Rajeev Sheopuri vs Registrar Cooperative Societies
2009 Latest Caselaw 3515 Del

THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 02.09.2009

+ W.P.(C) 3400/2007

RAJEEV SHEOPURI  Petitioner

V€I'SLlS

REGISTRAR COOPERATIVE SOCIETIES  Respondent

Advocates who appeared in this case:-

For the Petitioner : Mr. Rakesh Munjal, Sr. Advocate with Mr. Maneesh Goyal and Mr.Manish Paliwal, Advocates.

For the Respondent : Ms. Deepa Tiwari for Ms. Sujata Kashyap, Advocate for respondent no. l/RCS.

Mr. Sandeep Kumar, Advocate for respondent no. 2.

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?

2. To be referred to the Reporter or not?

3. Whether the judgment should be reported in the Digest? _l_3ADAR DURREZ AHMED, J (oral)

1. This writ petition is directed against the report dated 26.10.2006 submitted by Justice P.K. Bahri (Retd) to the extent it relates to the petitioner's case for eligibility for allotment of a plot in the respondent no. 2 society (J agriti Nagar Cooperative House Building Society Ltd).

2. The report came to be submitted because of an order passed by

a learned Single Judge of this court in Cont. Cas. (c) No. 378/2005.

The said contempt petition was filed in connection with the order dated 11.10.2000 passed by another learned Single Judge of this court while disposing of the writ petition bearing no. C.W. No. 4808/1997. It is indicated in the order dated 01.05.2006 that at the stage the said writ petition (C.W. No. 4808/ 1997) was filed, 102 plots had to be allotted to 102 members. It was also observed that as per the procedure prescribed by the Registrar of Cooperative Societies, at the stage of allotment of plots, continued eligibility and entitlement of the member of the society had to be verified and approval had to be granted by the Registrar of Cooperative Societies.

3. Forty-eight members out of the 102, had been cleared and a draw-of--lots had been held by the DDA on 24.08.2005. Thereafter, the said 48 members were allotted specific plots. Out of the remaining 54 members, we are told that 3 have resigned which meant that 51 members were yet to be allotted plots inasmuch as their names had not been officially cleared by the Registrar of Cooperative Societies for allotment of plots. The petitioner was one of the said 51 members.

4. Since no progress was being made in the matter concerning the Verification of the membership and entitlement for allotment of plots insofar as the 51 persons were concerned, the learned Single Judge by his order dated 01.05.2006 appointed Justice P.K. Bahri (Retd) as a court nominee to scrutinize the claims of the said 51 persons awaiting

clearance for the purposes of allotment. It was indicated that the list

of persons cleared by Justice P.K. Bahri (Retd) would be accepted without demur by the Registrar of Cooperative Societies and that the DDA would act in pursuance of the said list.

5. It is pursuant to these directions given in the said order dated 01.05.2006 that Justice P.K. Bahri (Retd) prepared his report dated 26.10.2006. Prior to the said report, the Administrator of the respondent society had, on 31.10.2005, already recommended the petitioner's case for allotment. A copy of the said recommendation has been filed at Page 65 of the paper book. It is observed in the said recommendation as under:-

"I, therefore, have no hesitation to conclude that

Shri Rajeev Sheopuri was duly enrolled member of

the Society and had fulfilled all demands of the

Society for making payments towards the cost of

land and that he had neither resigned from his

membership nor his membership was ever

cancelled or ceased by the Society by following

prescribed procedure laid down under Rule 25,

Rule 36 or Rule 40 of Delhi Co--operative Societies

Rules, 1973. He, therefore, remains valid member

of the Society with all incidence of membership."

6. We may also point out that the petitioner had applied for membership on 17.10.1979 and his membership had been cleared by the Managing Committee in its meeting held on 29.09.1981. The petitioner has throughout remained a member of the respondent no. 2 society since then. We may also point out that the question of

residence in Delhi had not been raised at the time of grant of

membership nor was it an issue when the Administrator (Mr. S.N.

Aggarwal) had given his recommendation on 31.10.2005.

7. In the said report dated 26.10.2006, while considering the case of the petitioner, it has been noted that the only question to be decided was whether the petitioner was a resident of Delhi or not at the relevant time. The report indicates that the 'relevant time' was construed as the time for application of membership and, that was in 1979. According to the said report, the petitioner was not a resident of Delhi and, therefore, he was ineligible to be a member of the society. The case of the petitioner has been in the said report in the

following manner:--

"Number 53 Shri Rajeev Sheopuri (Membership No.578)

From the recommendation of Shri S.M.

.Aggarwal, Administrator dated 31" October, 2005,. it is revealed that Shri Rajeev Sheopuri had made an application for enrollment as member on 17th October, 1979 and he paid share money on 4"' January, 1980 and the Management Committee of the Society passed resolution dated 29"' September, 1981 enrolling him as Member of the Society and he had deposited Rs. 7,500/- on 23" November, 1981 and Rs. 7,500/- on 22nd May, 1982. A dispute arose as to whether the Managing Committee admitted him as member. A photocopy of the minutes of the meeting dated 29th September, 1981 appearing on the record shows that the Managing Committee had admitted him as a waitlisted member. The only question to be decided by me is as to whether he has been resident of Delhi or not at the relevant time. I have recorded his statement on September, 18, 2006. He has stated that his father was employed in General Insurance company in Delhi till 1975 and for the period 1975 to 1980 his father was based in Gwalior. He admitted that he was residing in Bhiwani and pursuing Bachelor of Textile course

and he completed that course in 1982. So as the time he made an application for becoming a member neither his father was residing in Delhi or he was residing in Delhi. He had filed copy of the ration card dated 1" January, 1983 in which his name appeared and that ration card pertains to House No. A-6, South Extension, Part -- I, New Delhi in the name of Shri Sham Lal Sheopuri his grandfather. It would only show that he was resident of Delhi atleast in January, 1983 but this ration card would not show that he was also resident of Delhi at the relevant time when he gave application. He has shown photocopy of his passbook of Central Bank showing that he opened bank account on 4"' March, 1980 and has given address of A--16, NDS1-3, New Delhi. Maybe he had bank account in Delhi that would not show that he was resident of Delhi when particularly he was having his education in Bhiwani and living there may be in a hostel. As long as he continued to stay in Bhiwani he could not be considered as resident of Delhi. He was ineligible to become member of the Society when in 1979 he was not resident of Delhi. Thus, I hold that his name has been wrongly recommended by the Society."

8. It has been contended by the learned counsel for the petitioner that the question of residence was not an issue at all which required consideration by Justice P.K. Bahri (Retd).

9. Secondly, he submitted that the petitioner could not have been regarded as a non--resident inasmuch as the petitioner resided in House No. A-6, South Extension, Part--I, New Delhi which was a property purchased by the petitioner's grandfather. It was a property which was like a permanent address of the petitioner. The petitioner's father

had a transferable job and he was, from time to time, posted out of

Delhi. Similarly, the petitioner had gone to pursue his studies at

Bhiwani for obtaining the degree of Bachelor' of Textiles. According to the learned counsel for the petitioner, the residence at Bhiwani was only temporary and for the purposes of education whereas the petitioner's permanent residence was always at Delhi. His ration card was also of Delhi and, therefore, for all intents and purposes the petitioner had to be regarded as a resident of Delhi and could not be regarded as one who was not resident in Delhi.

10. Thirdly, the learned counsel for the petitioner referred to the Circulars dated 16.12.1992, 24.02.1994 and 05.12.2001 copies whereof have been placed at pages 105, 144 and 104, respectively, of the paper book. The first Circular dated 16.12.1992 which has been issued by the Registrar of Cooperative Societies clearly indicates that cases which had been detained on account of requirement of proof of residence ought to be examined in the light of the decision of the Government of National Capital Territory of Delhi to discontinue the requirement. As regards the future also, it was indicated that the requirement of proof of residence in Delhi for clearance of membership would not be insisted upon. The said Circular dated 16.12.1992 was in respect of Cooperative Group Housing Societies.

11. The next Circular is that of 24.02.1994 which is in connection with the objections raised by the office of the Registrar of Cooperative Societies in some cases on the point of proof of residence in Delhi for membership clearance in Cooperative Housing Societies. By virtue of

the said Circular dated 24.02.1994, it was clarified that requirement of

proof of residence has been dispensed with in the case of freeze list members of Cooperative House Building Societies.

12. The third Circular is of 05.12.2001 whereby there is a clear exemption issued by the Lieutenant Governor of the National Capital Territory of Delhi in exercise of his powers under section 88 of the Delhi Cooperative Societies Act, 1972 whereby exemption has been granted from the operation of the condition of Model Bye-Law No. 5(1)(a) during the period 16.12.1992 to 22.04.1997 with regard to proof of residence in respect of members of Group Housing/House Building Societies. The matter, therefore, stands clarified that during the said period -- 16.12.1992 to 22.04.1997, proof of residence was not necessary. In fact, the learned counsel for the petitioner submits that in all cases of membership prior to 22.04.1997, proof of residence had been virtually dispensed with. The petitioner's case was of a membership of 1981 and, therefore, the Circulars would squarely apply.

13. Fourthly, the learned counsel for the petitioner placed reliance on a decision of Division Bench of this court in the case of Hardeeg Singh Sandhu v Registrar Coop. Societies & Others 41 (1990) DLT (SN) 29 as also in the case of Hardit Singh Sudan v Governor Delhi L, In the said decision, it has been observed that the inquiry with regard to proof of residence _should be considered at the time prior to enrolment of an applicant as a member. Having enrolled a person as a

member, it would not be proper on the part of the society to go back

on its earlier decision unless a case of fraud is put forth by the society. As in that case, so also in the present case, the learned counsel for the petitioner submits that there is no allegation of any fraud on the part of the petitioner and, therefore, once the membership has been granted by the Managing Committee as far back as in 1981, the society is precluded from going into the question of proof of residence. For all these reasons, the learned counsel for the petitioner submitted that the conclusion in the said report dated 26.10.2006 with regard to the petitioner ought to be quashed.

14. The learned counsel appearing for the respondent no. 2 society which is now being run by an Administrator appointed by the Registrar of Cooperative Societies submits that, after the report of Justice Bahri (Retd), he has nothing further to say inasmuch as paragraph 12 of the order dated 01.05.2006 whereby the said report was necessitated, made it clear that the Registrar of Cooperative Societies would accept the list of members cleared by Justice Bahri without demur. The learned counsel submits that since the Administrator is a nominee of the Registrar of Cooperative Societies, he has been "tied down' to accepting the said report.

15. On an examination of the circumstances as indicated above, we find that the requirement of proof of residence has been considered by Justice Bahri (Retd) in his said report without referring to any of the three Circulars dated 16.12.1992, 24.02.1994 and 05.12.2001.

Reading the Circulars together, the impression that we get is that prior

to 22.04.1997, the requirement of proof of residence has been virtually dispensed with. The petitioner's case was pending clearance at the time the said Circulars were issued and, therefore, the petitioner's case would be covered by the said Circulars. This aspect of the matter was not at all considered or brought to the notice of Justice P.K. Bahri when he prepared his report. In view of the said Circulars, it is clear that whether a person was residing in Delhi or outside Delhi became an irrelevant issue. This is categorically indicated in the Circular dated 24.02.1994. Of course, this situation would prevail in respect of memberships prior to 22.04.1997 and that, too, only those which had not been finalized.

16. This being the position, the finding in the said report that the petitioner was not cleared for allotment on the ground of not being a resident in Delhi cannot be sustained. Apart from this, on the facts of the present case also, we are of the view that the petitioner has not given up his status of being a resident in Delhi by undertaking studies at Bhiwani which was only a temporary period of stay for pursuing his studies. The permanent address continued to be A-6, South Extension, Part--I, New Delhi. On this ground also, the report insofar as the petitioner is concerned, is liable to be set aside.

17. For the foregoing reasons, this writ petition is allowed. The impugned report dated 26.10.2006 to the extent it relates to the petitioner is set aside. Consequently, the respondent no. 2 society is

directed to immediately process the case of the petitioner for

forwarding the same to the Registrar of Cooperative Societies for clearance from the Registrar so that the allotment can be got done through the DDA. This would, however, be subject to completion of all formalities by the petitioner. The petitioner shall complete the formalities within two weeks and the Administrator of the respondent no. 2 society shall forward the same to the Registrar of Cooperative Societies for his clearance within two weeks thereafter. The Registrar shall also expeditiously forward the same for allotment to the DDA.

The writ petition stands allowed to the aforesaid extent.

BADAR DURREZ AHMED, J

VEENA BIRBAL, J SEPTEMBER 02, 2009 kks

W.P.{C) 3400/2007 page 10 of 10