Avtar Vinayak vs Delhi Development Authority & ...
2008 Latest Caselaw 1412 Del

*                          HIGH COURT OF DELHI

%                    Date of decision: August 21st , 2008

+                          WP(C)No.6160/2007

Avtar Vinayak                                      ...Petitioner
                                       through
                                       Mr.Prashant Bhushan with
                                       Mr.Dushyant Sisodiya, Advs.

                        Versus

Delhi Development Authority & Ors.            ...Respondents.
                                  through
                                  Mr.Rajiv Bansal for respondent
                                  no.1-DDA.
                                  Mr.D.K.Pandey for
                                  Mr.V.K.Tandon, counsel for
                                  respondent no.2.
                                  Mr.J.N.Gupta for respondents 3 &
                                  8.
                                  Mr.Rakesh Munjal, Sr.Adv. with
                                  Mr.R.K.Saini & Ms.Aprajita
                                  Mukherjee for respondents 4 to
                                  7.
                                  Mr.J.C.Kaushik for respondent
                                  no.9.

Coram :
Hon'ble Mr.Justice Manmohan Sarin
Hon'ble Ms.Justice Veena Birbal

(1)   Whether reporters of local paper may be
      allowed to see the judgment?

(2)   To be referred to the reporter or not?                     Yes

(3)   Whether the judgment should be reported
      in the Digest ?                                            Yes

Manmohan Sarin, J.

1. Petitioner, a former Secretary & President of the Society

(respondent No.3 herein), has filed the present petition seeking

cancellation of the allotment of flats No.A-2 to A-5 to respondents

No.4 to 7. Petitioner contends that the flats were constructed

unauthorizedly without sanction and the allotment had been made

illegally and fraudulently in favour of respondents No.4 to 7.

Petitioner seeks demolition of these flats which, he alleges, were

constructed at the place designated and approved for parking.

2. Petitioner additionally seeks cancellation of the allotment of a

shop made in favour of respondent No.8, who at the relevant time,

was the President of the Society as being contrary to the provisions

of the Delhi Cooperative Societies Act, Rules and Bye-laws of the

Society. Petitioner seeks a restraint on respondents 4 to 8 from

participating in the Managing Committee of respondent no.3-society.

3. Petitioner alleges several illegalities frauds, forgeries and

manipulations in the construction, allotment and handing over of the

flats and the shop mentioned above on the part of the respondents

No.4 to 8 in collusion with the officers of respondents No.1 & 2.

Petitioner complains of continuous harassment at the hands of the

respondents No.4 to 7 and respondents No.8 & 9, who have refused

to hand over the possession of the flat duly allotted to him by the

DDA as an original member of respondent No.3 Society. He submits

that the management of respondent No.3 Society is being controlled

by the former architect of the Society Shri P.D.Sharma i.e

respondent no.9, who, he claims, has been running the Society as

his fiefdom, through his nominees and employees.

4. Writ petition has been opposed by the respondents nos.3 to 8

who have questioned the locus of the petitioner. Besides the petition

is dubbed as a malafide and actuated with ulterior motives and filed

by way of counterblast to settle scores with the Society. The

allotment of flat to petitioner had been cancelled due to non-

payment followed by expulsion of petitioner from the membership

of the Society. It may be noted that the proposal for expulsion of the

petitioner has been rejected by the Joint Registrar of the Cooperative

Societies. The Society has preferred a revision petition against the

said order and proceedings are pending. Respondents also claim

that the construction of the flats was duly sanctioned and

regularized and the charges for the same were paid. The requisite

increase in the strength of membership and the number of flats has

been sanctioned by the Competent Authorities.

5. Considering the acrimony between the petitioner and the

respondents and the complaints and counter complaints that were

made and with one litigation leading to the other, it was considered

appropriate to make an earnest attempt to resolve the differences

between the parties. Towards this end, petitioner was directed to

produce the details of payments made by him, his bank statement

showing debit of the amounts allegedly paid and receipts issued by

the society. The Society was also asked to keep the statement of

account ready and available on the next date of hearing so that

further directions could be given and the question of alleged default

by petitioner and his resultant expulsion and other disputes could be

resolved.

6. On 18th July, 2008, petitioner filed his written synopsis and

gave a statement giving details of payments made, out of which,

significantly, three payments were claimed to be made in cash on

6.5.1999, 9.6.1999 and 15.7.1999 of Rs.1 lac, each for which he

claimed that receipt was promised to be issued but was not issued.

Of course, the above submission prima facie appears incredible

since petitioner himself had been the President and Secretary,

would surely not pay cash thrice that too of a substantial amount

without taking a receipt.

7. Be that as it may, the matter was adjourned to 30th July, 2008

to enable the respondents' counsel to file its synopsis. At this stage,

Mr.Prashant Bhushan, Advocate appeared on behalf of the petitioner

and submitted that as per his instructions petitioner does not wish to

agitate the issue of allotment and handing over of possession of flat

to him in this writ petition. Learned counsel submitted that

petitioner would confine himself to the prayers made in the writ

petition. In other words, this spelt the end of an attempt to resolve

the differences between the petitioner and other members of the

Society inter se and with the Society.

8. Petitioner has not prayed for possession of flat or challenged

his expulsion and formally prayed only for demolition of four flats

and cancellation of allotment of shop to respondent no.8, the

averments in the writ petition, additional affidavit dated 29th August,

2007, written synopsis and the arguments filed by the petitioner

inter alia are to the effect that on account of petitioner protesting

against illegalities and frauds committed by respondents 4 to 8,

possession of flat no.B-23 has not been handed over to him though

being an original member and subjected to several litigations on

account of it. These allegations are the foundations of edifice of

petitioner's case. In the written synopsis filed, it is further alleged

that respondents DDA and RCS have failed to perform their statutory

duties despite complaints made by the petitioner. It is alleged that

the Managing Committee has acted with vengeance to expel the

petitioner from the membership of the society for having raised his

voice against the illegalities committed by them. Petitioner claims

that expulsion proceedings were proceeded against the petitioner

on the basis of fabricated default shown in the payments. Petitioner

contends that he has made payment of Rs.6.88 lacs by cheques and

cash as per statement attached. However, the amount was

fraudulently and clandestinely reduced to Rs.3.88 lacs in the audit

report for the year 2001-2002. Petitioner claims that the inquiry

report had vindicated his position as there were manipulation of

accounts with a view to reduce the amount shown as deposited by

the petitioner/complainant. Petitioner in the synopsis and arguments

filed has made detailed submissions in this regard. However, as

noted above, it appears that after the proceedings of 18th July, 2008

when the court enquired about the non production of the three

receipts for cash payments of Rs.1 lac each as claimed and the

matter was adjourned to 30th July, 2008 that there was a volte face

by the petitioner, who did not desire to end the disputes and

confined his reliefs to the prayers made in the writ petition.

9. Respondent no.1-DDA through Mr.Rajiv Bansal, Advocate has

filed summary of correspondence with regard to approval and

sanction of construction of four additional flats as also the

complaints received and its disposal. Mr.Prashant Bhushan has also

filed a brief gist of submissions. Mr.J.N.Gupta has filed written

submissions on behalf of respondents 3 & 8.

10. We have accordingly heard Mr.Prashant Bhushan on behalf of

the petitioner, Mr.Rajiv Bansal, on behalf of respondent no.1-DDA,

Mr.J.N.Gupta & Mr.Salil Paul on behalf of respondents 3 & 8,

Mr.Rakesh Munjal, Sr.Advocate on behalf of respondents 4 to 7,

Mr.D.K.Pandey on behalf of respondent no.2 and Mr.J.C.Kaushik on

behalf of respondent no.9.

11. The first issue arising for consideration is regarding alleged

unauthorized construction of flats on the space meant for parking

under the stilts. Mr.Prashant Bhushan submitted that these flats A-

02 to A-05 were constructed without sanction. Two flats were

occupied illegally by Mr.Harmeet Pal Singh and V.D.Bhardwaj even

before sanction for construction of flats was accorded. Allotment

was in violation of the Directives of the RCS. As per the

respondents' own case, sanction was obtained on 7th March, 2002

while possession of flat nos.A-02 A03, A04 and A05 was handed over

on 30th November, 2001, 16th November, 2002, 28th September,

2001 and 7th August, 2001 respectively. It was urged that

respondent no.3-Society had suppressed from the DDA the fact that

flats were occupied even before the sanction was accorded on 7 th

March, 2002. Mr.Bhushan relied on following clause of the sanction

letter which runs as under:-

"The construction will be undertaken as per sanctioned plans only and no deviation from the bye-laws will be permitted without prior sanction. Any deviation done against the bye-laws is liable to be demolished and the supervising architect engaged on the job will run the risk of having his licence cancelled."

Clause 6 of the sanction letter contain the prohibition which is

as under:-

The party shall not occupy or permit it to occupy the building or use or permit to be used the building or any part thereof effected by any such work until occupancy certificate is issued by the DDA.

Lastly reliance was placed on clause 14 which provided that

sanction will be void ab initio if any material fact has been

suppressed or mis-represented or the auxiliary conditions

mentioned above are not complied.

12. Petitioner contend that respondent nos.4 to 7 except

respondent no.5 are the members of the Managing Committee.

Further the election of office bearers having been set aside by

Competent Authority, they are permitted to manage day to day

affairs. Rest of the portion of the gist of submissions by the

petitioner is devoted to the petitioner's response to the attempt

made by the respondent-society of fraudulently declaring petitioner

as a defaulting member with a view to expel him and cancel the

allotment of his flat. Petitioner also relies on the gist of the inquiry

conducted by Mr.V.K.Beniwal, Joint Commissioner regarding the

irregularities and illegalities in the accounts maintained by the

society. Petitioner refers to the reduction of deposited amount to

his credit from Rs.6.8 lacs to Rs.3.88 lacs as being the result of

conspiracy against him and the manipulation of accounts. Learned

counsel also laid considerable emphasis on the alleged manipulation

of records depicting that allotment of these flats to respondents 4 to

8 was by way of draw of lots, while no draw of lots was actually

held. Counsel further submits that their enrolment as members

was itself vitiated inasmuch as in two cases namely Dr.Harmeet Pal

Singh and Mrs.Krishna Anand, the dates of the share certificates

issued to them are prior to the resolution of the Managing

Committee and even the date of application. He also submitted

that allotment was done without following the due process.

Permission for construction was subsequently obtained with

suppression and concealment of facts of construction having

already been done.

13. Petitioner next adverted to the allotment of the shop to

respondent no.8 who was the President of the Society. It is stated

that no draw of lots was held for the same. It is stated that shop

could not be allotted to respondent no.8, who at the relevant time

was the President of the Society as the same is prohibited under the

Cooperative Society Rules and the Bye-laws.

14. Respondent no.3-society in its response has averred that writ

petition has been filed with ulterior motives and out of personal

vendetta. It is a malicious attempt to bring disrepute to the

management of the respondent-society as the petitioner himself, it

is alleged, had been controlling the affairs of the society in his

capacity as Secretary and President since 1995 to 2001. Petitioner

has no locus to file the writ petition which raises disputed questions

of fact. Petitioner has efficacious remedy under the Delhi

Cooperative Societies Act, 2003, which has not been resorted to. It

is alleged that petitioner during the year 1999-2000, manipulated

the records of the society and has shown bogus receipts to the

extent of Rs.3 lacs against his name in order to qualify for inclusion

of his name in the draw of lots. It is stated that qualifying amount

for draw of lot was Rs.6,88,000/- while the petitioner had paid only

Rs.3.88 lacs but got the same inflated to Rs.6,88,000/- by showing

the false entries of payments. It is claimed that subsequent

investigation revealed that payments to the extent of inflated

amounts received as interest for the period of default from other

members were shown against the name of the petitioner and this

was done in collusion with the auditors who had failed to discharge

their duties. When the petitioner's fraud came to the notice of the

successor managing committee, entries in books of accounts got

made by the petitioner during the period 1999-2000 were rectified,

keeping in view the factual position. It is alleged that petitioner has

been making baseless complaints against the respondents.

Support is sought to be drawn from the inspection report of one Shri

D.Bhattacharya in this regard. It is alleged that petitioner's wife has

also purchased flat no.30B, Shalimar Bagh from Smt.Charanjit Kaur

and thus the petitioner violated Rule 25 of the DCS Rules and his

membership was liable to be cancelled on this count also.

15. Respondent contends that petition is highly belated and barred

by delay and laches inasmuch as petitioner did not raise any

objection while being the Secretary/President from 1995-2001 and it

is only in 2007 that this petition has been filed belatedly.

16. In short, the present writ petition is described as one actuated

by personal vendetta and filed out of personal malice and as a

counter blast to cover up the petitioner's own defaults. It is stated

that proceedings are pending before the concerned Authorities and

the present petition was thus misconceived.

17. Regarding construction of flats, the stand of respondent-

society as also that of respondents 4 to 7 is that respondent-society

had applied for increase in strength of membership from 66 to 70.

The said increase was fully in accordance with F.A.R norms.

Respondent nos.1 & 2, namely, DDA and RCS duly approved the

same. It was only when the strength of membership from 66 to 70

was increased with the approval of Competent

Authority then dwelling units were constructed. It is further

averred that the society applied for increase in strength from 66 to

70 only when the F.A.R limit was increased by the Government/DDA.

Application for increase in membership was submitted on 2nd June,

2000 and approval was given on 22nd May, 2001. The additional

flats constructed are fully in accordance with revised FAR norms.

The proposal for increase in strength and changed lay out Plan was

duly approved. Regarding handing over of flats on 7th August, 2001

and October, 2001, it is averred that provisional possession letter

was given to respondents 4 to 7 for the purpose of obtaining

electricity connections. Regarding draw of lots, it is submitted that

each of the four flats was of a different category and the four

applicants had applied for a flat of the said particular category and

as such draw of lots was not necessary. Approval of DDA and RCS

was given on 22nd and 21st May, 2001 respectively.

18. We may also refer to the short affidavit filed by respondent

no.2-RCS. Respondent no.2-RCS has averred that it gave on 22nd

May, 2001 its concurrence for enrolment of four additional members

and the case was recommended for draw of lots. It is reiterated that

there was no violation in any manner whatsoever has been done

while considering the application for increase in membership

strength. Regarding the allegations made by the petitioner, an

inquiry under Section 55 of the DCS Act, 1972 had been ordered.

19. Respondent no.1-DDA in its counter affidavit has urged that

disputed questions of fact are sought to be raised in this writ

petition. Petitioner has not demonstrated violation of any of his

fundamental rights or other statutory rights. Petitioner belatedly is

seeking to question the allotment of flats to respondents 4 to 7

which was done in the year 2001 with his knowledge. Petitioner

himself was the President and Secretary of the society and has

chosen to keep silent all these years and now on account of

personal vendetta is seeking to raise these issues after a delay of

six years and on account of laches alone, petitioner does not

deserve any indulgence. Respondent no.1-DDA has denied any

connivance with the office bearers of the society. It is submitted

that increase in strength was as per policy which permitted increase

upto 15% at the request of Society. It is stated that respondent-

society has not applied for provisional occupancy/completion

certificate for these four flats. Respondent no.1-DDA claims to

have issued notice to the society to enquire as to how the said flats

were occupied by the members before the confirmation of allotment

of said flats by DDA. As per the summary of proceedings filed by

DDA and the records produced, it is seen that scheme for 66

Dwelling Units was approved on 31st July, 1996. Notice for

unauthorized construction of 4 Dwelling Units in stilt area was

issued on 12th February, 1999. Society agreed to rectify unauthorized

construction and also produced minutes of General Body Meeting

and plans for regularization of community facility area within

permissible limits. Subsequently show cause notice was issued to

the Architect for construction of 4 Dwelling Units without sanction.

Following the increase in strength, permission for four Dwelling Units

was accorded by Group Housing Cell. Respondent no3-society vide

letter dated 4th February, 2002 applied for regularization of four flats

which is reproduced for facility of reference:-

"The permission of increasing of four flats and N.O.C was granted by Lease Administration Co.Op.Group Housing Society D.D.A vide letter no.F-7(324)90/GM/DDA dated 22.5.2001. The Society has constructed four flats accordingly with in the permissible F.A.R. You are requested to regularize the same. The required documents are enclosed herwith."

This was followed by prescribed form for regularization

being submitted along with charges of Rs.8266/- being

deposited on 6th February, 2008.

20. Perusal of the correspondence shows that permission for

increase in strength as also regularization of four Dwelling Units

construction falling within F.A.R 168.79 has been given. The

regularization charges have been paid. Four additional Dwelling

Units have been constructed in the stilt area which was initially

meant for parking. In the regularization plan, part of the parking

area which was initially a part of stilt area and where four Dwelling

Units have been constructed, has been shifted elsewhere. Revised

Lay out Plan and Building Plans have been regularized. Four

Dwelling Units as well as changed parking space were duly

regularized. Respondent no.1-DDA has also explained that sanction

accorded on 7th March, 2002 was in the printed form. We, therefore,

do not find any merit in the petitioner's contention that the factum

of construction had been concealed by the society or there was a

misrepresentation while applying for permission. As noted earlier,

DDA was aware of construction of flats having issued a notice for

unauthorized construction. Moreover, the application dated 4th

February, 2002 quoted in the preceding para clearly mentioned the

factum of construction of four flats. The inferences sought to be

drawn by the petitioner based on the standard format print out of

letter dated 7th March, 2002 are misplaced. Regularization charges

of Rs. 2,44,617/- already stand paid. The irregularity in raising the

construction prior to sanction thus stands condoned.

21. Coming now to the allegation regarding membership

certificate bearing an earlier date than the date of passing of the

resolution of the Managing Committee approving membership,

learned senior counsel for respondents 4 to 7 Mr.Rakesh Munjal

submitted that these were ministerial acts and would not invalidate

either the membership or allotment by themselves. Mr.Munjal relies

on a judgment of the Division Bench of this court in Shri S.K.Gambhir

Vs. Union of India & ors (WP(C) 1116/1984) to urge that the date of

payment of application money or issuance of share certificate was a

totally irrelevant consideration for the fixing of priority of

membership. Further that it is the date of resolution of the

committee which determines the date on which a member is

admitted." From the foregoing, Mr.Munjal sought to urge that share

certificate being of an earlier date than the date of resolution will be

of no avail. Mr.Munjal submitted that in fact there was an impasse

in the functioning of the society and these certificates were in fact

handed over much later though bearing the earlier dates.

22. Regarding the allotment of shop to respondent no.8 who is the

President of the Society as being contrary to the Rules, learned

counsel for respondent no.3 and 8 sought to urge that the said

shop had been taken by the President as there was no one else

willing to take the shop. Further same was done to provide the

facility and amenity to the members. Counsel for respondent no.8,

on instructions from respondent no.8 submitted that respondent

no.8 would surrender the shop and respondent no.3 would be free

to allot shop to any other eligible member or person as desired.

23. We have carefully considered the submissions made, perused

the record produced before us and are of the view that writ

jurisdiction of this court has been invoked by the petitioner to settle

his personal scores. Petitioner himself had been the President and

Secretary of the Society during the years 1996 to 2001 and was well

in charge of the affairs. Even if the petitioner states that others

were running the show and the petitioner was not responsible for

those alleged irregularities and defalcation and mismanagement of

the affairs of the society as alleged by him, at least the petitioner

cannot disclaim his awareness and knowledge of the same. The

present petition is, therefore, highly belated and hit by laches. As

noted earlier, petitioner's own conduct in allegedly claiming that

while he had been office bearer, he made three payments of Rs.1

lac each on 6.5.1999, 9.6.1999 and 15.7.1999 in cash, receipts of

the same were not given to him respectively, does not inspire

confidence. The Court had attempted to put an end to this quagmire

of litigation which had enmeshed the society as also the petitioner,

but the petitioner did a volte face, with Mr.Prashant Bhushan

submitting on 30th July, 2008 that petitioner was interested only in

pressing the reliefs claimed for in the petition.

24. Mr.Prashant Bhushan submitted that the court should confine

itself to the reliefs claimed in the writ petition and it would be an

abuse of legal process if it dealt with the cancellation of allotment of

flat to the petitioner and its expulsion proceedings and the issue of

his being a defaulter or not. The above submission is unacceptable.

The court in the exercise of writ jurisdiction cannot be so

circumscribed and is free to give such directions as are necessary for

subserving the ends of justice. It is a different matter that in this

petition, we need not decide or pronounce on the allegations made

by the petitioner in relation to his cancellation of allotment and his

expulsion as the same is not necessary for disposal of this writ

petition. However, certain directions to expedite the pending

proceedings need to be given.

25. We are of the view that this petition has been filed by the

petitioner actuated with desire to settle personal scores. Petition

has been filed belatedly and suffers from delays and laches.

Petitioner himself chose to remain silent even though being aware

and having full knowledge of the alleged irregularities and illegalities

perpetrated by respondents 3 to 8 since he himself was the

Secretary and President from 1995 to 2001. Petition is the result of

personal vendetta as respondent no.3 has chosen to cancel the

allotment of the flat of the petitioner and passed a resolution for

expulsion of the petitioner which matter is presently pending before

the Financial Commissioner.

26. The freeze strength of the society having been permitted to be

increased and permission for construction of four additional flats

having been granted and the construction itself having been

regularized on payment of penalty and regularization charges and

the flats being within the permissible limit as per F.A.R norms, no

useful purpose would be served at this stage by going further into

the question as to why respondent no.3-society had raised the

construction initially without permission. Allotment to respondents

4 to 8 and the non holding of the draw of lots in respect of said

allotment of four flats on account of these being in different

categories and there being one applicant for the said categories has

been duly explained.

The grievance of the petitioner with regard to allotment of

shop to respondent no.8 stands redressed with respondent no.8

offering to surrender the same. The respondent no.8 shall surrender

the shop within a month from today. Respondent no.3 shall be free

to allot the same to any eligible person in the best interests of the

society. Save the direction as aforesaid there is no other ground

made out for entertaining any other relief sought in this writ petition.

In these circumstances, we direct that proceedings pending

under sections 59(2) before the Registrar, Cooperative Societies

and/or designated authority be concluded within four months from

today. C.R.No.338/2007 titled Hilansh Cooperative Group Housing

Society Vs. Avtar Vinayak & anr pending before the Financial

Commissioner be also decided within four months from today.

Registrar, Cooperative Societies shall also dispose of any other

pending complaint of the petitioner/respondent no.3 or any other

member of the Managing Committee expeditiously.

Writ petition is dismissed with the aforesaid directions.

Manmohan Sarin, J.

Veena Birbal, J.

August 21, 2008 ssb