Sh P. L. Gupta & Anr vs The Registrar Of Cooperative ...
2009 Latest Caselaw 2509 Del

        THE HIGH COURT OF DELHI AT NEW DELHI
%                                  Judgment delivered on: 07.07.2009

+                W.P(C) 304/1989

SH P. L. GUPTA & ANR                                       ..... Petitioners

                                    - Versus -


THE REGISTRAR OF COOPERATIVE
SOCIETIES & ORS.                                           ..... Respondent

Advocates who appeared in this case:-

For the Petitioners              : Mr Rakesh Munjal, Sr Advocate with
                                   Mr Sumant De
For the Respondent No. 1         : Mr V. K. Tandon
For the Respondent No. 2         : Ms Priya Kumar
For the Respondents 3,4,6 & 7    : Mr V. K. Rao
For the Respondents 5, 8 & 9     : Mr Rakesh Tiku

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. This writ petition has been filed by persons who were employees

of the Council for Scientific and Industrial Research (CSIR). The issue

relates to the membership and allotment of plot in respect of the CSIR

Employees Cooperative House Building Society Limited (respondent

No. 2).

2. The petitioners are aggrieved by the Registrar's order dated

19.01.1988 which reads as under:-

"I have carefully gone through the contents of the various complaints and considered the explanation put forth by them today at the time of hearing. The case of S/Sh. V. M. Bucher & K. N. Johri are very clear to the extent that they took over the possession of DDA flat after their membership with the society was transferred in favour of their respective sons. Therefore, at no stage they were in possession of a property including the DDA flats before transferring the membership. As such I am quite clear in my mind that they had not incurred any disqualification on this account. Regarding the case of Sh. N. Sen it is only a technical requirement which has not been completed due to matters lying pending in this department as well as the society. Otherwise the intentions of Sh. Sen have been very clear from the fact that he also did inform the society well in time about the registration and also acquisition of the DDA flat. The transfer of membership in his case too was much before he took over the possession of the DDA flat. Therefore, had he completed the required formalities in time he would have also not attracted disqualification. To put the things straight, it is now directed that Sh. Sen shall complete all legal and procedural requirements for the transfer within 30 days from the date of issue of this order. The society shall give him the list of such documents to be furnished by him immediately so that the needful is done within the time limit prescribed. In case, Sh. Sen does not abide by this decision within 30 days from the date of this order the transfer in question shall be deemed as invalid.

The parties before me have been informed.

Sd/-

(G. P. SEWALIA) REGISTRAR 19.01.1988"

3. Aggrieved by the said order, the petitioners had initially filed an

appeal before the Delhi Cooperative Tribunal. The same was

numbered as case No. 29/1988. However, that appeal was dismissed

by an order dated 25.11.1988 by the said Tribunal on the ground that it

was not maintainable under Section 76 of the Delhi Cooperative

Societies Act, 1972. Left with no other alternative, the petitioners filed

the present writ petition challenging the said order dated 19.01.1988.

4. The main point urged by the petitioners is that the transfer of

membership by the respondent Nos. 3, 4 and 5 in favour of their

children being respondents 6-9 was invalid. It is an admitted position

that respondent No. 3 sought the transfer of his membership to the

respondent No. 6 (son); respondent No. 4 sought the transfer of his

membership to respondent No.7 (son); and respondent No. 5 sought the

transfer in favour of respondents 8 and 9 (sons).

5. The learned counsel for the petitioners drew our attention to the

bye-laws of the CSIR Employees Cooperative House Building Society

Limited (respondent No.2). Bye-law 5 (i)(a) reads as under:-

"A person is eligible to become a member of the society provided he is a CSIR employee, New Delhi"

Bye-law 8(viii) reads as under:-

"A member or the nominee or successor of an ex-member may transfer his shares to another member or applicant qualified under bye-law (5) and approved by the committee or to a share transfer fund."

The learned counsel for the petitioners submitted that the said bye-laws

read together permitted the transfer of a membership under two

situations. The first situation was where the transferor and the

transferee were members of the society. The second situation was

where the transferor was a member of the society and the transferee,

who was the applicant, was otherwise qualified under bye-law 5(i)(a)

of the said bye-laws, which, in effect, meant that the transferee had to

be a CSIR employee. The learned counsel submitted in the transfers

sought by respondents 3, 4 and 5 in favour of their sons, it is apparent

that none of the proposed transferees were CSIR employees at any

point of time. It is, therefore, submitted by him that the said transfers

could not have been approved by the society or by any other authority

in contravention of the bye-laws. This aspect of the matter was not

considered by the Registrar when he passed the impugned order dated

19.01.1988 and, therefore, he seeks the setting aside of the said order.

6. The learned counsel appearing for the respondents 3-9 submitted

that subsequent to the framing of the said bye-laws, the Lieutenant

Governor issued instructions on 27.05.1979 whereby guidelines have

been issued for substitution / addition of family members. As per the

submission of the learned counsel for the respondents, transfers to

family members have been permitted. Therefore, according to the

learned counsel for the respondents no fault can be found with the

impugned order in not considering this aspect of the matter.

7. After hearing the counsel for the parties, we note that the

Lieutenant Governor does have powers to issue such instructions as

were issued on 27.05.1979. We also note that the guidelines contained

in paragraph B(v)(c) also requires consideration. This aspect of the

matter was not at all considered by the Registrar when he passed the

order dated 19.01.1988. It is for this reason that we are of the view that

the impugned order dated 19.01.1988 be set aside and the matter be

remanded to the Registrar to consider the issues afresh after taking into

consideration the bye-laws of the society as well as the Lieutenant

Governor's instructions issued on 27.05.1979. Apart from this, the

Registrar shall also consider any other objections that may be taken by

the parties including the question of disqualification under Rule 25 of

the Delhi Cooperative Societies Rules, 1973.

8. The learned counsel appearing on behalf of the respondent No. 2

society also mentioned that the DDA has, in the meanwhile, by a letter

dated 06.01.2005 informed the society that the flats which were allotted

to the respondents have been cancelled on the dates indicated in the

said letter. The Registrar shall also take note of this fact before he

takes a decision in the matter.

9. The counsel for the parties submit that since it is an old matter,

some direction with regard to time be given. Consequently, we direct

that the Registrar shall give his final decision within three months. We

make it clear once again that the parties would be entitled to place any

material that they would like the Registrar to examine before he passes

the order. In the first instance, the parties shall appear before the

Registrar on 13.07.2009 at 3 pm.

This writ petition stands disposed of.

BADAR DURREZ AHMED, J

VEENA BIRBAL, J JULY 07, 2009 SR