Ehsan Ahmed Makhdoomi vs Registrar Coop. Societies And ...
2007 Latest Caselaw 584 Del

JUDGMENT

Mukul Mudgal, J.

1. Rule DB. With the consent of the learned Counsel for the parties, the writ petition is taken up for final hearing.

2. The petitioner is a member of Maulana Azad Cooperative Housing Society formed in 1959-60 and the petitioner was enrolled as member in 1967 with enrollment number 125 and the writ petition is based on the averment that the petitioner has already completed all formalities viz. clearance of all dues and furnishing of all requisite documents including those required by respondent No. 1 - Registrar, Cooperative Society (in short 'RCS') for clearance of membership.

3. The grievance raised by the petitioner is that inspite of furnishing all documents required in law, the membership of the petitioner has not been cleared by the RCS/respondent No. 1. In paragraph 3 of the writ petition, it has been averred that the society has developed 95 plots out of the land allotted in Pitampura by the DDA for allotment by the society and out of the said 95 plots of land, 91 plots have already been allotted, leaving four vacant plots with the society. The society has recommended the name of the petitioner along with two others and the society is averred to have completed all the formalities.

4. The RCS/respondent's case proceeds on the basis that the enrollment of other members upon resignation were sought from the Society as evident from the letter dated 15th June, 2005 which sought details of 7 members bearing membership Nos. 131 to 137. Thereafter the process of verification of documents had delayed the clearance of the membership of the petitioner. The petitioner has submitted that in compliance of the above formalities required to be completed, the following documents were submitted with the office of the RCS/respondent No. 1:

a. True copy of Resolution of the Managing Committee dated 21.11.2004 resolving the issue of NOC for the membership of petitioner and other two members.

b. The respondent authority demanded compliance of requirement for membership No. 125, 126 and 138 as a precondition of clearance.

c. The society by its letter dated 10.03.2005, acknowledged the receipt of above letter and furnished those details immediately.

d. Despite the completion of all formalities as contained in letter dated 10.03.2005 for the clearance of membership of the petitioner, the respondent authority with a view to delay the process issued another letter dated 6.10.2005, whereby demanding certain other details generally not related with the individual case of the petitioner.

e. Even this demand of the RCS was met by furnishing the details in required format again vide letter dated 19.10.2005.

5. Since the petitioner is a person having multiple diseases aged about 70 years and has no other residential house in Delhi, the petitioner approached this Court under Article 226 of the Constitution. The respondent No. 1, RCS's stand as reflected in the counter affidavit reads as follows:

2. That the contents of para 2 of the writ petition are admitted only in so far as they are matters of record anything contrary thereto is wrong and denied. It is submitted that the Respondent society was requested to submit the complete proposal along with complete documents required as per DCS Act/Rules and directions issued from time to time. It is wrong to say that the society fulfillled all the formalities as required under various directives. The society failed to file documents as per directives dated 26.3.1990 and 7.6.1990 regarding acceptance of resignations and fresh enrollments. This department is concerned about the problems being faced by members of various societies. If the cooperative societies submit their proposal for conduct of draw of lots with complete documents, than only the same can be disposed of in a time bound manner by this department. The department has to conduct prior verification of members before approving proposals for conduct of lots as per provisions of DCS Act and Rules and only after satisfying itself regarding genuineness of the members the proposal for draw of lots can be approved. It is further submitted that a CWP No. 10066/2004 titled as Yogiraj Krishna Cooperative Group Housing Society Ltd. v. DDA and Ors. was filed before this Hon'ble Court wherein the question of genuineness of members was raised and it was prayed that land should be allotted to the societies benefited the members. The Hon'ble Court has observed in the said case that the Respondent have to make all efforts to prevent the taking over of the housing societies from the builder mafia and benefit the subsidised land has to be made available to the genuine members only. Therefore, the department has been pressing the societies to submit the requisite documents and information from their members, which are required for verifying their genuineness/identity to avoid any possibility of criminal conspiracy and forgery committed by the cooperative societies in enrollment of members and acceptance of resignations. the society failed to comply with the directions of this department, which shows that it is not interested to sort out the issue because of its non-cooperative attitude. In view of this non-submission of requisite documents by the society, the proposal submitted by the society for clearance of the conduct of draw of lots for allotment of plots was rejected by this office vide letter dated 30.06.2006, copy of which is annexed as Annexure-A.

6. The counter affidavit does not deny the averment that there were four vacant plots of land but has reiterated the non-compliance of the four circulars and has sought the verification of the original record in the office of the respondent No. 2. The society has filed an affidavit supporting the petitioner pursuant to its being joined as a party and stated as follows:

2. That I state that the respondent society has 4 vacant plots namely plot No. 14, 89, 91 and 92 and respondent society has already recommended membership of the petitioner bearing No. 125. In addition, respondent society has recommended for allotment of names of Smt. Tayabba Siddiqui Membership No. 126 and Shri Abdul Haq Membership No. 138.

3. That I sate that the society has completed all the formalities as demanded from time to time by the office of the RCS. The respondent society has received letter dated 21.2.2006 whereby the office of RCS has confirmed the respondent society submitted Annexure-1 in respect of all the resigned members and Annexure-II contained Nil details as there was no new enrolment. It has also confirmed by the office of the RCS to have received copy of advertisement regarding resigned and newly enrolled members. After having received the above information, office of the RCS has unnecessarily raised demand of submission of above three annexures in Hindi language. Urdu is official language and office of RCS being public authority cannot demand translation of one official language into another official language. This is being dilatory tactics. Anyhow due to pressure from members including petitioner the answering respondent has completed even that formality and has confirmed the same vide letter dated 23.6.2006. When we have submitted English version of Annexure-1, II and III as confirmed by the office of RCS vide letter dated 21.2.2006, despite completing the above formalities on 23.6.2006, respondent authority finding no justification in issuing letter dated 30.06.2006 thereby rejecting proposal of the answering respondent for clearance of the membership in respect of Ehsan Ahmed Makhdoomi and Smt. Tayabba Siddiqui. The aforesaid letter is written without reference to the letter of answering respondent dated 23.6.06 confirming completion of formalities in terms of the demand dated 21.2.06 from the office of RCS. Thus it is due to complete inaction and dilatory tactics in clearing the membership due to one reason or another by the office of RCS resorted to create unusual and uncalled for demand and even if they are completed, a further demand wholly unconnected with the clearance are made making the process of clearance unending causing not only harassment to the members seeking clearance but to the deponent and other office bearers of the Society who are un-necessarily entangled into process of digging the records.

4. I state that office of the RCS is making the above demand based on directives dated 26.3.90 and 7.6.90. Bare perusal of these directives clearly shows that these directives are meant for Group Housing Society and never to be completed by House Building Society. Thus entire exercise of office of the RCS in insisting for two directives are malafide and it shows complete apathy to the right of members who are already senior citizens and have been waiting for their clearance for the last many years without any fruitful results.

5. I state that the respondent society has not received till date any claim of any members who have resigned nor the respondent society has received any intimation from the office of the RCS whereby it was brought to the knowledge of the answering respondent about pendency of any claim of any of its resigned or expelled members. The last expelled/ resigned members from the society was way back in the year 2002 and thereafter no member has resigned nor has been expelled. In fact, the Office of the RCS at the time of answering respondent seeking clearance for the junior members to the petitioners namely Shri Noor Ithai - Membership No. 129 and A.H. Beg Membership No. 134 never demanded the compliance of these two directives dated 26.3.90 and 7.6.90. This demand for compliance of these two directives are completely after thought as office of the RCS never invoked these two directives for the clearance of the membership of House Building Society.

6. I state that the deponent has reverified the records and reiterate to have no impediment in the allotment of one amongst 4 unallotted plots. Answering respondent to be discharged of their responsibility as only 4 members are required to be cleared for allotment and there nothing survive and the same to be done expeditiously.

7. The additional affidavit dated 20th December, 2006 of the respondent No. 1 though filed after the counter affidavit filed by the respondent No. 2, does not deny the above averments. Even this affidavit dated 20th December, 2006, reiterates that the following documents were required from the society in connection with the resignation of the members of the society:

8. The following documents in original are still required from the society in connection with resignations of the members of the society-

(i) Original resignation with English Translation.

(ii) Resolution of MC accepting the same.

(iii) Mode of payment of resigned members with proof thereof by cheque.

(iv) Intimation to RCS about resignations.

(v) Communication of acceptance of resignation of resigned member by the society etc.

The following documents are required for enrolment of members by the society:

(a) Application form for membership.

(b) Affidavit by applicant regarding eligibility.

(c) Resolution of MC enrolling the member.

(d) Proof or residence.

(e) Proof of share money.

(f) Membership register with names of the applicants.

(g) Minutes/agenda of the MC in the matter.

(h) Compliance of Rule 30 of DCS Rules, 1973.

(i) Details of Court pending, if any etc.

9. The cases of the petitioner were rejected on this ground only i.e. failure of the society to produce relevant documents regarding resigned/enrolled members as per directives mentioned above. the society was provided ample opportunities in the matter but no information was given to process the case. Thus, the stand of the Petitioners that they have complied with all the requirements/clarification as per DCS Act/Rules/Directives in the matter is not correct.

8. In our view the stand of the respondent is based on incorrect premises as the petitioner has not been enrolled in lieu of a resigned member and was the original member of the society since the year 1967. Since the petitioner was an original member her seniority was not concerned with the resignation of the member who bore the seniority numbers from 131 to 137. The above requirement of a situation arising upon resignation of members and filling of such slots requiring verification would not apply to the original members and accordingly no further impediment lay in the way of the allotment of membership and possession to the petitioner. The petitioner has also relied on the fact that the existence of the four plots and the intent of allotment of the said plots to the petitioner and the similarly situated persons were advertised in two English Newspapers and no objections were received from any quarter. This advertisement was issued to comply with the safeguards being sought by the office of the respondent No. 1/RCS. Since the petitioner's name has thus been cleared by the society and was cleared in respect of four vacant plots for which were was no other claimant and the petitioner's membership is as an original member from 1967, a fact which has not been denied, the issue of resignation and the effect thereof on the petitioners' allotment is undoubtedly irrelevant and cannot affect the clearance of the petitioner's membership. The issue of resignation of the members bearing seniority numbers 131 to 137 cannot affect the allotment to the petitioner whose seniority was at S. No. 125. Furthermore all the documents sought by the respondent No. 1- RCS had already been supplied by the Society by its letter dated 23.6.2006. The directives dated 23.6.1990 and 7.6.1990 sought to be invoked in the present case by respondent No. 1 relate to a group housing society and cannot be ipso facto applied to a house building society which had plots. The petitioner is thus entitled to succeed. The writ of mandamus shall accordingly issue directing the respondent No. 1 to clear the membership of the petitioner not later than 15th May, 2007. On 16th May, 2007, the society shall be free to allot one of the four vacant plots No. 14, 89, 91 and 92 to the petitioner.

9. The writ petition stands allowed and is disposed of accordingly. All pending applications also stand disposed of.