Madan Gopal Sharma vs Lt. Govr. And Ors.
2007 Latest Caselaw 167 Del

JUDGMENT

Mukul Mudgal, J.

1. With the consent of the learned Counsel for the parties, this writ petition is taken up for hearing. The issue involved in the present writ petition is disqualification of the petitioner for allotment of a flat in respondent No. 6 Society by virtue of operation of Rule 25 of the Delhi Co-operative Rules, 1973, which reads as follows:

Rule 25. Disqualification of Membership (I) No person shall be eligible for admission as a member of a co-operative society if he....

(a)...

(b)...

(c) In the case of membership of a housing society:

(i) He owns a residential house or a plot of land for the house in any of the approved or un approved 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 leasehold or freehold basis provided:

that disqualification as laid down in Sub-rule (1)(c)(1) shall not be applicable in case of persons who are only co-sharers of joint ancestral properties in congested localities (Slum Area) whose share is less than 66.72 sq. meters (80 sq. yards) of land.

2. The petitioner has been found to be disqualified by the order of the Financial Commissioner dated 22nd September, 1994. It is submitted by the learned Counsel for the petitioner that there was a consolidated order passed by the Financial commissioner in three Revision Petitions bearing Nos. 139/ 94-C.A., 140/94-C.A. and 141/94-C.A. Apart from the petitioner, the entitlement of Mr. Baijnath Singh and Mr. Shiv K. Sharma were also rejected by the Financial Commissioner, and this led to a writ petition filed in this Court being Writ Petition (C) No. 4854/ 94, titled as Ram Nath Sharma v. Lt. Governor, and the judgment in that case was . The issue involved in the present writ petition was decided by the learned single Judge of this Court in the following terms:

I have given my careful consideration to the arguments advanced by learned Counsel for both the parties. Against the judgment rendered in Navjivan's case no appeal was filed by the Registrar, Co-operative Societies against the interpretation of Rule 25. I rely on the said judgment. It has to be borne in mind that when the Co-operative Societies Act was enacted, the legislative intention on account of pressure on land in Delhi was to allot land to the co-operative societies, so that they could give individual plots to the members of that society. Now instead of plots, the co-operative housing societies are being allotted land by the superior lesser for onward allotment to its members of flats. The whole idea was that those persons who do not have any residential accommodation in Delhi should be benefited by this legislation. It was a social welfare legislation to give shelter to the residents of Delhi. Clause (5) in the bye-laws of the Society whereby if a person or his/her spouse owns a dwelling house or plot for building a house in Delhi, New Delhi or Delhi Cantonment could not have become a member of the Society has manifested the same aspirations. Rule 25 of the Co-operative Societies Rule is also to be same effect. It was enacted in order to prevent persons who had some residential accommodation in Delhi so that those who do not have any residential accommodation could be given some plots or flats. It could not have been the legislative intention to debar who are having small holdings like the petitioner. Petitioner from his ancestral house has got a share of 38 sq. yds. in Lai Dora, i.e., a village abadi. Rule or bye-laws cannot be interpreted so as to prohibit such class of petition from acquiring membership of the society for allotment of a plot. Therefore, the submission of the learned Counsel for the respondent that because it is not a notified slum area although the fact that the residential house of the petitioner is in Lal Dora is not denied, is too far fetched an argument. One has to go to the reasons for bringing on the statute book Rule 25. It is not mere technicalities that word Lal Dora has not been mentioned in the rule, therefore, no benefit can be given to petitioner although the house may be in a congested locality which may be otherwise a slum but the said person shall stand disqualified in terms of Rule 25, this approach is totally unwarranted in law. Reliance placed by counsel for the respondent on Postal Cooperative House Construction Society Ltd. (supra), I am afraid, is of no help to the case of the respondent society. In that case there was inherent bar for becoming a member of the society if a person was not a postal employee or was not his legal heir. That case was decided on account of the inherent bar to membership as society was formed especially for postal employees.

Therefore, I do not find any force in the arguments of the learned Counsel for the respondent. I set aside the impugned order and allow the writ petition. Rule is made absolute. I declare the petitioner to be a member of the society and, therefore, petitioner is entitled to all the consequential benefits of being a member of the society.

3. Placing reliance on the said judgment, the learned Counsel for the petitioner submitted that since his share in the ancestral property was not more than 80 sq. yds. he was entitled to rely upon the position of law laid down in the said judgment and claim the exemption from the operation of the Rule 25 of the Delhi. Co-operative Society Rules, 1973 against him.

4. We have perused the documents filed before us which show that the petitioner had communicated by a letter dated 21st May, 1990 that his share was 60 sq. meters in the joint property. The maximum allowance permissible under Rule 25 is 66.72 sq. meters. We have noticed the fact that it was a common order which led to the judgment of this Court in Writ Petition (C) No. 4854/94. The issue in the connected revision petition was decided in respect of another member of the society in favor of the petitioner. The benefit of the said judgment has already been given to the two other similarly situated members covered by the judgment by the society. Therefore, after taking into account the joint impugned order of the Financial Commissioner insofar as operated against Ram Nath Sharma was set aside. The petitioners claimed for similar relief which was afforded by the aforesaid judgment. The reasoning involved is identical insofar the petitioner's case is concerned. Since it has been shown that the petitioner in a contemporaneous document dated 21st May, 1999 claimed his family share to be less than 80 sq. yds. and had disclosed in his original application that he had his share in the ancestral house, the aforesaid judgment squarely applies on the facts of the present case. Accordingly, the writ petition deserved to be allowed in terms of the judgment in Ram Nath Sharma's case AIR 2000 Del 447 (supra).

5. Mr. Phoolka, the learned Senior Counsel appearing for the intervenor, who was substituted as a member upon the expulsion of the petitioner, has urged the same plea as advanced by the learned Counsel for the society. Since we are allowing the writ petition we are naturally unable to subscribe to the views expressed by Mr. Phoolka. The petitioner is thus found entitled for the allotment of flat. A claim of amount payable up to date has been raised in the respondent society's own affidavit for a sum of Rs. 11,81,999/- as shown in Annexure R6/2. After taking into account the fact that the petitioner was wrongly expelled, we are of the view that the petitioner shall be entitled to allotment of the flat upon the payment of the total amount of Rs. 11,00,000/- in three Installments, the first of which Installments shall be payable on or before 15th February, 2007 and the second Installment on or before 15th April, 2007 and third Installment on or before 30th June, 2007. Within two weeks of the payment of 1st Installment, the allotment letter shall be issued by the respondent but the possession of the flat shall only be handed over to the petitioner after the entire amount as postulated by this judgment is paid. In the meanwhile maintenance charge, if any. incurred by the society after today shall be liable to be paid by the petitioner. The writ petition accordingly stands allowed along with CM 6671/2000.