Delhi High Court
Kalu Ram Sharma vs The Financial Commissioner And ... on 8 February, 2012
Author: Sanjay Kishan Kaul
* THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 08.02.2012
+ W.P.(C) 794/2012 & CM No.1777/2012 (Stay)
KALU RAM SHARMA ..... Petitioner
Through: Mr. Aftab Rasheed, Adv.
versus
THE FINANCIAL COMMISSIONER AND ORS ..... Respondents
Through: Ms. Sweta, Adv. for Mr. Dhanesh Relan,
Adv.
CORAM :-
HON'BLE MR JUSTICE SANJAY KISHAN KAUL
HON'BLE MR JUSTICE RAJIV SHAKDHER
SANJAY KISHAN KAUL, J (ORAL)
1. The petitioner acquired membership of respondent No.2-Society on
transfer from the original membership of his brother. The transfer was
approved on 4.4.1976 and the petitioner claims to have been waiting for a
plot since then as he was on the waitlist.
2. The petitioner claimed that it is in the year 2004, that he came to
know that respondent No.3 had obtained an allotment of a plot fraudulently
as he was disqualified on account of owning another property. The Society,
however, did not heed to the representation of the petitioner and the
petitioner made a complaint to the Office of the Registrar, Co-operative
Societies (for short „RCS‟)/respondent No.4. The Assistant RCS was
appointed to verify the ownership of property No.1/11274, Subhash Park,
Naveen Shahdara, Delhi on account of which the petitioner alleged that
respondent No.3 was disentitled. The ownership of this property is stated to
have been confirmed through the inquiry process. However, the RCS in
Wp(c) 794/2012 Page 1 of 4
terms of its order dated 2.6.2010 found that respondent No.3 fell within the
exception clause provided under Clause 25 (1) (c) (i) of the Delhi Co-
operative Societies Rules, 1973 (hereinafter referred to as the „DCS Rules‟).
The petitioner aggrieved by this decision filed a Revision Petition under
Section 116 of the Delhi Co-operative Societies Act, 2003, which has been
dismissed vide impugned order dated 7.7.2011.
3. Learned counsel for the petitioner has, in the writ petition, reproduced
the relevant portion of Rule 25 of the DCS Rules, which reads as under:
"25. Disqualification of Membership
1. No person shall be eligible for admission as a member of a co-
operative society if he...
.... .... .... .... .... .... .... .... .... .... ....
(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;"
4. It is the say of the learned counsel for the petitioner that the first
proviso does not apply to respondent No.3 as it would be applicable only in
the case of a co-sharer of the property where the share is less than 66.72
sq.mtrs. (approx. 80 sq.yds.). Respondent No.3 has been held to be
exempted on account of the fact that the property already in his ownership
Wp(c) 794/2012 Page 2 of 4
was measuring 72 sq.yds. He, thus, submits that the proviso is not
applicable to a single owner.
5. We are unimpressed with this argument as this issue has been dealt
with by us in WP (C) No.2550/2011 titled Bindya Agarwal Vs. Registrar of
Co-operative Societies & Anr. decided on 30.5.2011.
Supreme Court in DDA vs Jintender Pal Bhardwaj (2010) 1 SCC
146, held:
"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."
6. On a parity of reasoning if the expression co-sharer is to include co-
owner [see DDA vs Jintender Pal Bhardwaj (supra)], we see no difficulty
in extending the expression to an individual owner who has standalone
property admeasuring less than 66.72 sq. mtrs. This is for the reason: if in a
multi-storeyed building each person‟s proportionate share in the land is to
be calculated to determine as to whether or not he falls within the exclusion
carved out in the first proviso, we see no reason why an owner of standalone
property cannot take recourse to exclusion carved out in the said Rule. The
object of the rule appears to be to keep persons outside the disqualification
criteria as long as: what they own by way of share is really not of much
Wp(c) 794/2012 Page 3 of 4
significance. In our view any other interpretation would lead to absurd and
unfair result, when seen in the light of the supreme judgment. To wit it
would be untenable to say that a person who owns a flat in a multi-storey
building admeasuring a couple of thousand square feet would fall within the
exclusionary portion of the Rule as his proportionate share in the land is less
than 66.72 sq. mtrs, whereas a person of meagre means holding a standalone
property admeasuring less than 66.72 sq. mtrs cannot avail of the benefit
accorded by the exclusion engrafted in the said Rule.
7. A further important factor which we have to take note of is the second
proviso which has been reproduced hereinabove. The admitted fact of the
present case on account of the impugned order is that the alternative
property had been purchased by respondent No.3 on Power of Attorney
basis. Thus, the second proviso in any case applies in respect of the
alternative property and, thus, respondent No.3 cannot be held disentitled
when the plot was allotted to him. The property at Subhash Park, Naveen
Shahdara, Delhi, which is the alternative property measuring 72 sq.yds. was
purchased through a GPA registered on 10.1.1980.
8. We see no reason to interfere with the impugned order under Article
226 of the Constitution of India.
9. Dismissed.
SANJAY KISHAN KAUL, J.
FEBRUARY 08, 2012 RAJIV SHAKDHER, J.
b'nesh/kk
