Delhi High Court
Avtar Singh Chauhan And Ors. vs Anoop Sharma And Ors. on 24 March, 2025
Author: Dharmesh Sharma
Bench: Dharmesh Sharma
$~3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 24th March, 2025
+ RFA 269/2019
AVTAR SINGH CHAUHAN AND ORS. ....Appellants
Through: Mr. Sanjeev Sagar, Sr. Adv. with
Mr. Deepak Prakash, Mr. Nazia, Mr.
Divyangana Malok, Mr. Rahul
Suresh and Ms. Shivangi Rajawat,
Advs. for A-3
Mr. Sriram P & Mr. Anandhu, Advs.
for A1.
Mr. Aaditya Vijay Kumar & Ms.
Akshita Katoch, Advs. for A2, 4 to
10
versus
ANOOP SHARMA AND ORS. .....Respondents
Through: Mr. Upamanyu Sharma, Adv. for R1
Mr. Somit Makar, Adv. for R-4
Mr. Arun Birbal and Mr. Sanjay
Singh, Adv. for DDA
Mr. Rajesh Gogna, CGSC with Ms.
Priya Singh and Mr. Nishant Sharma
and Mr. Mohd. Bilal, Advs. for R-7
Mr. Amar Nath, Nodal Officer and
Mr. Shyam Sunder, for R-8
CORAM:
HON'BLE MR. JUSTICE DHARMESH SHARMA
DHARMESH SHARMA, J. (ORAL)
1. The present regular first appeal is being preferred by the
appellants under Section 96 read with Order XLI of the Code of Civil
RFA-269/2019
KUMAR VATS
Signing Date:25.03.2025
17:49:35
Procedure, 1908, thereby assailing the impugned judgment dated
23.03.2019 passed by the learned Additional District Judge,
Karkardooma Courts in Suit Bearing No.28/2018.
2. It is pertinent to mention that the suit was initially filed by the
respondent No.1/plaintiff against the office bearers of respondent No.
8/CWGVAOA1, as well as respondent No. 6/Delhi Development
Authority 2 and respondent No. 7/Ministry of Urban Development3,
who are the main parties, who are representing the members/residents,
who are serving in the said two respective departments. The appellants
in the present appeal are private individuals who have purchased
residential units in Common Wealth Games Village [hereinafter
referred to as "CWGV"]. Respondents No. 4 and 9 to 21 are the office
bearers of the General Body, elected pursuant to elections which were
conducted on 22.07.2018, in compliance with the directions of the
learned trial Court dated 09.07.2018, which were issued at the behest
of defendants No.1 and 2 in the suit.
3. Suffice to state that upon the said order being challenged, this
Court, in FAO No. 334/2018, vide order dated 20.07.2018, directed
that the elections held on 22.07.2018 shall be subject to legal scrutiny
by the learned trial Court.
4. Insofar as the instant appeal is concerned, respondents No. 2, 3
and 5 have already been proceeded against ex parte, while the
remaining respondents are contesting the matter.
1 Commonwealth Games Village Apartment Owners Association
2 DDA
3 MoUD
RFA-269/2019
KUMAR VATS
Signing Date:25.03.2025
17:49:35
ARGUMENTS
5. During the course of arguments advanced by the learned
counsel for the parties, it is brought to the fore that there are a total of
1,078residential flats in the CWGV, which have already been allotted
to various individuals, including private owner, as well as other
governmental bodies and the bifurcation thereof is as under:-
SERIAL NAME OF OWNER NUMBER OF
NO.
FLATS
TOTAL 1078
* 4 Note
4 Total Flats are 1168 but 90 residential units are lying sealed for not having been given
occupancy certificate.
RFA-269/2019
KUMAR VATS
Signing Date:25.03.2025
17:49:35
6. Having heard the learned counsels for the parties in some detail
and upon perusal of the record, it would be appropriate to first refer to
the operative portion of the impugned order, which reads as under:-
"35. Relief: This is an issue with respect to the relief and in view of
my findings on the issue No.1, just returned above, no relief,
except declaring the Elections, held on 22.07.2018 of the defendant
No.8, Society, as null and void and non-est, can be granted, even
the issue No.1 stands decided, in favour of the plaintiff, under the
peculiar facts and circumstances and also state of affairs,
prevailing, in the Society, and as such, I, hereby, declare, the
Elections, held on 22.07.2018, as null and void. This brings me to
address the question of vaccum, being created, hereby for the
reasons that in any case, the term of the erstwhile Governing Body
came to an end, on by 22.07.2018 and now, the present Governing
Body, is not in existence, therefore, its Officials, not competent to
act, on behalf of the defendant No.8/Society, and as such, there is
question, arising of Administration of day to day affairs, also
payment of essential maintenance services etc. for the Society,
which in itself, is, undoubtedly, a prestigious institution, however,
the new Governing Body of the Society, i.e., defendant No.8
through, defendants No.9 to 21, was never allowed to act, except to
make payments of essential/(s) and therefore, there is already a
make- shift arrangement, going on, which may even continue,
however, the present Association/its Office Bearers, i.e.,
defendants No.9 to 21 are no more competent to act on behalf of
the defendant No.8 and in this eventuality, some arrangements is
being made, for making payments, in terms of the orders of the
Hon'ble High Court and as such, I hereby, direct the defendant
No.7, i.e., MoUD, through its Secretary to further request Dr.
Tarsem Chand, then Joint Secretary, Ministry of Agriculture &
present Area Welfare Officer for CPWD/MOUD at
CWGV(Resident of T-30-202) to act as Nodal Officer, (and if need
be, he can also get assistance from one each responsible Officials
from the defendant No.6, i.e., DDA and MoHUD), and to make
payment for essential service charges, in terms of the Orders of the
Hon'ble High Court, dated 20.07.2018, 07.08.2018, 20.08.2018,
02.11.2018, 04.12.2018 and 15.02.2019, which is not received by
this Court till date, (But all available with the office of the
Association), and he will take over the complete charge of the
office of the Association within three days and the defendants No.9
to 21 are bounded to hand over him the complete charge of the
office and its effects against necessary written acknowledgement
from Dr. Tarsem Chand, who is further directed to convene an
RFA-269/2019
KUMAR VATS
Signing Date:25.03.2025
17:49:35
urgent meeting of the General Body of the Society, within 15 days,
from the date of the service of this order to the Counsel for the
Union of India, appearing in this Court, and the General Body of
the Society will take all and every appropriate decision, for
conducting the Elections to the Governing Body of CWGVAOA
for 2018-20, within two months, from the date of so convened
GBM, in accordance with the bye-laws of the Society and further
in accordance with law and in keeping with this order of the Court.
There is no order as to costs. A copy of this order be given dasti to
the Ld. Counsels for the Union of India, as well as, to the DDA,
against acknowledgement, for its immediate compliance. Decree
sheet be prepared accordingly. File be consigned to record room."
LEGAL SUBMISSIONS
7. Mr. Aaditya Vijay Kumar, learned counsel appearing for the
appellants No. 2, 4 to10, submitted that that the core issue in the
present matter is the prolonged non-payment of Common Area
Maintenance charges by the members and residents of CWGV. As a
result, the upkeep, repairs, and maintenance of common facilities have
been severely affected, causing detriment to all.
8. Alluding to the rules and regulations of the CWGV, particularly
Clause 95, which provides for the functions of the Governing Body
and the manner in which the ad hoc committee was initially
constituted when the residential units were developed by Emaar, a
private builder, it is pointed out that the eligibility criterion for voting
5 FUNCTIONS OF GOVERNING BODY
Governing body shall be responsible for the management and admission of the affirm of the
society, and is also authorities to appoint office bearers/executive members to look after any
particular activity further.
(i) All the decisions shall be taken by the majority vote
(ii) The governing body shall have the powers as are the powers of these rules and
regulation.
(iii) To prepare plans, project and programmes.
(iv) To appoint Election Officer and his/her power.
(v) To consider any business brought forward by the Governing body.
(vi) General body meeting shall be held once in very year regularly.
RFA-269/2019
KUMAR VATS
Signing Date:25.03.2025
17:49:35
in the general election of the Governing Body has always been
uniform and contingent upon the payment of CAM charges. It is
submitted that this criterion was consistently applied in the elections
first held on 07.03.2014 and subsequently in the year 2016. Notably,
the same criterion was followed in the elections for the 2018-20 term,
in which the respondent no.1/Mr. Anoop Sharma, was elected.
However, after loosing the election, respondent no.1/Mr. Anoop
Sharma challenged the decision in the suit, which ultimately led to
the passing of the impugned judgment dated 23.03.2019.
9. Alluding to the operative portion of the impugned judgment
dated 23.03.2019, the learned counsel for the appellants submitted that
since the payment of CAM charges has always been the criterion for
members to be eligible to vote, there is no provision for appropriating
the CAM charges in case of defaulters out of the Interest Fee Security
Deposit6. It was vehemently contended that the DDA and the MoUD
are in arrears to the tune of ₹24.67/- crores and ₹19/- crores
respectively. Furthermore, they are not inclined to pay interest @ 18
% per annum on such mounting arrears, which has led to the present
stalemate.
10. It is urged that unless and until the DDA and the MoUD pay the
pending arrears along with interest, members/residents defaulting in
the payment of CAM charges cannot be granted the right to participate
in the GBM 7 or vote in the elections of the Governing Body. It was
further contended that the suggestion to hold a GBM, as proposed by
6 IFSD
7 General Body Meeting
RFA-269/2019
KUMAR VATS
Signing Date:25.03.2025
17:49:35
the learned standing counsel for the DDA and the MoUD, would be
problematic. The appellants, along with other members who have
diligently paid CAM charges throughout the relevant period,
apprehend that officials from the DDA and the MoUD, despite
availing various common services/facilities in the CWGV, may form a
caucus. There is a concern that such officials could, in future,
influence decisions to waive the pending CAM charges as well as
interest, which would result in a colossal loss, undermining the very
essence of community living.
11. In other words, it is argued that such an approach would be
counterproductive, as it would further deplete the already precarious
financial condition of the association, rendering it incapable of
undertaking necessary repairs and maintenance of common facilities
in CWGV.
12. Aligning with the same line of argument, Mr. Sanjeev Sagar,
learned senior counsel for the appellant No.3, urged that there should
be no relaxation with regard to payment of CAM charges for any
member/resident to become eligible for exercising voting rights in the
elections to be held for the GB8.
13. The appellant no.1/Mr. Avtar Singh Chauhan, appearing in
person, argued that the members/residents of CWGV are affiliated
with various governmental bodies, while many, like himself, are
private purchasers. He contended that the reluctance of the DDA and
MoUD to clear the arrears of CAM charges, coupled with their failure
to pay interest on the outstanding amounts, has created an abnormal
8 Governing Body
RFA-269/2019
KUMAR VATS
Signing Date:25.03.2025
17:49:35
situation. As a result, a significant number of government officials
have been deprived of the opportunity to participate in the electoral
process and elect a democratically constituted GB.
14. The learned counsel for the appellant No.1 proposed the
following suggestions:
(i) that a direction may be passed that the members/residents
who are interested in exercising voting rights, should pay
their entire arrears with interest in accordance with the rules
in a particular time frame:
(ii) that the liability of the DDA and the MoUD to pay interest
on the arrears of the CAM charges should not be waived;
(iii) that although Nodal Officer has verified the voter list in the
year 2022, a fresh exercise may be conducted and the Nodal
Officer be directed to prepare a fresh voter list and the
election should be held in a time bound manner.
15. It was pointed out that the CAM charges comprise of a nominal
amount of ₹3.50 paisa per sq. ft. per month, out of which ₹1.25 paisa
is to be recovered by the DDA and MoUD from their members who
are residents of CWGV.
16. Ms. Aakanksha Kaul, learned counsel for one of the
intervenors, however, has raised an objection to the effect that whether
such amounts are claimed by these bodies, or whether they have been
duly paid or recovered over the years, is a dispute between the
government officials on the one hand and the DDA and MoUD on the
other and that the same is outside the scope of the present appeal.
17. Mr. Arun Birbal, learned counsel for the DDA, referred to the
reliefs granted by the learned Trial Court in the impugned judgment
dated 23.03.2019 and it was urged that in so far as Reliefs No.1 and 2
are concerned, they have become infructuous. He further contended,
RFA-269/2019
KUMAR VATS
Signing Date:25.03.2025
17:49:35
that the primary issue appears to be the direction regarding the holding
of the GBM, as it would allow the participation of members/residents
who are in arrears of CAM charges plus interest, yet would still be in
a position to make decisions on policy matters.
18. In this regard, he referred to the order dated 08.08.2019 and
subsequent order dated 19.08.2019, passed during the pendency of the
instant appeal by this Court and it was urged that that the DDA has
been spending huge amount on the upkeep and maintenance of water
supply including running of sewage treatment plan and there are
arrears recoverable from the CWGVAOA to the tune of ₹9.5 crores.
19. It was further pointed out that in terms of the aforesaid order
dated 08.08.2019, a sum of ₹16.75 crores has already been paid to the
association. He contended that the apprehension in the mind of the
appellants that, if members serving in the DDA are allowed to
participate in the GBM or vote in the Governing Body elections, they
and other similarly placed members would fall into a minority, is
misplaced. He emphasized that the DDA, on its part, cannot issue any
directive or whip to its members regarding their voting decisions. It
was, therefore, suggested that the GBM may be called forthwith and
an appropriate call be taken since there are several issues with regard
to the pending bills with respect to the charges payable towards the
consumption of water charges and maintenance, repairs and upkeep of
the sewerage treatment plant etc. which are recoverable from the
association.
20. The applicant/intervenor, whose application bearing No. CM
APPL.2205/2025 is separately dismissed and allowed to address
RFA-269/2019
KUMAR VATS
Signing Date:25.03.2025
17:49:35
arguments, and learned counsel submitted that there has been repeated
failures on the part of the DDA to reconcile the bills and it cannot be
overlooked that that DDA is still in huge arrears of CAM charges plus
interest to the extent of ₹30/- crores.
21. Mr. Rajesh Gogna, learned standing counsel for the MoUD,
referred to the written submissions placed in pleading VIII of the
digitized record and it was urged that the appellants cannot restrain the
officials/members, who are government servants serving in the
organization, from participating in the GBM, as they had paid ₹10/- at
a time of becoming member to the CWGVAOA in 2013.
22. It was pointed out that the GBM has not been held in
accordance with the rules and bylaws of the association since 2013,
despite it being required to be conducted annually. It was further
submitted that while CAM charges have been paid up to 31.03.2025,
only the interest component remains outstanding. The learned counsel
stated at the bar that he has received instructions from the concerned
officials in the MoUD, confirming that they have no objection to
convening the GBM at the earliest and the appropriate policy
decisions are taken with regard to all the pending issues amongst the
members inter se as well as between the association as well as the
MoUD or for that matter the DDA.
23. During the course of arguments, learned counsels for the
appellants contended that calling a GBM may not be an appropriate
remedy, as it would be difficult to ensure the attendance of three-
fourths of the total members/residents, which is required for decision-
making. In response, it was suggested that this Court may direct that
RFA-269/2019
KUMAR VATS
Signing Date:25.03.2025
17:49:35
the GBM be convened, and in the event that three-fourths of the
members are not present, the GBM may nonetheless proceed, with
decisions being taken by a simple majority.
24. Mr. Upamanyu Sharma, learned counsel appearing for
respondent No.1 appearing through VC, submitted that he is in
agreement with the submissions made by the learned standing counsel
for the DDA and the MoUD to the effect that the GBM should be
called at the earliest and appropriate decision may be taken by all the
members who have stakes in the present matter.
25. Respondent No.4, who stated that he served as the Joint
Secretary of the Association for the first and second terms, appeared
in person and submitted that the requirement for payment of CAM
dues as a prerequisite for participation in the GBM and for exercising
voting rights in the elections to the GB cannot be bypassed. In support
of this contention, reference was made to a direction passed by the
then learned District and Sessions Judge, East, Karkardooma Courts,
Delhi, vide order dated 04.09.2015 in Suit No. 248/05, which reads as
under:-
"Defendants No.1 and No.2 have sought four weeks time to
file reply and written statement and also for moving an appropriate
application to challenge the maintainability of the suit. Time
granted.
In the meantime, defendant No.1 can go ahead with holding
Annual General Meeting (AGM) of the Association and they may
consider entire agenda in the meeting except the item No.5.
Members present in the AGM may be informed that this item will
be taken only after directions from this Court.
A copy of this order be given dasti to the parties.
List the matter on 09.10.2015 for filing reply and written
statement and moving other applications, if so desired by the
defendants.
RFA-269/2019
KUMAR VATS
Signing Date:25.03.2025
17:49:35
Defendant No.2 is directed to ensure the order passed today
is complied with in its letter and spirit."
26. It was pointed out that although the DDA and MoUD had notice
of these proceedings, they never objected to the participation of those
members in the GBM who had cleared their CAM charges as well as
interest part thereof. It was also pointed out that the plea by Mr.
Rajesh Gogna, learned counsel for the MoUD, that the provision for
18% interest on arrears has not been lawfully resolved, is misplaced.
It was emphasized that DDA officials were present at the first meeting
held in 2014, where the decision was taken in the best interest of all
the parties.
27. Learned counsel for the appellants on this point urged that the
stipulation of payment of interest at the rate of 18% per annum on the
arrears of CAM charges is equally applicable to every member of the
society and it is not that there is any specific provision for claiming
the interest against the governmental bodies.
28. It is borne out from the record that a report was filed by the
Nodal Officer on 25.03.2022 in compliance with this Court's earlier
order dated 09.03.2022. The report indicated that CAM charges had
been received from as many as 440 members/residents as of
24.03.2022. However, it was also noted that around 12 individuals
were in arrears for nominal amounts, approximately ₹1,000/- each.
Additionally, Annexure-'B' of the report revealed that 638 defaulters
had outstanding dues amounting to ₹35,56,45,564/-. It was further
brought on record that the MoUD had deposited ₹95,53,708/- on
17.03.2022 against its total outstanding amount of ₹15.18 crores. An
RFA-269/2019
KUMAR VATS
Signing Date:25.03.2025
17:49:35
objection to the compliance report was filed by respondent
No.1/plaintiff, who contended that the figures cited by the Nodal
Officer were arrived at without a proper audit report.
29. In summary, the learned counsels for the parties, as well as the
parties present in Court, are unanimous in their view that the
impugned judgment dated 23.03.2019 has been rendered infructuous,
except for Issue No. 3 regarding the holding of the General Body
Meeting in the manner provided vide the impugned order. It is
undisputed that one of the primary objectives of the CGWAOA is to
promote mutual harmony, cooperation, love, and affection amongst
the residents. Community living offers numerous benefits, and it is
undeniable that residents of the CWGV who utilize various common
services must be held liable and accountable for payment of necessary
charges. This ensures that services within the complex are properly
maintained. Each member/resident of the complex has a moral and
legally binding duty to contribute diligently towards its maintenance,
repair, and upkeep. Therefore, the plea raised on behalf of respondent
No. 1 and the learned counsel for the MOUD, suggesting that
defaulters should be allowed to participate in discussions regarding
CWGV affairs in the GBM, cannot be countenanced in law. It cannot
be overlooked that CWGV is located in Zone 'O' of the Yamuna flood
banks, and failure to maintain it may eventually endanger the
complex's very existence, causing irreparable prejudice to its
members/residents.
30. Having heard the learned counsels for the parties and noting the
near-unanimity amongst the parties, except for the objections raised
RFA-269/2019
KUMAR VATS
Signing Date:25.03.2025
17:49:35
on behalf of respondent No. 1, this Court allows the instant appeal,
sets aside the impugned judgment dated 23.03.2019. At the same time,
the following directions are issued:
(i) A PUBLIC NOTICE shall be issued by a Nodal
Officer to each and every entitled members/registered
resident individually, as well as by affixing a sufficient
number of notices at conspicuous locations within the
Common Wealth Games Village, including the office of
the Association. This notice shall call upon them to pay
and clear their CAM charges along with interest @ 18%
p.a., in terms of the parameters already in effect from
01.01.2022 to 31.03.2025, within a period of two months
from the date of issuance of the Public Notice, which
shall be issued by 1st April, 2025;
(ii) VERIFICATION OF VOTERS' LIST: The
Nodal Officer may commence the process of verification
of the voters' list afresh, including all such
members/residents who make the payment of arrears in
the aforesaid manner within the time stipulated and such
verification shall be done within a period of 15 days
commencing the date of expiry of initial period of two
months provided vide above clause (i);
(iii) DISPLAY OF VOTERS' LIST: The verified
voters' list, comprising those who have cleared their
CAM charges, shall be displayed at all conspicuous
RFA-269/2019
KUMAR VATS
Signing Date:25.03.2025
17:49:35
locations within CWGV. Additionally, information
regarding the list shall be disseminated via WhatsApp
groups and emails to ensure all concerned members are
informed about their eligibility to participate and vote in
the election;
(iv) ARREARS OF CAM CHARGES: Considering
that, as per the unaudited report of the Nodal Officer,
₹19/- crores is due from MoUD and ₹33/- crores from
DDA, it is directed that, to facilitate their
officials/employees in participating and voting in the
elections to the Governing Body, both DDA and MoUD
shall deposit at least 50% of the aforesaid amounts with
the Association within the two months period stipulated
in clause (i), without prejudice to their rights;
(v) ISSUE OF OUTSTANDING CAM CHARGES:
An appropriate call or decision on the issue of payment
of arrears of CAM charges with or without interest, and
the amount due from the DDA and MoUD, if any, shall
eventually be taken up by an elected Governing Body,
which shall be put for approval before the GBM, as and
when convened in accordance with the applicable bye
law;
(vi) The aforesaid disposition shall be without
prejudice to the rights and contention of all the parties
concerned;
RFA-269/2019
KUMAR VATS
Signing Date:25.03.2025
17:49:35
(vii) DATE OF ELECTIONS TO THE GB: It is further
provided that election to the Governing Body shall be held
on 20.07.2025 or such other convenient date as may be
decided by the Returning Officer;
(viii) RETURNING OFFICER: As per the general
consensus, Justice Rajiv Sahai Endlaw, a former Judge of
the High Court of Delhi, is hereby nominated as the
Returning Officer to conduct the elections of the Governing
Body and perform all matters connected thereto, including
engagement of any support staff besides being assisted by
the Nodal Officer, and if need be, by any member/resident
of the CWGV in his discretion so as to enable participation
and exercising voting rights in the elections to the
Governing Body;
(ix) HONORARIUM: Justice Rajiv Sahai Endlaw shall
determine his own fees/honorarium, commensurating with
his status and the tasks to be performed as also that of the
support staff, if any, appointed for the purposes of
performing necessary measures to conduct a free and fair
elections to the Governing Body.
31. As necessary corollary, it is further provided that in the event
DDA and MoUD fail to deposit 50% of the CAM charges within the
stipulated time, their employees/officials shall be debarred from the
voting in the coming elections to the Governing Body.
32. Furthermore, it is directed that this disposition shall not be cited
or treated as a precedent for future elections to the Governing Body. It
RFA-269/2019
KUMAR VATS
Signing Date:25.03.2025
17:49:35
is clarified that these directions have been issued solely to resolve the
existing stalemate and ensure the availability of funds for the
Association. This will facilitate essential services, repairs,
maintenance, and upkeep of the complex and its facilities for the
collective benefit of its members/residents.
33. It is also provided that any outstanding amounts, charges, or
bills payable to the DDA for water consumption and maintenance,
repair, and upkeep of the sewage treatment plant shall be treated as a
separate category. Needless to say, issues relating thereto shall be
addressed by the duly elected Governing Body.
34. In other words, this disposition shall be without prejudice to the
DDA's rights and contentions to seek a set-off against outstanding
CAM charges, if any, by appropriating the same towards charges or
bills related to water consumption and maintenance, repair, and
upkeep of the sewage treatment plant. These issues shall be addressed
by the duly elected Governing Body in any event.
35. The appeal is disposed of accordingly. All pending applications
also stand disposed of.
36. At this stage, learned counsel for the respondent No.1 has
informed the Court that there is a cross-appeal bearing No. RFA
486/2019 also pending moved on behalf of respondent No.1. Let the
same be also placed for hearing tomorrow, i.e., 25.03.2025.
DHARMESH SHARMA, J.
MARCH 24, 2025
Sadiq
RFA-269/2019
KUMAR VATS
Signing Date:25.03.2025
17:49:35
