Delhi High Court
Mrs.Jyoti Khanna vs Registrar Cooperative Societies ... on 3 October, 2011
Author: Sanjay Kishan Kaul
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 03.10.2011
+ WP(C) No. 7330/2011
MRS.JYOTI KHANNA ...PETITIONER
Through: Mr. Nimish Chib, Advocate
Versus
REGISTRAR COOPERATIVE SOCIETIES & ANR.
...RESPONDENTS
Through: Mr. Abhijit Kakoti for
Mr. Rajiv Nanda, ASC for
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 be allowed to see the judgment? YES
2. To be referred to Reporter or not? NO
3. Whether the judgment should be NO
reported in the Digest?
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WPC No.7330/2011 Page 1 of 8
SANJAY KISHAN KAUL, J. (ORAL)
CM APPL. No. 16629/2011
Allowed subject to all just exceptions.
+ WP(C) No.7330/2011
1. Rule D.B.
2. Learned counsels for the respondents accept notice.
3. At request of learned counsel for the parties, the
petition is taken up for final disposal at this stage.
4. Late Shri Surender Khanna became a member of
respondent No. 2 society and a share certificate was
issued to him on 30.08.1995. He nominated the
petitioner, his daughter-in-law, as the nominee on
15.07.1995. Late Shri Surender Khanna passed away
on 29.04.1999.
5. The petitioner applied for transfer of membership in
her name on 24.10.1999 and respondent No. 2 society
processed the case of the petitioner and issued a fresh
share certificate in the name of the petitioner on
20.10.2002. The name of the petitioner was forwarded
by the society to the Registrar, Co-operative Societies
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(for short, „RCS‟) with all the requisite documents as in
the case of other members.
6. It is stated that it is only in the year 2010 that a query
was raised by the RCS qua the membership of the
petitioner on the ground that she was not the first
blood relation of the deceased as she was the
daughter-in-law. The society vide its letter dated
05.07.2010 explained the position to the RCS that Rule
35 of the Delhi Co-operative Societies Rules, 1973 (for
short, „the said Rules‟) framed under the Delhi Co-
operative Societies Act, 1972 (for short, „the said Act‟)
was applicable in the case of the petitioner and as per
this Rule there is no such restriction of first blood
relation in a nomination to be made by a member
provided for under the said Rules.
7. On 19.09.2011, the list of 103 members of respondent
No. 2 society is stated to have been forwarded to DDA
for holding draw of lots, while the name of the
petitioner has not been forwarded but has been
detained only on the ground that the transfer of
membership in the name of the petitioner is not valid
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as she is not the first blood relation of the original
member. The petitioner sent a second representation,
which was individually made on 21.09.2011, but there
has been no response to the same.
8. Learned counsel for the petitioner submits that the
issue is no more res integra in view of the judgment of
the Division Bench of this Court in Mayurdhwaj CGHS
Ltd. v. Registrar Co-operative Societies & Ors., 2009 X
AD (DELHI) 732, which has considered the relevant
provisions of the said Rules and the said Act in this
behalf. In para 8 of the judgment, Section 26 of the
said Act dealing with transfer of an interest on the
death of a member has been reproduced, which
provides for a co-operative society to transfer the
share or interest of the deceased member to the
person nominated in accordance with the Rules made
in this behalf and if no person has been nominated, to
the heirs or legal representatives of the deceased
member. Analyzing this Section, it has been found by
the Division Bench that the question of inheritance by
the legal heirs would only arise in the absence of a
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nomination. In so far as nomination of persons is
concerned, Rule 35 of the said Rules deals with the
same. The conclusion is contained in para 9 of the said
judgment, which reads as under :-
"9. It would be apparent from the above
extract that under Rule 35(1), a member can
make a nomination in favour of "any person or
persons". There is no restriction on the nominee
being a blood relative of the said member
making a nomination. Rule 35(6), which requires
the issuance of a public notice and invitation of
claims and objections in respect of the proposed
transfer of share or interest of the deceased
would come into operation only where a member
of a co-operative society "has not made any
nomination". In this case, the nomination had
admittedly been made in favour of the
respondent No. 3. Therefore, Rule 35(6) would
not come into play at all. A conjoint reading of
Section 26 of the 1972 Act and Rule 35 of the
1973 Rules makes it clear that there is no
restriction on a member nominating anybody as
his nominee. In other words, a member could
have nominated a person who was not a blood
relative."
9. Learned counsel for the respondent No. 2 society is ad
idem on the aforesaid plea, while learned counsel for
respondent No. 1 / RCS states that some time may be
given to dispose of the representation dated
21.09.2011.
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10. We may notice that since the transfer of
membership in favour of the petitioner took place
under the said Act, we examined the case under it. We
may also notice that in so far as the Delhi Co-operative
Societies Act, 2003 is concerned, the effect of Rule 30
of the Delhi Co-operative Societies Rules, 2007 is that
nomination can be made "in first degree blood
relation", which appears to be beyond the stipulation
contained in Section 78 of that Act. The difference in
the two provisions has also been noticed in para 10 of
the judgment in Mayurdhwaj CGHS Ltd.‟s case (supra).
We are, however, not called upon to examine this issue
in the present case.
11. We find that in normal circumstances, it may
have been appropriate to leave the issue to be decided
by the RCS in pursuance to the representation dated
21.09.2011 only with the direction to do so as per the
principle laid down in Mayurdhwaj CGHS Ltd.‟s case
(supra). We are, however, faced with the situation
where an earlier representation made by the society on
05.07.2010 has elicited no positive response despite
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the matter being squarely covered by the judgment of
this Court in Mayurdhwaj CGHS Ltd.‟s case (supra). In
fact, such nature of cases should not be coming to
Court since once the principle has been settled,
respondent No. 1 is not entitled to take a decision
contrary to the said principle. The decision is not qua a
particular member or a society alone, but the relevant
Rule itself has been interpreted as aforesaid and it
must, thus, uniformly be applied. We direct the RCS to
issue necessary instructions to ensure uniform
implementation of the principle laid down in
Mayurdhwaj CGHS Ltd.‟s case (supra) to avoid any
unnecessary litigation in courts.
12. In so far as the present case is concerned, the
additional factor which persuades us to issue a
direction is forwarding of the names of the eligible
members to the DDA for holding draw of lots on
19.09.2011. We are informed that the DDA has not
fixed the date for draw of lots. We see no reason why
the name of the petitioner should not similarly be
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forwarded to the DDA so that her name is also included
in the same draw of lots.
13. We, thus, direct respondent No. 1 / RCS to
forward the name of the petitioner to the DDA to be
included in the list already sent of members of
respondent No. 2 society so that draw of lots to be held
by the DDA would ensure allotment to the petitioner.
The needful be done within 10 days.
14. Rule is made absolute leaving the parties to bear
their own costs.
CM APPL. No. 16628/2011
No further directions are called in this application in
view of disposal of the writ petition.
Application stands disposed of.
Dasti to learned counsel for the parties.
SANJAY KISHAN KAUL, J.
OCTOBER 03, 2011 RAJIV SHAKDHER, J.
madan
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