Delhi High Court
Swayam Sidha Cooperative Group ... vs The Financial Commissioner, ... on 8 May, 2009
Author: Madan B. Lokur
* HIGH COURT OF DELHI : NEW DELHI
+ Writ Petition (Civil) No. 4209 of 2001
Judgment reserved on: April 20, 2009
% Judgment delivered on: May 08, 2009
Swayam Sidha Cooperative Group
Housing Society
6, Bhagwan Dass Road
New Delhi.
Through its Joint Administrator:
Ms. Vidya Prabhadayal
Col. B. Kumar (Retd.) ...Petitioner
Through Ms.Rachna Joshi Issar with
Mr.Shailendra Kumar, Advs.
Versus
1. The Financial Commissioner, Delhi
5, Shamnath Marg
Civil Lines
Delhi.
2. The Registrar, Cooperative Societies
Government of N.C.T. of Delhi
Old Court Building, Parliament Street
New Delhi-110001.
3. Sh. R.S. Bairva
S/o Late Shri Kana Ram
R/o Flat No. 92 (Type-II)
Gandhi Sadan, NDMC Flats
Mandir Marg, New Delhi.
WP (C) No.4209/2001 Page 1 of 8
4. Ministry of Employment, Social
Welfare, Labour and Scheduled Caste
& Scheduled Tribes
Government of N.C.T. Delhi
New Secretariat
I.P. Estate, New Delhi. ...Respondents
Through Ms. Sujatha Kashyap, Adv. for
Respondent No. 1.
Ms.Indrani Ghosh, Adv. for LRs of
Respondent No. 3.
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 Yes
in the Digest?
MADAN B. LOKUR, J.
The question for our consideration is whether the mere
membership of a deceased member of a cooperative group housing
society can be inherited by his nominee, who is otherwise ineligible to
be a member of that society. Our answer to this question is in the
negative in view of the decision of the Supreme Court in Gayatri De v.
Mousumi Cooperative Group Housing Society & Ors., AIR 2004 SC
2271.
2. The Petitioner is a cooperative group housing society and
one of its objects is to acquire land on lease for development from the
slum wing of the Delhi Development Authority and construction of
residential houses or flats for allotment to its members. The
membership of the Petitioner-Society is restricted only to widows
having an income which does not exceed Rs.1,500/- per month from all
sources.
3. The mother of Respondent No. 3, Smt. Ganesh Devi, was a
widow who satisfied the eligibility requirements for membership as per
the Bye-Laws of the Petitioner-Society. As such, she was made a
member of the Petitioner-Society. However, before she could be
allotted a flat, she passed away leaving her son (Respondent No. 3) as
her nominee.
4. Respondent No. 3 sought to take over the membership rights
of his deceased mother but the Petitioner-Society did not accept his
membership since he was not eligible.
5. On these broad facts, Respondent No. 3 filed Complaint No.
2471/1992 before the Consumer Dispute Redressal Forum (District
Forum-II). By an order dated 13th July, 1994, the District Consumer
Dispute Redressal Forum came to the conclusion that Respondent No. 3
was not eligible to be a member of the Petitioner-Society and, therefore,
his complaint was devoid of any merit. We are told that the order
passed by the District Consumer Dispute Redressal Forum has attained
finality.
6. Not being satisfied with the above decision, Respondent No.
3 raised a dispute before the Registrar, Cooperative Societies claiming
membership of the Petitioner-Society. We are not concerned with the
first round of litigation that took place before the Registrar but
eventually by an order dated 30th November, 2000 (passed in the second
round) the Registrar came to the conclusion that Respondent No. 3 was
entitled to step into the shoes of his deceased mother and was, therefore,
entitled to membership of the Petitioner-Society.
7. Feeling aggrieved, the Petitioner-Society filed a revision
petition under Section 80 of the Delhi Cooperative Societies Act, 1972
being Case No. 24/2001-CA. The revision petition came to be
dismissed by the Financial Commissioner by the impugned order dated
15th February, 2001.
8. The only contention urged before us by learned counsel for
the Petitioner is that membership of the Petitioner-Society was restricted
to widows who have an income of less than Rs.1,500/- per month from
all sources. Respondent No. 3 is not a widow (being a male) and is also
earning well over Rs.1,500/- per month as a bank official. The purpose
of setting up the Petitioner-Society was to assist indigent and homeless
widows and Respondent No. 3 does not fall in this category by any
stretch of imagination. On the other hand, the submission of learned
counsel for Respondent No. 3 was that her client was entitled to step
into the shoes of his deceased mother being her nominee, and he was
merely seeking to enforce this entitlement that was available to him.
9. In our opinion, the dispute is really covered by the decision
of the Supreme Court in Gayatri De v. Mousumi Cooperative Housing
Society Ltd.& Ors, AIR 2004 SC 2271. There are in fact two situations
that can arise in a case such as the present. The first is where the
deceased member has not been allotted any plot or flat and is merely a
member of a society. The second situation is where a deceased member
has been allotted a plot or flat by virtue of his or her membership of a
society.
10. In the first situation as mentioned above, there is no interest
of a deceased member that can devolve on a nominee. It is merely a
membership of a society and this cannot be termed as the estate of the
deceased which can be inherited by the legal heirs of the deceased. A
somewhat parallel situation would be a membership to a club or an
association. The death of a member of a club or an association does not
confer any entitlement on any of his legal heirs to membership of that
club or association. In the second situation the allotment of a plot or flat
is an interest that can devolve upon the legal heirs of a deceased. This is
what has been held in Gayatri De. We may note that we have followed
Gayatri De in a recent decision rendered by us in Manmohan Nath N.
Puri (Deceased) through L.Rs. v. Shri Madan Jha and Ors. (WP(C)
No.182/1990 decided on 18th March, 2009). In another Division Bench
decision being Pran Nath Mallick v. Dr. Netar Prakash Mallick &
Ors., 2000 III AD (Delhi) 843, a Division Bench dealt with the second
situation mentioned above and concluded that after allotment is made,
legal rights get vested in the member and the society cannot stop
inheritance of those rights on the legal heirs of the deceased on the plea
that such a person is not a member of the society. Of course, this
decision would not be applicable to the first situation that we are
concerned with but is being mentioned only to indicate the two distinct
situations that can arise.
11. In view of the above, in our opinion Respondent No.3 could
not succeed to the mere membership of his deceased mother, more
particularly on the facts of this case because Respondent No.3 did not
satisfy the eligibility conditions laid down in the Bye-Laws of the
Petitioner-Society. We may note for the record that learned counsel for
the Petitioner contended before us that the decision of the District
Consumer Dispute Redressal Forum having attained finality,
Respondent No.3 is bound by that decision and cannot agitate the claim
all over again in a different forum. We are not going into this aspect of
the matter because even otherwise on merits we are of the view that the
impugned orders passed by the Registrar, Cooperative Societies and the
Financial Commissioner are not sustainable in law.
12. The writ petition is allowed. No costs.
MADAN B. LOKUR, J
May 08, 2009 SIDDHARTH MRIDUL, J
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