S.P. Marwah vs Registrar Of Societies & Anr.
2011 Latest Caselaw 3827 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                               Date of decision : 09.08.2011

                          WP (C) No. 522 of 2011

S.P. MARWAH             ...       ...       ...       ...       ...       ...       PETITIONER
                        Through : Mr. S.C. Tripathi and
                                  Mr. Mohit Kr. Gupta,
                                  Advocate.

                                    -VERSUS-

REGISTRAR OF SOCIETIES & ANR. ...                         ...     ... RESPONDENTS
                        Through : Mr. Sandeep Agarwal and
                                  Mr. K.A. Singh, Adv. for R - 2.
CORAM :

HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON‟BLE MR. JUSTICE RAJIV SHAKDHER

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                                No
          reported in the Digest?


SANJAY KISHAN KAUL, J. (ORAL)

1. The present case is one where a member of a society

post-allotment withdrew from the allotment of the plot,

collected the money and is later on urging that he

should be allotted plot at earlier costs as another person

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similarly situated was subsequently permitted to once

again claim a plot at the prevailing price when she made

such request.

2. The petitioner is a retired member of the Indian

Administrative Service. The petitioner and other Officers

joined respondent No. 2, Civil Service Officers Welfare

Society (for short, „the Society‟), which was registered

with the Registrar of Societies in 1997. The Greater

Noida Industrial Development Authority (for short,

„GNIDA‟) allotted 30 acres of land to the Society on

27.03.1997 for the benefit of its members where plots

had to be carved out. The petitioner was allotted a plot

of 500 sq. mtrs. in 1997. The petitioner deposited

certain amounts, but in the year 1998 opted to withdraw

his name from the initial allotments to be made by

respondent No. 2. Apparently, there were nine such

members, who opted out and to whom the money was

returned after consideration of the matter by the

Governing Body in its meeting held on 23.11.1998. The

amount refunded to the petitioner was Rs.2,89,500/-

after deducting certain expenses for withdrawal of his

name at the stage after first instalment had already _________________________________________________________________________________________

been paid to GNIDA. This amount was accepted by the

petitioner without any demur or protest. The petitioner

claims to have sent a letter dated 12.05.1999

expressing his wish to acquire a residential plot in the

complex and requested that as and when possible his

case may be considered for re-allotment of a residential

plot admeasuring 500 sq. mtrs. The Society, however,

claims that the said letter was possibly delivered by

hand to somebody in the office of the then President and

was never placed on the file of the Society and, thus,

never came to the notice of the Governing Body. The

documents on record also do not show any follow up in

this behalf by the petitioner.

3. It is only in the EGM of 06.08.2004 that two plots of 300

sq. mtrs. each were allotted from amongst 10 members,

who had paid the deposit requested. The grievance of

the petitioner is that the request made by the petitioner

on 12.05.1999 was ignored while allotting these two

plots to members, who were not the original members /

the request was made after the request of the petitioner

and, thus, the petitioner assailed this allotment by filing

WP (C) No. 2998/2008.

_________________________________________________________________________________________

4. The aforesaid writ petition was disposed of by the Order

dated 10.11.2009 on a statement of the counsel for the

Society that an Arbitration Committee as contemplated

under clause 24 of the Memorandum of Association of

the Society had been constituted and the entire dispute

could be referred to that Committee. The counsel for

the petitioner withdrew the petition with liberty to make

a reference to the Arbitration Committee.

5. The Arbitration Committee examined the dispute and

gave its decision on 20.12.2010, which was sent to the

petitioner under the cover of the letter dated 07.01.2011

of the Society.

6. A perusal of the Order of the Arbitration Committee

shows that the claim of the petitioner was predicated on

the plea of a continuing membership of the Society

coupled with the request made vide letter dated

12.05.1999, while the stand of the Society was that by

seeking cancellation of the allotment of the plot already

made and obtaining refund, the petitioner had also

withdrawn from the membership of the Society. It is

noticed in that order that the petitioner claimed parity

with the case of one Smt. Asha Nayar, who is also one of _________________________________________________________________________________________

the persons who had withdrawn from the allotment of

the plot, but subsequently sought re-admission to the

Society and was re-enrolled. She was one of the

persons, who was given the allotment in the draw held

on 06.08.2004 and had been re-admitted to the Society

on 12.12.2003. The Society claimed that the letter of

the petitioner dated 12.05.1999 did not contain any

request for re-admission.

7. An Arbitration Committee constituted by the Society re-

examined the case of Smt. Asha Nayar and found that

the petitioner was entitled to be treated at parity with

Smt. Asha Nayar. It was observed that since the clock

could not be set back physical possession having been

delivered of the plots, the Society may take a view on

the request dated 12.05.1999 of the petitioner on the

lines of the case of Smt. Asha Nayar.

8. Respondent No. 2 Society acting in pursuance to the

aforesaid decision of the Arbitration Committee issued a

communication dated 17.01.2011 informing the

petitioner that a piece of land had been restored by

GNIDA some time back and that applications had been

called by the Society from eligible persons for _________________________________________________________________________________________

membership for allotment of land vide letter dated

08.11.2010. The Society went on to aver in this letter

that even though the last date for receipt of those

applications had elapsed, it could still include the name

of the petitioner without insisting on a formal application

or affidavit or a bank demand draft in the sum of

Rs.50,000/-, a requirement which other members had to

fulfil in order to participate in the draw of lots likely to be

held on 31.01.2011, if the petitioner was to give his

acceptance for being considered qua plots then

available.

9. The petitioner filed the present writ petition under

Article 226 of the Constitution of India (for short, „the

Constitution‟) on 25.01.2011, which was listed for the

first time on 28.01.2011. The petitioner made a

grievance that since Smt. Asha Nayar was allotted a plot

of 300 sq. mtrs., the petitioner was entitled to a plot of

the same size. The petitioner also disputed the right of

the Society to charge current rate from the petitioner.

The prayer made is as under :-

"a. set aside the letter dated 17.1.2011 written by the respondent No. 2 and direct the respondent No. 2 to comply the decision _________________________________________________________________________________________

rendered by the Committee pursuant to the order dated 10.11.2009 passed by this Hon‟ble Court in WP (C) No. 2998/08;"

10. On 21.02.2011, an interim order was passed in favour of

the petitioner that in case his name had not been

included in the draw of lots on 31.01.2011, a plot be

kept reserved for the petitioner. This order was

confirmed on 27.04.2011.

11. The Society / respondent No. 2 has contested the writ

petition and filed its counter affidavit. It has been

submitted that the petitioner has concealed from this

Court that the petitioner sent a response to the letter

dated 17.01.2011 only on 28.01.2011 after notice was

issued by this Court. In terms of this letter, the

petitioner instead of giving acceptance to the Society for

inclusion of his name in the draw of lots held on

31.01.2011 insisted upon a plot of 300 sq. mtrs. to be

allotted at the old rate. Thus, the name of the petitioner

could not be included in the draw of lots, which was

carried out for 15 plots amongst 83 members. One plot

was kept reserved for the petitioner in view of pending

litigation. Plots were also kept reserved for other

pending cases before the Arbitration Committee. _________________________________________________________________________________________

12. It has been pointed out that insofar as Smt. Asha Nayar

is concerned, she subsequently agreed for a plot of 300

sq. mtrs. and agreed to participate in a draw where she

happened to be one of the two successful persons, out

of ten persons in the draw. The allotment was made at

the prevalent rate and not at the original rate. On the

other hand, the petitioner insisted on 500 sq. mtrs. plot

and that too at old rate. Thereafter, on the order being

passed by the Arbitration Committee, he continued to

insist for a plot of 300 sq. mtrs. at old rate though there

were 16 plots, which were carved out of 200 sq. mtrs.

each and there was no plot of 300 sq. mtrs. available.

The other important aspect was that the petitioner was

insisting on the allotment of plot at the old rate.

13. A reading of the letter dated 28.01.2011 of the

petitioner shows that the petitioner alleged that the

letter of the Society dated 17.01.2011 was contrary to

the recommendations of the Arbitration Committee

since a plot of 200 sq. mtrs. was sought to be offered to

the petitioner, though Smt. Asha Nayar was given a plot

of land measuring 300 sq. mtrs. The petitioner also

claimed that the additional land made available did not _________________________________________________________________________________________

cost the Society any amount and, thus, the petitioner

should not be asked to pay the current rate, when Smt.

Asha Nayar was given a plot of land at old rate, in

conflict with the decision of the Arbitration Committee.

He thereafter in the said letter referred to filing of the

writ petition and in the last para stated that his name

should be included in the draw of lots to be held on

31.01.2011 in terms of the offer made in the letter dated

17.01.2011 without prejudice to the rights and

contentions available in the writ petition.

14. We have examined the aforesaid factual matrix and the

rival submissions of learned counsel for the parties.

15. The first aspect to be noted is that the petitioner of his

own volition after making some initial payment and after

the land was allotted to the Society withdrew the

request for allotment of a plot. The amount was

refunded back to the petitioner and the matter rested at

that. This happened in the year 1998 and the petitioner

had a second thought in the year 1999 when he made a

request for fresh allotment. There is some controversy

about how the said letter dated 12.05.1999 was

delivered, but suffice it to say that there was no follow _________________________________________________________________________________________

up in this behalf till the draw of lots was held in the year

2004 allotting two plots in a draw of lots held between

10 members, who agreed to accept 300 sq. mtrs. plot as

larger plots were not available. Smt. Asha Nayar was

one such person.

16. The proceedings of the Arbitration Committee only show

that the petitioner was granted limited relief predicated

on the plea of parity with Smt. Asha Nayar as otherwise

the petitioner would have no case. We may also notice

that Smt. Asha Nayar submitted the initial deposit

amount of Rs.10,000/- prior to the draw, agreed to

acquire a plot of 300 sq. mtrs. at then prevailing rate

after participating in a draw.

17. The petitioner continued to insisted on a plot of 500 sq.

mtrs. and after the order of the Arbitration Committee

for a plot of 300 sq. mtrs. even though plots of the

relevant size were not available. The best option for the

petitioner was to have participated in the draw of lots

held on 31.01.2011, which may have resulted in

allotment of the petitioner since the draw would have

been held of 84 members for 16 plots (the petitioner

withdrew, thus, 83 members participated for 15 plots as _________________________________________________________________________________________

one plot was kept reserved for the petitioner). The

petitioner also continued to rake up the issue of the rate

of land at which he should be allotted as he claimed

allotment at the original rate for which the petitioner

had no basis. The petitioner at best could have got

allotment at the current rate as in case of other

members.

18. The petitioner cannot be permitted to harp on the issue

of being an original member when he withdrew his

request for allotment. It is a matter of common

knowledge that land prices have been escalating.

Members, who do not want to invest at the time when

land rates are not high, but seek to jump in when land

rates escalate, cannot be given priority as the very

concept of a co-operative society is pooled payment for

all members. The default of withdrawal of any one

member can prejudice the whole project. It is after

allotment of land and the first instalment for the same

being paid that the petitioner withdrew his request for

allotment.

19. The petitioner got a fresh lease of life only on account of

the case of Smt. Asha Nayar, who was also similarly _________________________________________________________________________________________

situated and for reasons best known to the Society, was

again re-admitted and allotted the plot. The petitioner

did not even try to take advantage in the correct

perspective of the orders of the Arbitration Committee

putting the case of the petitioner at parity with the case

of Smt. Asha Nayar as he kept on insisting for an

allotment of a larger plot as in the case of Smt. Asha

Nayar, though no such plot was available. More

importantly, the petitioner kept on harping on the issue

of allotment at old rates. We are unable to accept the

plea of learned counsel for the petitioner that the letter

dated 28.01.2011 was an unconditional letter to

participate in the draw of lots for 31.01.2011. The

petitioner was insisting on the plot of 300 sq. mtrs. and

that too at the old rate as is apparent from para 3 of

that letter. The relevant portion of the letter is

reproduced as under :-

"3. Your letter dated 17-01-2011 is contrary to the findings / recommendations of the Arbitration Committee as -

(a) Smt. Asha Nayar was given a plot of land admeasuring 300 sq. mts. whereas I have been offered a plot measuring 200 sq. mts.

(b) The additional land now made available does not cost the Society any amount.

_________________________________________________________________________________________

Therefore, asking me to pay at the current rate whereas Smt. Asha Nayar was given the plot of land at old rate is in conflict with the decision of the Arbitration Committee.

4) Under these circumstances, I was constrained to file a Writ Petition (bearing No. W.P. (C) No. 522 of 2011) before the Hon‟ble High Court of Delhi. Vide Order dated 28-01-2011 the Hon‟ble High Court has been pleased to issue Notice to you thereby fixing the next date of hearing as 21-02-2011.

5) In view of the fact that you have already fixed draw of lots to be held on 31-01-2011 and considering paucity of time, I hereby give my consent to the offer made by you in your letter dated 17-01-2011 without prejudice to my rights and contentions as available in my aforementioned Writ Petition, copy of which is enclosed."

(emphasis supplied)

20. The petitioner sought to straddle in two boats at the

same time. The petitioner wanted to keep alive the

issue of the size of the plot and the current rate and also

take a chance in the draw in which if he had been

unsuccessful he would have challenged the same. The

Society, thus, did what was reasonable and proper and

did not include the name of the petitioner in the draw of

lots, especially in view of the letter having been handed

over at the last minute on 28.01.2011, while the

petitioner knew of the offer vide letter dated 17.01.2011

and in between filed the writ petition.

_________________________________________________________________________________________

21. In order to put the controversy at rest, we even

considered an equitable solution of permitting the draw

of lots for the remaining one plot between the petitioner

and those who were still waiting for the allotment.

However, learned counsel for the petitioner on

instructions stated that the petitioner was unwilling to

do so as the other persons, who participated in the draw

held on 31.01.2011, had taken a chance in the draw

while the petitioner had not been given a chance and,

thus, the petitioner should be given the allotment of the

plot reserved for the petitioner.

22. We are unable to accept this plea as it would be

extremely inequitable and unfair to the members who

participated in the draw held on 31.01.2011. The

petitioner at best would have had a chance or a

probability of allotment and could not have got an

assured allotment in the draw held on 31.01.2011. This

is so since there would have been 16 plots available for

possible allotment among 84 members. No doubt, the

probability has declined now if the draw is held for one

plot among 69 members including the petitioner, but the

_________________________________________________________________________________________

petitioner has to blame himself to blame for coming to

this pass.

23. Learned counsel for respondent No. 2 stated that effort

is still being made to obtain further additional land so

that all the members are able to ultimately get an

allotment. If that be so, the case of the petitioner can

be considered for allotment when such a land is made

available. We clarify that in such an eventuality, unless

there are enough plots, once again the Society would

have to hold draw of lots and allotment would be on

current costs.

24. We are not inclined to exercise jurisdiction under Article

226 of the Constitution in view of the facts set out

hereinabove to give the reserved plot to the petitioner

even at current costs. The plot reserved can, thus, be

allotted by respondent No. 2 Society by holding a draw

of lots.

25. In the end, we may emphasize that the petitioner has

clearly over-pitched his case as he is a member, who

having been allotted a plot withdrew from the allotment,

accepted the refund amount without demur or protest,

wanted a fresh allotment of a plot of 500 sq. mtrs. when _________________________________________________________________________________________

such plots were not available, and that too at the old

rate. As noticed above, but for the allotment made to

Smt. Asha Nayar, he would have had no case.

26. We, thus, dismiss the writ petition leaving the parties to

bear their own costs.

SANJAY KISHAN KAUL, J.

August 09, 2011                                 RAJIV SHAKDHER, J.
madan

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