Dera Gazi Khan Co-Operative House ... vs Registrar Of Co-Operative ...
2017 Latest Caselaw 2285 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                        Judgment reserved on : 17.03.2017
                        Judgment delivered on : 08.05.2017




+      REVIEW PET. 498/2013, C.M. No.13696/2003 (for stay) and CM.
       No.13697/2013 (for condonation of delay of 123 days) in W.P.(C)
       2224/2013



       DERA GAZI KHAN CO-OPERATIVE HOUSE BUILDING
       SOCIETY LTD.
                                                 ..... Petitioners
                    Through Mr.Anil Kumar, Advocate.

                        versus

       REGISTRAR OF CO-OPERATIVE SOCIETIES AND ANR.
                                               ..... Respondents

Through Mr.Rakesh Dhingra, Advocate for R-2.

CORAM:

HON'BLE MR.JUSTICE S.RAVINDRA BHAT HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J

CM. No.13697/2013 (for condonation of delay of 123 days)

1 The submission of the petitioner that in this intervening period

i.e. after the judgment dated 09.4.2013 he had been constrained to

move the Supreme Court and it was pursuant to the directions of that

Court (dated 14.8.2013) that he has approached this Court makes out a

justifiable cause for condoning the delay of 123 days. Delay is

accordingly condoned.

REVIEW PET. 498/2013, C.M. No.13696/2003 (for stay)

2 Petitioner seeks a review of the order dated 09.4.2013.

3 One Shyam Lal Sehra was admitted as a member of the Dera

Gazi Khan Co-operative House Building Society Limited (hereinafter

referred to as the said Society) on 26.12.1960. Between May, 1964 to

April, 1987 Shyam Lal Sehra owned another property i.e. the property

bearing No.F-54, Kirti Nagar, New Delhi; this property was in his

name. A question was raised before the Registrar of the Co-operative

Societies (RCS) as to whether Shyam Lal Sehra had incurred a

disqualification under Rule 25(2) of the Delhi Cooperative Societies

(DCS) Rules, 1973. This question had arisen pursuant to a notice

issued to Saroj Bhutani to show cause as to why her membership in

the said Society be not ceased.

4 Record reveals that Om Prakash Bhutani (husband of Saroj

Bhutani) had been recorded as a member of the said Socierty on

20.01.1973. Pursuant to his death (20.04.1989) Saroj Bhutani applied

for transfer of the membership in her name on 10.4.1991. This

transfer was effected in her name on 12.4.1991. Possession of the plot

was handed over to her on 20.4.1991.

5 Before the RCS the contention raised was that the name of Saroj

Bhutani could not be cleared as the original allottee Shyam Lal had

himself become disentitled to membership having incurred a

disqualification under Rule 25 of the DCS Rules. The RCS had

rejected this contention. He had noted that in the light of the judgment

of Ishwar Nagar CHBS Ltd. Vs. Parma Nand Sharma and Ors.

(2010) 14 SCC 230 Rule 25(2) had no retrospective operation; it was

prospective. Applying the ratio of the said judgment to the case in

hand the RCS was of the view that Shyam Lal Sehra (the original

member) at the time of allotment (1960) did not suffer from any

disqualification. Shyam Lal Sehra had become a member of the

Society on 26.12.1960; he had transferred his membership to Om

Prakash Bhutani (husband of Saroj Bhutani) on 20.01.1973; the DCS

Act came into force on 17.6.1972; the DCS Rules 1973 came into

force on 20.4.1973. The DCS Act 2003 Act came into force on

01.4.2005 followed by the DCS Rules 2007 which came into force on

19.10.2007. Thus between 26.12.1960 upto 20.01.1973 neither the

DCS Act 1972 and nor the DCS Rules 1973 were in force in the NCT

of Delhi which is the period when Shyam Lal Sehra became a member

of the Society (in 1960) or even when his membership was transferred

to Om Prakash Bhutani (20.01.1973). The Bombay Cooperative

Societies Act, 1925 and the Delhi Cooperative Societies Rules, 1950

(which were then in force) had no disqualifying provision on this

count. Rule 25(2) of the DCS Rules could not be invoked

retrospectively; Saroj Bhutani was well entitled to the transfer of

ownership in her name in the record of the Society.

6 On 09.4.2013 this Court upheld the order passed by the RCS. The relevant extract of the judgment reads herein as under:

"The crux of the dispute is that the petitioner/Society has been refusing to clear the name of Mrs.Saroj Bhutani for execution of the documents though she has been enjoying the property. The basis of the same is that Sh.Shyam Lal Sehra was disentitled to membership from which the claim of Mr.O.P.Bhutani and Mrs.Saroj Bhutani respectively flowed on account of having allegedly incurred a disqualification under Rule 25 of the Delhi Cooperative Societies Rules, 1973.

It is this aspect which has been analyzed by the RCS in the impugned order.

The RCS has noted that neither the Delhi Cooperative Societies Act, 1972 nor the Delhi Cooperative Societies Rules, 1973 framed therein were in force in National Capital Territory of Delhi when Mr.Shyam Lal Sehra became a member in the year 1960 nor were they in force when the membership of Mr.Shyam Lal Sehra was transferred to Sh.O.P.Bhutani. It is the Bombay Cooperative Societies Act, 1925 which was applicable along with the Delhi Cooperative Societies Rules, 1950, both of which did not contain any provision for disqualification of an individual member because of owning a residential property in National Capital Territory of Delhi. In this behalf, a reference has been made to the judgment of the Supreme Court in Ishwar Nagar CHBS Ltd. V. Parma Nand Sharma and Ors.; (2010) 14 SCC 230 where the aforesaid Rule 25(2) of the Delhi Cooperative Societies Rules, 1973 has been held to be applicable only prospectively.

We find no infirmity with the finding of the RCS in relation to the aforesaid. The legal position is crystal clear. There was no disqualification of Mr.Shyam Lal Sehra as per the then existing Rules at the time of his enrolment or at the time of transfer of his membership to Mr.O.P.Bhutani. The succeeding parties therefore acquired a valid membership"

7 The petitioner society was aggrieved. It filed an SLP before the

Supreme Court. The SLP was disposed of on 14.08.2013. The

contention raised before the Apex Court appeared to be two fold; the

first was the applicability of the ratio of the judgment of the Supreme

Court delivered in Ishwar Nagar (supra). The second objecton was in

the context of Bye-Law 5(1)(e) of the Bye-Laws of the petitioner

society.

8 The Supreme Court had directed the petitioner to seek a review

before this Court. Hence this petition.

9 The judgment of Ishwar Nagar (supra) had been highlighted.

Learned counsel for petitioner has drawn attention of this Court to

various paragraphs of the said judgment including paras 21 and 23.

10 A similar question has arisen before the Supreme Court in that

case. The question related to the disqualification of a member from a

group housing society as the allottee owned a residential property in

Delhi in the name of the HUF of which he was a coparcener. While

dealing with Rule 25(2) of the DCS Rules the Court was of the

categorical view that Rule 25(2) did not have a retrospective

operation. It was prospective. The Rule came into force w.e.f.

02.4.1974.

11 Applying the ratio of Ishwar Nagar (supra) this Court had

rightly held that Rule 25(2) not being retrospective but being

prospective the question of Shyam Lal Sehra being disqualified in the

year 1960 when this allotment was made in his favour would not arise.

This objection of the petitioner has no force.

12 The second objection of the petitioner relates to Bye Law

5(1)(e) of the Bye Laws of the Society. This argument now raised was

never raised before the RCS. It was also not argued before the

Division Bench at that time when the judgment dated 09.4.2013 was

delivered. It appears that this was the same position before the

Supreme Court in Ishwar Nagar Coperative Building Housing Society

Ltd.'s (supra). Nevertheless the Supreme Court thought it appropriate

to consider Bye-Law 5(1)(e) as admittedly it was in existence. The

said Bye-Law reads herein as under:

"5(1) Any person shall be eligible to be a member of the Society.

Provided ......

(e) he or his wife (she or her husband in cse of a woman) or any of his/her dependent does not own a land, house or a plot for building a house in Delhi."

13 In this case, there is nothing on record to show that the alleged

violation of this Bye-Law [5(1)(e)] was ever communicated to the

respondent by any showcause notice. The show cause notice (dated

23.08.2011) issued to the respondent is silent on this aspect. This

show cause was predicated on an allegation that the original member

(Shyam Lal Sehra) was holding a property in Delhi at the time when

he was granted membership in the said society; there was no

reference to any violation of Byelaw 5(1)(e). The show casue

notice/letter written by the petitioner Society to the RCS as

(08.09.2011) (P-17) was also silent on this aspect. It also did not

speak of any such violation. In Ishwar Nagar (supra) the facts were

different. In that case {Ishwar Nagar (supra)} after his allotment the

said petitioner being a persistent defaulter and not having paid his

dues as demanded by the Society had been expelled from membership

which expulsion has been approved by the RCS; her reference of the

dispute to arbitration had also been dismissed; notice of the alleged

violation of the Bye Law [5(1)(e)] had also been communicated to the

party in the show cause notice issued to her. In the instant case, at the

cost of repetition, the violation of the said Bye-Law was never

communicated to the respondent. This is clear from the aforenoted

communicatons. This was also not argued either before the RCS or

before the Division Bench. The factual situation in Ishwar Nagar

(supra) was wholly different and thus inapplicable to the facts of this

case.

14 The parameters of review are distinct; unless there is an error

apparent on the face of the record or there was discovery of a new

material or evidence which despite due diligence was not within the

knowledge of the review petitioner at the time when the judgment was

delivered a judgment is not liable to be reviewed. The case of the

petitioner does not fulfill the aforenoted parameters. The review

petition is without any merit. Dismissed.

INDERMEET KAUR, J

S.RAVINDRA BHAT, J

MAY 08, 2017 ndn