Delhi High Court
Mrs. Neelam & Ors. vs The Financial Commissioner & Ors. on 28 July, 2010
Author: A.K.Sikri
* IN THE HIGH COURT OF DELHI AT NEW DELHI
REVIEW PETITION NO. 14764 OF 2008
REVIEW PETITION NO.15 OF 2009
REVIEW PETITION NO. 17 OF 2009
C.M. NO. 16504 OF 2008
C.M. NO. 557 OF 2009
C.M. NO. 558 OF 2009
C.M. NO. 598 OF 2009
C.M. NO. 599 OF 2009
C.M. NO. 600 OF 2009
C.M. NO. 2770 OF 2009
C.M. NO. 4141 OF 2009
C.M. NO. 12584 OF 2009
C.M. NO. 12585 OF 2009
in
WRIT PETITION (C) NO. 2338-53 OF 2005
&
WRIT PETITION ( C ) 11049 OF 2009 & C.M. NO. 10327 OF 2009.
% Decided on: 28th July, 2010
(1) REVIEW PETITION NO. 14764 OF 2008
Mrs. Neelam & Ors. ....Petitioners/applicants
Versus
The Financial Commissioner & Ors. ....Respondents.
(2) REVIEW PETITION NO.15 OF 2009
Smt. G. Alavadi ....Petitioner
Versus
The Financial Commissioner & Ors. ....Respondents.
(3) REVIEW PETITION NO. 17 OF 2009
Bishan Swaroop Vats & Ors. ....Petitioner
Versus
The Financial Commissioner & Ors. ...Respondents.
(4) C.M. NO. 16504 OF 2008
RP Nos.14764/2008, 15, 17/2009 & CM Nos.16504/2008,
557, 558, 598, 599, 600, 2770, 4141, 12584, 12585/2009
Neelam & Ors. ....Petitioners
Versus
The Financial Commissioner & Ors. ....Respondents.
(5) C.M. NO. 557 OF 2008
Smt. Neelam ....Petitioner
Versus
The Financial Commissioner & Ors. ....Respondents.
(6) C.M. NO. 558 OF 2008
Smt. Neelam ....Petitioner
Versus
The Financial Commissioner & Ors. ....Respondents.
(7) C.M. NO. 598 OF 2009
Bishan Swaroop Vats & Ors. ....Petitioners
Versus
The Financial Commissioner & Ors. ...Respondents.
(8) C.M. NO. 558 OF 2008
Neelam & Ors. ....Petitioners
Versus
The Financial Commissioner & Ors. ....Respondents.
(9) C.M. NO. 600 OF 2009
Neelam & Ors. ....Petitioners
Versus
The Financial Commissioner & Ors. ....Respondents.
(10) C.M. NO. 2770 OF 2009
Neelam & Ors. ....Petitioners
Versus
RP Nos.14764/2008, 15, 17/2009 & CM Nos.16504/2008,
557, 558, 598, 599, 600, 2770, 4141, 12584, 12585/2009
The Financial Commissioner & Ors. ....Respondents.
(11) C.M. NO. 4141 OF 2009
Smt. G. Alavadi & Ors. ....Petitioners
Versus
The Financial Commissioner & Ors. ....Respondents.
(12) C.M. NO. 12584 OF 2009
Neelam ....Petitioner
Versus
The Financial Commissioner & Ors. ....Respondents.
(13) C.M. NO. 12585 OF 2009
Neelam ....Petitioner
Versus
The Financial Commissioner & Ors. ....Respondents.
in
WRIT PETITION (C) NO. 2338-53 OF 2005
AND
(14) WRIT PETITION ( C ) 11049 OF 2009 & C.M. NO. 10327 OF
2009.
Roshan Lal Jain ....Petitioner
Versus
Registrar of Cooperative Societies & Ors. ....Respondents.
Mr. Hem Kumar, Advocate for Mr. Sanjeev Sabharwal,
Advocate for R-MCD
Ms. Jyoti Singh, Advocate with Mr. Ankur Chibbar, Adv.
for petitioners.
Ms. Sana Ansari and Mr. Sumeet Batra, Advocates for
Ms. Zubeda Begum, Advocate for R-RCS.
Mr. Sandeep Kumar, Advocate for Administrator.
Ms. Neelam Jain with Mr. AND Rao, Advocate for the
Review Petitioner in R.P. 15/2009
RP Nos.14764/2008, 15, 17/2009 & CM Nos.16504/2008,
557, 558, 598, 599, 600, 2770, 4141, 12584, 12585/2009
Ms. Savita Prabhar, Advocate for Mr. K.L. Arora, B.B.
Arora and Ms. Seema Arora (Respondents) and Mr.
Roshan Lal Jain (Petitioner).
Mr. Sachin Puri, Advocate with Ms. Kadambari, Advocate
and Mr. K. Siddiqui, Adv. for the petitioner in R.P.
17/2009.
Mr. Rajesh (UDC) with record.
CORAM :-
HON'BLE MR. JUSTICE A.K. SIKRI
HON'BLE MR. JUSTICE MANMOHAN SINGH
1. Whether Reporters of Local newspapers 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?
A.K. SIKRI, J.(ORAL)
1. Vide judgment dated November 3, 2008, a batch of writ petitions was
disposed of. Writ Petition (C) 2338/55/2008 was treated as the lead matter.
Three review petitions and various applications are filed in this writ petition.
Before we advert to the averments on the basis of which review is sought, it
would be apposite to take brief note of the controversy which was decided
vide aforesaid judgment.
2. The parties in these writ petitions/review petitions claimed to the
members of the Shivaji Corporate Housing Society. Twenty two (22)
members were expelled by the then Management of the Society. (for the
sake of convenience, hereinafter referred to as „the respondents‟). Twenty
three other members were inducted as members in their place. The expelled
members challenged their expulsion by filing appropriate proceedings before
the Financial Commission, which is revival authority. Expulsion was set
RP Nos.14764/2008, 15, 17/2009 & CM Nos.16504/2008,
557, 558, 598, 599, 600, 2770, 4141, 12584, 12585/2009
aside and they were directed to be reinstated/treated as valid members of
the society. On the other hand, qua the persons who were inducted in their
place, it was held that they were not validly admitted as members of the
society. Various proceedings came to be filed at various stages and it is not
necessary to refer to those in detail. Suffice it to say that all these were the
subject matter of the aforesaid writ petitions. In the judgment dated
November 3, 2008 this Court gave following findings:-
(1) Removal/expulsion of respondents from Members was illegal
more particularly when it was set aside by the Financial
Commissioner.
(2) Twenty three members enrolled in their place were
improperly inducted as members, inasmuch as, not only there
were no vacancies, even the procedure for admitting them as
members was not followed as no prior approval of the
Registrar was taken. Rather such an approval was applied
but specifically refused by the Registrar.
(3) Notwithstanding the fact these persons were wrongly
inducted as members, they were allotted the flats and on the
other hand, the respondents herein were not included in the
draw of plots. This allotment in favour of newly inducted
members was held to be illegal.
3. In these circumstances, the writ petition was disposed of with the
following directions:-
"(a) The petitioners in WP(C) No.2338-53/2005 and
others, namely, 22 persons who were purportedly
inducted on 11.4.1999, shall handover the possession of
the flats to the Administrator within four months from
today.
RP Nos.14764/2008, 15, 17/2009 & CM Nos.16504/2008,
557, 558, 598, 599, 600, 2770, 4141, 12584, 12585/2009
(b) These flats shall be allotted to those 22 members
who were expelled, subject to the condition that they have
paid entire consideration and no further amount is due
from them. For this purpose, draw of lots in respect of
these 22 flats for the said 22 members shall be held by the
Administrator. Thereafter, possession shall be handed
over to these members.
(c) In order to accommodate the petitioners and other
similarly situated persons (22 in number), the newly
inducted members, we issue the following directions:-
(ci) Due to the increase in the FAR there is an increase
in the membership from 120 to 138. Therefore, 18
persons can be accommodated by enrollment thereof as
new members out of 22 persons. By draw of lots 18 out of
these 22 persons shall be selected and the said list shall be
forwarded by the Society to the Registrar, who shall
approve their membership. Remaining four persons shall
be given refund of the amount paid by them. We are not
granting any interest on this amount as during all this
period they enjoyed use and occupation of the flats.
(cii) The Administrator shall submit plans for
construction of additional flats to MCD/DDA within two
weeks from today. These shall be approved within six
weeks of their submission, subject to fulfillment of other
formalities. Thereafter, the Society shall start
construction of the new flats and on completion of those
flats, possession thereof shall be handed over to the newly
recruited members.
(ciii) These 18 persons who were inducted as members
on 11.4.1999 had paid the entire consideration in respect
of these flats by the end of year 2000 when the draw of
lots was held on 31.12.2000. Therefore, they would only
pay the additional cost incurred on the construction of
these flats meaning thereby from the total construction
cost of the new flats, the amount already paid by them
shall be adjusted and the balance amount shall be shared
by these 18 persons in equal proportion
or in the alternative
In case these 18 persons are not agreeable to new
constructions at their cost in the manner provided above,
it would be open to them to seek refund of the amount
paid by them. These persons shall exercise their option in
this behalf within two weeks from today to enable the
Administrator to proceed further in the matter
accordingly."
RP Nos.14764/2008, 15, 17/2009 & CM Nos.16504/2008,
557, 558, 598, 599, 600, 2770, 4141, 12584, 12585/2009
4. The review petitions are filed by those members who were inducted
after the expulsion of the respondents and are allotted the flats. They are
sixteen in number. It would be relevant to mention at this stage that though
twenty three (23) persons were inducted as members and their membership
was not sanctioned by the Registrar of the Society, all of them did not
challenge the decision of the lower authorities instead Writ Petition No.
2338-53/2008 was filed only by 16 persons. Remaining seven did not come
to the Court at all. Out of those seven, three have now approached and have
filed review petitions (i.e. RP 15/2009 & RP 17/2009). Thus even as on
today, we have only nineteen (19) persons who were inducted after the
expulsion of the respondents. Other four persons, obviously, accepted the
decision of the lower authorities that their enrollment was illegal.
5. We also would like to point out at this stage that out of twenty two
expelled members namely the respondents herein, seven were already allotted
the flats. Thus those who are not allotted flats, out of those twenty two (22),
are only fifteen (15) in number.
6. Originally, one hundred and twenty (120) members were enrolled as
there was provision of construction of one hundred and twenty flats. Out
of this 120 members, 22 members were expelled as aforesaid and other
persons taken their place. The society had allotted, initially, flats to 94
persons which list was approved by the Registrar of Cooperative Societies as
well. Certain members who had paid the amount but were still not allotted.
RP Nos.14764/2008, 15, 17/2009 & CM Nos.16504/2008,
557, 558, 598, 599, 600, 2770, 4141, 12584, 12585/2009
They were also not in the list of those who were expelled. In these
proceedings we are concerned with two such persons namely Mr. Roshan
Lal Jain (Membership no. 67) and Mr. Pawan Kumar Arora (Membership
No. 391).
7. Review Petition no. 14764/2008 is filed by those sixteen petitioners
who were in 2338-53 of 2005. Review Petition no. 15/2009 is filed by Smt.
G. Alavadi, who had not approached the Court earlier. Review Petition no.
17/2009 is preferred by two persons namely Bishan Swaroop Vats and S.
Sethi who had also not approached the Court earlier. Writ Petition (C)
11049/2009 is filed by one Shri Roshal Lal Jain.
8. Though there is hardly any challenge to the findings given in the
judgment dated November 3,2008 holding that removal/ expulsion of
respondents from their membership was illegal and the enrollment of twenty
three persons in their place was improper or illegal, the grievance of these
review petitioner relate to the directions which are given in the said
judgment. Primarily, it is stated that there should not be carte-blanche
directions to the review petitioners to hand over the possession of flats to the
Administrator should be reviewed. In its place, review petitioners have tried
to convince this Court that there can be other more equitable formula for
accommodating all the concerned persons. In this behalf, they have
submitted that keeping in view the facts of the case of each such member
falling in either category, prioritization should be done i.e. the manner in
which all these persons should be accommodated fixing the priority/merit.
RP Nos.14764/2008, 15, 17/2009 & CM Nos.16504/2008,
557, 558, 598, 599, 600, 2770, 4141, 12584, 12585/2009
9. The counsel for various parties were heard from time to time on this
aspect and during the discussions, consensus emerged for allotment of
existing flats, construction of new flats and allotment of new flats to those
members who would be left out. All these proceedings, viz., review
petitions, writ petitions and miscellaneous applications are thus disposed of
with the following consent order. We may note that most of the parties
were present in the Court at the time when these discussions took place and
they have given their consent to the following terms:
(1) We shall first take up the case of Roshan Lal Jain
and Pawan Kumar Arora. In respect of Roshan Lal Jain, it
is stated that he was not allotted the flat since he was in
default. Roshal Lal Jain had committed default in making
the payments. That was the reason he was not initially
allotted the flat. His plea was, however, that he was not
sent demand notice for making payment and because of this
reason he could not make the payment for which he was
not to be blamed. Against non allotment, he approached
the Registrar of Cooperative Societies. Dispute was
referred to the Arbitrator who passed the award directing
Roshal Lal Jain to make the payment of the outstanding
amount alongwith interest. That amount has since been
paid. It is, therefore, agreed that there is no impediment
for allotment of flat to him.
RP Nos.14764/2008, 15, 17/2009 & CM Nos.16504/2008,
557, 558, 598, 599, 600, 2770, 4141, 12584, 12585/2009
(2) In so far as Pawan Kumar Arora is concerned, it is
conceded even by the review petitioner that he has already
may payment of Rs. 7,68,000/-. It is also stated by the
review petitioner that his name for allotment was approved
by the Registrar way back in 9.7.2003. Therefore, he is
also entitled to the allotment of flat as well as immediate
possession.
(3) Twenty three members who were inducted after the
expulsion of the respondents are occupying the flats. In
the judgment dated November 3, 2008, this fact has been
taken note of. Due to the increase in the FAR, Membership
is increased from 120 to 138 and, therefore, 18 more
persons can be accommodated. Directions to the
Administrator was given to take step for construction of
the flats so that 18 more persons out of these 23 persons
are accommodated. As pointed out above, four out of these
23 persons never approached. Further, three persons have
approached for the first time in the proceedings in the High
Court by way of review petitions only. Therefore, it is
agreed sixteen persons who have been agitating their
matter would be accommodated first and the three review
petitioner would be accommodated only thereafter.
RP Nos.14764/2008, 15, 17/2009 & CM Nos.16504/2008,
557, 558, 598, 599, 600, 2770, 4141, 12584, 12585/2009
(4) It is thus agreed that 17 respondents would be
accommodated in the first instance, thereafter sixteen
persons who were the petitioners in writ petition 2338-
53/05 and at the end, the three persons who have
approached by way of review petition 17/2009 and
15/2009.
(5) Since it is agreed that 17 members i.e. the
respondents will be given allotment by the society
immediately, the following flats from the following
members will be immediately got vacated and will be
allotted to the aforesaid 17 persons:-
Sl. Name Rev. Pet. No. Flat Status
No.
No.
1. Jaidev Dahiya 10 B-1/7 Shri Dinesh Rana was
found to be in
possession as per the
report of the local
commissioners.
2. Abheshek Kumar Review B-1/8 Locked since allotted.
petitioner,
but did not
file the writ
petition
3. Harish Kumar Sethi Review B-2/1 Has inducted tenant
petitioner, vide agreement to sell
but did not dated 01.05.2006
file the writ
petition
4. Ms. Shakuntala 8 B-3/2 Ms. Ritu was found to
Bhagat be in possession since
5. Prakshwati Rathi 12 B-3/7 Ms. Alka was found,
but she could not give
RP Nos.14764/2008, 15, 17/2009 & CM Nos.16504/2008,
557, 558, 598, 599, 600, 2770, 4141, 12584, 12585/2009
convincing answer
about her relationship
with the petitioner.
6. Vishnu Sarup Vats Review B-4/2 Dr. N.K. Kaul was
petitioner, found to be in
but did not possession.
file the writ
petition
7. Mrs. G. Ahlawadhi Review B-6/2 B.B. Jain was found to
petitioner, be a tenant since 2005-
file the writ
petition
8. Ms. Divya Syal Review B-6/5 Locked
petitioner,
but did not
file writ
petition
Radhey Syal
is the then
Secretary of
the society
(6) Besides this, 2 flats will be vacated from the two non-
members, who did not even challenge the order of the RCS
or of the Financial Commissioner. One flat will be got
vacated from Smt. Santosh Bagri, whose name has not been
cleared and her name has not been approved by the RCS till
date and she has not challenged or initiated any
proceedings in this behalf. One flat is lying vacant with the
society and is being used as its office. Thus, in all, 12 flats
will be available for allotment and handing over of
possession immediately to the said 17 members.
RP Nos.14764/2008, 15, 17/2009 & CM Nos.16504/2008,
557, 558, 598, 599, 600, 2770, 4141, 12584, 12585/2009
(7) Five flats will be taken out for allotment to the members by
conducting a draw amongst the remaining 12 non-
members. As far as these five members are concerned, they
will be given a notional and constructive possession of their
respective flats. They will be deemed to be the owners of
the said flats w.e.f. the date of allotment. However,
possession of the flats will be given to them on or before
31st October, 2011 by the respective occupants/ non-
members. During this period, these non-members will be
treated as licencee and they pay a sum of ` 10,000/- month
on account of use and occupation charges to the respective
allottees with effect from September, 2010. These non-
members/occupants will give an undertaking to this
Hon‟ble Court that they will hand over the vacant and
peaceful possession of their respective flats by the aforesaid
date, without any objections and demur. They will also
undertake to keep on paying the use/occupation charges as
aforesaid on or before 7th day of every month. In case of
default of two consecutive months, they will hand over the
vacant possession forthwith to the allottees. They will also
keep on paying the electricity, water and other charges for
this period. The vacant possession of the flat will be given
RP Nos.14764/2008, 15, 17/2009 & CM Nos.16504/2008,
557, 558, 598, 599, 600, 2770, 4141, 12584, 12585/2009
irrespective of the construction and completion of new flats
as aforesaid.
(8) Out of the aforesaid flats which become available, only two
flats are in HIG category. However, there are more
persons among the respondents who had applied for HIG
Flats. Four respondents are represented by Ms. Sunita
Prabhakar and two by Mr. Poddar. Both the counsel are
claiming that their clients should be given priority. In
these circumstances, suggestion was mooted that two HIG
flats which become available can be allotted by Draw of
Lots among the six persons. This is, however, not
acceptable to Ms. Prabhakar. In these circumstances, we
are leaving this issue open for the parties to get the issue
determined in the appropriate proceedings as to who will
have prior claim for allotment of these two HIG Flats.
New flats which are to be constructed, many of
those would be in HIG category and at that stage all
persons who have applied in HIG category can be
accommodated. Therefore, it would be open to the other
respondents who are to be allotted HIG to occupy MIG
Flats for time being and thereafter shift to newly construct
HIG Flats.
RP Nos.14764/2008, 15, 17/2009 & CM Nos.16504/2008,
557, 558, 598, 599, 600, 2770, 4141, 12584, 12585/2009
(9) With regard to construction of new flats, learned counsel
for the Administrator pointed out that he had received one
feasibility report for the proposed additional 16 flats in the
Society from the Architect Organic India in which he has
submitted that 12 HIG Flats alongwith 2 lifts can be
constructed on the „C‟ shape block (A1 to A-6) and
similarly four MIG Flats alongwith one lift can be
constructed one a linear block (B-5 to B-6) and now the
construction cost is reduced from ` 3,06,00,000/- to
2,83,00,000/- The Architect further submitted that
around one and a half year is required for completing the
construction after sanction from the local authorities.
(10) To obviate any chances of future dispute, the Administrator can
seek options for HIG/MIG flats who are to be accommodated
in new constructed flats and flats can be construct accordingly.
The learned counsel for the society informs that approximately
` 1.35 crores are the funds available with the Society. ` 5 lacs
will be kept apart for making day to day expenses and ` 1.30
crores would be contributed for the construction of the flats.
The remaining amount shall be contributed by the review
petitioners and others who are going to be accommodated in
these new flats in equal proportion. The administrator can
RP Nos.14764/2008, 15, 17/2009 & CM Nos.16504/2008,
557, 558, 598, 599, 600, 2770, 4141, 12584, 12585/2009
convene a meeting of these persons in order to know their
preference.
(11) The Registrar of Cooperative Societies would increase the
strength of the Society from 138 to 148.
(12) It is agreed that none of the members or non-members will
continue to prosecute any proceedings against each other,
including the proceedings before the Financial Commissioner
regarding dual membership. In any case, it is agreed that any
pending proceedings or complaints or any other existing
litigation between the parties will stand terminated/withdrawn.
Similarly, any proceedings or complaints made with any
authority either by the RCS or the new administrator against
Shri Onkar Singh will not be prosecuted by such authority and
will stand terminated/withdrawn and in future also no
proceeding swill be initiated against him in his capacity as the
administrator of the Society. This will subject to Sh. Onkar
Singh handing over the entire records to the present
Administrator.
10. All the proceedings stand disposed of.
(A.K. SIKRI)
JUDGE
(MANMOHAN SINGH)
JUDGE
RP Nos.14764/2008, 15, 17/2009 & CM Nos.16504/2008,
557, 558, 598, 599, 600, 2770, 4141, 12584, 12585/2009
