Krishan Kumar Sachan vs The Lt. Governor & Ors.
2009 Latest Caselaw 3077 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                         Judgment delivered on: 10th August, 2009

+      W.P.(C) No. 417/1995

KRISHAN KUMAR SACHAN                                     ..... Petitioner

                          -Versus-

THE LT. GOVERNOR & ORS.                                  ..... Respondents

Advocates who appeared in this case:-
For the Petitioner        : None.
For the Respondents       : Mr. V.K. Tandon, Advocate.

CORAM:-
HON'BLE MR. JUSTICE BADAR DURREZ AHMED
HON'BLE MS. JUSTICE VEENA BIRBAL

1.     Whether Reporters of local papers may be allowed
       to see the judgment ? yes

2.     To be referred to the Reporter or not? yes

3.     Whether the judgment should be reported in Digest? yes


VEENA BIRBAL, J.

1. A short question relating to interpretation of Rule 25(1)(c)(i) of

the Delhi Cooperative Societies Rules, 1973 (hereinafter referred to as

the Rules) arises for decision in this petition. The said Rule, to the

extent it is relevant for the purposes of this case, is reproduced

below:-

"Rule 25: Disqualification of membership

(1) 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 construction of a residential 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 lease hold or free hold basis :

provided, disqualification as laid down in Sub- Rule (1)(c)(i) 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 facts necessary for deciding the present petition are as

under:-

Petitioner became the member of respondent no. 6 Society in

the year 1982. As per the petitioner, he continued to pay his share.

He has, in all, paid Rs.1,20,000/- towards the share of construction to

the Society. On 20.04.1989, petitioner received a show-cause notice

from the Registrar of Cooperative Societies, i.e., respondent no. 3

wherein it was stated that it had been brought to the notice of the

Department that the wife of the petitioner had property no. 8649,

Shastri Nagar, Delhi in her name and as such petitioner had incurred

the disqualification under Rule 25(1)(c)(i) of the said Rules. A reply

was submitted by the petitioner wherein he stated that the area of the

said house was 70 sq. yds. and was situated in a slum area and he was

only a care taker as the Power of Attorney was in the name of his wife

and, as such, he had not incurred disqualification as is alleged.

3. The Registrar heard the petitioner as well as the Society and

thereafter passed order dated 07.11.1991 holding that the case of the

petitioner was weak as his wife purchased house no. 8649, Shastri

Nagar, Delhi in 1982 and the petitioner became member of the

Society in 1983. It was also held that even a Power of Attorney

holder attracts the disqualification under Rule 25(1)(c)(i) of the

aforesaid Rules and further held that even if the house was in

unauthorized colony, the same was not exempted from the application

of Rule 25(1)(i)(c). The Registrar therefore terminated the

membership of the petitioner from the aforesaid Society and ordered

refund of his share money.

4. Aggrieved with the order of the Registrar dated 07.11.1991, the

petitioner challenged the same before the Financial Commissioner,

Delhi by filing a Revision Petition under Section 80 of the Act,

wherein the petitioner reiterated his stand as was contended before the

Registrar. The Financial Commissioner rejected the Revision Petition

and upheld the order of the Registrar vide the impugned order dated

16.09.1994. The relevant portion of the same is as under:-

"I do not find any force in either of the two grounds of assailment raised by the petitioner. Undeniably, a house has been constructed on the plot, purchased by his wife, which is available for

their inhabitation. It is incorrect to argue that ownership through purchase on power of Attorney has any inferiority in the title of ownership and does not come in the way for disqualification. I hold with the learned Registrar that the intention of the Rule under reference is to debar anybody, already having a shelter from becoming a member of a housing society. Similarly, the exemption under Rule 25 has been extended only in case of ancestral property, measuring less than 80 square yards, falling in a notified slum area. Here, in this case, the property in question was acquired by the wife of the petitioner in the year 1982 and the petitioner became a member of the society in the year 1983. That being so, the disqualification is very much applicable in the case of the petitioner and it has rightly been so decided by the learned Registrar."

5. Aggrieved with the aforesaid order, the present petition is filed.

6. It may be mentioned that nobody has appeared on behalf of the

petitioner to assist the court. We have heard arguments of the learned

counsel for the respondent no. 3, i.e. Registrar Cooperative Societies.

7. Rule 25(1)(c)(i) has been interpreted in three decisions of this

court, i.e. O.P. Sethi v Lt. Governor: 45(1991) DLT 426, Navjeevan

Co-operative House Building Society Ltd. v Delhi Co-operative

Tribunal: CWP 3150/1985 decided on 10.07.1987 and Shri Sita

Ram Jain v Registrar of Co-operative Societies: CWP 3203/1992

decided on 15.11.1995.

8. In Navjeevan Co-operative House Building Society Ltd. v

Delhi Co-operative Tribunal, a learned Single Judge of this court

held:-

"The provisions of Rule 25 in so far as they disqualify persons from being members of the Co- operative society need to be strictly construed and unless any person is clearly covered by the terminologies which are used to disqualify, no disqualification should attach to such a person."

"The clear intent of this rule is, therefore, that those who hold properties "Benami" either in their wife's name or in the name of their dependent children, were not intended to be permitted to become a member of the Co-operative House Building Society."

9. Relying on the aforesaid judgments, the Division Bench of this

court in Alimuddin v The Registrar Co-operative Societies & Ors.:

63 (1996) DLT 655 considered the question again in the context of

the facts wherein membership of the petitioner therein had been

terminated on the ground that during his membership with the

Society, a Power of Attorney was executed in favour of his wife in

respect of one plot at Delhi. In the said case, the Division Bench

considered the earlier decisions of this court which are referred to

above. After considering the said decisions, the Division Bench

observed as under:-

"The view taken by this Court has been that to attract the applicability of Rule 25(1)(c)(i), the member of the Society must own a residential house or a plot of land for the construction of a house in his own name or in the name of his spouse or a dependent child. The phrase "in the name of" has been interpreted to mean the ownership must be of the member though it may stand Benami in the name of the wife or a child."

The Division Bench in Alimuddin's case also observed as

under:-

"We see no reason to take a view different from what has been taken on three occasions by this Court."

10. The present case is covered by the decision in Alimuddin's

case (supra). We have also taken the same view in a similar case

decided by us recently - Jagdish Chander v Lt. Governor & Ors:

W.P. (C) No.1646/1995 decided on 22.07.2009. The membership of

the petitioner with respondent no. 6 has been terminated on the ground

that wife of the petitioner owns a plot of 70 sq. yds. bearing no. 8649

at Shastri Nagar, Delhi. The stand of the petitioner all through has

been that his wife had a Power of Attorney in respect of the said plot

and the same was in a slum area, and, as such, he did not incur any

disqualification as alleged. It is an admitted position that the aforesaid

property is not in a 'notified' slum area. As such, the protection given

in the proviso to aforesaid Rule is not applicable. Under Rule

25(1)(c)(i) which has already been reproduced above, the membership

can be terminated if a member owns a residential house/plot in any of

the approved or unapproved 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. There is

nothing on record to show that ownership of plot bearing no. 8649,

Shastri Nagar, Delhi is of petitioner and the same stands Benami in

the name of his wife. The same was also not the case of the

Department while issuing the show-cause notice to petitioner nor any

such contention was raised before the Registrar or before the Financial

Commissioner or before this court. The proceedings have been

initiated against petitioner for cessation of membership on the ground

of ownership of plot in the name of his wife in her own capacity. The

respondents were not justified in doing so.

11. In any event, there are also no sufficient documents on record to

show that wife of the petitioner owns plot no. 8649, Shastri Nagar,

Delhi. Under Section 54 of the Transfer of Property Act, ownership

of a property can be transferred by a registered document. It is not the

case of the respondents that there is a registered sale deed/document

of title in her favour. It is also not the case that she has got the

aforesaid plot on leasehold or freehold basis. However, even

assuming that the wife of the petitioner is the owner of the aforesaid

plot, she would be regarded as the owner in her own right and in her

own name and the same can't be said to be a disqualification of the

petitioner, as is alleged.

12. As a result of above discussion, we are of the view that

petitioner did not incur any disqualification under Rule 25(1)(c)(i) of

the said Rules.

13. We, therefore, set aside the impugned order dated 16.09.1994

passed by the Financial Commissioner. The petitioner will retain his

ranking as per the original seniority list. The allotment shall be made

according to the said seniority.

The writ petition stands disposed of accordingly. Parties are

left to bear their own costs.

VEENA BIRBAL, J

BADAR DURREZ AHMED, J

AUGUST 10, 2009 kks