Low Income Friends Co-Operative ... vs Delhi Development Authority & ...
2009 Latest Caselaw 4846 Del

                THE HIGH COURT OF DELHI AT NEW DELHI

%                                           Judgment delivered on: 26.11.2009

+      WP (C) 3292/1992

LOW INCOME FRIENDS CO-OPERATIVE
HOUSE BUILDING SOCIETY LIMITED                              ...   Petitioner


                                     - Versus -


DELHI DEVELOPMENT AUTHORITY & ORS.                          ...   Respondents

Advocates who appeared in this case:-

For the Petitioner          : Ms Aparajita Mukherjee
For the Respondent/DDA      : Ms Renuka Arora

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. The petitioner society is aggrieved by the fact that despite the order

passed by the Lt. Governor on 18.01.1989, in Case No.11/1989-CA under

Section 80 of the Delhi Co-operative Societies Act, 1972, in favour of the

petitioner society, the respondent No.1 (DDA) has not implemented the

same and allotted the land reserved for the society at Shalimar Bagh, Delhi.

2. This petition has been pending for a long time. Rule had been issued

as far back as on 20.07.1993. When the matter came up for hearing before

this court on 05.03.2009, the predecessor Bench directed issuance of notice

to the standing counsel for the DDA to explain as to why the order of the Lt.

Governor has not been complied with. In response to the said notice, an

additional affidavit of Mr S.S. Gill, Director (RL), DDA, Vikas Sadan, INA

Market, New Delhi was filed on behalf of the respondent No.1 (DDA). In

the said affidavit, it has been stated that the petitioner society purchased a

piece of land measuring about 25 bighas and 15 biswas at village Azadpur

sometime in the early 1960s for allotment of plots to its members. The land

so acquired was divided into 82 plots and was allotted to its members around

1962-63 by executing sale deeds in favour of the said members.

Subsequently, that very land was notified for acquisition by the Delhi

Administration. Though no date has been given in the said affidavit, the

learned counsel for the petitioner states that the notification under Section 4

of the Land Acquisition Act, 1894 was issued in respect of the said land on

24.10.1964. Subsequently, according to the said affidavit on behalf of the

respondent No.1 (DDA), the petitioner society accepted the „alternative‟

allotment of the plot to its members in the scheme of Shalimar Bagh. At that

point of time, the requirement of the society was of 97 plots. According to

the said affidavit, the said 97 plots were of 125 sq. yds. each. The society

had represented to the Land and Building Department, Delhi Administration

with regard to the increase of the plot areas to be allotted to the members.

However, that representation was declined and, accordingly, 97 plots of 125

sq. yds. area each were recommended for allotment against the proposed

acquisition of the land of the petitioner society. It is the case of the

respondent No.1 (DDA) that the land of the petitioner society at Azadpur,

which had earlier been notified for acquisition, could not be acquired by the

Delhi Administration as most of the members had already constructed their

houses on the plots allotted to them by the society. As a result, the said

colony was later on regularized by the Delhi Administration on 31.08.1978

and the same continues to exist as a free-hold colony.

3. It is further stated in the affidavit that the Registrar of Co-operative

Societies, who had given clearance to the allotment in favour of the

petitioner society by virtue of his letter dated 14.06.1984, had revoked the

same by a subsequent direction communicated by the letter dated

12.02.1988. The petitioner society, being aggrieved by the said order of

revocation, filed a revision petition under Section 80 of the Delhi Co-

operative Societies Act, 1972 before the Lt. Governor, who, by his order

dated 18.01.1989, quashed and set aside the revocation order dated

12.02.1988.

4. The respondent No.1 (DDA) has admitted in its affidavit that they did

not file any appeal against the order dated 18.01.1989 passed by the Lt.

Governor. The respondent No.1, however, filed an application for review of

the order dated 18.01.1989. The date on which the review application was

filed has not been indicated in the affidavit. However, the date on which the

application was disposed of has been given as 31.07.2009, whereby the Lt.

Governor had rejected the same. The order rejecting the review application

has been set out in the said affidavit and the same reads as under:-

"As per Delhi Cooperative Societies Act, 2003 the powers of Government under the Delhi have now been delegated to the Financial Commissioner. As per Section 115(2) of the Act an

application for review of any orders can be moved within a period of 30 days, which is already over much before. Besides, DDA is not a party in this case, and, there is not suo moto review in the said Act of 2003.

In view of the above, there can be no review of decision of the then L.G.

It is ordered accordingly."

5. In these circumstances, the contention of the learned counsel for the

respondent No.1 (DDA) is that the allotment in favour of the petitioner

society at Shalimar Bagh was made „in lieu‟ of acquisition of the land owned

by the society at Azadpur and since the land at Azadpur had not ultimately

been acquired, as the members of the society had constructed houses on the

plots allotted to them, the writ petition would have no merit and should be

dismissed.

6. Before we examine the reasonableness of the answer given by the

respondent No.1(DDA) to the question as to why the Lt. Governor‟s order of

18.01.1989 has not been complied with, it would be necessary to fill in some

gaps with regard to the facts involved in this case.

7. As pointed out above, the petitioner society had purchased 25 bighas

and 15 biswas of land out of its own resources at Azadpur for the purposes

of allotment to its members. 82 members were also allotted such plots

which had been carved out from the said land purchased at Azadpur. The

said land became the subject matter of a notification for acquisition issued

on 24.10.1961. However, that acquisition did not materialize and the colony

itself came to be regularized by the Municipal Corporation of Delhi on

31.08.1978 and, thereafter, the same has been continuing as a free-hold

colony. Subsequent to these developments, it appears that the petitioner

society had made a representation for allotment of the land at Shalimar

Bagh. In connection with such a representation, the Registrar of Co-

operative Societies issued a letter dated 14.06.1984. In the said letter, it has

been stated that the members of the society were awaiting allotment of plots

to the said society for the last 10 years and that the objective of the society

remained unfulfilled. The said letter dated 14.06.1984 was issued to the

Director (Co-operative Societies), DDA, Vikas Minar, New Delhi with the

direction that immediate action be taken to fulfill the desires of the members

sympathetically in the context of the fact that 97 plots had already been kept

reserved in the society in the Shalimar Bagh residential area. The letter also

indicated that the audit of the society had been completed upto 1983. And,

upto date, 88 members were waiting for allotment of plots. Alongwith the

said letter of 14.06.1984, the list of 88 members was also enclosed. A copy

of the said list is at pages 21 to 25. Thereafter, no action was taken by the

respondent No.1 (DDA) for allotting the plots at Shalimar Bagh to the

petitioner society. However, on 12.02.1988, the Registrar of Co-operative

Societies reviewed the earlier order of 14.06.1984 and revoked the same.

While doing so, the Registrar of Co-operative Societies observed as under:-

"This matter is examined in detail and it is found that the object of the society was achieved as on the date of allotment to original members and on regularization of the plots at village Azadpur by Delhi Administration. The question of enrolment of further 97 members on membership list does not arise. We feel that the society has enrolled these members by giving false promise and with the hope to get the land at Shalimar Bagh by pleading the wrong facts before this office and D.D.A.

In view of the above circumstances, the members cleared by this office earlier vide letter dt. 14.6.84 was also wrong and

obtained by the society by misrepresenting the facts to this office. This office has now decided to revoke the clearance of 88 members (S.No.83 to 170) given by this office earlier vide letter dt. 14.6.84. The clearance of members on waiting list and the members enrolled against the vacancies does not arise at this stage. It is further requested that the 97 plots reserved for the above society in Shalimar Bagh Residential Scheme may be utilized by D.D.A. for some other purpose."

8. Being aggrieved by this, the petitioner society preferred a revision

under Section 80 of the said Act before the Lt. Governor, who, by his order

dated 18.01.1989, set aside and quashed the Registrar‟s order dated

12.02.1988.

9. We have examined the said order dated 18.01.1989 in great detail and

we find that the Lt. Governor has considered all aspects of the matter and

has noted the entire historical background of the case in the said order. The

relevant portion of the said order dated 18.01.1989 is set out hereinbelow:-

"3. I have carefully considered the points raised. It is an admitted fact that the Registrar is not armed with any power to review his own action. Here the following issues are involved:-

(i) Whether the Registrar is having any power to revoke or to review the clearance of membership already granted ?

(ii) Whether the members enrolled prior to allotment of land cannot be treated as regular members.

As I have already observed and it is also an admitted fact that the Registrar has no power to revoke the clearance granted by him. Further what could I see is that the clearance was granted in 1984 whereas the same has been withdrawn in 1988. What would be the jurisdiction for the members who have been enrolled for allotment and such members in my view have been waiting for the allotment. I feel this is quite unjustified too. Further under Section 79, the Tribunal has powers to review its own order. By application of such powers by the Registrar cannot but be said to be contrary approach. By the import of the provisions of the Act, it is clear to me that the Registrar has no power to review the clearance of membership. I may also

observe here that had the land been released by the DDA immediately after the clearance as given by the Registrar, there would have no occasion for the Registrar to have issued such contrary directions. While issuing such directions, it appears to me that he has not though over the fate of the members waiting for allotment. There could not have been any possibility of allotment to such members having had their own plots. When the land has been wanted for allotment to validly and eligible members, the same should have been given to the society. Though there may be some difficulty with the department, yet the society cannot be deprived of its right of having had the land. In my view it should be released. I may further observe here that the enrolment of members is the prerogative of the managing committee of the society and the Registrar had and has nothing to do with it. Keeping in view the above factors, I come to the conclusion that the Registrar has acted without jurisdiction. His order dated 12.2.1988 as impugned herein is hereby quashed. The members as enrolled and to be validly enrolled in place of ineligible members cannot but be deemed to be valid and lawful members and they cannot be deprived of their rights of having plots of land in accordance with the provisions of law.

In end result, the present revision stands allowed. Announced.

(Romesh Bhandari) Lieutenant Governor, Delhi.

Dt.18.1.1989"

10. We find that the Lt. Governor had examined the matter after

considering two issues which arose in the case. The first issue was -

whether the Registrar had any power to revoke or to review the clearance of

membership already granted ? In response to this question, the Lt. Governor

rightly observed that the Registrar did not have the power of review. The

second issue that was taken up for consideration by the Lt. Governor was -

whether the members enrolled prior to the allotment of land could not be

treated as regular members. To this also, the Lt. Governor decided in favour

of the society. With regard to the observations made by the Registrar of Co-

operative Societies in the order dated 12.02.1988, the Lt. Governor clearly

remarked that while issuing such directions, it appeared to him that the

Registrar had not thought over the fate of the members waiting for allotment.

He also observed that there could not have been any possibility of such

members having had their own plots meaning thereby that it is only those

members who did not otherwise have plots, who would be entitled to

allotment of plots in the Shalimar Bagh Scheme. Ultimately, the Lt.

Governor observed that though there may have been some difficulty with the

department, yet the society could not be deprived of its right of having the

land allotted to it. And, it is in this background that the Lt. Governor

directed that the said land should be released to the petitioner society.

11. We have also considered the additional affidavit, which was filed on

behalf of the respondent No.1 (DDA) by way of an explanation as to why

the order of the Lt. Governor dated 18.01.1989 remained unimplemented for

all these years. We are not at all satisfied with the answer given by the

respondent No.1 (DDA). There is no explanation whatsoever as to why the

said order remains unimplemented. The stand taken by the DDA that the

land was allotted in lieu of the proposed acquisition is also not borne out by

the facts. This is so because when the Lt. Governor considered the matter in

1989, the regularisation had already taken place and the acquisition had

already fallen through. The Lt. Governor, after having taken note of all

these facts, passed the said order which has not been challenged by any party

and, therefore, we see no reason as to why it should not be implemented.

We may also observe that during the pendency of this writ petition and at a

belated stage, the respondent No.1 (DDA) attempted to revive the

controversy, which had already been settled by the Lt. Governor‟s order

dated 18.01.1989, by filing a review petition. The date of the review petition

has not been given in the additional affidavit. However, the same was

disposed of on 31.07.2009 and, therefore, it appears that the review petition

may have been filed only in this year itself and perhaps after the order dated

05.03.2009 passed by the predecessor Bench requiring the DDA to explain

as to why the order of the Lt. Governor has not been complied with.

Anyhow, that is water under the bridge inasmuch as the review petition has

been dismissed.

12. Consequently, we dispose of this writ petition by directing that the

order dated 18.01.1989 passed by the Lt. Governor be implemented within

three months. We, however, make it clear that, while considering the

allotment, it is the list of 88 members, which was appended to the

Registrar‟s letter dated 14.06.1984, which shall be considered for the

purposes of allotment. The Registrar of Co-operative Societies would verify

the said list with a view of considering their eligibility for allotment under

the Act and the rules prior to allotment of plots in respect of the said

members. The allotments would, however, also be made at the prevailing

price at the time of allotment. No order as to costs.

BADAR DURREZ AHMED, J

VEENA BIRBAL, J November 26, 2009 dutt