Delhi High Court
Bhatnagars’ Cooperative House ... vs Sandeep Bhatnagar & Anr. on 9 July, 2018
$~53
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WRIT PETITION (CIVIL) NO. 6966/2018
Date of decision: 9th July, 2018
BHATNAGARS' COOPERATIVE HOUSE BUILDING SOCIETY
LTD. ..... Petitioner
Through Mr. Sanjay Kumar Pathak, Ms. K.
Kaomudi Kiran Pathak & Mr. Sunil Kumar Jha,
Advocates.
versus
SANDEEP BHATNAGAR & ANR. ..... Respondents
Through Mr. Jawahar Raja, ASC, GNCTD & Mr.
Rajat Kumar, Advocate.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE CHANDER SHEKHAR
SANJIV KHANNA, J. (ORAL):
In this writ petition filed on 31st May 2018, Bhatnagars' Cooperative
House Building Society Limited (Cooperative Society, for short) has
challenged order dated 29th September, 2015 passed by the Financial
Commissioner in Case No. 99/2013. The impugned order dismisses the
revision filed by the Cooperative Society against the order passed by the
Registrar of Cooperative Societies dated 24th January, 2013.
W.P. (C) No. 6966/2018 Page 1 of 5
2. The present writ petition has been filed after a long delay of nearly
three years. On being questioned, learned counsel for the Cooperative
Society explaining the delay submits that the respondent, Sandeep
Bhatnagar son of late Brij Nath Swarup Bhatnagar, had filed an
appeal/application under Section 28(1) of the Delhi Cooperative Societies
Act, 2003 (2003 Act, for short) before the Registrar, Cooperative Societies
for transfer of membership in his name on death of his father. By order dated
26th February, 2018, the prayer was allowed. This period should be
excluded. We are not satisfied with the aforesaid explanation and
justification. Aforesaid explanation has no connect and does not justify
delay of nearly three years in challenge to order dated 9th September, 2015.
Proceedings initiated by the respondent under Section 28 were in nature of
execution and for effective and complete implementation of the order dated
29th September, 2015. Cooperative Society in-spite of order dated 29th
September, 2015 had failed to act in accordance with law.
3. The facts exposit that one Prakashwati had become member of the
Cooperative Society on 11th October, 1955. Prakashwati in 1958 had
purchased a residential property. On 25th January, 1967, Prakashwati had
made an application for transfer of membership to her son-in-law Late Brij
Nath Swarup Bhatnagar. On 27th February, 1967, request for transfer of
membership in favour of Late Brij Nath Swarup Bhatnagar was accepted.
Thus, Parakashwati ceased to be a member of the Cooperative Society and
Late Brij Nath Swarup Bhatnagar became a member.
4. In 1975, land was allotted to the Cooperative Society and plots were
developed and carved out. Late Brij Nath Swarup Bhatnagar made payments
W.P. (C) No. 6966/2018 Page 2 of 5
towards development and cost of land. Cooperative Society had accepted the
payments. On 3rd October, 1981, plot No. 85 was allotted to Late Brij Nath
Swarup Bhatnagar and registered sub-lease deed was executed.
5. On 12th December, 1986, a show cause notice was issued by the
Cooperative Society to Late Brij Nath Swarup Bhatnagar why the sub-lease
deed of the plot should not be cancelled as Prakashwati had incurred
disqualification when she had purchased residential plot in 1958 and,
therefore, transfer of membership in favour of Late Brij Nath Swarup
Bhatnagar in 1967 was illegal. Subsequently, it was observed and resolved
by the Cooperative Society that transfer of membership in favour of Late
Brij Nath Swarup Bhatnagar was bad and reference was made to Registrar,
Cooperative Societies and Delhi Development Authority for approval of
cessation of membership and cancellation of the sub-lease deed of the plot.
6. In these circumstances, Late Brij Nath Swarup Bhatnagar had filed a
petition under Section 87 of the 2003 Act, before the Registrar, Cooperative
Societies, which was accepted vide order dated 18th January, 2013.
7. Cooperative Society had then preferred a revision petition, which vide
the impugned order dated 29th September, 2015 has been dismissed by the
Financial Commissioner.
8. Counsel for the Cooperative society relies on Rule 25(1)(c) of the
Delhi Cooperative Societies Rules, 1973 and states that Prakashwati had
incurred disqualification as no person could have continued as a member of
a cooperative society if he or she, spouse or dependent children were owner
a residential house. Reliance is placed on Ishwar Nagar Cooperative
W.P. (C) No. 6966/2018 Page 3 of 5
Housing Building Society versus Parma Nand Sharma and Others, (2010)
14 SCC 230.
9. Late Brij Nath Swarup Bhatnagar was enrolled as a member in 1967.
This enrollment by transfer had taken place before enactment and
enforcement of the Delhi Cooperative Societies Rules, 1973. Decision in
the case of Ishwar Nagar Cooperative Housing Building Society (supra)
would not be applicable to the case at hand in the said factual background.
10. Counsel for the petitioner submits that model bye-laws also had a
clause stipulating that no person shall be a member unless he would sign a
declaration that he/she, spouse or any of his/her dependants did not own a
dwelling house or plot in Delhi and was not a member of any other
cooperative society. It is submitted that these bye-laws should have been
applied when the transfer in 1967 was made. We are not impressed with this
argument for the simple reason that the Cooperative Society could have
inducted Late Brij Nath Swarup Bhatnagar as a member in his own right as
on 27th February, 1967. Late Brij Nath Swarup Bhatnagar had not incurred
any disqualification under the bye-laws or the Rules. Correct facts were
always known and it is not alleged that facts were concealed. Cooperative
Society after deliberation and consideration had enrolled Late Brij Nath
Swarup Bhatnagar as a member.
12. We do not think the Cooperative Society should be allowed to go
back in time by 20 years as the issue of membership of Late Brij Nath
Swarup Bhatnagar was questioned for the first time in 1986. This was after
payments made by Late Brij Nath Swarup Bhatnagar from 1967 till 1981
towards cost and development of the plot had been accepted. Cooperative
W.P. (C) No. 6966/2018 Page 4 of 5
Society should not be allowed to unsettle the settled issues. This would not
be fair and just.
13. In the aforesaid background and factual matrix, we are not inclined to
entertain belatedly and delayed challenge by the Cooperative Society to the
order dated 29th September, 2015 passed by the Financial Commissioner.
Facts of the present case do not justify overlooking or ignoring three years
delay. This litigation should be closed and brought to an end.
14. The writ petition is dismissed on the ground of delay and laches. No
costs.
SANJIV KHANNA, J.
CHANDER SHEKHAR, J.
JULY 09, 2018
VKR
