Gopal Kishan vs Registrar Co-Operative ...
2011 Latest Caselaw 1336 Del

*               THE HIGH COURT OF DELHI AT NEW DELHI

%                                Judgment delivered on : 07.03.2011

                          WP(C) 2071/1997

GOPAL KISHAN                                               ..... Petitioner



                                 -versus-




REGISTRAR CO-OPERATIVE SOCIETIES                        ..... Respondents

Advocates who appeared in this case:

For the Petitioner        : Mr R P Sharma with Ms Shreejata Dutta, Advs.

For the Respondents       : Mr L K Garg, Adv. for respondent no.1.


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 ?

2.     To be referred to Reporters or not ?

3.     Whether the judgment should be reported

        in the Digest ?

SANJAY KISHAN KAUL, J (ORAL)


1.     The petitioner is a member of respondent no.2 society. The

petitioner was offered an MIG flat by the society but according to

the petitioner he had paid for and was entitled to a HIG flat. This

gave rise to a dispute which was referred to arbitration. An award

was made on 14.01.1991 in favour of the petitioner which has not

been assailed further.


cwp 2071-1997                                                        Page 1 of 5
 2.    The petitioner sought enforcement of the award in respect

of which an order was passed on 19.02.1992 and then again on

05.04.1995, on another application filed by the petitioner.      The

fact remains that apparently there are no flats available to be

allotted to the petitioner. The petitioner, however, has filed the

present writ petition under Article 226 of the Constitution of India

seeking to: enforce the award, and also issuance of a writ against

respondent no.1/Registrar to cancel allotment to 17 other persons

who had been allotted HIG/MIG flats and were evidently junior to

the petitioner.

3.    Since the filing of the writ petition almost 14 years have

passed and we are faced with a situation where parties are in

settled possession qua flats held in each of the two categories

referred to above. There is also a possibility that the parties may

have transferred their respective flats on Power of Attorney basis

to third parties. Such transfers are now recognized by law with

the insertion of the first proviso to Section 91 of the Delhi Co-

operative Societies Act, 2003 (in short 'DCS Act').

4.    The material aspect to be taken note of is that, in the

arbitration proceedings none of the other members whose

membership was sought to be cancelled were made a party;

though the claim of the petitioner was only qua such persons.

5.    A perusal of the award shows that the Society had not called

for any option from its members about the choice of the flats

though the tendered cost of a HIG category flat was Rs 1,78,000/-

and simultaneously for a MIG category flat it was pegged at Rs

1,35,000/-. The petitioner is stated to have deposited a sum of


cwp 2071-1997                                            Page 2 of 5
 Rs 1,64,450/- upto 01.03.88, and claims to have paid the last

installment of Rs 31,550 in pursuance to the demand notice dated

02.08.89. Thus, the total amount deposited by the petitioner was

a sum of Rs 1,96,000.

6.    The stand of the Society, on the other hand, before the

Arbitrator was that the sum of Rs 31,550 had been transferred to

the account of another member i.e., one Sh Swaraj Parkash, the

brother-in-law of the petitioner.    Both the petitioner and his

brother-in-law had given the same residential address, and

therefore the Society pleaded that the monies of Sh Swaraj

Parkash was being paid by the petitioner. The Society, however,

failed to establish this fact before the Arbitrator by bringing on

record appropriate evidence.

7.     The petitioner had been allotted an MIG flat in a meeting of

the General Body of the Society held on 29.10.89 and the same

was the position for allotment to Sh Swaraj Parkash. It may be

noticed that if this amount is treated as not validly transferred to

the account of Sh Swaraj Parkash; Sh Swaraj Parkash's payments

would be short by an equivalent amount. The net result would be

that Sh Swaraj Prakash would not have perhaps become eligible

for allotment of a MIG flat; which he ended up securing for

himself.

8.    Another fact which emerges is that after the initially

constructed 155 flats of both categories allotted by the Society, 3

HIG and 13 MIG flats were constructed subsequently for which

allotment was made by the Managing Committee at its meeting

held on 25.02.1990.     Even at that stage the petitioner was not


cwp 2071-1997                                            Page 3 of 5
 given an allotment of HIG flat ostensibly because if the amount

transferred to the account of Sh Swaraj Parkash is taken into

account, the petitioner had not paid the full amount towards a

HIG flat.

9.    The Arbitrator had taken into account the fact that an

interim order was passed on 11.04.1990 that an HIG flat may be

kept reserved. However, we may notice that the allotment was

already made vide meeting of the Committee on 25.02.1990. The

Arbitrator seeks to declare the resolution of the Managing

Committee and the allotment made in pursuance thereto on

25.02.1990, null and void to sustain his rationale directing

allotment of a HIG flat to the petitioner.

10.   We are thus faced with an award which seeks to cancel

allotment of 17 members without even a notice issued to them,

on the specious plea of a subsequent interim order after the

allotment had already been made. In the absence of any other

fact, this by itself makes the award incapable of implementation.

11.   We are also of the view that if the Society has been unable

to establish that the amount of Rs 31,550 transferred from the

account of the petitioner to the account of his brother-in-law Sh

Swaraj Parkash was a valid transfer, the allotment to Sh Swaraj

Parkash could not be said to be a valid one, and that

consequently, a flat would have been available for allotment to

the petitioner albeit of MIG category.       Once again, this issue

cannot be decided in the absence of Sh Swaraj Parkash.

12.   The problem that the petitioner faces arises out of the

manner in which the petitioner sought relief only against the


cwp 2071-1997                                            Page 4 of 5
 Society and the frame of the award which makes it incapable of

being implemented in view of what we have set out above. In

case the petitioner seeks an MIG flat now, as submitted by the

petitioner since HIG flat is not available, the inter se rights

between the petitioner and Sh Swaraj Parkash have to be

determined in an appropriate arbitration proceedings. Similarly, if

some other flat is sought to be cancelled, the petitioner can

attempt to do so only in an arbitration proceedings where all the

relevant parties can be impleaded.

13.   We thus leave it open to the petitioner to take out

appropriate arbitration proceedings with a direction to respondent

no.1 to refer the disputes to arbitration, in case so invoked by the

petitioner, so that inter se rights of the parties can be determined

in one set of proceedings.

14.   The writ petition accordingly stands disposed of.




                                         SANJAY KISHAN KAUL, J.

MARCH 07, 2011 RAJIV SHAKDHER, J. mb