Kangra Adarsh Cooperative Group ... vs Delhi Co-Operative Tribunal & ...
2013 Latest Caselaw 4117 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


+              W.P.(C) 3505/2013 and CM No.12774/2013

KANGRA ADARSH COOPERATIVE GROUP
HOUSING SOCIETY LTD.                  ..... Petitioner
                  Through: Ms. Prema Priyadarshini,
                           Advocate.

                    versus

DELHI CO-OPERATIVE TRIBUNAL & ORS. ..... Respondents
                  Through: Mr.Gautam Sharma, Advocate
                           for the Respondent No.2.
CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL
HON'BLE MS. JUSTICE PRATIBHA RANI

                             ORDER (ORAL)

: REVA KHETRAPAL, J.

1. The present writ petition has been preferred by the Kangra

Adarsh Cooperative Group Housing Society Ltd. impugning the

award passed on 24.10.2011 by the learned Arbitrator and the order

dated 18.3.2013 passed by the Delhi Cooperative Tribunal.

2. The only issue which arises before us in this writ petition is

whether the Petitioner Society could charge any gate money/entry

fee/development fund/transfer fee/common good fund from the

Respondent No.2. The Respondent No.2, namely, Shri Gautam

Sharma filed a claim petition before the Registrar Cooperative

Societies wherein it was claimed by him that he had purchased a flat

No.K-290 in Kangra Adarsh CGHS Ltd. in 2001. At that time, the

Society had demanded a sum of ` 50,000/- from him on account of

Change of House Demand and for providing membership in the

Society. He (Respondent No.2) had paid the said amount to the

Petitioner Society through receipt Nos.8038 to 8047 (10 receipts)

dated 5.7.2005 of ` 5,000/- each against the cheque No.325676 dated

2.5.2005 drawn on the Allahabad Bank for a sum of Rs.50,000/-. The

Respondent No.2 contended that there is no provision in the law for

demand of any such amount from a subsequent purchaser and the

demand of such amount being illegal he was entitled to the refund of

the money paid by him to the Petitioner Society towards C.H.D.

(Change of House Demand).

3. By exercising the powers vested in him under Section 70 of the

Delhi Cooperative Societies Act, 2003, the Registrar Cooperative

Societies referred the matter to the arbitration of Shri S.C. Khatri (the

Respondent No.3). Ultimately, an award in favour of the Respondent

No.2 was passed on 24.10.2011 by Shri S.C. Khatri, the Respondent

No.3. Vide the said award, the Petitioner Society was directed to

refund the sum of ` 50,000/- to the Respondent No.2 along with

interest @ 6% per annum within one month from the date of the

order. The Petitioner Society was also directed to pay a sum of `

5,000/- to the Respondent No.2 as costs of litigation. In default, the

Petitioner Society was made liable to make the full payment as

awarded with compound penal interest @ 2% per month thereafter.

4. Aggrieved by the said award, the Petitioner Society preferred

an appeal before the Delhi Cooperative Tribunal, which was

dismissed by the Tribunal vide order dated 18.3.2013. The present

petition has been preferred for quashing of the award of the Arbitrator

dated 24.10.2011 and setting aside of the order of the Delhi

Cooperative Tribunal dismissing the appeal therefrom.

5. The case of the Petitioner Society is that the Respondent No.2

voluntarily donated a sum of ` 50,000/- towards Community Hall

Donation (C.H.D.) and the Petitioner Society duly issued receipts

dated 5.7.2005 for the same, i.e., 10 receipts of ` 5,000/- each. The

Respondent No.2, it was contended, had misled the learned Arbitrator

by stating that the Community Hall Donation (C.H.D.) of ` 50,000/-

was towards Change of House Demand. Furthermore, it was stated

that besides Respondent No.2, other members of the Petitioner

Society had also given voluntary donation for which receipts had

been duly issued to them. Respondent No.2 had applied for

membership of the Society vide application dated Nil and deposited

the required amount of transfer fee of ` 500/- vide receipt No.3525

dated 13.10.2007 and share money of ` 100/- and admission fee of `

10/- vide receipt No.3537 dated 16.10.2007. The allegation made by

the Respondent No.2 that the Petitioner Society had taken illegal

money on account of membership and Change of House Demand by

Respondent No.2 is false and baseless. The learned Tribunal,

therefore, wrongly equated the amount deposited by the Respondent

No.2 with the Petitioner Society with the imposition of entry fee.

6. It was further contended on behalf of the Petitioner that the

reliance placed by the learned Tribunal upon the decisions of this

Court rendered in Capt. Kapil Raina v. DDA, 99 (2002) DLT 741;

Navkund Coop. G/H Society Ltd. v. RCS, SLP (C) No.24506/2002

decided by this Court on 9.1.2003; Devender Gupta & Ors. v. RCS,

99 (2002) DLT 741; Dr. Rakesh Kishore v. RCS, 105 (2003) DLT

390 and Kusum Lata Gupta v. RCS, 140 (2007) DLT 544 was wholly

misplaced. The said decisions have no application to the facts of the

present case; what was charged from the Respondent No.2 was not

entry fee but was infact a voluntary donation made by the Respondent

No.2 for the Community Hall.

7. We have heard the counsel for the parties and are of the view

that the Petitioner Society could not receive such amount whatever

may be the full form of the abbreviation 'C.H.D.'. The fact remains

that this amount was not legally chargeable. The plea of the

Petitioner Society that the receipts had been filled in by the

Respondent No.2 in his own handwriting does not make the payment

legal. By virtue of Rule 92(3) of the Delhi Cooperative Societies

Rules, 2007, no amount towards donation or contribution on any

pretext or name could have been collected by the Managing

Committee of the Petitioner Society from the transferor or the

transferee of the flat in question. It has been rightly observed by the

Cooperative Tribunal that the imposition of entry fee whether by

giving it the nomenclature of gate money/entry fee/development

fund/transfer fee/common good fund has been held to be illegal in a

line of decisions rendered by this Court. It also cannot be lost sight of

that the Petitioner Society is not a charitable institution and the

question may well be asked as to how many members would

voluntarily donate ` 50,000/- for a Community Hall to be constructed

by the Society. The business of the Society is to construct flats and

make allotment of the same to its members, which includes the

provision of and maintenance of the common facilities available to all

the members. The demand of entry fee by whatsoever nomenclature

is clearly violative of the Delhi Cooperative Societies Act and Rules.

8. This petition is accordingly dismissed with costs and disposed

of. CM No.12774/2013 also stands disposed of.

REVA KHETRAPAL JUDGE

PRATIBHA RANI JUDGE September 12, 2013 km