Subhash Verma vs The Co-Operative Society Cell, ...
2009 Latest Caselaw 4941 Del

             THE HIGH COURT OF DELHI AT NEW DELHI

%                                          Judgment delivered on: 02.12.2009

+      WP (C) 3867/1998

SUBHASH VERMA                                                    ...        Petitioner

                                      - Versus -

THE CO-OPERATIVE SOCIETY CELL,
DDA & OTHERS                                                     ...        Respondents

Advocates who appeared in this case:-

For the Petitioner                   : Mr R.K. Saini with Mr Rajeev Kumar
For the Respondent/DDA               : Ms Renuka Arora
For the Respondent/Intervener        : Mr Raman Kapoor

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 ?

2. To be referred to the Reporter or not ?

3. Whether the judgment should be reported in Digest ?

BADAR DURREZ AHMED, J (ORAL)

1. On 28.10.2009, when this matter came up for hearing, we had passed

the following order:-

"The prayer in this writ petition is for allotment of a plot No. B- 14 in the Cosmopolitan Cooperative Group House Building Society known as Mayfair Gardens. The case of the petitioner is that on 15.12.1985, the respondent No.3 Society, recognizing that the petitioner is the senior most member in the wait list, wrote a letter to the Registrar of Cooperative Societies. On 31.03.1986, the respondent No.1 (DDA) sent a reply to the petitioner in response to his letter dated 12.01.1986, indicating that no allotment could be made as there was no plot/flat available for allotment in the Society. The petitioner was also informed by the DDA that his claim for allotment would be considered only after any vacancy arose in future. On 11.06.1996, a vacancy arose inasmuch as the allotment of one member (Mrs. Sushila Bhavnani) was cancelled by the DDA.

At an earlier point of time, the allotment of plot No.B-14 had been made in favour of Mrs. Sushila Bhavnani. By virtue of the letter dated 11.06.1996, the DDA communicated that the sub- lease in favour of Mrs. Sushila Bhavnani stood cancelled. Thereafter, on 22.06.1996, the respondent Society sent a letter to the DDA requesting it to allot plot No.B-14 to the petitioner in recognition of the fact that the petitioner was the senior most in the waiting list. By a letter dated 18.06.1997, the Registrar of Cooperative Societies informed the respondent Society that the competent authority had accorded approval for the clearance of the name of the petitioner in respect of the vacant plot. A copy of the said letter was also marked to the DDA.

Since the DDA did not make any allotment in favour of the petitioner nor was any sub-lease executed by the DDA in favour of the petitioner in respect of the plot No. B-14 of the Society, the petitioner filed the present writ petition sometime in August 1998. The counter-affidavit filed on behalf of the DDA clearly took the stand that after the request was received from the Registrar of Cooperative Societies for allotment and for execution of sub-lease by DDA, a stay order had been passed in Suit No. 1030/1984 entitled "Kamal Kumar v. Susheela Bhavnani". The said stay order dated 09.01.1998 was passed in interlocutory applications being I.A. No. 172/98 (u/o 39 Rule 1 & 2), I.A. No.173/98 (u/o 1 Rule 10), I.A. 174/98 (u/o 6 Rule 14) filed in the said suit No.1030/1984. By virtue of the said order dated 09.01.1998, notice had been issued on the applications and the following further direction was made:-

"Meanwhile, the DDA may not take any further steps for effecting any change in the allotment of plot No.B-14, Mayfair Gardens, New Delhi."

Thus, the stand of the DDA was that it is because of this stay order that no further steps have been taken for carrying out the allotment of plot No.B-14 in favour of the petitioner. The stand taken by the DDA is reflected in the counter-affidavit filed on 19.01.2000.

Thereafter, on account of the raising of the pecuniary jurisdiction of the Delhi High Court, the suit was transferred to the District Court and was re-numbered as Suit No.184/2001. The said I.A. No.172/98 and 173/98 along with other applications came to be heard and finally disposed of by the trial court by an order dated 31.05.2002. The said I.A. No.172/1998 restraining DDA and Society from allotting the suit property to anybodyelse came to be dismissed. I.A. No.173/1998 whereby impleadment of DDA and respondent Society was sought also came to be dismissed. However, by virtue of the said order dated 31.05.2002, the court was of the view that if DDA or the Society allots the said property to any other person during the pendency of the suit, it would not confer any legal right on the transferee. It is, of course, clear

that the present petitioner was not a party to the suit proceedings nor he was sought to be impleaded as a party thereto.

In the present writ petition, CM No. 10012/1998 has been moved by the plaintiff in the said suit, namely, Kamal Kumar, seeking impleadment. At the time of admission of the said application, it was directed that the same be heard at the time of final arguments.

The case of the petitioner is that the only impediment in the way of the DDA in allotting plot No.B-14 in favour of the petitioner was the stay order dated 09.01.1998. Now that the said order no longer exists, there is no hurdle in the way of the DDA in allotting the said plot in favour of the petitioner. It is also the case of the petitioner that whatever may be the dispute between Kamal Kumar and Mrs. Sushila Bhavnani, it does not concern the petitioner. The learned counsel for the petitioner submitted that since the cancellation of the sub-lease of the plot in favour of the Sushila Bhavnani has not been challenged in any forum, therefore, the plea of Sushila Bhavnani's title intervening cannot be raised. He submitted that if Kamal Kumar has any grievance against Sushila Bhavnani, the same would be adjudicated in the suit. According to him, the plot bearing No.B-14, is free for allotment and there is no impediment before the DDA in allotting the same to him.

Mr. Raman Kapur, who appears for the applicant Kamal Kumar, who seeks impleadment, submitted that the cancellation has not been challenged because of collusion between the petitioner and his father-in-law Mr. D.R. Khera, who is the attorney of Sushila Bhavnani and is representing her in the suit. To further buttress his submission, Mr. Raman Kapur states that the present writ petition is also being pursued by Mr. Suresh Khera s/o D.R. Khera, who is the attorney of the petitioner.

The learned counsel appearing for the DDA seeks time to take instructions with regard to further developments after the filing of the counter-affidavit by them. We feel that it would be appropriate if a short affidavit is filed on behalf of the DDA clearly spelling out its stand in view of the aforesaid development. The said affidavit be filed within one week.

Renotify on 17.11.2009."

2. Thereafter, an affidavit has been filed on behalf of the respondent

DDA. The affidavit, which is dated 01.12.2009, clearly indicates that the

Cosmopolitan Co-operative House Building Society Limited had

recommended the name of the petitioner being the senior most member in

the waiting list. The said recommendation was made to the Registrar of Co-

operative Societies. It is also an admitted position that the DDA sent a letter

to the petitioner in response to his letter dated 12.01.1986 indicating that, as

no plot was vacant, no allotment could be made in his favour. The affidavit

further reveals that on 11.06.1996, allotment of one of the members, namely,

Smt. Sushila Bhavnani, was cancelled and, therefore, the name of the

petitioner was approved by the society as well as by the Registrar of Co-

operative Societies. In paragraph 3 of the said affidavit filed by the DDA, it

is stated that in the meanwhile a suit No.1030/1984 (titled Kamal Kumar v.

Sushila Bhavnani) had been filed and an order dated 09.01.1998 had been

passed restraining the DDA from taking any steps for effecting any change

in the allotment of the plot in question. Thus, no further steps were taken.

However, it is stated that at present the ownership of the plot in question

vests with the DDA after cancellation of the allotment in favour of Smt.

Sushila Bhavnani.

3. We have heard the counsel for the petitioner, the counsel for the

respondent/DDA, the counsel appearing on behalf of the intervener in CM

No.10012/1998 as well as Mr Arvind Kumar, advocate, who stated that he

represents Smt. Sushila Bhavnani.

4. In our order dated 28.10.2009, which we have extracted above in its

entirety, we had made it clear that the so-called stay order dated 09.01.1998

was passed in the interlocutory applications (being IA Nos. 172/1998,

173/1998 and 174/1998) filed in the said suit No.1030/1984. The said IA

Nos. 172/1998 and 173/1998 were disposed of by the trial court by an order

dated 31.05.2002 as indicated above. By virtue of the said order dated

31.05.2002, the trial court was of the view that if the DDA or the society

allotted the said plot to any other person during the pendency of the suit, it

would not confer any legal right on the transferee. Thus, it is clear that at

present there is no impediment in the way of the DDA in allotting Plot No.

B-14 in favour of the petitioner inasmuch as the stay order dated 09.01.1998

passed by the trial court no longer exists. The only condition that is imposed

is by virtue of the order dated 31.05.2002. But that does not come in the

way of the DDA allotting the plot to any other person not being a party to

the said suit. According to the learned counsel for the petitioner, he is not

concerned with the said order dated 31.05.2002 inasmuch as, according to

him, he is not a party to the said suit and it does not affect him in any

manner.

5. This being the position, we direct that the DDA shall make the

allotment of Plot No. B-14 in favour of the petitioner whose name has

already been recommended for allotment both by the society as well as by

the Registrar of Co-operative Societies. The said allotment be completed

within a period of six weeks. Insofar as the rights of Kamal Kumar and

Sushila Bhavnani are concerned, those will be decided in the said suit

pending in the trial court.

With these directions, the writ petition stands disposed of.

                                       BADAR DURREZ AHMED, J



December 02, 2009                             VEENA BIRBAL, J
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