Pavitra Group Housing Society ... vs Neelam Deewan
2010 Latest Caselaw 1349 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+                        W.P.(C) No.1702/2010
                   Date of Decision: 11th March, 2010


       PAVITRA GROUP HOUSING SOCIETY LTD.          ..... Petitioner
                          Through:   Mr. L.B. Rai & Mr. Rajeev
                                     Kumar Rai, Advocates
                 versus

       NEELAM DEEWAN                             ..... Respondent
                              Through:    None


       CORAM:
       HON'BLE MS. JUSTICE GITA MITTAL
       HON'BLE MR. JUSTICE VIPIN SANGHI

       1. Whether the Reporters of local papers may
          be allowed to see the judgment?           :      No

       2. To be referred to Reporter or not?         :     No

       3. Whether the judgment should be reported
          in the Digest?                             :     No


%                          JUDGMENT (Oral)

GITA MITTAL, J.

1. The present writ petition has been filed assailing the award

dated 25th January, 2002 made by the arbitrator appointed under

section 61 of the Delhi Cooperative Societies Act in Arbitration Case

No.AR/ARB/6314/2001 against the petitioner society and in favour of

the respondent herein holding that she is a valid member of the

petitioner society and that the society had failed to raise demands

upon her in respect of the flat against her membership. The petitioner

also assails the order dated 17.02.2009 passed by the Delhi

Cooperative Tribunal dismissing the appeal of the petitioner against

the said award.

2. It is contended by the petitioner that the Registrar of Cooperative

Societies had constituted the Deewan Chand Committee to examine

the affairs of the society. This committee had submitted a report

dated 28th December, 1986. The petitioner before this court places

heavy reliance on this report pointing out that the petitioner's

enrolment was not recommended by this report. The submission

therefore is that no other committee could have reopened the matter

or gone into the issue of the validity of the petitioner's claim.

3. The petitioner is a Cooperative Group Housing Society.

Respondent had claimed to be a member of the petitioner society as

enrolled in the year 1987 having effected payment of an amount of

Rs.10/- towards entrance fee, share money of Rs.100/- and also having

deposited an amount to the extent of Rs.46,000/- to the society as

initial payment. She relied on a share certificate bearing no.607 which

had been issued to her under the seal and signatures of two office

bearers, i.e. President and Secretary of the society.

4. The respondent relied upon this certificate in support of her plea

that she was a valid member enrolled on fulfillment of essential

requirements. She also urged that she had made all required payments

to the society. It was further contended by the respondent that on

account of mismanagement, misappropriation of funds etc., the affairs

of the society were enquired into under the orders of Registrar of

Cooperative Societies.

5. In this background, the Registrar of Cooperative Societies had

directed an enquiry into the affairs of the petitioner society. An order

dated 28.02.1989 was passed appointing Sh. Deewan Chand as an

enquiry officer for the determination of several issues relating to the

society and preparation of a valid list of members of the society. This

enquiry officer took certain steps including calling upon persons to file

claims and other documents so as to finalise valid list of the members

of the society. However, several difficulties were experienced by this

Deewan Chand Committee which have been pointed out in paragraph

30 of its report. The report dated 28th December 1986 has been placed

on record, the relevant portion whereof is to the following effect:

"As has been stated in the pre-paras, first letter requesting the individual to submit the requisite documents was sent on 10th March, 1989. Since the response was very poor, another letter by registered post was sent on 11th May 1989. Inspite of this, all the claimants did not turn up and

many of them did not cooperate at the time of enquiry, with the result that those persons who have not appeared or have not furnished the requisite documents/details, their membership status has not been decided conclusively in the absence of any relevant record/proof.

Another important factor concerning membership issue is that in the absence of complete records, as has been stated in the enquiry U/s.55, total number of persons who at the one or the other time made some deposits in the society, cannot be determined and different lists have been prepared on the basis of information already available or that came into notice during the course of enquiry."

The above would show that the Deewan Chand Committee was

unable to complete its mandate and was handicapped on account of

non availability of the records of the society and failure of the various

claimants to produce the requisite record. No finality was attached to

the report which unequivocally states that the same is premised on

incomplete disclosure and insufficient record.

6. In this background, the Registrar of Cooperative Society vide

order No.F/47/519/Co4H/C/1131-1133 dated 21st July 1997 had

constituted a three member committee headed by Sh. J.P. Aggarwal, a

Joint Registrar in its office. The proceedings of this committee have

also been placed before us. The relevant portion of the report of the

committee dated 03.09.1998 deserves to be noted at this stage for

appreciation of the matter. The Aggarwal Committee has noted that a

list of 140 members was finalized by Sh. Deewan Chand vide his report

submitted on 25.04.1990. The report notices that from the proceedings

of the earlier committee, a number of applications/letters/claims were

found pending for disposal regarding refund and membership of the

society in the available records.

7. The Aggarwal Committee had found that several persons who

had laid claims of membership before the Deewan Chand Committee

have not been able to substantiate the same. It is noteworthy that

apart from the list tentatively finalized by Sh. Deewan Chand

Committee, an additional list was submitted by Sh. Hans Raj, the

Deputy Registrar by report made on 01.11.1990. Anomalies in the

proceedings have been noted and it has also been observed that the

record was in complete disarray. The society had either not produced

the necessary and relevant record or the records which were produced

were not available or authentic.

8. For these reasons, this committee decided to call for fresh claims

by giving a public notice in English and Hindi in the leading

newspapers. Pursuant to this, the Aggarwal Committee caused public

notices to be published in the Hindustan Times in English and the

Punjab Kesari in Hindi on 02.05.1998 inviting claims of membership

with supporting documents from the following categories of

claimant/members within 15 days of publication of the notice:

"1. Persons/Members who had filed their claims in respect of membership before the earlier two Committees but their claims could not be finalized either because the claimants did not submit sufficient documentary evidence in support of their claims or did not appear before the Committee at the stipulated dated & time.

2. Persons/Members who had filed their claims with this office after the submissions of the report of previous Committee but which have not been settled yet.

3. Persons/Members who had not filed any claim till date."

9. Pursuant to the said public notice, the committee received 54

claims. It was noticed that 67 claims were pending for decision with

the Registrar of Cooperative Societies which were received between

24.07.1990 till 01.05.1998 including 14 claims received beyond the

fixed date by the committee headed by Sh. Hans Raj, the then member

of the committee.

10. The Aggarwal Committee issued individual notice by registered

post to the claimants and thereafter proceeded to examine the claims

to consider the validity of their membership on the claims in

accordance with the provisions of Delhi Cooperative Societies Act,

1972.

11. So far as the consideration was concerned, the report dated 3rd

September 1998 shows that the following procedure was adopted by

the committee:

"Records being so hotch-potch Committee decided to act upon the claims after hearing the persons individually on the following guidelines to determine the genuineness:-

1. By examining proofs of domiciles of persons in the Territory of Delhi or proof of being exempted from condition as provided in the law;

2. By examining proofs of being nature at the time of enrolment;

3. By examining authentication/oath by a person to the effect that he/she is not a member of any other Cooperative Housing Society;

4. By examining authentication/oath by a person to the effect that neither his/her dependants own any plot or house in Delhi nor he/she or his/nor dependants deal in purchase or sale of houses or plots; and

5. By examining documentary evidence of a person to the affect that he/she has deposited the share money and admission fee etc. and has not resigned. "

12. The committee appears to have examined the above records and

also granted personal hearing of all persons concerned. After a careful

consideration of the 121 claims considered by it, the committee found

that membership of only 31 claims could withstand the above noted

tests. The committee has found these 31 members had fulfilled the

eligibility criteria of membership and that they had actually discharged

their first duty of depositing admission fee and share money in the

society which is supported by receipt of Rs.110/- available with them.

The committee also examined the question of seniority of these

members based on the date of deposit of admission fee and share

money for the reason that neither the records of membership

application were available nor the authentic minutes books/proceeding

register, membership register, receipt books and cash books were

found reliable. Based on this consideration, a list of 181 members was

prepared and was approved by the committee.

13. So far as the respondent is concerned, the report of the Aggarwal

Committee records that pursuant to the notices from the Committee,

the respondent appeared and submitted her documents as per the

letter dated 28th of May 1998 of the Registrar of Cooperative Societies.

The committee upheld the respondents' claim in its report dated 3rd of

September, 1998 and her name features at serial no.29 of the list

finalized by the committee.

14. It is an admitted position that the petitioner society accepted the

report of this committee and acted upon the same. The society started

writing letters to the respondent in the year 1996 based on the report.

By letter dated 26.12.1998, the petitioner society informed the

respondent that the committee had cleared her membership and

called upon her to produce the documents before the society. Another

letter dated 25.01.1999 was circulated to all members including the

respondent informing her that society had decided to demand more

amounts from the members. The respondent was required to contact

the society for further action in the matter by letter dated 05.02.1999.

These letters stand replied by the respondent and correspondence

continued up till June 1999. It is noteworthy that in its order, the

tribunal has extensively relied on theses communications and

correspondence.

15. On account of silence from the society thereafter and refusal to

communicate with the respondent, the respondent approached other

authorities including the Registrar of Cooperative Societies etc. As all

such actions were of no avail, the respondent filed her claim under

Section 60 of the Act, which were referred to a Sole Arbitrator. These

proceedings culminated in the award dated 25th of January, 2002.

Aggrieved by the said award of the arbitrator, the petitioner society

filed an appeal under section 76 of the Delhi Cooperative Societies Act,

1972 which has been rejected by the Delhi Cooperative Tribunal by

the order dated 17.02.2009, which has been impugned before us.

16. The only ground of challenge to the award dated 25th January

2002 and order dated 17.08.2009 which is pressed before us is to the

effect that the Deewan Chand Committee report 25.04.1990 had

attained finality and for this reason, the Aggarwal Committee could not

have gone into the aspect of the respondents membership. It has also

been urged that the share certificate produced by the respondent was

fake and had not been issued by the society. The reasons for

constitution of the Aggarwal Committee have been mentioned in its

report which have also been noticed herein above. No challenge is laid

to the same. In any case, the same cannot be faulted on any legally

tenable ground.

17. We also find that the petitioner did not make any objection at all

to the constitution of the Aggarwal Committee despite full knowledge

of the same. No protest was made even when this Committee issued

public notices inviting claims. It is clearly evident from the conduct of

the petitioner that it accepted the fact that no finality was attached to

the Deewan Chand Committee proceedings as well as the appointment

of the Aggarwal Committee.

18. The record placed before us, which is the basis of the award as

well as the impugned order dated 17.02.2009, shows that the society

also did not object to the report dated 03.09.1998 of the Aggarwal

Committee. On the contrary, the society accepted the same and had

acted upon it. It has actively corresponded with the petitioner based

on the findings in the report.

19. A period of almost 12 years has been permitted to lapse without

any challenge to the report. It is only when the respondent sought

redressal of her grievance, raised a claim and filed the arbitration case,

that in response thereto after 2001 the petitioner has attempted to

state that the certificate relied upon by the respondent was fake.

Interestingly, no grievance has been made with regard to the several

other persons whose claims stand examined and recommended by this

Committee.

20. The arbitrator as well as the tribunal has found against the

petitioner on all questions of fact raised before them. The petitioner

having accepted and acted upon the report dated 03.09.1998 of the

Aggarwal Committee in any case is estopped from raising the

challenge to the report on the grounds which have been asserted in

the present proceedings. In that view of the matter, we find that the

present writ petition is completely misdirected and misconceived. The

same is, in fact, an abuse of process of law. Valuable judicial time has

been unnecessarily wasted on consideration of this completely

misplaced challenge.

21. We accordingly dismiss the writ petition with costs which are

quantified at Rs.25,000/-. For the reason that notice has not been

issued to the other side, we direct that the costs shall be deposited

with the Delhi Legal Services Authority within a period of four weeks. A

copy of this order shall be furnished to the Secretary, Delhi Legal

Services Authority to ensure compliance.

GITA MITTAL, J

VIPIN SANGHI, J MARCH 11, 2010 sr