Bindya Agarwal vs Registrar Of Co-Operative ...
2011 Latest Caselaw 2881 Del

02
*                   THE HIGH COURT OF DELHI AT NEW DELHI

                                   Judgment delivered on: 30.05.2011

+                        W.P. (C) 2550/2011


BINDYA AGARWAL                                     ...... PETITIONER


                                    Vs


REGISTRAR OF CO-OPERATIVE SOCIETIES
& ANR.                                             ..... RESPONDENTS

Advocates who appeared in this case:

For the Petitioner : Mr. A.K.Mishra and Mr. Sanjay Parikh, Advocates For the Respondents: Mr. Anjum Javed with Mr.Nirbhay Sharma, Advocates for the Respondent No.1.

Mr. Sandeep Kumar, Advocate for respondent No.2.

CORAM :-

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

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

2.    To be referred to Reporters or not ?                Yes
3.    Whether the judgment should be reported             Yes
      in the Digest ?

SANJAY KISHAN KAUL, J (ORAL)

*     This is a case where the petitioner has been seeking to get

allotment of a flat, now, for nearly quarter of a century. Petitioner

became a member of the respondent No.2 Society on 03.04.1984

and deposited the share money. The society was allotted land at

Patparganj, which is now known as Jagriti Enclave. There were,

however, disputes about the enrolment of members, which gave

rise to various legal proceedings.

It is a case of the petitioner that due to disputes amongst the

members of the society a petition was filed under Section 60 of the

Delhi Co-operative Societies Act, 1972 by some members, against

the other 102 members of the Society, where the petitioner was one

of the respondents. The dispute related to the unauthorized

enrolment of waitlisted members which included the petitioner. The

arbitrator, however, dismissed the claim on 01.08.1991 on the

ground that it was not maintainable. A Revision Petition filed

against this order also met the same fate by virtue of its dismissal

on 15.10.1991. These orders were then challenged in WP(C) No.

2170/1992. The writ petition was also dismissed on 07.05.1993.

Thus, the list of members containing 102 names including that of

the petitioner stood confirmed.

Civil Writ Petition No. 4808/1997 was filed before this court

on account of failure to make allotment in favour of waitlisted

members including the petitioner. This writ petition was disposed

of on 11.10.2000 where the aspect of three list of 102 members

were considered where the name of the petitioner was at

Sr.No.94 and a direction was issued for allotment of land to 102

members as per the vacant plots available.

The facts set out in the petition show that the petitioner and

her sister-in-law had acquired interest in a residential flat by

execution of agreement for sale on 31.10.1994 in respect of the

Ground Floor at 5/1, Kalkaji Extension, New Delhi-110019. This

was followed up by sale deed dated 19.12.1996. The flat in

question is one of the seven flats built on a two storey building

constructed over a plot admeasuring 250.83 sq. meters and the

sale deed, as is usual, provided for proportionate

indivisible/impartible/undivided interests in the land. The share

of the petitioner in the land thus came to 35 sq. meters.

The various members did not get the allotments and further

proceedings were held, and administrator of the society by an

order dated 04.01.2005 held that the petitioner was not entitled

to a plot on account of disqualification as member of the Society

w.e.f. 31.10.1994 as per Rule 25 of the Delhi Cooperative

Societies Rules, 1973. The recommendation made by the

administrator to the Registrar was objected to by the petitioner

by filing objections under Rule 25(4) of the said Rules.

In the meantime, the Contempt Case (Civil) No.378/2005

was filed before this court by some of the petitioners on account

of failure to make allotments despite the orders passed in the

writ proceedings referred to earlier. Learned Single Judge of this

court in those contempt proceedings vide order dated 01.05.2006

considered it appropriate to appoint Justice P.K.Bahari (Retd.) as

a Court Commissioner to scrutinise claims of members of the

Society. The claim of the petitioner was examined and order was

passed on 26.10.2006 and report was given by the

Commissioner, in terms whereof petitioner was held to be

disqualified.

Further endeavour of the petitioner to raise this issue by

filing an application in contempt proceedings ultimately resulted

in leave being granted to the petitioner to file substantive writ

proceedings for redressal of her grievance as per order dated

27.09.2010.

Aforesaid facts have been set out only to show the long

history of the disputes, though the question to be examined

before us is reiterated i.e., whether by acquiring of interest in the

flat the petitioner has become disqualified to be allotted a flat on

the land of the society?

In order to appreciate the aforesaid plea, Rule 25 of the

said Rules would have to be examined. The relevant portion is

being reproduced hereinunder:-

"25. Disqualification of Membership

1. No person shall be eligible for admission as a member of a co-operative society if he...

(a) ........

(b) ........

(c) in the case of membership of a housing society:-

(i) owns a residential house or a plot of land for the construction of a residential house in any of the approved or un-approved colonies or other localities in the National Capital Territory of Delhi, in his own name or in the name of his spouse or any of his dependent

children, on lease hold or free-hold basis or on power of attorney or on agreement for sale;

Provided that disqualification of membership as laid down in sub-rule (l)(c)(i) shall not be applicable in case of co-sharers of property whose share is less than 66.72 sq. metres of land;

Provided further that the said disqualification shall not be applicable in case of a person who has acquired property on power of attorney or through agreement for sale and on conversion of the property from leasehold to freehold on execution of conveyance deed for it, if such person applies for the membership of the housing society concerned; (Amended on 6.8.97)

(ii) he deals in purchase or sale of immovable properties either as principal or as agent in the national Capital Territory of Delhi: or

(iii) he or his spouse or any of his dependent children is a member of any other housing society except otherwise permitted by the Registrar.

2. Notwithstanding anything contained in the rules or the bye-laws of the co-operative society, if a member becomes, or has already become, subject to any disqualification specified in sub-rule (1), he shall be deemed to have ceased to be a member from the date when the disqualifications were incurred."

We may notice that the proviso to Clause (c) sub-Rule (1) of

Rule 25 of the said Rules was incorporated vide a notification

dated 06.08.1997.

It is the submission of the learned counsel for the society

that the petitioner incurred a disqualification by acquiring of

interest in the flat prior the proviso being inserted and in lieu of

sub-Rule (2) of Rule 25 of the said Rules. The said

disqualification took effect on the date when such interest was

acquired i.e. in 1994. Learned counsel thus submits that the

benefit of the proviso is not available to the petitioner.

It is, however, not disputed that insofar as the facts in the

case of the petitioner are concerned, if this proviso is applicable,

the petitioner would be entitled to the benefit of the proviso since

the land share of the petitioner is less than 66.72 sq. meters of

the land. We may also note that this Sub-Rule is identical to

Delhi Cooperative Societies Rules, 2007 framed under the Delhi

Cooperative Societies Act, 2003; which are now the governing Act

and the Rules.

On the other hand, learned counsel for the petitioner

submits that the proviso being beneficial in nature, on the proviso

coming into force, the benefit of the proviso should be made

available to the petitioner. It is further submitted that the case of

the respondent, as reflected in the proceedings before the

administrator and as reflected in the report of Justice P.K.Bahari

(Retd.), proceed on the basis that the proviso applies but Justice

Bahari has proceeded on the basis that the area of the flat

exceeds 66.72 sq. meters.

We find force in the contention of learned counsel for the

petitioner. The area of the flat being more than 66.72 sq. meters

is not the basis on which the proviso has to apply. The proviso

excludes those members from the disqualification contained in

the main part of the said Rule only if their interest "in land" and

not the flat exceeds 66.72 sq. meters. Therefore, in other words

where a co-sharer of a property has acquired interest in a flat

built on a piece of land, in which, his proportionate share is less

than 66.72 sq. meters, the disqualification contained in the main

part of the Rule will not get attracted, notwithstanding the fact

that the flat area is more than 66.72 sq. meters It is thus the

share of land which is material which in the present case is

undisputedly 35 sq. meters ie., less than 66.72 sq. meters.

Since the other aspect is being raised by learned counsel

for respondent No.2, we also want to make it clear in the absence

of any complaint or formal order of disqualification, the benefit of

proviso on its coming into force, must be made available to the

petitioner, specially when the question of allotment of flat has

arisen after proviso was inserted in the Rules, i.e. in the year

2000.

We may note that on applicability of the proviso the report

of Justice P.K.Bahari upholds the contention of the petitioner that

the expression co-sharer will also apply to a co-owner of the

property. We are in agreement with this view expressed in the

impugned order.

We are thus of the opinion that the acquisition of interest by

the petitioner in the flat would not disqualify the petitioner if the

proviso to Rule 25(1)(c) of the said Rules or Rule 20 of the Delhi

Cooperative Societies Rules, 2007 is interpreted in the manner

indicated above. Result would be that petitioner would be entitled

to the flat.

We are fortified in our view by the judgment of the Supreme

Court in DDA Vs. Jitender Pal Bhardwaj (2010) 1 SCC 146. The

observation made in paragraph 7 of the said judgment being

apposite are extracted hereinafter:

"When a person acquires a flat in a multi- storeyed building, what he gets is co-ownership of the land on which the building is constructed and exclusive ownership/long-term lease of the residential flat. As per Clause i(ii), where the individual share in the land on which the building stands, held by the allottee is less than 65 sq. m, he is not barred from securing allotment from DDA. The other interpretation is that if the measurement of the flat is less than 65 sq. m and the allottee owns only an undivided share in the land, corresponding to such flat, the benefit of exemption would be available to the applicant."

We may note that despite opportunities having been

granted, respondent failed to bring on record its counter affidavit.

It is, however, stated today that the matter can proceed without

the counter affidavit.

The petitioner to submit the requisite documents within

fifteen days. Respondent no.2/Society to process the case of the

petitioner and forward it to the Registrar within two weeks

thereafter. Registrar thereafter to process the case of the

petitioner within one month from date of receipt of papers from

the Society and to forward the names to the DDA for holding

draw of lots. DDA to hold draw of lots within fifteen days on

intimation by the Registrar Cooperative Society.

The writ petition is allowed leaving the parties to bear their

own costs.

CM No.5420/2011

In view of the disposal of writ petition, the application

stands disposed of.

SANJAY KISHAN KAUL, J.

MAY 30, 2011                               RAJIV SHAKDHER, J.
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