M/S. Varun Co-Op. Group Housing ... vs Delhi Development Authority & ...
2010 Latest Caselaw 4681 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI


                                                        Reserved on : 28.09 2010
%                                                  Date of decision : 05.10.2010


+                           WP (C) No. 7891 / 2009


M/S. VARUN CO-OP. GROUP HOUSING SOCIETY LTD.
      ...   ...    ...    ...   ...    ...   ...    ...     ... PETITIONER
                                Through : Mr. Ashok Bhasin, Sr. Adv.
                                          with Mr. Sunklan and
                                          Ms. Shuchismita,
                                          Advocates.

                                     -VERSUS-

DELHI DEVELOPMENT AUTHORITY & ORS.
     ...    ...   ...    ...   ...  ...    ...                               ...     RESPONDENTS
                                Through : Ms. Sangeeta Chandra,
                                          Advocate for R - 1 / DDA.
                                          Ms. Aruna Tiku with
                                          Ms. Ruby Nahar,
                                          Advocate for R-2 & 3.

CORAM :

HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON‟BLE MR. JUSTICE VALMIKI J. MEHTA

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

2.        To be referred to Reporter or not?                             YES

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


SANJAY KISHAN KAUL, J.

1. The petitioner, a registered co-operative society, applied

to Delhi Development Authority (DDA) / respondent No. 1

for allotment of land to construct flats for its members. _____________________________________________________________________________________________

Provisional offer letters were issued to the petitioner

society and other co-operative societies on the basis of

the seniority vide letter dated 18.11.1993 demanding

certain amounts to be deposited within 45 days. The

petitioner society had a grievance about the rates

charged and challenged the same by filing writ

proceedings, which were subsequently withdrawn. The

petitioner society thereafter deposited some amount,

wanted to withdraw the request for allotment, changed

its mind and all this resulted in various communications

with DDA. DDA wanted to refund the amount to the

petitioner society and even sent the amount back. The

petitioner society finally made an application to the

Lieutenant Governor / respondent No. 2 on 19.09.1997

for restoration of allotment and on account of failure of

any action filed Civil Writ Petition No. 2813/1998. This

writ petition was allowed on 05.08.2003 with certain

directions. The said Order noticed the default on the

part of the petitioner society in deposit of amount within

time and extended time though subsequently the

complete amount was deposited. The plea of the

petitioner society based on hostile discrimination in view

of the fact that extensions were granted to other

societies and some of these societies had not deposited

any amount whatsoever while the petitioner society had

deposited some amount was noticed. A direction was

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issued for the Lieutenant Governor to take a decision on

the matter considering the parameters laid in the

judgment. The following direction was issued :-

"A writ of mandamus is thus issued directing respondent No. 2 Lt. Governor to consider the application of the petitioner dated 19.09.1997 on its own merits specially taking into consideration the relaxation granted to various societies as mentioned above. Respondent No. 2 shall take into consideration the fact that extensions have been granted to other societies without payment of any amount while the petitioner had deposited a substantial part of the initial amount and even balance amount was deposited, though belatedly. Needless to say that a speaking order shall be passed by respondent No. 2 in this behalf. The petitioner shall be given an opportunity of hearing and shall have the option to produce any other material relevant on the date of hearing fixed for the said purpose. The necessary decision be taken within a maximum period of four months from today. In case the petitioner is still aggrieved, it is always open to the petitioner to impugn the same in accordance with law."

2. In pursuance to the aforesaid directions, a decision was

taken, which was communicated to the petitioner society

vide letter dated 03.06.2004 rejecting the request of the

petitioner society by the then Lieutenant Governor. The

petitioner society was, thus, constrained to file Writ

Petition (Civil) No. 12848/2006. The letter dated

3.6.2004 was quashed vide Order dated 07.03.2007 on a

concession being made by learned counsel for DDA that

the said decision as communicated was not in conformity

with the Mandamus issued by this Court on 05.08.2003.

The petitioner society was granted liberty to place before

the Lieutenant Governor any additional material that it

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wished to rely upon and a date was fixed for further

consideration of the writ petition.

3. It is thereafter that a fresh decision has been taken by

the Lieutenant Governor on 02.08.2007 once again

rejecting the request of the petitioner society and

simultaneously directing DDA to refund deposit amount

to the petitioner society within 15 days with interest as

applicable. It is this decision, which is now sought to be

challenged in the present writ petition under Article 226

of the Constitution of India, this being now the third

round of litigation.

4. A perusal of the order dated 02.08.2007 shows that after

recording the facts of the case, the manner in which the

representation was rejected by the earlier Lieutenant

Governor vide order dated 03.06.2004 has been

recorded again. There were two points :

(i) The petitioner society could not pay 35% of the

premium even after getting extended period of 19

months and eventually paid the amount after a gap

of over two years. The twenty four societies

referred to in the order have got their offer letters

renewed as per the then Lieutenant Governor‟s

order if they have deposited 35% premium before

30.09.1996 and the maximum time taken did not

exceed 13 months; and

_____________________________________________________________________________________________

(ii) The petitioner society had requested for refund of

the deposit amount on the ground that it was no

more interested in the allotment of land.

The order dated 02.08.2007 only states that the

case of the petitioner society is not at par with the

twenty four societies where offers were renewed as

explained in the earlier order communicated on

03.06.2004 and, thus, the request merits rejection.

Thus, practically speaking, the Lieutenant Governor

has only relied upon the order dated 03.06.2004,

which was conceded by the concerned respondent

/ DDA as being not in conformity with the

Mandamus issued by this Court on 05.08.2003 as

recorded in the proceedings dated 07.03.2007 in

Writ Petition (Civil) No. 12848/2006.

5. We have noted the aforesaid with some degree of

concern as this is the third round and repeatedly the

same mistake is being committed. The order dated

02.08.2007 also notes that the Registrar, Co-operative

Societies was asked about the genuineness of the

petitioner society and it was informed that the society is

defunct and liquidation proceedings are underway. The

proceedings under Section 96 of the Delhi Co-operative

Societies Act, 2003 ( hereinafter to be referred to as, „the

said Act‟ ) had been initiated against the petitioner

society as it was lying defunct for the last many years. _____________________________________________________________________________________________

Thereafter, the Lieutenant Governor records that since

the society is under liquidation, the request for

restoration is rejected.

6. Learned senior counsel for the petitioner society made a

grievance that the order dated 02.08.2007 was firstly

without any application of mind as it merely dittoed the

order communicated vide letter dated 03.06.2004, which

was conceded to be not in accordance with law.

Secondly, without considering the issue of the petitioner

society being a defunct society, a finding has been

recorded on the basis of the information sought from the

Registrar, Co-operative Societies. It was submitted that

there was, in fact, no final conclusion of the proceedings

before the Registrar, Co-operative Societies. It was

further submitted that at no stage of time, the

Mandamus issued vide the Order dated 05.08.2003 has

been appreciated nor has the same been complied with

while examining the case of the petitioner society. Since

the issue of liquidation proceedings were pending before

the Registrar, Co-operative Societies, till the same were

concluded, no final decision could have been taken

merely on an alleged notice issued under Section 96 of

the said Act. The mala fide of DDA was stated to be

apparent on account of the fact that even the direction

contained in the impugned order of the Lieutenant

Governor to refund the entire amount deposited of

_____________________________________________________________________________________________

Rs.29,32,099/- as on 27.12.1995 with appropriate

interest within 15 days had not been complied with and

the amount of only Rs.20,00,000/- was sought to be

refunded.

7. The writ petition has been contested by the respondents.

A preliminary objection of delay and laches has been

raised as the present writ petition was filed on

23.03.2009. However, the issue of challenge to the

order dated 2.8.2007 of the Lieutenant Governor was

sought to be raised in Writ Petition (Civil) No.

12848/2006, which was still pending for directions, but

that writ was withdrawn vide Order dated 12.02.2008 to

file a separate petition. However, the present writ

petition has been filed more than a year after that date.

8. The case of the petitioner society is stated not to have

been included in the list of twenty four societies for

whom extended time was made available to deposit the

premium because they were offered allotment of land on

24.08.1995 and 18.12.1995 while the petitioner society

was issued the allotment letter on 18.11.1993. The

maximum extension period granted to the other societies

is stated to be up to 31.07.1995 while the petitioner

society made the complete payment of 35% of the

premium only on 27.12.1995.

9. A separate affidavit has also been filed by the Registrar,

Co-operative Societies. This is necessary as the learned

_____________________________________________________________________________________________

counsel for DDA emphasised that all allotments to

societies are being made after verification from the

Registrar, Co-operative Societies. In the affidavit, it has

been stated that there were irregularities found in the

functioning of the petitioner society including in respect

of resignation of members. The Registrar has referred to

certain earlier show-cause notices issued under the Delhi

Co-operative Societies Act, 1972, which were, however,

quashed. The reliance is really placed on a notice dated

19.01.2006 under Section 96 of the said Act giving 30

days‟ time to reply with certain documents to which no

reply is stated to have been received. Another notice

dated 24.04.2007 was sent under Section 96(2) of the

said Act, but once again no reply was received. We may

notice at this stage that the petitioner society claims to

have submitted a reply dated 21.05.2007 though the

Registrar denies receipt of the same.

10. A letter dated 24.02.2009, however, is stated to have

been received in response to the notice dated

24.04.2007. We may note at this stage that the

petitioner has placed a photocopy of the letter dated

21.05.2007 on record and produced office copy in the

Court which records a receipt (in original) in the dak of

the respondent on 22.05.2007.

11. We may notice that in view of the stand taken by the

respondents, we had called upon the petitioner society

_____________________________________________________________________________________________

to file along with the rejoinder supporting documents in

respect of the membership and continued functioning of

the petitioner society by an Order dated 12.07.2010.

Rejoinder has been filed seeking to enclose copies of

balance-sheets and income & expenditure accounts of

the petitioner society for the period 2006-2007 to 2009-

2010. It is stated that the balance-sheets are also

accompanied with the list of members as well as the

land money contribution. We posed a specific query to

learned counsel for the petitioner society as to whether

these balance-sheets were filed with the Registrar of Co-

operative Societies and with the income-tax returns. We

are informed that no income-tax returns were filed and

no proof has been shown to us of filing of these

documents with the Registrar of Co-operative Societies.

We would, however, not like to convert ourselves into a

court of first instance to go into the material of the

petitioner especially taking into consideration the nature

of the same when the proceedings are pending before

the Registrar.

12. It is in view of the aforesaid factual background that we

have to examine the grievance of the petitioner society

against the impugned order of the Lieutenant Governor

dated 02.08.2007.

13. In our considered view, the grievance made against the

order is justified that the Lieutenant Governor has

_____________________________________________________________________________________________

merely dittoed the order communicated vide letter dated

03.06.2004 passed by his predecessor while the fact

remains that this order formed subject matter of

challenge in Writ Petition (Civil) No. 12848/2006. In the

proceedings of 07.03.2007, it was conceded by DDA that

the said order communicated vide letter dated

03.06.2004 was not in accordance with the Mandamus of

the Court issued on 05.08.2003. The order, thus,

communicated vide letter dated 03.06.2004 could hardly

have been relied upon by the Lieutenant Governor and

clearly a fresh application of mind was required, which

has not happened in the present case.

14. There is also merit in the second grievance that the

representation of the petitioner society has been

rejected on the ground that the proceedings under

Section 96 of the said Act have been initiated against the

petitioner society, which is lying defunct for the last

many years. The fact remains that this aspect had never

been put to the petitioner at any stage. Not only that, it

is conceded by learned counsel for respondent No. 3,

Registrar, Co-operative Societies that the proceedings

have not been finalised. This is stated to be on account

of the fact that other legal proceedings were pending but

actually it cannot be disputed that there was no stay of

proceedings before the Registrar. The Registrar was

_____________________________________________________________________________________________

expected to come to a conclusion finally whether the

petitioner society was or was not a defunct society.

15. We have, thus, no option but to once again set aside the

order dated 02.08.2007 of the Lieutenant Governor as it

is without any independent application of mind and

based on the material supplied by respondent No. 3,

which was never put to the petitioner and in respect of

which no final finding can be reached. The following

directions are passed :-

(i) Respondent No. 3 should conclude the proceedings

about whether the petitioner society is a defunct

society or not and is liable to be wound up. Such

decision should be taken after giving one last

opportunity to the petitioner society to place all

material on record in support of its consistent

continued functioning since the representation was

made on 19.9.1997 for extension of time for

balance payment. The material be filed by the

petitioner society within four weeks from today.

The Registrar, Co-operative Societies will conclude

the proceedings within three months from today.

(ii) The Lieutenant Governor would again examine the

representation of the petitioner society dated

19.09.1997 as per the Mandamus issued by the

Order dated 05.08.2003 and uninfluenced by the

order passed by the earlier Lieutenant Governor

_____________________________________________________________________________________________

communicated vide letter dated 03.06.2004 as also

the impugned order dated 02.08.2007.

(iii) Before passing the order, the Lieutenant Governor

will await the decision of the Registrar, Co-

operative Societies as the same would have

material bearing on whether the petitioner society

is a defunct society or a functioning society. The

Lieutenant Governor would take the decision within

a maximum period of two months of the order of

the Registrar being made available and needless to

say that the order shall be a speaking order and

after giving an opportunity of hearing to the

petitioner.

16. The writ petition is allowed in the aforesaid terms with

costs of Rs.5,000/- against respondents No. 1 and 2.

SANJAY KISHAN KAUL, J.

October 05, 2010                                         VALMIKI J. MEHTA, J.
madan

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