Sant Tulsi Dass Cooperative Group ... vs Narinder Kumar Aggarwal & Others
2009 Latest Caselaw 3495 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI
"/0 Judgment delivered on: 01.09.2009

+ W.P.[C[ 5275/1993

SAN T TULSI DASS COOPERATIVE GROUP

HOUSING SOCIETY LIMITED  Petitioner
versus

NARINDER KUMAR AGGARWAL & OTHERS  Respondent

AND

+ W.P.§ C 1 5276/1993

SANT TULSI DASS COOPERATIVE GROUP HOUSING SOCIETY LIMITED Petitioner

versus SURINDER KUMAR AGGARWAL & OTHERS Respondent

Advocates who appeared in this case:- F or the Petitioner : Mr. Shiv Charan Garg, Advocate.

For the Respondent No. 5 : Ms. Lalita Kohli, Advocate for respondent no. 5.

CORAM:

HON 'BLE MR JUSTICE BADAR DURREZ AH.MED HON'BLE MS JUSTICE VEENA BIRBAL

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

2. To be referred to the Reporter or not'?

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

BADAR DURREZ AHMED, J (ORAL)

1. By an order dated 09.07.2009, we had dismissed these writ petitions for non--prosecution. However, the same have been revived on account of

the restoration applications -- CM nos. 9358/2009 and 9359/2009,

respectively, having been allowed today itself. While passing the order dated 09.07.2009, we had noted the following:--

"1. These writ petitions pertain to the very same group housing society, namely, Sant Tulsi Dass Co-operative Group Housing Society Limited and raise the same issue, therefore, they are taken up together. Nobody appears on behalf of the petitioner society despite the matter being on the regular board. It appears that the non-appearance of the petitioner society is on account of the fact that the issue of domicile for the relevant period is not a necessity in view of the circular dated 16.12.1992 which has been issued by the Registrar, Co-operative Societies. The said circular reads as under:--

"No.F.47/OGH/Coop/92/5849 to 5900 Dated: 16.12.1992 CIRCULAR

It has been decided by the Govt. of National Capital Territory of Delhi to discontinue the requirement of proof of residence for membership of cooperative group housing societies with immediate effect. The cases which have been detained only on account of this reason may be examined in the light of these orders. In future the requirement of proof of residence in Delhi for clearance of membership of cooperative group housing societies will not be insisted upon.

A separate action is being taken to advice (sic: advise) all the cooperative group housing societies to amend the relevant bye--laws accordingly.

Sd/--

( S.M. CHAUDHARY) Registrar, Coop. Societies"

2. Another circular was issued on 24.02.1994 clarifying the stand already taken. The relevant portion of the circular dated 24.02.1994 reads as under:-

"... In the case of cooperative group housing societies, decision was taken long back to dispense with the requirement of proof of residence in Delhi. We have gone further to delete this clause from the bye--laws of these societies. We have already issued a notice to all the cooperative group housing societies under Rule 16 of Delhi Coop. Societies Rules, 1973, to amend their bye- laws by deleting the clause of requirement of residence in

Delhi for the membership at the time of enrolment. In view of this, whether a person is residing in Delhi or outside Delhi becomes an irrelevant issue."

3. We may also note the decision of a Division Bench of this court in the case of Maitri Nagar C0-operative Groug Housing Society Limited v. Mehar Chand and Others [WP(C) 2890/1995 decided on 17.04.2009], wherein the said circular dated 16.12.1992 came up for consideration. With regard to the question as to whether the circular would have retrospective effect, the Division Bench took the view that the question of retrospectivity did not arise inasmuch as the circular merely stated that those cases "detained" to enable a member of a group housing society to provide proof of residence could now be examined in the light of the Delhi Government's decision to discontinue the necessity of proving residence in Delhi. The Division Bench observed:--

"In other words, the circular would be applicable only to those cases that had not yet attained finality."

4. In the present cases, we lind that when the said circular dated 16.12.1992 came into operation, in both the writ petitions, the matter was pending before the arbitrator and, therefore, it is obvious that the case had not attained finality at that point of time. We may also note that the award also mentions this circular dated 16.12.1992 and gives the benefit to the respondent members. The tribunal has also dismissed the appeals arising from the award as having been barred by limitation."

In the said order dated 09.07.2009 itself, we had indicated that the above circumstance was set out to show the possible reason as to why the petitioner had not appeared before this court. In any event, the writ petitions were dismissed for non-prosecution. It appears that the learned counsel for the petitioner did not appear before this court for a different set of reasons. The explanation given by him had been accepted by us and the writ petitions

were restored, as mentioned above.

WP(C) Nos. S275/1993 & 5276/1993 Page 3 of4

We have heard the counsel for the parties and are of the View that the observations made by us on 09.07.2009 stand. Therefore, reiterating the

same, the writ petitions are dismissed. There shall be no order as to costs.

BADAR DURREZ AHMED, J

VEENA BIRBAL, J SEPTEMBER 01, 2009 kks