Naresh Kumar Gupta vs Registrar Cooperative Societies ...
2009 Latest Caselaw 3737 Del

          THE HIGH COURT OF DELHI AT NEW DELHI

                                  Judgment reserved on : 02.09.2009
%                                 Judgment delivered on: 14.09.2009

+      W.P.(C) 1904/2008

NARESH KUMAR GUPTA                                      ..... Petitioner

                                  - versus-


REGISTRAR COOPERATIVE SOCIETIES
& ORS.                                                 ..... Respondents

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.1/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 the 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 Digest?

BADAR DURREZ AHMED, J

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. 1 society (Jagriti 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 already recommended the petitioner‟s case for

allotment vide recommendation dated 25.02.2005. A copy of the said

recommendation has been filed at page 30 of the paper book. It is

observed in the said recommendation as under:-

"I am, therefore, of the considered opinion that the ex-parte Expulsion Resolution dated 26.09.2002 recorded by my learned predecessor and the ex- parte approval accorded by the learned Registrar on 02.04.2003 should be revoked and Shri Naresh Kumar Gupta should be re-admitted as member as stipulated in the proviso to clause 5 of Rule 36 of DCS Rules. Shri Naresh Kumar Gupta has agreed to pay full balance demand with interest @ 24% as stipulated under Rule 36-A of (1) (d) which otherwise was to be charged only at the rate of 18% p.a. as per Rule 36-A (1) (c) the name of Shri Naresh Kumar Gupta is being recommended for allotment of plot in the composite 17 column

proforma being sent by the undersigned for all the waitlisted members."

6. We may also point out that the petitioner had applied for

membership on 14.04.1984 and his membership had been cleared by

the Managing Committee in its meeting in 1985. The petitioner has

throughout remained a member of the respondent no. 1 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.

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

1984. 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 mentioned in the said

report in the following manner:-

"Number 1 Shri Naresh Kumar Gupta (Membership No. 651) Sh. N.K. Gupta gave an application dated 14th April, 1984 for becoming member and paid the share money on 2nd May, 1985. Although, the Managing

Committee approved his membership on 21st October, 1984. In the application along with affidavit filed he has shown himself to be the resident of 831/5 Paharganj, New Delhi - 011085. He did not file any document before the Society showing that he was resident of the said place at the time he became member. In his affidavit dated 14th April, 1984 he mentioned that he was carrying on business independently. In his affidavit dated 12th August, 1985, he mentioned that he has been working with Viz & Company, Chartered Accountant Paharganj since 1983. He has filed a copy of the ration card dated 27th July, 1988 which shows that one Mr. Suresh Chand Goel is the head of the family and address is given 1 Arya Samaj Mandir, Press Road, New Delhi. The records of the Society show that many notices sent at that address came back undelivered as no such person was found there. Sh. Manish Kumar, secretary of the Society visited the said place and made a report that same is Arya Samaj Temple and Pujari of the temple informed that no person of name Sh. N.K. Gupta was residing at that place. It is also significant to mention that he himself had given a letter dated 18th August, 1987 wherein he mentioned that he has shifted to new address at 1 Arya Samaj Mandir, New Delhi.

I recorded the statement of Mr. N.K. Gupta. He disclosed that he completed his Chartered Accountancy in 1984 and took employment with Mehra Goel & Company, Kashmere Gate where he worked up to 1978 and thereafter with S.N.Vij & Company in Paharganj (Multani Dhanda) where he worked up to 1985. He deposed that he took on rent one room in House No.8277/5 Multani Dhanda, Paharganj from Mr. Som Nath Vij and he stayed in that house upto 1985-1986. He categorically stated that he did not remember any house No. 1 Arya Samaj Road which address he had given in his affidavit dated 18th September, 1987. He also disclosed that he had opened an account in Punjab National Bank. It came out in the statement that he was married in the year 1978 and three children were born in between 1978 to 1982 and his children and wife always stayed in Ferozpur. There is hardly any satisfactory evidence placed by him on record showing that he had resided in Delhi and particularly during the relevant period when he gave application.

He was directed to file documents showing that he worked in the said firms mentioned by him, if so for what period and that he lived in Delhi in the relevant period in shape of voter list and or any proper ration card of the place mentioned in his application. He was required to send any document in that regard. He also admitted that he must have given his residential address in the Association of the Chartered Accountant and was asked to send documents in that regard. He has not sent any document. It is also pertinent to mention that in the copy of the ration card of the year 1988 of the address of 1 Arya Samaj Mandir Road his name appeared at the serial No. 6, but no father‟s name or relationship with the head of the family stand indicated. It is very difficult to link the ration card with the identity of this applicant. Moreover, if he had lived in that place he could not have forgotten the same when specific question was put to him about that place. It is also significant to mention that in his verification certificate his business address is shown as 8315/5 Multani Dhanda Paharganj which is same address as given by him in his application. There is nothing to show on the record what sort of office he is having even now at the said address. In absence of any convincing evidence on the record showing that this applicant was resident of Delhi at the relevant time. I am constrained to hold that he was not resident of Delhi at the relevant time and thus was not eligible to become member of the Society. 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 had submitted

proof that he had been working with M/s Vij & Co. Chartered

Accountants, Pahar Ganj since 1983. He had also filed the copy of

the Ration card dated 27.07.1988 which showed that he lived in Delhi.

The aforesaid documents ought to have been relied upon and

considered by Justice P.K. Bahri (Retd) while deciding the case of the

petitioner. Thus, in view of the aforesaid facts, it was submitted hat

for all intents and purposes the petitioner had to be regarded as a

resident of 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 47, 48 and 49 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 Housing 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 1985 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 Hardeep

Singh Sandhu v Registrar Coop. Societies & Others 41 (1990) DLT

(SN) 29 as also in the case of Hardit Singh Sudan v Governor Delhi

& Ors. 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.1 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 accept 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 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 is a

resident of 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.1 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.1 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 14, 2009 kks