Jagdish Chander vs Lt. Governor & Ors.
2009 Latest Caselaw 2768 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                 Judgment delivered on: 22.07.2009

+      W.P.(C) No. 1646/1995


JAGDISH CHANDER                                           ..... Petitioner


                           -Versus-


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

Advocates who appeared in this case:-

For the Petitioner : Mr. Sumit Bansal, Advocate For the Respondent : 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

BADAR DURREZ AHMED, J (oral)

1. In this writ petition, the only point that requires consideration is

the interpretation of Rule 25(1)(c)(i) of the Delhi Cooperative

Societies Rules, 1973, as they originally stood, (hereinafter referred to

as the said Rules). The said Rule, to the extent it is relevant for the

purposes of this case, is set out hereinbelow:-

"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 disposal of the present writ petition are

that on 13.08.1991 a show cause notice was issued by the Registrar

Cooperative Societies to the petitioner under Rule 25(4) of the said

Rules calling upon him to show cause as to why his membership be

not terminated. The purported reason for such cessation of

membership was that as per the MCD records, the petitioner‟s wife

Smt. Sunita Rani "owned" property No. B-1757/3, Shastri Nagar,

Delhi in her name and as a result of which the petitioner incurred

disqualification as per Rule 25(1)(c)(i) of the said Rules. A reply was

submitted by the petitioner on 26.08.1991. In the said reply it was

stated that the property no.B-1757/3 Shastri Nagar was a joint

property measuring 100 sq. yards being owned by his wife Smt.

Sunita Rani and his brother Sh. Kishan Kumar in equal shares and the

share of his wife was only to the extent of 50 sq. yds., in the said plot.

It was also contended that the property in question was situated in

Shastri Nagar, which was a „congested‟ area and, therefore, did not

affect his membership.

3. The said reply was considered by the Registrar who passed the

impugned order dated 16.05.1992. Before passing the said order, the

Registrar gave an opportunity of hearing to the petitioner as well as

the society. At the time of hearing before the Registrar, two points

were urged on behalf of the petitioner. The first point that was taken

was that his wife was not the owner of the said property and the same

had only been taken on lease from one Sh. Ram Babu and Ram

Kishan vide lease agreement dated 15.7.1974. It was also stated that

the sale deed has not been executed till date. It was, therefore,

contended that petitioner‟s wife, in the absence of a validly executed

registered deed, could not be considered to be the owner of the

property, in terms of the Transfer of Property Act, 1882. The second

point urged by the petitioner before the Registrar was that, in any

event, the disqualification had not been incurred by the petitioner on

account of the fact that even if his wife Smt. Sunita Rani was

considered to be the owner of the said property at Shastri Nagar, the

extent of her ownership was limited to 50 sq. yards which was less

than 80 sq. yards equivalent to 67 sq. metres as indicated in the

proviso to Rule 25(1)(c)(i). Both these points were opposed by the

society.

4. The Registrar upheld the views of the society and rejected those

of the petitioner. The Registrar, however, took the view that though

the Transfer of Property Act provided that no transfer of property

could have taken place in the absence of a validly executed and

registered transfer deed, for the purposes of the Delhi Cooperative

Societies Act, 1972 and the said Rules, the said provisions were not

relevant. The view taken by the Registrar is as under:-

" It is true that the Transfer of Property Act provides that no transfer of a property can take place in the absence of a validly executed and registered transfer deed. However, for the purpose of the Delhi Coop. Societies Act and Rules these provisions are not relevant. The Coop. law is a socialistic legislation where the spirit and

the intention of the statute is more relevant than the provisions of these laws. Rule 25 which lays down that no person shall be eligible to become a member of a Cooperative Society if he/his spouse/his dependent children own a residential house or plot in Delhi is intended to ensure that the facility of getting a shelter through a Housing Society is available only to those people who do not own anything in their own right and are dependent on the market forces for a shelter. For a variety of reasons, most of the property transactions in Delhi are made on Power of Attorney coupled with consideration and transfer of possession and these transactions are in fact complete sales though no registered sale deeds are executed. If owners of such properties are exempted from the provisions of Rule 25(1)(c) it would amount to encouraging such malpractices on the one hand and on the other it would be an unnecessary strain on the limited sources of land available with the govt./ DDA who is allotting land to the Housing Societies."

5. On the second question of the share of the petitioner‟s wife

being less than 80 sq. yards, the Registrar was of the view that the

petitioner could not take the help of that provision inasmuch as the

said property was in Shastri Nagar which was not a „notified slum

area‟. Insofar as this aspect of the matter is concerned, we may point

out straightaway that the petitioner has no case because it is a fact that

Shastri Nagar is not a notified slum area and the provision with regard

to the properties of less than 80 sq. yards or 67 sq. metres would only

be applicable if such properties are situated in notified slum areas.

Apart from this, the said proviso applies to cases of joint ancestral

property. The property at Shastri Nagar is not a joint „ancestral‟

property. It is an admitted position that the said property at Shastri

Nagar had not been inherited by petitioner‟s wife or by the petitioner,

therefore, the same did not fall within the category of „joint ancestral

property‟.

6. The said order dated 16.05.1992 was not acceptable to the

petitioner and, therefore, a revision petition under Section 80 was filed

before the Financial Commissioner who by his order dated 16.9.1994

upheld the order of the Registrar, which meant that the petitioner‟s

disqualification stood confirmed. The reasoning adopted by the

Financial Commissioner, in doing so, is as under:-

"It has further been argued that in the absence of any proof that there had been a registered document of transfer of the property in Shastri Nagar in the name of the petitioner‟s wife, the court below has erroneously deduced that the said property is owned by her. This argument is also of no consequence. It has come in the impugned order that in the records of the Municipal Corporation of Delhi, the said property stood in the name of the wife of the petitioners. Also that the house tax was paid by her, though during the course of arguments, the learned counsel for the appellant was not sure about the payment of the house tax by the wife of the petitioner. The presumption, therefore, goes against the petitioner. As regards the applicability of the DDA Rules, I may add here that it has been held time and again by this court that those rules are not applicable to the matters under the Delhi Cooperative Societies Act. It has been decided by this court in several cases that the exemption under Rule

25 is available only in respect of ancestral property in a notified slum area, which is not the case in the present revision petition. The property at Shashtri Nagar undisputedly does not fall in a notified slum area".

7. In the background of aforesaid facts, we are required to

consider as to whether the petitioner incurred the disqualification set

out in Rule 25(1)(c)(i) of aforesaid Rules. Before us it was argued

that the disqualification relates to the member owning a residential

house or plot of land in Delhi "in his own name" or "in the name of

his spouse or any of his dependent children". It was contended that

the ownership of property by the spouse did not mean that the member

would incur a disqualification. Fortunately, for us, this provision has

already been interpreted by prior Division Benches of this Court. We

need to only refer to the decision of a Division Bench of this Court in

Alimuddin v The Registrar Co-operative Societies : 63 (1996) DLT

655 (DB). In that decision, the Division Bench had also considered

earlier decisions of this Court including the Division Bench decision

in O.P. Sethi v Lt Governor : 45 (1991) DLT 426. After considering

the said decision, the Division Bench observed that 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 Court further observed that 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 observed as

under:-

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

8. It is, therefore, clear that the present case is covered by the

decision in Alimuddin's case. The property at Shastri Nagar, even if

it is assumed that it is owned by the petitioner‟s wife, is owned by her

in her own name. It is not as if the property at Shastri Nagar is

actually owned by the petitioner, though it stands benami in the name

of his wife Smt. Sunita Rani. We may also note that this is on the

assumption that the property is owned by Smt. Sunita Rani when, in

fact, there is no document of title to establish that the property is

actually owned by her. What she has admitted is only possession of

the property taken on lease. It is well settled that revenue records and

municipal records with regard to mutation do not confer any title and

are not documents of title. To this extent, the Financial Commissioner

has completely gone wrong in considering that because the

petitioner‟s wife Smt. Sunita Rani paid house tax and her name was

shown in the municipal records, she was the owner of the property.

There is no conveyance deed and document of title to establish that

Smt. Sunit Rani was, in fact, the owner of the property.

9. Be that as it may, even if Smt. Sunita Rani was the owner of the

property she would be regarded as being the owner in her own right

and in her own name. Therefore, it is neither being contended nor it

can be imagined that the property at Shastri Nagar was that of the

petitioner though kept benami in the name of Smt. Sunita Rani. That

being the position, the decision in Alimuddin's case clearly covers the

present case also. The petitioner did not incur any disqualification

under Rule 25(1)(c)(i) of the said Rules as alleged. As a result of

which, he continues to be a member of the society. He will retain his

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

according to the said seniority. The writ petition stands allowed to the

aforesaid extent. Parties are left to bear their own costs.

BADAR DURREZ AHMED, J

VEENA BIRBAL, J JULY 22, 2009 srb