Manmohan Nath N. Puri (Deceased) ... vs Shri Madan Jha, Presiding Officer ...
2009 Latest Caselaw 866 Del

*          HIGH COURT OF DELHI : NEW DELHI


+          Writ Petition (Civil) No.182 of 1990


                      Judgment reserved on: February 11, 2009

%                     Judgment delivered on: March 18, 2009


Manmohan Nath N. Puri (Deceased)
Through LRs -

1.   Smt. Veena Puri
     W/o Late Shri M.N. Puri
     R/o 271/2, Forest Lane
     Sainik Farm, New Delhi.

2.   Smt. Ciroon Puri
     W/o Shri Nitin Vedi
     R/o 271/2, Forest Lane
     Sainik Farm, New Delhi.                          ...Petitioners

                                  Through   Mr. Sanjiv Kakra, Advocate


                      Versus

1.   Shri Madan Jha
     Presiding Officer
     Delhi Cooperative Tribunal
     Alipur Road, Delhi.

2.   Shri U.R. Kapoor
     Joint Registrar (Arbitration)
     Office of the Joint Registrar (Arbitration)
     Cooperative Societies
     Delhi Administration, Old Courts Building
     Parliament Street, New Delhi.

WP (C) No.182/1990                                            Page 1 of 12
 3.   Manufacturers' Cooperative Industrial Estate Ltd.
     Udyog Nagar, P.O. Peeragarhi
     8/1, Mile Stone, North of Rohtak Road
     Delhi.

4.   Smt. Sneh Lata Handa
     Prop. Sneh Industries
     Sneh Mansion, 167, Inside Ajmeri Gate
     Delhi.                                              ...Respondents

                      Through Mr. Jagdish Singh, Advocate
                              for Respondent No.3
                              Mr. C. Mohan Rao, Advocate
                              for Respondent No.4


Coram:

HON'BLE MR. JUSTICE MADAN B. LOKUR
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL


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

2. To be referred to Reporter or not?                             Yes

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


MADAN B. LOKUR, J.

The Petitioner is aggrieved by an order dated 30 th May, 1989

passed by the Delhi Cooperative Tribunal in Case No.41/1989-CA being

an appeal under Section 76 of the Delhi Cooperative Societies Act,

1972.

2. Broadly, the facts of the case are that the Petitioner is the

nominee of his father, who was a member of the Cooperative Industrial

Estate Ltd. (for short the Society). As a result of his membership, the

Petitioner's father was allotted a plot bearing number J.-3 in the draw of

lots held on 25th May, 1969.

3. The Petitioner's father expired on 24 th March, 1970. At that

time, the Bombay Cooperative Societies Act, 1925 (for short the

Bombay Act) was in force in Delhi and, therefore, the provisions of the

Bombay Act were applicable.

4. We were told by learned counsel for the Respondents that the

Petitioner's father defaulted in payments but it has also come on record

that while the Petitioner's father was allotted a plot of 500 square yards,

he had asked for a reduction in size. It is not clear whether the request

was granted and if so, whether as a result of a reduction in the size, short

payment persisted or not.

5. Be that as it may, on 19th December, 1970 the Petitioner

addressed a letter to the Society and the contents of this letter are of

some importance. It is, therefore, reproduced in full:

"Puri Iron & Steel Corporation

December 19, 1970

Manufacturers Cooperative Industrial Estate Udyog Nagar, P.O. Piran Garhi, S/1, Milestone, North of Rohtak Road, Delhi-11.

Subject: Industrial Plot in the name of Messrs. NARINDER NATH D. PURI.

             Dear Sir,

             We      have     your  letter  for   acknowledgement

Mfrs/M156/901/70 of October 30, 1970 and other letters and reminders for payments and have noted the contents therein with interest.

The delay has been caused due to ill health and sad demise of my father Shri Narinder Nath D. Puri on March 24, 1970. Under the circumstances, we hope to be excused for this unintentional delay in writing.

The undersigned will feel obliged if your goodself will send us the complete statement of accounts of payments and entrance fee received by you till date, so as to enable me to make the balance payment if any. As far as the undersigned remembers, he had asked your then Secretary Shri Jagdish Singh to adjust the amount which was already paid to you so that we do not have to make any further payments, since the original area negotiated was 5,000 sq.

yds. Thereafter, the size was reduced to adjust the amount lying with you.

Thanking you and once again sorry for the delay on our part, we remain.

Sincerely yours, for Puri Iron & Steel Corporation and Narinder Nath D. Puri

Sd/-

(Managing Partner)"

6. On a reading of the aforesaid letter, it appears that the

Petitioner proceeded on the basis that being a nominee of his deceased

father, he steps into the membership shoes of his father. It also appears

that the Petitioner is interested in making the balance payment, if any,

due from his father for the plot allotted. Unfortunately, the letter dated

19th December, 1970 was not responded to by the Society at all.

7. The Petitioner appears to have followed up his request of 19th

December, 1970 by addressing letters to the Society on 1 st November,

1971 and 8th November, 1971. In response to these two letters, the

society took ex parte action against the Petitioner for returning the

amounts deposited by the Petitioner's father. Cheques for repayment of

the amounts deposited by the Petitioner's father were drawn up in

favour of the Petitioner in October and November, 1971. The Petitioner

was also informed by a letter dated 31st March, 1972 that his father

failed to pay the amounts due despite repeated reminders and, therefore,

the plot allotted to him was resumed. It was alleged that even though

the Petitioner knew about the resumption of the plot, no steps were

taken by remitting the dues and to make matters worse, the Petitioner

had not even applied to the Society for membership within one year

from the date of death of the Petitioner's father as required under the

provisions of the Bombay Act and the Rules framed thereunder.

8. Feeling aggrieved by the resumption of the allotted plot, the

Petitioner raised a dispute which was adjudicated by the Joint Registrar

(Arbitration), Cooperative Societies, Delhi. By his order dated 11th

May, 1989 the Joint Registrar was held that the Petitioner was not

entitled to any relief since he never became a member of the Society and

so had no claim to plot No. J-3. It was directed that in the meanwhile,

since the plot was allotted to some third person, that is, M/s Sneh

Industries, the Society should execute a sub-lease with M/s Sneh

Industries.

9. Against the order of the Joint Registrar (Arbitration), the

Petitioner preferred an appeal which has given rise to the impugned

order. The appeal was dismissed on the ground that the Petitioner had

failed to apply for membership of the Society within the time prescribed

by Section 27(1) of the Bombay Act. The appellate authority held that

in his letter dated 19th December, 1970 the Petitioner had not asked for

membership of the Society and, therefore, that letter could not be

considered as his request for being made a member of the Society. On

this short ground, the appeal filed by the Petitioner was rejected.

10. Before us, it has been contended by learned counsel for the

Petitioner that since his father was allotted a plot, the Petitioner was

entitled to succeed to the estate of the deceased. It was submitted that it

was not a case of making an application for membership but a case of

succession to the plot allotted to his father. On the other hand, it was

submitted by learned counsel for the Society as well as M/s Sneh

Industries that the provisions of Section 27(1) of the Bombay Act

required the Petitioner to make an application for membership within

one year of the death of his father but since the Petitioner had not done

so, the order passed by the authorities below was perfectly justified.

11. For convenience, Section 27 of the Bombay Act reads as

follows:

"27(1). On the death of a member of a society such society may within a period one year from the death of such member transfer the share or interest of the deceased member to a person or persons nominated in accordance with the bye-laws of the society, if duly admitted a member of the society in accordance with the rules or the bye-laws of the society, or if there is no person so nominated, to such person as may appear to the committee to be the heir or legal representative of the deceased member, if duly elected a member of the society or may pay such nominee, heir or legal representative as the case may be a sum representing the value of such members' share or interest as ascertained in accordance with the rules of bye- laws.

Provided that such nominee, heir or legal representative, as the case may be, may require that payment shall be made by the society within one year from death of the member, of the value of the share or interest of such member, ascertained as aforesaid.

(2) A society shall subject to the provisions of Section 25 and unless presented by an order of a competent court, pay to such nominee, heir or legal representatives, as the case may be, all other moneys due to the deceased member from the society. (3) All transfer and payments made by a society in accordance with the provisions this section shall be valid and effectual against any demand made upon the society by any other person."

12. While it is true that Section 27 of the Bombay Act requires

the Petitioner to make an application for membership within one year of

the death of his father, the fact still remains that the case of the

Petitioner is not one of membership but one of succeeding to the estate

of his father who had already been allotted a plot by the Society. To this

extent, the authorities below have misdirected themselves.

13. In Gayatri De v. Mousumi Cooperative Housing Society

Ltd., AIR 2004 SC 2271, the Supreme Court noted that in a situation

such as the present, the question of admission of membership becomes

absolutely immaterial, the real question being of transfer of devolution

of interest of a deceased member. It was held that the heirs of a

deceased member are entitled to succeed to the estate of the deceased

member and so the right, title and interest would devolve upon the heirs

(paragraph 36 of the Report). This view was reiterated in paragraph 54

of the Report.

14. In Pran Nath Mallick v. Dr. Netar Prakash Mallick & Ors.,

2000 III AD (Delhi) 843, a Division Bench of this Court independently

took a similar view. It was held in paragraph 12 of the Report that once

an allotment of a plot is made to a member of a society, it cannot be said

that his nominee or legal representative is not entitled to hold or inherit

the plot so allotted merely because such a person is not a member of the

society. It was noted that after allotment is made, legal rights get vested

in the member and the society cannot stop the inheritance of those rights

on the legal representatives and heirs on the plea that such a person is

not its member.

15. In our opinion, the law laid down in both these decisions

squarely covers the first issue raised before us.

16. An additional feature that militates against the view taken by

the authorities below is that the letter dated 19 th December, 1970 sent by

the Petitioner to the Society was not at all answered by the Society. It is

quite possible that if the Petitioner had been given a reply to this letter,

he would have made an application for membership (should it have been

necessary) before the expiry of one year. Such an opportunity was

denied to the Petitioner by the Society's silence.

17. With regard to the second issue of the Petitioner's failure to

make an application for membership of the Society within a period of

one year from the date of death of his father, we are of the opinion that

the issue becomes completely irrelevant in view of the decisions

mentioned above. Notwithstanding this, we are of the opinion that the

Petitioner certainly cannot be faulted for not having made an application

within the prescribed time. As far as the Petitioner was concerned, he

had sent a letter on 19th December, 1970 indicating his willingness to

continue the membership of the Society and to make balance payments,

if any. If the Society was of the opinion that the letter dated 19th

December, 1970 did not constitute an application, the least it could have

done was to reject the letter immediately so that the Petitioner could

have taken appropriate steps. By waiting for time to run out, the Society

prejudiced the Petitioner and is now using that as an excuse to disentitle

the Petitioner from inheriting the plot allotted to his father. We may

note, as we have already done above, that there is nothing on record to

suggest that the letter dated 19 th December, 1970 was replied to. The

only replies that were sent by the Society were in response to the letters

dated 1st November, 1971 and 8th November, 1971 and replies to these

letters were sent after a gap of almost four months afterwards. The

inaction of the Society under these circumstances cannot, therefore, be

used by it to the disadvantage of the Petitioner.

18. Under the circumstances, we set aside the order dated 30 th

May, 1989 passed by the Delhi Cooperative Tribunal. The appeal filed

by the Petitioner before the Tribunal will be treated as having been

allowed with all consequential benefits.

                                       MADAN B. LOKUR, J




March 18, 2009                         SIDDHARTH MRIDUL, J
ncg

Certified that the corrected
copy of the judgment has
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