Pawittra Cooperative Group ... vs Registrar Of Cooperative ...
2009 Latest Caselaw 1939 Del

*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+                 WRIT PETITION (CIVIL) 5968/2003

                              Reserved on :     27th April, 2009
                         Date of Decision :     8th May, 2009

     PAWITTRA COOPERATIVE GROUP
     HOUSING SOCIETY LTD.
     THROUGH: ITS PRESIDENT SH. ANAND KUMAR
     HAVING ITS OFFICE AT:
     FLAT NO.28, SHANKAR MARKET
     CONNAUGHT CIRCUS
     NEW DELHI-110 001.                     .... Petitioner
                   Through: Mr. Sumit Bansal and
                            Mr. Ajay Monga, Adv.



                                   Versus


     1. REGISTRAR OF COOPERATIVE SOCIETIES
        DELHI COOPERATIVES SOCIETIES
        PARLIAMENT STREET
        NEW DELHI-110 001

     2. SMT. KAMLA PANDE
        W/O SH. MAN MOHAN LAL PANDE
        R/O C-5/1, FIRST FLOOR
        SAFDARJUNG DEVELOPMENT AREA
        HAUZ KHAS
        NEW DELHI-110 016                           .... Respondents

                   Through:   Mr. V.K. Tandon, Adv. for R-1.
                              Ms. Bina Madhavan,
                              Mr. S. Udaya Kumar Sagar and
                              Mr. Shwetank Sailakwal, Advs. for
                              R-2.

%    CORAM:
     HON'BLE MR. JUSTICE MADAN B. LOKUR
     HON'BLE MR. JUSTICE SIDDHARTH MRIDUL

     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
           the Digest?                                              Yes

WP(C) 5968/2003                                                 Page 1 of 8
                             JUDGMENT

SIDDHARTH MRIDUL, J.

1. The Petitioner in the present petition is aggrieved by an order

dated 21st July, 2003 passed by the Registrar of Cooperative Societies,

Delhi, Respondent No.1 herein, whereby the Show Cause Notice

issued to Smt. Kamla Pande, Respondent No.2 herein, the member of

the Petitioner-Society, under the provisions of Rule 25 of the Delhi

Cooperative Societies Rules, 1973 has been withdrawn with

immediate effect.

2. The fact as are necessary for the adjudication of the present

petition are briefly that on 4th January, 1986 the Respondent No.2 was

enrolled as a member with the Petitioner-Society with membership

No.128.

3. In terms of the by-laws of the Society and also the Delhi

Cooperative Societies Act, the Respondent No.2 was required to

submit an affidavit, inter alia, stating that neither she nor her

husband or dependent children own any property in the Union

Territory of Delhi.

4. On the 13th July, 1987, an affidavit was furnished by the

Respondent No.2 to the Petitioner-Society, inter alia, stating that

neither the Respondent No.2 nor her husband or dependent children

own, either in full or in part, on leasehold or freehold basis, any plot

of land or a house in the Union Territory of Delhi. It was further

stated therein that Respondent No.2 shall inform the Society as well

as the Lieutenant Governor, if any plot of land or house is so acquired

by her or by her husband.

5. On the 19th November, 2001 the Respondent No.2 submitted

another affidavit. In the said affidavit the Respondent No.2 stated

that neither she nor her husband or dependent children own any

property in the Union Territory of Delhi.

6. In December, 2001, it came to light that husband of Respondent

No.2, Sh. Manmohan Lal Pande had acquired the property bearing

No.C-5/1, Safdarjung Development Area, New Delhi, during the period

of membership of Respondent No.2 and, therefore, the Respondent

No.2 had incurred disqualification from the membership of the

Society.

7. The Petitioner-Society issued a Show Cause Notice to

Respondent No.2 dated 12th December, 2001.

8. In response to the said Show Cause Notice, a reply was sent by

Respondent No.2 on 24th December, 2001 stating therein that the

property bearing No.C-5/1, Safdarjung Development Area, New Delhi

was purchased by her husband Sh. Manmohan Lal Pande from the

funds derived out of HUF property inherited by the family.

9. On 27th April, 2002 after hearing the husband of Respondent

No.2, the Petitioner-Society passed an order, inter alia, ceasing the

membership of Respondent No.2.

10. Against the said order dated 27th April, 2002, the Respondent

No.2 filed a representation before Respondent No.1, and the

Respondent No.1 vide the impugned order dated 21st July, 2003 was

pleased to set aside the order dated 27th April, 2002 passed by the

Petitioner-Society.

11. The Petitioner who is aggrieved as aforesaid by the impugned

order dated 21st July, 2003 passed by the Respondent No.1, submitted

that the Respondent No.1 had failed to appreciate that Respondent

No.2 had sworn false affidavit and submitted the same to the

Petitioner-Society, and that by virtue of the said affidavit the

Respondent No.2 was able to continue as a member of the Petitioner-

Society. In other words, the Respondent No.2 had obtained allotment

of a flat in the Petitioner-Society in contravention of the Rules as

contained in Delhi Cooperative Societies Act and the Rules framed

thereunder, by mis-representing not only to the Petitioner-Society but

to the Respondent No.1 as well.

12. Per contra, on behalf of Respondent No.2 it was urged that the

said property was purchased by Sh. Manmohan Lal Pande, husband of

Respondent No.2, from the funds derived out of HUF property

inherited by the family and as such there was no infirmity in the

impugned order dated 27th April, 2002.

13. Before considering the rival submissions made by the parties, it

would be necessary to extract Rule 25 of the Delhi Cooperative

Societies Rules, 1973:

"25. Disqualification for Membership

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

(a) and (b) xxxxxxxx

(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 (l)(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,"

14. From a plain reading of the Rule extracted above, it is clear that

according to Clause 1 of the sub-rule, no person shall be eligible for

admission as a member of the Society in question if he/she owns a

residential house or a plot of land for construction of a residential

house in any of the approved or un-approved colonies or other

localities in the Union Territory of Delhi either in his own name or in

the name of his spouse or any of his dependent children on leasehold

or freehold basis. The proviso appended to the sub-rules makes an

exception in case of persons who are only co-sharers of joint ancestral

properties and whose share is less than 66.72 square meters of land.

15. In the present case it is seen that the Respondent No.2 filed an

affidavit on 13th July, 1987 stating therein - (a) that neither I nor my

spouse and of my dependent/relations including unmarried children is

a member of any other Cooperative Societies functioning in the Union

Territory of Delhi; (b) that neither I nor my spouse and any of my

dependent relation including unmarried children has owned either in

full or in part on leasehold land or freehold basis, any plot of land or a

house in the Union Territory of Delhi and (c) that neither I nor

my spouse is a member of undivided family which owns either

in full or in part, on leasehold or freehold basis any plot of land

or a house in the Union Territory of Delhi. (emphasis ours)

16. It is also seen that Respondent No.2 filed another affidavit dated

19th November, 2001 to the same effect but also stating that "I will

inform within one month to the said Society and as well as to the

Lieutenant Governor, Delhi, if any plot of land or a house is acquired

by him or my spouse or any of my dependent children including

unmarried children."

17. It is observed from the Agreement to Sell dated 17th November,

1996 of the property bearing No.2179 in Block-J, Nai Wala, Karol

Bagh, New Delhi, which is an admitted document, that the said

property was allotted by the President of India through the Delhi

Development Authority to the first party Shri Manmohan Lal Pande

son of Shri Mizaji Lal.

18. It is also seen from the Sale Deed dated 31st March, 1997 that

Shri Manmohan Lal Pande acquired on "as is where is basis", 50%

rights in the first floor flat of the one and half storeyed dwelling house

constructed on a leasehold plot of land admeasuring 550 square yards

and bearing No.C-5/1, Safdarjung Development Area, New Delhi, from

one Dr. (Mrs.) Kirpal Kaur.

19. It is further seen from the counter affidavit filed by Respondent

No.2 that the land underneath the said building namely C-5/1,

Safdarjung Development Area owned by the said Shri Manmohan Lal

Pande is 153.28 square meters.

20. The Respondent No.2 relies on the assessment order for the

year 1968-69 to urge that the house property situated at Gurudwara

Road, Karol Bagh, New Delhi had an ancestral nucleus and the plot of

land was inherited from the family of late Pt. Mizaji Lal Pande, father

of Manmohan Lal Pande. However, it is not clear whether this

assessment order refers to Plot No.2179, Gurudwara Road, Karol

Bagh, New Delhi or some other plot, since the Agreement to Sell

dated 17th November, 1996 between Shri Manmohan Lal Pande and

one M/s J.R.M. Properties (P) Ltd., categorically refers to property

bearing plot No.2179 in Block-J, Nai Wala, Karol Bagh, New Delhi as

having been allotted by the President of India through Delhi

Development Authority to Shri Manmohan Lal Pande and not to his

father Shri Mizaji Lal Pande. Furthermore, the Income Tax Return for

the assessment year 1997-98 relied upon by the Respondent No.2 is

the individual return of Sh. Manmohan Lal Pande, husband of

Respondent No.2 and not the return of alleged HUF.

21. It is also pertinent to state that the respondents were given

opportunities by this court on 28th July, 2008 and again on

11th February, 2009 to place on record proof regarding C-5/1 at

Safdarjung Development Area having a character of a HUF property

but did not produce anything to show that the said property was

purchased out of the proceeds of HUF funds and also held that

character.

22. In view of the above, we are of the view that the finding arrived

at in the impugned order dated 21st July, 2003; to the effect that the

property in question is derived out of HUF property inherited from

late Pt. Mizaji Lal Pande, father-in-law of Smt. Kamla Pande

(Respondent No.2); and further that the property in question is not an

individual plot but a flat occupied by these persons whose shares

come to less than 66.72 square meter; and hence falls under the

exception granted under Rule 25 1(c)(i) proviso of Delhi Cooperative

Societies Rules, is erroneous and without any foundation.

23. In the result, the impugned order is quashed and the present

writ petition is allowed. The order passed by the Managing

Committee of the Petitioner-Society on the 27th April, 2002 is upheld.

24. The writ petition stands disposed of.

SIDDHARTH MRIDUL, J.

MADAN B. LOKUR, J.

MAY 08, 2009 dn