Jasjit Kaur vs Registrar Co-Op. Society
2009 Latest Caselaw 2517 Del

               THE HIGH COURT OF DELHI AT NEW DELHI

%                                                Judgment delivered on: 08.07.2009

+      W.P.(C) 686/1992


JASJIT KAUR                                                        ..... Petitioner


                                      -Versus-



REGISTRAR CO-OP. SOCIETY                                           ..... Respondent

Advocates who appeared in this case:-

For the Petitioner : Mr Rakesh Munjal, Sr. Advocate with Dr Saif Mahmood, Mr H.P. Singh & Mr Sumant De.

For the Respondent No.1 : Ms Sujata Kashyap For the Respondent No.2 : Mr R.K. Gupta

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

BADAR DURREZ AHMED, J (ORAL)

1. This writ petition has a chequered history. The prayer of course is for

allotment of one plot to the petitioner measuring 125 sq. yards in the Hindustan

Cooperative House Building at Guru Harkishan Nagar, Paschim Vihar, New Delhi.

At present, pursuant to various orders, the petitioner has been allotted one plot

measuring 125 sq. yards. The said plot bears No.348. The petitioner has also paid

the entire consideration in respect of the said plot. However, pursuant to the orders

passed by the Supreme Court, further proceedings such as handing over of

possession has not taken place, however the plot has been kept in reserve by

respondent No.2.

2. Initially, this writ petition was disposed of by an order dated 16.02.2006. On

that date, nobody had entered appearance on behalf of the respondent No.2 Society

(Hindustan Cooperative House Building Society). The Division Bench hearing the

matter on that date, after hearing the counsel for the petitioner and the counsel for

the respondent No.1 (Registrar, Cooperative Societies, New Delhi), allowed the

petition and directed the respondent No.1 to forthwith recommend the case of the

petitioner for allotment of a plot in category ‗C' of the size of 125 sq. yards.

3. The respondent No.2 filed a review petition being RP No.268/2006. The

same was also dismissed by an order dated 19.01.2007.

4. Thereafter, the respondent no.2 took the matter to the Supreme Court by

filing a Special Leave Petition being SLP(C) No.9866/2007 which was converted

into an appeal after leave was granted and the same was numbered as Civil Appeal

No.957/2009. The Supreme Court by virtue of its judgment dated 12.02.2009 in

the said Civil Appeal No.957/2009 directed that the writ petition needed to be

heard by the High Court afresh keeping in mind the aspects of the matter which

had been pointed out by the Supreme Court. The Supreme Court had specifically

indicated that Rule 25(2) of the Delhi Co-operative Societies Rules, 1973 (herein

referred to as ‗the said rules') had not been considered. The said rule provided for

a deemed disqualification and, according to the Supreme Court, this provision had

not been examined by this court in its earlier orders dated 16.02.2006 and

19.01.2007. The other aspect which was specifically pointed out by the Supreme

Court was the question of alternative remedy being available to the petitioner

before it filed the writ petition before the court. The Supreme Court required this

court to also examine this aspect of the matter. It is in these circumstances that the

matter is once again before this court.

5. The facts are that the petitioner's father Mr Anoop Singh was enrolled as a

member of the respondent No.2 Society on 09.11.1960. Sometime in 1962, the

said Mr Anoop Singh purchased another plot of land in Green Park Extension,

New Delhi measuring about 463 sq. yards. It is an admitted position that prior to

the coming into effect of the Delhi Cooperative Societies Act, 1972 (hereinafter

referred to as ‗the said Act') and the said rules made thereunder, there was no

stipulation by way of any statute or rules made thereunder with regard to owning

more than one plot of land as a pre-condition for membership in this society.

Consequently, Mr Anoop Singh continued to be a member of the respondent No.2

society while he, at the same time, held the said plot at Green Park Extension.

6. On 09.05.1972, Mr Anoop Singh made an application to the society for

transfer of his membership in the society in favour of his daughter Ms Jasjit Kaur

(the petitioner herein). The transfer was allowed by the Managing Committee of

the respondent No.2 society in its meeting held on 05.09.1973. Thereafter, a letter

dated 18.11.1973 was issued by the respondent No.2 society in favour of Mr

Anoop Singh indicating that his application for transfer of his share in favour of his

daughter Ms Jasjit Singh had been allowed by the Managing Committee in its

meeting held on 05.09.1973. Mr Anoop Singh was requested to return the share

certificate and the original receipts issued by the society to enable the society to

finalise the transfer. The transfer fee was also paid and was accepted by the

society vide letter dated 22.10.1974.

7. At this stage, we may point out that in the meanwhile, the said Rules had

come into force on 02.04.1973. Rule 25, as introduced on 02.04.1973, pertains to

disqualification of membership and is reproduced hereunder:-

―25. Disqualification for Membership

1. No person shall be eligible for admission as a member of a co-operative society if he--

(a) has applied to be adjudicated an insolvent or is an undischarged insolvent; or

(b) has been sentenced for any offence other than an offence of a political character or an offence not involving moral turpitude and dishonesty and a period of five years has not elapsed from the date of expiry of the sentence:

(c) in the case of membership of a housing society:

(i) 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 National Capital 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 or on power of attorney or on agreement for sale:

Provided that disqualification of membership as laid down in sub-rule (1)(c)(i) shall not be applicable in

case of co-sharers of property whose share is less than 66.72 sq. metres of land:

Provided further that the said disqualification shall not be applicable in case of a person who has acquired property on power of attorney or through agreement for sale and on conversion of the property from leasehold to freehold on execution of conveyance deed for it, if such person applies for the membership of the housing society concerned;

(ii) he deals in purchase or sale of immovable properties either as principal or as agent in the Union Territory of Delhi; or

(iii) he or his spouse or any of his dependent children is a member of any other housing society except otherwise permitted by the Registrar.

2. Notwithstanding anything contained in the rules or the bye-laws of the co-operative society, if a member becomes, or has already become, subject to any disqualification specified in sub-rule (1), he shall be deemed to have ceased to be a member from the date when the disqualifications were incurred.

3. A member who ceases to be a member of a co-operative society under sub-rule (2), shall not be entitled to exercise rights of memberships or incur liability as member with effect from the date referred to in sub-rule (2) but as from the date he becomes a creditor of the co-operative society in respect of the amount due to him on account of paid up share capital, deposit, cost of land deposited or any other amount paid by him to the co-operative society as its member. As from the date of his ceasing to be a member or the society under sub-rule (2), the amount standing to his credit shall be paid to him by the co- operative society within 3 months and when the co-operative society is already under liquidation, the amount due to him will be credited as a debt due to a third party from the co-operative society.

4. If any question as to whether a member has incurred any of the disqualification referred to in sub-rule (1) arises, it shall be referred to the Registrar for decision. His decision shall be final and binding on all concerned. The power of the Registrar under this rule shall not be delegated to any other person appointed to assist the Registrar.‖

8. A perusal of Rule 25(2) makes it clear that after the said Rules came into

force, if a member became or had already become, subject to any disqualification

specified in sub-rule(1), he was deemed to have ceased to be a member from the

date when the disqualification was incurred. In the present case, the rule which is

to be considered is Rule 25(1)(c)(i). The said Rule stipulates that no person shall

be eligible for admission as a member of the cooperative society, if 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 National Capital

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.

9. It is clear that if Rule 25(2) read with Rule 25(1)(c)(i) were to apply, then

the transfer of the membership from Mr Anoop Singh to Ms Jasjit Kaur would not

have taken place inasmuch as Mr Anoop Singh would not have been entitled to

retain his membership as he would be under a deemed disqualification in view of

the fact that he already owned a residential plot in Green Park Extension, New

Delhi. This is one aspect of the matter which, the Supreme Court felt, needed

consideration as to whether the deeming clause provided in Rule 25(2) would

come into operation or not. We shall examine this aspect later after completing the

narration of facts.

10. Once the transfer of the membership was approved by the Managing

Committee, nothing transpired for about five years, i.e., till 1979 when an

administrator was appointed in place of the Managing Committee. Upon the

administrator taking charge of the respondent No.2 society, the view taken by the

administrator was that the petitioner could not be allotted any plot of land unless

and until the original allottee, i.e., Mr Anoop Singh gave an affidavit to the effect

that he did not own any other plot of land in Delhi. In other words, the

administrator was insisting on the application of disqualification prescribed under

Rule 25(1)(c)(i). The petitioner received a letter on 22.1.1982. The said letter

reads as under:-

―HINDUSTAN CO-OP. House Building Society Ltd.

                    Regd. A.D.                 922-23, Faiz Road
                                               Karol Bagh
                                               New Delhi - 110005

       Ref No. 156/4005                        Dated January, 22, 1982

       Smt Jasjit Kaur
       7/6, West Patel Nagar
       New Delhi

       Madam,

It appears from the record that share of Shri Anoop Singh son of Shri Hari Singh was transferred to your name.

As per policy of the Delhi Administration the transfer only to blood relations can be allowed on submission of the Indemnity bonds and the affidavits of the transferer and the transferee. It has been noted that in your case the affidavit of the transferer has not been filed and therefore transfer in your name could not be got approved.

In cases where the transferers affidavits are not filed, it is proposed that the transferees be enrolled fresh member of the society w.e.f. the date of transfer. But before doing so, the resignation from the transferer, the original member, will have to be obtained.

You are, therefore, requested to please arrange to submit the letter of resignation of Shri Anoop Singh s/o Sh. Hari Singh as per the enclosed proforma and submit your own affidavit (proforma of which is also enclosed herewith) on a non-judicial stamp paper of Rs 2/- duly attested by a Notary Public or a Magistrate I Class.

On receipt of the above documents, your name will be considered for enrolment as stated above and your name will placed in the category ‗C' of 125 sq. yds.

In case these documents are not received by 10.2.82 it will be presumed that you are not interested in the membership of the society.

Yours faithfully Sdxxx Encl 2. Pritam Singh Oberoi Hony. Secretary‖

11. A reading of the said letter indicates the following:-

(i) That from the records of the society the membership of Mr Anoop

Singh stood transferred to the petitioner;

(ii) As per the policy of the Delhi Administration, the transfer was

permissible only to blood relations on submission of indemnity bonds

and affidavits of both the transferer and the transferee;

(iii) That the transferer had not filed any affidavit and, therefore, the

transfer in the name of the petitioner ‗could not be got approved';

(iv) It was therefore, proposed that the transferee, that is, the petitioner

herein be enrolled afresh as a member of the society with effect from

the date of transfer but before doing so, the resignation of the

transferer, that is, of Mr Anoop Singh would have to be obtained;

(v) On receipt of the said documents, the petitioner's name was to be

considered for enrolment as a member and for placing her name in

category ‗C' for allotment of 125 sq. yards plot.

12. It appears that, left with no alternative, the petitioner even went to the extent

of submitting the resignation letter of her father Mr Anoop Singh and also

submitted her affidavit to the effect that she did not own any plot or house in Delhi

either in her own name or in the name of her dependents. However, the respondent

No.2 kept on insisting that the affidavit of Mr Anoop Singh stating that he did not

own any other property in Delhi be filed and unless and until such an affidavit was

filed, there was no question of the transfer being recognized or the plot being

allotted to her.

13. Being aggrieved by this attitude of the respondent No.2, the petitioner filed

the present writ petition. This also raises the second aspect of the matter which the

Supreme Court wanted this court to consider and that is the question of alternative

remedy. According to the learned counsel for the respondent No.2, the petitioner

had the alternative remedy of invoking the provisions of Section 60 of the said Act

and raising the dispute which could thereafter be arbitrated upon. The petitioner

has not availed of that alternative remedy and has straightaway come to this court

under Article 226 of the Constitution of India and, therefore, the petition ought not

to be maintained on this ground also. However, according to the learned counsel

for the petitioner, the said alternative remedy was an illusory alternative.

According to him, the stand taken by the respondent society was that of the

administrator who also held the position of Deputy Registrar in the Office of the

Registrar of Cooperative Societies and was under the supervision and control of

the Registrar. According to him, it would have been a futile exercise in invoking

the provisions of Section 60 of the said Act inasmuch as, at the very first stage

itself, it is the Registrar or Office of the Registrar which has to decide as to

whether a reference has to be made or not and the petitioner's case could have

easily been thrown out at the threshold itself. It is for this reason that the present

petition was filed before this court and the remedy of Section 60 was not invoked

because that was not an efficacious alternative remedy. Apart from this, the

learned counsel for the petitioner submitted that over 17 years have elapsed since

the filing of the present petition and the said alternative would now definitely not

be an equally efficacious remedy. The learned counsel for the petitioner pointed

out that this question of alternative remedy was raised by the respondent No.2 for

the first time before the Supreme Court. He submits that, in fact, the respondent

No.2, despite service of notice, had not entered appearance before this court and

had been proceeded against ex-parte.

14. The main issue that arises for our consideration is whether Rule 25 of the

said Rules would apply to the application for transfer of membership which was

made by Mr Anoop Singh on 09.05.1972. It is clear that when the application was

made on 09.05.1972, neither the said Act nor the said Rules were in operation.

What was in operation was known as the Bombay Cooperative Societies Act, 1925

and the rules made in respect of Delhi were known as the Delhi Cooperative

Societies Rules, 1950, and neither of them prescribed any disqualification such as

the disqualification stipulated in Rule 25(1)(c)(i). In other words, prior to the

enactment of the said Act and the framing of the said Rules, there was no

stipulation under the Bombay Act or the 1950 Rules whereby a member of a

society, unless the bye-laws of the particular society itself so stipulated, was

prevented from holding the membership on the ground that he owned other

property in Delhi. Such a stipulation, as a part of the Act or Rules framed

thereunder, came into operation for the first time when the said Rules came into

force, that is, on 02.04.1973, there was no such stipulation even in the said Act

which had come into force earlier. It has only come by way of the rules framed

thereunder, which we have already indicated, came into operation on 02.04.1973.

The issue that requires to be considered is whether the said Rules would apply to

the application which was pending on the date on which the said Rules came into

force.

15. We have considered the arguments advanced by the counsel for the parties.

The learned counsel for the petitioner submitted that the law that would be

applicable would be the law which was prevalent on the date on which the

application was made and not on the date on which the application was ultimately

decided. Thus, according to the learned counsel for the petitioner, the applicable

law would be the law prevalent on 09.05.1972 and not the law which was prevalent

on 05.09.1973 when the Managing Committee approved the transfer. On the other

hand, the learned counsel for the respondent No.2 submitted that the law that

would be applicable would be the law that was prevalent on the date on which the

transfer was made. Thus, according to him, the transfer would have to be judged

from the stand point of the Rules which had already come into force on the date on

which the transfer was approved. It was his case that the transfer could not have

been carried out inasmuch as by virtue of the deeming provisions of Rule 25(2)

read with Rule 25(1)(c)(i) Mr Anoop Singh could not have continued as a member

of the society after 02.04.1973 in view of the fact that he owned a plot in Green

Park Extension. Thus, since he could not have continued as a member and was

disqualified as a member, there was no question of his ‗membership' being

transferred to the petitioner.

16. The learned counsel for the respondent No.2 drew our attention to three

decisions of this court. Two decisions were of Division Benches which had taken

conflicting views on the question of further Rule 25 was retrospective or

prospective in operation. The two Division Bench decisions were:-

1. Balraj Madhok & Ors. v. Registrar of Co-operative Societies and Others: ILR (1974) II Delhi 684 ; and

2. S.B. Lall & Anr. v. Registrar of Co-operative Societies, New Delhi & Anr.: ILR (1977) Delhi 164= AIR 1977 Delhi 236.

This controversy between the two Division Benches was resolved by a Full Bench

decision in the case of Daulat Ram Mehndiratta v. Lt. Governor, Delhi: AIR

1982 Delhi 470 (FB).

17. The Full Bench was of the view that Rule 25(2) was not retrospective. It

clarified that the effect of Rule 25(2) is that it operates in the future though the

basis of taking action is the factum of acquiring a plot in the past. This observation

was made in the context of the petitioner who was a member of the society and

continued to be a member of the society when the said Rules came into operation.

His disqualification was considered even after the application of the said Rules on

the basis of the fact that he had already acquired a plot of land prior to 02.04.1973

when the said Rules came into operation. The Full Bench was of the view that the

factum which was relevant was that he already had a plot of land before the Rules

came into operation and that consideration of this fact did not amount to make the

provision retrospective. The Full Bench was of course of the view that the Rules

were prospective in operation and were not retrospective. Relying upon this, the

learned counsel for the respondent No.2 submitted that in the present case also

since the application for transfer was pending on the date when the Rules came

into operation, the disqualification prescribed under Rule 25(1)(c)(i) would apply

to Mr Anoop Singh and although the rule would not have retrospective operation

the factum that Mr Anoop Singh had another plot in Delhi could be considered and

this would not be regarded as a retrospective application of the rule.

18. On the other hand, the learned counsel for the petitioner placed reliance on

the decision of the Supreme Court in the case of Union of India & Ors. v. Dev Raj

Gupta: AIR 1991 SC 93 = (1991) 1 SCC 63 for the proposition that when an

application is made, the law that would govern the application will be the law that

was applicable on the date when the application was made. He also relied upon

the said decision for the proposition that an authority to which an application is

made cannot keep it pending and then penalise the applicant for such

delay/pendency.

19. He also placed reliance on A.A. Calton Vs. Director of Education & Anr.:

AIR 1983 SC 1143 = (1983) 3 SCC 33 for the proposition that, if, during the

pendency of an application, the law is changed or a new law is introduced, the

changed or new law will not affect the application and that such an application

would continue to be governed by the law on the date when the application was

made unless and until the changed or new law specifically provides that pending

matters would also be covered by the changed or new law. Reliance was also

placed on Raminder Singh Sethi v. D. Vijayarangam: AIR 2002 SC 2087 (2002)

4 SCC 675 and Shyam Sunder v. Ram Kumar: AIR 2001 SC 2472.

20. In Dev Raj Gupta (supra), the issue related with the question of the date on

which the conversion charges were to be levied. In that case, an application had

been filed on 27.02.1981 for conversion of user of the land in question from

residential to commercial. The application was pending till 12.01.1984. The

question arose as to whether the conversion charges as on 27.02.1981 would be

leviable or conversion charges for the period after 27.02.1981 and upto 12.01.1984

could also be collected. In this context, the Supreme Court held as under:-

―There is no explanation given by the appellants as to why the application made by the respondents of February 27, 1981 was not replied to till January 12, 1984. Hence in the absence of anything else on records, it will have to be held that the date with reference to which conversion charges have to be counted is 27 th February, 1981.

The authority has calculated additional premium with reference to May 27, 1981 on the footing that the outer limit for granting permission was three months from the date of the receipt of the application. There is no justification for the authority to hold thus, for they are expected to process the application as early as possible and not to wait till the end of three months. Unless there are valid reasons for them to do so or the delay is caused on account of an omission or commission on the part of the applicants, it is not proper to take the end of the three months as the date with reference to which the conversion charges should be calculated.......

In the view we have taken, we direct that the additional premium should be calculated by the appellants on the basis of the rate which was prevalent as on February 27, 1981 which is the date of the application made for the change of the user.‖

21. It is apparent that the Supreme Court was of the view that the date of

reference for the purposes of conversion charges would be 27.02.1981 and not the

subsequent period. In other words, the Supreme Court took the view that it was the

date of application which was relevant and not the fact that the application was

decided later and had been kept pending by the authority concerned. Similarly, in

the present case, Mr Anoop Singh had made an application for transfer on

09.05.1972. If the application had been considered on that date or shortly

thereafter, there would have been no impediment in the transfer of the membership

from Mr Anoop Singh to his daughter Ms Jasjit Kaur in view of the fact that the

disqualification prescribed under Rule 25(1)(c)(i) under the said Rules came into

operation much later, that is, on 02.04.1973. The mere fact that the application

was kept pending and came to be decided on 05.09.1973, when the Managing

Committee gave its approval to the transfer, cannot be taken as a factor to the

detriment of the petitioner. Therefore, the applicable law would have to be that

which was prevailing on the date of the application, that is, 09.05.1972.

22. In A.A. Calton's case (supra), the Supreme Court was considering the

question of selection of the Principal of Ranikhet Intermediate College. The

process of selection commenced in 1973 and while this process was on, the law

relating to appointments was amended on 18.08.1975 whereby the power of the

Director of Education to make such appointments was taken away. In the case

before the Supreme Court, the appointment was ultimately made by the Director of

Education even after the amending Act had come into force. The challenge was on

the ground that after the amendment had come into force the Director of Education

did not have the power to make the appointment of the Principal. The counter

argument was that the process of selection of the Principal was initiated prior to the

introduction of the amendment and, therefore, the law which was prevalent on the

date of application would apply. In this context, the Supreme Court observed as

under:-

―It is no doubt true that the Act was amended by U.P. Act 26 of 1975 which came into force on August 18, 1975 taking away the power of the Director to make an appointment under Section 16-F(4) of the Act in the case of minority institutions. The amending Act did not, however, provide expressly that the amendment in question would apply to pending proceedings under Section 16-F of the Act. Nor do we find any words in it which by necessary intendment would affect such pending proceedings.

........

It is true that the Legislature may pass laws with retrospective effect subject to the recognised constitutional limitations. But it is equally well settled that no retrospective effect should be given to any statutory provision so as to impair or take away an existing right, unless the statute either expressly or by necessary implication directs that it should have such retrospective effect. .........

Although the Director in the present case exercised that power subsequent to August 18, 1975 on which date the amendment came into force, it cannot be said that the selection made by him was illegal since the amending law had no retrospective effect. It did not have any effect on the proceedings which had commenced prior to August 18, 1975. Such proceedings had to be continued in accordance with the law as it stood at the commencement of the said proceedings. We do not, therefore, find any substance in the contention of the learned Counsel for the appellant that the law as amended by the U.P. Act 26 of 1975 should have been followed in the present case.‖

23. From the above abstract, it is clear that the Supreme Court was of the view

that the proceedings which had been initiated prior to the amendment had to be

continued in accordance with the law as it stood at the commencement of the said

proceedings. Similarly, in the present case, the application had been filed on

09.05.1972 and the application was pending when the said Rules and, in particular,

Rule 25 came into operation on 02.04.1973. Thus the approval of transfer given on

05.09.1973, although it is subsequent to the date on which the Rules came into

force, would be viewed in the light of the law as prevailing on 09.05.1972, that is,

on the date of the application. In so far as the question of retrospectivity is

concerned, that issue also stands settled by the Full Bench decision in Daulat Ram

Mehnidratta (supra) where the court, while considering Rule 25(2) itself,

concluded that it was not retrospective in operation but prospective.

24. We may also note the Supreme Court decision in R.S. Sethi's (supra) which

held that ―ordinarily the rights of the parties to litigation stand crystalised on the

date of the commencement of lis.‖ Taking a cue from this observation also, it is

clear that the right to seek transfer insofar as Mr Anoop Singh was concerned

stands crystalised when he moved the application for transfer of membership in

favour of his daughter Ms Jasjit Kaur on 09.05.1972. Unless there is any specific

indication in the subsequent law, the position as obtaining on the date of the

application would be applicable. We have already seen that the said Rules and, in

particular, Rule 25(2) has been held to be prospective and not retrospective by the

said Full Bench decision in the case of Daulat Ram Mehnidratta (supra). Thus,

viewed from any angle, the conclusion is inescapable that the application dated

09.05.1972 has to be considered in the light of the law as prevailing on that date.

If that position is taken, then there is nothing wrong in the approval granted by the

Managing Committee on 05.09.1973. This being the position, the transfer would

relate back to the date of the application and, therefore, on and from 09.05.1972,

the membership of Mr Anoop Singh stood transferred to the petitioner, Ms Jasjit

Kaur. We may also note, at this point, that even the letter dated 22.01.1982, which

has been extracted above, acknowledges the fact that the petitioner had been

recorded as a member in the records of respondent No.2 society. Thus, the transfer

had been completed on 09.05.1972 and, therefore, Rule 25(2) would apply to the

petitioner and not qua Mr Anoop Singh. Insofar as the petitioner is concerned, she

does not suffer from any disqualification as stipulated in Rule 25(1)(c)(i) and she

has also submitted an affidavit to the effect that neither she nor any of her

dependents own any property, either lease hold or free hold, in Delhi. In these

circumstances, there is no impediment in the allotment of a plot to Ms Jasjit Kaur.

25. In passing, we may also note the provisions of Section 98 of the said Act

which read as under:-

"98. Repeal and Savings

On the day on which the Delhi Co-operative Societies Act, 1972 comes into force, the Bombay Co-operative Societies Act, 1925 as in force in the Union Territory of Delhi shall stand repealed:

Provided that the repeal shall not affect-

a. the previous operation of the Act so repealed or anything duly done or suffered there under; or

b. any right, privilege, obligation or liability acquired, accrued or incurred under the Act so repealed; or

c. any penalty, forfeiture or punishment incurred in respect of any offence committed against the Act so repealed; or

d. any investigation, legal proceedings or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid.

and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if that Act had not been repealed.‖

Clause (b) of the proviso specifically stipulates that the repeal of the Bombay

Cooperative Societies Act, 1925 which was in force in the Union Territory of

Delhi shall not affect ―any right, privilege, obligation or liability acquired, accrued

or incurred under the Act so repealed‖. It is also stipulated in the said proviso that

the repeal would not have any effect on any such investigation, legal proceedings

or remedy that may have been instituted, continued or enforced under the earlier

Act.

26. A reading of this ‗repeal and saving' clause provided in Section 98 of the

said Act makes it clear that the rights and privileges which have been acquired

under the earlier Act would continue to be available. It is also clear that the

repealing Act did not, in any way, obliterate those rights and did not make the

provisions retrospective. Consequently, the rights and privileges which had been

acquired by Mr Anoop Singh for seeking transfer of the membership in favour of

his daughter prior to the introduction of the new Act and Rules was not taken away

but was specifically saved by Section 98 of the said Act.

27. This takes us to the second point which needs consideration and that is the

question of availability of an alternative remedy. It is a settled position in law that

whenever there is an alternative remedy available, this court does not normally

entertain petitions under Article 226 of the Constitution. But, it is not a rule that in

case there is an alternative remedy available, a writ petition is not maintainable on

this ground alone. Courts have entertained writ petitions even when alternative

remedies were available. It is only as a rule of prudence and self-restraint that the

High Court does not entertain petitions under Article 226 when an alternative

statutory remedy is available [See: State of HP and Others v. Gujarat Ambuja

Cement Limited and Another: (2005) 6 SCC 499 (para 17)]. It may be pointed

out that in the present case, the circumstances as indicated by the learned counsel

for the petitioner reveal that the alternative remedy of Section 60 was, at the time

when the writ petition was filed, not an efficacious alternative remedy. This is so

because the authorities which were concerned with making a reference under the

said provision were the very same authorities requiring Mr Anoop Singh to file the

said affidavit. In any event, after 17 years, it would not be proper on our part to

non-suit the petitioner on the ground of availability of an alternative remedy. It is

for this reason that we feel that the alternative remedy, if at all, is not an equally

efficacious remedy and, therefore, we cannot hold that the present writ petition is

not maintainable on that ground.

28. Consequently, we allow this writ petition and direct that plot No.348

admeasuring 125 sq. yards, which had already been allotted to the petitioner, be

handed over to the petitioner. We direct the respondents to execute the sub-lease

in favour of the petitioner forthwith. The parties shall bear their own costs.

BADAR DURREZ AHMED, J

VEENA BIRBAL, J JULY 08, 2009 gm