Delhi High Court
Maitri Nagar Cooperative Group ... vs Shri Mehar Chand Jain And Others on 17 April, 2009
Author: Madan B. Lokur
* HIGH COURT OF DELHI : NEW DELHI
+ Writ Petition (Civil) No. 2890 of 1995
Judgment reserved on: April 8, 2009
% Judgment delivered on: April 17, 2009
Maitri Nagar Cooperative Group Housing Society Ltd.
through its President
22, Maitri Apartments
Plot No.29, Sector IX
Rohini, Delhi. ...Petitioner
Through Mr. R.P. Bansal, Sr. Advocate, with
Mr. Rakesh Mahajan and Mr. Pramod
Tyagi, Advs.
Versus
1. Shri Mehar Chand Jain
Resident of BP-168
Shalimar Bagh, West
Delhi-110052.
2. Registrar
Cooperative Societies
Parliament Street, New Delhi
3. Financial Commissioner
National Capital Territory of Delhi
5, Alipur Road, New Delhi.
4. Shri Zile Singh
R/o 3/20, New Birla Lane
Kamla Nagar, Delhi.
5. Nirmal Kumar Jain
R/o 313/62-E, Anand Nagar
Delhi.
WP (C) No.2890/1995 Page 1 of 13
6. Shri Suresh Chand Goel
R/o A-10, Wazir Pur Indl. Area,
Delhi.
7. Shri Jai Chand
R/o A-10, Wazir Pur Indl. Area
Delhi.
8. Shri Vinod Kumar
R/o 161, State Bank Colony
Delhi.
9. Shri Ram Prakash Sorewala
R/o 3228, Gali Pipal
Chowk Mukhi Mandir
Hauz Quazi
Delhi.
10. Smt. S.D. Aggarwal
S/o Shri R.C. Aggarwal
R/o AG 21, Shalimar Bagh
New Delhi.
11. Smt. Raj Kumari
R/o 140, State Bank Colony
Delhi.
12. Smt. Krishna Devi
R/o A-79/22, Wazirpur Indl. Area
Delhi.
13. Smt. Saroj Jain
S/o N.K. Jain
R/o AG 20, Shalimar Bagh,
New Delhi.
14. Smt. Savitri Devi Jain,
W/o Late Sh. Ajit Prasad Jain,
R/o AM 197 Shalimar Bagh,
Delhi. Deceased through
WP (C) No.2890/1995 Page 2 of 13
a) Shri S.C. Jain
b) Shri A.P. Jain
c) Shri Virender Kumar Jain
d) Shri Rami Jain
e) Shri Upender Jain
(sons of Sh. Ajit Parsar Jain and Smt. Savitri
Devi, the deceased).
f) Ms. Krishana Jain
g) Ms. Trishla Jain
h) Ms. Manju Jain
(daughters of Sh. Ajit Parsad Jain and Smt. Savitri
Devi, the deceased).
R/o AM 197, Shalimar Bagh
Delhi.
15. Smt. Santosh Jain
R/o 36, Model Basti
New Delhi.
Deceased through her L.R.
(a) Shri Sanjeev Jain
R/o 11/17, Old Rajinder Nagar,
New Delhi-110060.
16. S.D.Jain
2481, Naiwala, Karol Bagh
Delhi.
WP (C) No.2890/1995 Page 3 of 13
17. Shri R.D. Gupta
R/o A-6/259, Paschim Vihar
New Delhi.
Also at:
2, Model Town
Bahadur Garh (Jhajjar).
18. Kusum Jain
R/o D-9, Ashok Vihar
Phase-I, Delhi. ...Respondents
Through Mr. S.S. Jain, Adv. for R-1, 15 & 16.
Mr. Amiet Andlay, Adv. for RCS.
Mr. R.K. Gupta, Adv. for R-9 &R-17
Mr. Anil Aggarwal, Adv. for L.Rs. of
R-4.
Mr. Jinendra Jain with Mr. Ravi
Shankar Garg, Advs. for R-5 to R-8,
R-10 to R-14 and R-18.
Coram:
HON'BLE MR. JUSTICE MADAN B. LOKUR
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL
1. Whether the Reporters of local papers may
be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported
in the Digest? Yes
MADAN B. LOKUR, J.
C.M. 7531//2007
There is no opposition to this application. Accordingly, it is
allowed and the legal representative of Smt. Santosh Jain (Respondent
No.15), that is Mr. Sanjeev Jain is brought on record as Respondent
No.15(a).
The application is disposed of.
W.P. (C) No.2890/1995
1. More than 20 years ago (on 24th February, 1988) the
Registrar of Cooperative Societies (for short RCS) passed an order to
the effect that Respondent Nos.1 and 4 to 18 (amongst others) had
incurred a disqualification for membership of the Petitioner society
under Rule 25 of the Delhi Cooperative Societies Rules, 1973 and the
Bye-laws of the Petitioner society.
2. It appears that on a complaint (not made by the Petitioner
society), the RCS took suo motu action and disqualified these
Respondents (and others) from membership of the Petitioner society, on
the ground that they were not residents of Delhi at the relevant time.
3. Feeling aggrieved, these Respondents (and others) preferred
a revision petition before the Lieutenant Governor who held, by an order
on 9th December, 1988 that the decision rendered by the RCS was
without giving them a hearing. Accordingly, he allowed the revision
petition and remanded the dispute for reconsideration by the RCS. A
review petition filed by the Petitioner society was rejected on 18 th
January, 1989.
4. On remand, the RCS passed an order dated 27th September,
1989 holding that the Respondents before us could not produce any
documentary material to show that they were residents of Delhi. As
regards the others, the RCS concluded that their membership from the
Petitioner society had been incorrectly ceased.
5. Feeling aggrieved, the Respondents preferred a revision
petition before the Lieutenant Governor and contended that all the
necessary documents were produced before the RCS but he had not
taken them into consideration. Photocopies of the relevant documents
were submitted before the Lieutenant Governor. The departmental
representative did not produce the relevant file of the RCS on which
reliance was placed on the ground that it had been seized by the Central
Bureau of Investigation (CBI). He submitted that the RCS would look
into the claim of the Respondents afresh in the light of the documents
now produced.
6. In view of this, by similar orders dated 7 th and 22nd April,
1993 the Lieutenant Governor again remanded the case to the RCS to
examine the claim of the Respondents in terms of the documents that
they may like to produce.
7. On remand, the RCS gave an opportunity to the Petitioner
society to show that the Respondents were not residents of Delhi at the
relevant time, but it was unable to do so. On the other hand, the
Respondents individually produced documents to show that they were
residents of Delhi at the relevant time. Since there are a large number of
Respondents in this case, we are not indicating the documents filed by
each of them. Suffice it to say, that each one of the Respondents
produced more than one document in support of his or her case. It may
also be mentioned at this stage that the relevant file of the
RCS/Petitioner society allegedly seized by the CBI was not produced
before any of the statutory authorities. In fact, it appears that the file was
not seized by the CBI because the seizure memo of the CBI does not
indicate that this particular file was seized or was otherwise with the
CBI. There is, therefore, no reason why the relevant file relied on by the
RCS/Petitioner society was not made available during the adjudicatory
process.
8. What is also of importance is that on 16 th December, 1992
the RCS issued a circular dispensing with the requirement of proof of
residence in Delhi for members of cooperative group housing societies.
A copy of this circular was given to the federation of group housing
societies for being passed on to the member societies. Further, to give
effect to this circular, a direction was issued requiring deletion of clause
5(1)(a) of the Bye-laws of the cooperative group housing societies to the
effect that a person ought to be a resident of Delhi for enrolment as a
member of a group housing society.
9. The circular dated 16th December, 1992 is not on our record
in this case but it is filed in the connected writ petition being WP (C)
No. 5398 of 1997. The circular reads as follows:
OFFICE OF THE REGISTRAR: COOPERATIVE
SOCIETIES: DELHI ADMN. OLD COURTS BUILDING:
PARLIAMENT STREET, NEW DELHI-110 001.
No. F. 47/OGH/Coop/92/5849 of 5900 Dated: 16.12.1992
CIRCULAR
It has been decided by the Govt. of National
Capital Territory of Delhi to discontinue the requirement of
proof of residence for membership of cooperative group
housing societies with immediate effect. The cases which
have been detained only on account of this reason may be
examined in the light of these orders. In future the
requirement of proof of residence in Delhi for clearance of
membership of cooperative group housing societies will not
be insisted upon.
A separate action is being taken to advice all the
cooperative group housing societies to amend the relevant
bye-laws accordingly.
(S.M.S CHAUDHARY)
Registrar, Coop. Societies
10. It was submitted by the Petitioner society before the RCS that
the circular did not have retrospective effect. This submission was
rejected by the RCS holding that the circular has to be given effect to
since the cases are still pending final adjudication. Accordingly, taking
all necessary facts into consideration, by an order dated 15 th June, 1994
the RCS held that the cessation of membership of the Respondents was
not in order. He, therefore, did not approve the cessation of their
membership and concluded that they were still members of the
Petitioner society.
11. Feeling aggrieved, the Petitioner society preferred a revision
petition before the Financial Commissioner. By the impugned order
dated 20th September, 1994 the revision petition was dismissed.
12. Before us, it was vaguely submitted by learned counsel for
the Petitioner society that the Respondents were not residents of Delhi at
the relevant time. In our view, it is not open for the Petitioner society
to raise such a contention. There are several reasons for it: Firstly, the
complaint about the Respondents not being residents of Delhi was not
made by the Petitioner society. It seems that complaints had been made
by other members that some members of the Petitioner society were not
residents of Delhi and had submitted false affidavits in this regard.
Consequently, an inquiry officer was appointed to conduct an inquiry
under the provisions of Rule 55 of the Delhi Cooperative Societies
Rules, 1973. The inquiry officer submitted an ex parte report and it is on
the basis of this ex parte report that the membership of the Respondents
was ceased. This has been noted by the Lieutenant Governor in his order
dated 9th December, 1988. Secondly, despite an opportunity having been
given, neither the Petitioner society nor the departmental representative
could adduce any evidence to show that the Respondents were not
residents of Delhi at the relevant time. Thirdly, the file that they were
relying on is missing and has not been produced before any statutory
authority till date. An adverse inference is required to be drawn against
the RCS/Petitioner society for non-production of the relevant file. On
the basis of an unsubstantiated allegation mentioned in an ex parte
report, the membership of the Respondents could not have been ceased
by the RCS. Fourthly, the Respondents produced documentary evidence
in support of their claim that they were residents of Delhi and that
evidence was not controverted by the Petitioner society. Clearly,
therefore, on facts it must be held that in the absence of anything to the
contrary, the Respondents were residents of Delhi at the relevant time.
13. We have gone into this factual aspect for the reason that it
was vaguely argued by learned counsel for the Petitioner society.
Moreover, we find that the dispute is over 28 years old and has been
through three rounds of revision. We feel that a time has come when the
dispute must terminate one way or the other. We also find that no
material adverse to the Respondents has been produced before any of
the statutory authorities, while the Respondents have produced material
favourable to them. Taking all this into account, we have looked into
the factual aspect of the matter.
14. Learned counsel for the Petitioner society then submitted that
the circular dated 16th December, 1992 cannot have retrospective effect.
In our opinion, the question of retrospectivity does not arise in this case.
The circular merely states that those cases "detained" to enable a
member of a cooperative group housing society to provide proof of
residence, may now be examined in the light of the Delhi Government's
decision to discontinue the necessity of proving residence in Delhi. In
other words, the circular would be applicable only to those cases that
had not yet attained finality. There is no doubt, and indeed there cannot
be any doubt in this regard, that the cases of the Respondents had not
yet attained finality. In fact, their cases were pending and were in the
process of being adjudicated by the RCS. That being the position, the
RCS was bound to give effect to the circular dated 16 th December, 1992
and proceed on the basis that it was no longer obligatory for the
Respondents to adduce proof of their residence in Delhi.
Notwithstanding this, the Respondents did produce supporting evidence
and that was not controverted by the Petitioner society. The question of
retrospectivity would arise only if those cases that had attained finality
were sought to be re-opened on the basis of the circular dated 16 th
December, 1992 but since that is not the situation before us, the issue of
its retrospective operation does not at all arise for consideration. All
that the statutory authorities have done is to apply the circular as it is to
the cases before them. They have not re-opened any closed case.
15. Under the circumstances, we find no merit in this writ
petition. It is, accordingly, dismissed. Respondent Nos.1 and 4 to 18
are held to be continuing as members of the Petitioner society at all
relevant times and the cessation of their membership is held to be not
sustainable in law.
MADAN B. LOKUR, J
April 17, 2009 SIDDHARTH MRIDUL, J
ncg
Certified that the corrected copy
of the judgment has been
transmitted in the main Server.
