Surinder Kumar Jain vs Dda & Anr.
2012 Latest Caselaw 4288 Del

*   IN THE HIGH COURT OF DELHI AT NEW DELHI

                                     Judgment reserved on: July 11, 2012
                                     Judgment delivered on: July 20, 2012

+   W.P.(C) No. 434/1993

    SURINDER KUMAR JAIN                                  ..... Petitioner
                Through:                   Mr. Rakesh Munjal, Senior
                                           Advocate with Mr. Maneesh
                                           Goyal, Advocate
                            versus

    DDA & ANR.                                          ..... Respondents
                            Through:       Mr. Rajiv Bansal & Mr. Rahul
                                           Bhandari, Advocates for R-1/DDA

    CORAM:
    HON'BLE MR. JUSTICE SUNIL GAUR

                               JUDGMENT

1. Petitioner's application of 3rd September, 1990 for restoration of Plot No. 23 in Vardhman Cooperative House Building Society Ltd. at Arihant Nagar near Punjabi Bagh, New Delhi (hereinafter referred to as the 'subject property') stood declined by the first respondent vide cryptic Communication of 12th December, 1990 (Annexure P-15). However, the basis to cancel the allotment of the aforesaid property made to petitioner's brother - Shri Ramesh Kumar Jain, is disclosed by the first respondent in its Communication of 6th October, 1986 (Annexure P-11) to petitioner's afore-named brother.

2. Above said two Communications (Annexures P-11 & P-15)

of the first respondent are impugned in this petition. In the first Communication (Annexure P-11) it was disclosed by the first respondent to petitioner's afore-named brother that he had obtained the allotment of the subject property by filing a false affidavit regarding not owning any residential property in Delhi whereas he had already owned another residential property in Delhi and that after obtaining the allotment of the subject property, he had subsequently transferred it in the name of his brother i.e. the petitioner.

3. In the draw of lots held by the first respondent in January, 1984 the subject property stood allotted to petitioner's afore-named brother and as per petitioner, he had raised objection to it and he was assured that the unintentional mistake would be rectified. Petitioner relies upon documents Annexures P-1 to P-4 to assert that the membership of petitioner's afore-named brother in Vardhman Cooperative House Building Society Ltd. stood transferred in the name of the petitioner way back in the year 1976 and this is so evident from the list of members (Annexure P-4) of aforesaid Cooperative Society, wherein the name of the petitioner figures at serial no.151 and copy of the Receipts (Annexures P-5 & P-6) showing the payment of subscription fees to the aforesaid Cooperative Society since the year 1986 are on record. Transfer of the subject property in the name of the petitioner was disclosed to the first respondent by the Secretary of the aforesaid Society vide letter of 25th July, 1985 (Annexure P-9).

4. Again vide letter of 13th November, 1987 (Annexure P-12)

the Assistant Registrar of the Cooperative Societies had called upon the first respondent to consider petitioner's case for allotment of the subject property in the place of Shri Ramesh Kumar Jain, as the resignation of Shri Ramesh Kumar Jain was accepted on 24 th February, 1976. Petitioner's Representations made to the first respondent in the year 1988 (Annexure P-12 colly) did not yield any result and even the legal Notice sent on behalf of the petitioner in July, 1992 to the first respondent was of no avail. However impugned Communication (Annexure P-15) refers to petitioner's letter of 3rd September, 1990, which is not on record. In any case, petitioner has laid challenge to the Communication (Annexure P-

15) after a period of about three years and the explanation for this delay furnished by the petitioner is that he was unwell for a long time.

5. On merits, the principal contention urged by learned senior counsel on behalf of the petitioner is that the petitioner is the member of the Cooperative Society since the year 1976 and the disqualification of petitioner's brother is immaterial, as allotment of the subject property ought to have been made in the name of the petitioner and so, a mandamus be issued to the first respondent to restore the subject property in the name of the petitioner.

6. In the counter affidavit by the first respondent- DDA, it is maintained that the allotment of the subject property was made to Shri Ramesh Kumar Jain, brother of the petitioner and upon submissions of certain documents by the second respondent-

Cooperative Society on 7th July, 1984, membership rights of the subject property were transferred in favour of the petitioner on 25 th July, 1985 and thereafter, it was found by the first respondent that the original allottee of the subject property i.e. petitioner's brother had obtained the allotment of the subject property by filing a false affidavit to the effect that he or his dependants do not own any other property in Delhi whereas petitioner's afore-named brother was in possession of another property No. D-15, Ashok Vihar, Delhi and accordingly, he was put to Notice but petitioner's brother had not responded to the Show Cause Notice sent to him in the year 1985 and again in the year 1986 and thus, left with no alternative, the first respondent had cancelled the allotment of the subject property.

7. It also stands disclosed in the counter affidavit by the first respondent that Registrar of Cooperative Societies had cleared the membership of petitioner's afore-named brother vide letter of 12th December, 1983 and accordingly, the allotment of the subject property was made to him vide letter of 23rd February, 1984.

8. In the counter affidavit filed by the second respondent, it is maintained that the membership of Shri Ramesh Kumar Jain was transferred in the name of the petitioner w.e.f. 17th February, 1976 and the same was approved by the Registrar of Cooperative Societies and since the subject property has not been allotted to the petitioner and is still lying vacant, so, petitioner be considered for allotment of the subject property in the place of Shri Ramesh Kumar Jain.

9. It was contended by learned senior counsel for the petitioner that the Registrar, Cooperative Societies vide Communication of 13th November, 1987 (Annexure P-12) had intimated the first respondent that consequent upon the resignation of Shri Ramesh Kumar Jain from the membership of the Society of the second respondent, petitioner has been substituted as a member and he may be considered for allotment of the subject property in place of Shri Ramesh Kumar Jain and infact, this Communication was acted upon by the first respondent who had transferred the ownership of the subject property in the name of the petitioner but when the Lease Deed was to be executed, the allotment in question has been cancelled on account of concealment by petitioner's afore-named brother of not owning any property in Delhi, which was immaterial as the allotment of the subject property ought to have been made in the name of the petitioner and not his brother.

10. Attention of this Court was drawn to an unreported decision in W.P.(C) No. 686/1992, 'Ms. Jasjit Kaur Vs. Registrar Cooperative Act & Ors.', rendered on February 16, 2006 holding that once the Society has approved the transfer, then if any affidavit was required, it was of the transferee and not the transferor of the membership of the Society and so, the incorrect affidavit of the transferor was of no avail.

11. It was pointed out by learned counsel for the respondent that what distinguishes the aforesaid decision is that it remains uncontroverted that the name of petitioner's afore-named brother was recommended by the second respondent to the respondent-

DDA and so, the allotment of the subject property was rightly made in favour of Shri Ramesh Kumar Jain and the factum of transfer of membership in favour of the petitioner was made known only after the draw of lots, that too vide Communication of 13th November, 1987 (Annexure P-12). Thus, it is contended by counsel for the first respondent that the allotment of the subject property was rightly made in favour of petitioner's brother Shri Ramesh Kumar Jain and has been rightly cancelled on account of filing of a false affidavit to the effect that he did not own any other property in Delhi.

12. Having considered the submissions advanced and upon perusal of the material on record and the decisions cited, this Court is of the considered opinion that despite the transfer of the membership in favour of the petitioner in July, 1985, on the strength of Communication (Annexure P-12), it was open to the first respondent to have cancelled the allotment of the subject property on account of furnishing of the false affidavit (Annexure- P-8 colly) by original allottee i.e. petitioner's afore-named brother. Such a view is being taken because no premium on dishonesty can be placed. If petitioner's afore-named brother had surrendered the membership of the Society of the second respondent, then he should not have submitted Indemnity Bond with affidavit (Annexure P-8 colly) asserting that neither he nor his dependant relations own any other property in Delhi.

13. Since the second respondent had forwarded the name of petitioner's afore-named brother to the first respondent to be

included in the draw of lots held in the year 1984, therefore, petitioner cannot be heard to say that allotment of the subject property ought to have been made to him instead of being made to his afore-named brother. As it remains uncontroverted that the affidavit filed by petitioner's afore-named brother was false, so the first respondent was fully justified in cancelling the allotment of the subject property. Reliance placed upon decision in Jasjit Kaur (Supra) is of no avail as the inter se dispute in the said case was between the allottee and the Registrar of Cooperative Societies, Building Society etc.

14. Consequently, finding no substance in this petition, it is dismissed with no order as to costs.

(SUNIL GAUR) JUDGE

JULY 20, 2012 rs