civil Writ Petition No. 7733 of 2000 assailing the deceitful charging of entry fee of Rs. 50,000/- The Court issued show cause notice. It is alleged that respondent No.1 Registrar of Cooperative Societies started taking action against the management committee of Arur Cooperative Group Housing Society. It is mentioned in the order dated 16.8.2001 passed in CWP No. 7733 of 2000 that the Registrar has also taken cognizance of the case of the petitioner in which Rs. 50,000/- is stated to have been charged towards entry fee. The Registrar in the operative portion of the order has clearly mentioned that the "Society will not charge any entry fee in any form from the persons eligible for taking the possession of the flat in the society as already directed vide directive dated 14.12.1999 and an undertaking to this effect will be filed by the President/Secretary of the society within one month." It is further observed that the petitioner would be at liberty to move the Financial Commissioner for impleadment and in such a case the counsel for respondent Society states that they would not raise any objection to the same.

4. It may be pertinent to mention that when the appeal was not disposed of by the Financial Commissioner for quite some time, the petitioner filed a Civil Writ Petition No. 3689 of 2002. In that writ petition the Court directed the Financial Commissioner to dispose of the appeal expeditiously within a period of three months. The appeal which was pending before the Financial Commissioner became infructuous as the Division Bench passed order dated 9.8.2002 in CWP No. 524 of 1998, dated 12.8.2002 in CWP No.2110 of 2001 and on 4.9.2002 in CWP Nos. 5726 of 2000 and 5898 of 2000 stating that the charge of entry fee is illegal and the Registrar of Cooperative Societies was directed to enforce the directive dated 14.12.1999. That directive issued by the Registrar of Cooperative Societies reads as under:-

Directive under Rule 77 of Delhi Cooperative Societies Rules, 1973

It has been brought to the notice of the undersigned during public hearing hours that the Managing Committee of Cooperative Group Housing/House Building Societies are charging "Entry Fee" before handing over the possession of the flat/plot or for issuing No Objection Certificate (NOC) required for conversion of leasehold to freehold.

Therefore, I, R.K. Srivastava, Registrar Cooperative Societies make it clear that none of the provisions of Delhi Cooperative Societies Act, 1972 and Delhi Cooperative Societies Rules, 1973 empower for charging any amount on account of "Entry Fee" in any form whatsoever and accordingly, I, in exercise of the powers conferred upon me under Rule 77 of Delhi Cooperative Societies Rules, 1973 do hereby direct all the Cooperative Group Housing/House Building Societies not to charge any "Entry Fee" from the persons eligible for taking the possession of the flat/plot in the respective Cooperative Society. Violation of this directive will be viewed seriously and the President/Secretary of the concerned society would be held responsible jointly and individually. Action will be taken against the society under the provisions of the Acts and Rules for any such violation.

This directive will come into force with immediate effect.

Sd/-                 

(R.K. SRIVASTAVA)        

Registrar Cooperative Societies

5. Despite so many clear directions from the Registrar, Cooperative Societies when the petitioner's entry fee was not refunded, the petitioner approached this Court with the present Civil Writ Petition No. 6422 of 2002.

6. In pursuance to the show cause notices issued by this Court in the writ petition respondent No.1, Registrar of Cooperative Societies and respondent No.2, the President of the Management Committee of Arur Cooperative Group Housing Society have filed separate affidavits. On behalf of respondent No.1, Mr. Ramesh Chandra, Assistant Registrar (East) working in the Registrar of Cooperative Societies filed the affidavit. It is categorically stated in the affidavit that the respondent society under law of Delhi Cooperative Societies Act of 1972 and Rules framed there under cannot demand and take entry fee from members, as the same is illegal. It is further stated in the affidavit that the demand of the entry fee by the society is illegal and unjustified. It is also mentioned that the Registrar of Cooperative Societies has always maintained and held that the charging of entry fee is illegal and has also issued directive to this effect to the societies on 14.12.1999. The relevant portion of the said directive has already been extracted above.

7. The President of the society, respondent No.3 filed a counter affidavit in which it is stated that in the present case no amount whatsoever has been charged from the petitioner. The original member of the society has voluntarily given a sum of Rs.50,000/- as a donation to the society. The receipt has also been issued in the name of the original member of the society i.e. Mr. Sunil Arora and Mrs. Seema Arora. It is also denied that the receipt of Rs. 50,000/- was fabricated in the name of the original member.

8. It may be pertinent to mention that after hearing the petitioner in person and the learned counsel for the respondents for some time on 21.4.2003 respondent No.3 was directed to deposit Rs. 50,000/- with the Registrar General of this Court within two weeks. We have been given to understand that this amount has been deposited with the Registrar General.

9. The petitioner, in support of his contention of payment of Rs. 50,000/- towards entry fee to the society produced a certificate of Corporation Bank according to which two cheques of Rs. 25,000/- each were debited to the account of the petitioner. The relevant portion of the certificate issued by the Bank reads as under:-

CERTIFICATE

Certified that Cheque No. 0026590 amount Rs. 25,000/- and Cheque No. 0026591 for Rs. 25,000/- both drawn in favor of Arur CGHS were debited to CCSDL A/c No. 9/95 of Dr. Rakesh Kishore on 9.5.2000 and 17.5.2000 respectively. This letter is issued at the specific request of Dr. Rakesh Kishore.

Sd/-                 

For CORPORATION BANK

10. The petitioner has also submitted the affidavit of the original allottee, Sunil Arora. According to which Sunil Arora and his wife who were original allottees of the flat had never paid Rs. 50,000/- as voluntary donation to the soceity. The relevant portion of the affidavit of Sunil Arora reads as under:-

1.That myself and my wife Mrs. Seema Arora were original allottee Flat No. B-602 in Arur Co-operative Group Housing Society Ltd (Named as Riverview Apartt. Also) Mayur Vihar Phase-I Extn, Delhi-91.

2. That the above flat was sold by us, on Power of Attorney, to Dr. Rakesh Kishore and his wife Mrs. Mamta Kishore, and the Power of Attorney was registered on 28/04/2000.

3. That on or after the date of signing of Power of Attorney i.e. On 28/04/2000 we have never given any cheque(s) worth Rs. 50,000=00 as voluntary donation to the above named Society.

4. That in fact on or after 28/04/2000 me or my wife have never visited the above Society and also have not met any official of the above Society.

Hence, the question of Voluntary Donation does not arise.

11. From the pleadings and the relevant documents on record, it is abundantly clear that respondent No.3, management committee of the cooperative group housing society could not have legally charged any amount of entry fee or in any other form whatsoever in view of the clear directive issued by the Registrar of Cooperative Societies under Rule 77 of the Delhi Cooperative Societies Rules 1973. The respondent society had deliberately ignored the provisions of law, rules and directive of the Registrar Cooperative Societies and forcibly in contravention of the Act and Rules charged from the petitioner an amount of entry fee of Rs. 50,000/-. Despite persistent requests the amount of entry fee illegally charged from the petitioner was not refunded.

12. In these proceedings the management committee of the society resorted to total falsehood that an amount of Rs. 50,000/- was not paid by the petitioner, but was given by the original allottee, Sunil Arora. On the face of it this submission is totally without any foundation in view of the bank certificate and the affidavit of the original allottee, Sunil Arora. We strongly deprecate the conduct of respondent No.3.

13. The directive of the Registrar of Cooperative Societies is clear and specific that the charging of entry fee in any form is illegal. It is also mentioned in the directive that the violation of this directive will be viewed seriously and the President/Secretary of the concerned society would be held responsible jointly and individually and the action will be taken against the society under the provisions of the Act and the Rules for any such violation. It is abundantly clear that the amount of Rs. 50,000/- was not paid voluntarily by the original allottee but was charged by respondent No.3 from the petitioner in a clandestine manner. Respondent No.3 has resorted to totally illegal practice by demanding entry fee from the petitioner and other similarly placed persons. Consequently respondent No.3 is liable to refund the amount to the petitioner forthwith. In the instant case on the Court's direction the amount of Rs. 50,000/- has been deposited by respondent No.3 in the Court. We direct the Registrar General to hand over the bank draft/cheque of that amount to the petitioner without any loss of time and for handing over the cheque the matter be placed before the Registrar General on 2.6.2003.

14. Respondent No.3 is responsible for compelling the petitioner to approach this Court in totally avoidable litigation. We are constrained to impose costs of Rs. 10,000/- on respondent No.3 for its conduct and resorting to totally illegal practice contrary to law and rules. Costs be paid by respondent No.3 to the petitioner within three weeks.

15. This petition is accordingly allowed with costs and disposed of.