Punjab-Haryana High Court
Pushpinder Kalia vs Financial ... on 8 November, 2024
Neutral Citation No:=2024:PHHC:146112
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
212
CWP-26720-2019 (O&M)
Date of decision: 08.11.2024
Pushpinder Kalia
...Petitioner
VERSUS
Financial Commissioner-cum-Secretary to Government of Haryana,
Industries and Commerce Department and others
...Respondents
212-A
CWP-9111-2022 (O&M)
Date of decision: 08.11.2024
Brig. Surrinderpal Singh Jaswal (Retd.)
...Petitioner
VERSUS
Financial Commissioner-cum-Secretary to Government of Haryana,
Industries and Commerce Department and others
...Respondents
212-B
CWP-12083-2022 (O&M)
Date of decision: 08.11.2024
Lt. Col. Piyus S. Katal and others
...Petitioners
VERSUS
Financial Commissioner-cum-Secretary to Government of Haryana,
Industries and Commerce Department and others
...Respondents
CORAM : HON'BLE MR. JUSTICE VINOD S. BHARDWAJ
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Neutral Citation No:=2024:PHHC:146112
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212 CWP-26720-2019 (O&M) and two connected cases
Present :- Mr. Prabhjeet Singh Sullar, Advocate for the petitioner(s).
Mr. Pankaj Mulwani, DAG Haryana.
Mr. Ish Puneet Singh, Advocate for respondent No.4.
*****
VINOD S. BHARDWAJ, J. (Oral)
1. Involving the common question of law, these three writ
petitions are being decided by a common judgment.
2. For facility of reference facts are however being extracted from
CWP-26720-2019 titled as Pushpinder Kalia Vs. Financial
Commissioner-cum-Secretary to Government of Haryana, Industries
and Commerce Department and others.
3. Succinctly the grievance espoused in the above writ petition is
against that respondent No.4 allegedly charging exorbitant fee to the tune of
Rs.80,000/-in the name of transferring flats in favor of the subsequent
purchasers. The dispute being with regards to Flat No.E-9/604 in Sandeep
Vihar (AWHO) Welfare and Maintenance Society (herein after referred to as
'the Society'), GHS 79, Sector-20, Panchkula being the respondent Society
in the said case. It is contended that Mr. P.S. Gill son of Late Mr. D.S. Gill
was originally allotted the membership No.EOF/EA3/929558/S8/
Panchkula/2001 vide allotment letter dated 30.10.2009 of the said society
which was registered under the Societies Registration Act, 1860. On the
notification of the Haryana Registration and Regulation of Societies Act,
2012, the said Society got itself re-registered vide registration No.00132
dated 21.05.2013 under the new Act of 2012.
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212 CWP-26720-2019 (O&M) and two connected cases
4. It is averred that as per the condition No.83 of the Master
Brochure issued by the Army Welfare Housing Organisation, it is entitled to
charge a transfer fee of Rs.10,000/- or such amount as may be approved by
the Executive Committee in addition to what the principal lessor has right to
recover under the terms of lease entered into between the AWHO and the
principal lessor. The petitioner, being eligible to become member of the said
Society approached for transfer of the above flat whereupon the requisite
documents were processed for which a demand of Rs.80,000/- was raised by
them. Under compulsive circumstance, the petitioner deposited the said
amount vide receipt No. 9011 dated 16.10.2014 but without prejudice to his
rights. Hence, the petitioner became a provisional member of the Society
vide letter dated 16.10.2014 after permission was accorded for transfer of the
said flat. It is claimed that in certain judgments passed by this Court, such
acts of the societies have been set aside and the demand levied has been held
to be bad. It is contended that certain persons had approached the Registrar
of Cooperative Societies Panchkula, Haryana, against such unwarranted and
illegal claims raised by the societies whereupon circular dated 09.05.2008
was issued by the above said authority restricting all the cooperative house
building/group housing and maintenance societies to refrain from charging
more than Rs.10,000/- as transfer fee and the bye laws of the society were
ordered to be suitably amended immediately and compliance report was
directed to be sent. An act of a Society demanding more money than
prescribed was ordered to be viewed seriously. The petitioner thus
approached this Court impugning the aforesaid illegal demand and seeking
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212 CWP-26720-2019 (O&M) and two connected cases
refund of the excess amount by relying on the order issued by the Registrar
Cooperative Societies, Haryana.
5. A short reply by way of affidavit dated 30.01.2023 of Mr.
Gaurav Sharma, District Registrar Firms and Societies, Panchkula on behalf
of respondents No.1 and 3 was filed informing that the Society is registered
under Haryana Registration and Regulation of Societies Act, 2012. It was
also stated that the representation sent by the petitioner against respondent
No.4 was forwarded to the competent authority and no further action was
required to be taken on their behalf.
6. A separate reply was, however, filed on behalf of the contesting
respondent No.4 taking a specific objection that the prayer was not
maintainable since the amount had been deposited by the petitioner in the
year 2014 while the writ petition had been filed in the year 2019. Hence, the
writ petition was barred by delay and latches. It was also averred that the
above said deposit was made by the petitioner without any protest and as
such he would be estopped from raising a dispute after such a delayed period
of 05 years. A plea was also taken that the amount of Rs.80,000/-was not
claimed towards the transfer fee but was claimed under the head of
"Members Additional Corpus -Disaster/Long Term Maintenance Fund". He
submits that transfer fee of only Rs.10,000/- was charged by respondent
No.2, in consonance with the AWHO Master Brochure-1987, and that the
charge of Rs.80,000/- collected by respondent No.4-the Society is separate
and distinct. It is further submitted that as per the Bye Law 6(i) of
respondent No.4-the Society, each member had contributed an amount of
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212 CWP-26720-2019 (O&M) and two connected cases
Rs.20,000/- to the corpus of the Society and that Bye Law 6(iv) provided
that upon transfer of an apartment to a 3rd party, he shall be liable to pay a
one time membership fee, contribution to long term development
fund/corpus fund, service charges, other contributions or fees etc. as laid
down by the general body. In furtherance thereto, the Society had approved
the charge, for the growth of the corpus fund in the annual general meeting
dated 21.09.2014, wherein the said charge was determined for an economy
flat. The minutes of the meeting dated 21.09.2014 are extracted as under:-
"7. Corpus Fund Growth. The President apprised the
house that the Original Allottee Members paid on an average
1.3% appx (Rs 20,000/-) of the cost of Flat as contribution
towards Corpus Fund for repair/replacement of common
facilities e.g. Lifts, Generators, Pump Sets, Electrical Panels,
Transformers, Fighting System, Internal Roads Fire etc.
which involve heavy cost/expenditure (Rs 11.50 crores during
2005-06). Considering that the society is more than 6 (six)
years old and heavy outflow of funds is likely to maintain
common facilities, the Collegium therefore unanimously
resolved that the New Member (Transferee) should,
henceforth, contribute a sum of Rs. 50,000/- for a thrifty flat,
Rs. 60,000/- for a utility flat, Rs. 80,000/ for an economy flat
and Rs. 1,00,000/- for a deluxe flat. These figures will be
revised as per the change, if any, in the Collector's
rate/prevalent market value and be presented by the
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Managing Committee at the AGM for its approval. The funds
thus generated will be accounted for under the head
"Members Additional Corpus- Disaster/Long Term
Maintenance Fund", the fifty percent of which will be
expended on new projects as well as on development works
during the same financial year or as decided by the Managing
Committee in view of the funds position subject approval by
the immediate next AGM".
7. It is thus averred that the petitioner has no cause of action for
institution of the present writ petition since the levy has been strictly in
accordance with the applicable Bye Laws and the decision to levy the charge
had been taken in the annual general meeting of the Society. The said
resolution/decision has not been challenged by the petitioner or any other
person before any competent authority under the Haryana Registration and
Regulation of Societies Act, 2012 and as such would hold good and be
binding.
8. Neither any other argument has been raised nor any judgment
has been cited by the learned counsel for the respective parties.
9. I have heard the learned counsel appearing on behalf of the
respective parties and have gone through the documents available on record.
10. So far as the prayer made in the present petition about issuance
of direction of mandamus to the State Registrar of Societies to further direct
respondent No.4-the Society to refund the extra amount charged from new
members on transfer of a dwelling unit by way of sale is concerned, it is
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undisputed that there was no provision in the Act of 2012 or the Rules
framed thereunder whereby any such authority has been conferred upon the
State Registrar i.e. respondent No.3 to direct a refund of an amount charged
as per resolution of the Society. For entertaining a plea for issuing direction
in the nature of mandamus to a statutory authority, the first test required to
be satisfied is that the law should enjoin upon the concerned statutory
authority to act in the manner as is being sought for. In the absence of
statutory authority having been conferred upon respondent No.3, High
Court, under Article 226 of the Constitution of India, cannot confer an
authority and declare that the demand, which is otherwise approved by the
governing body of the society, be deemed to be set aside notwithstanding
that there is no challenge to the resolution. Any decision taken by the
competent authority of the Society is amenable to a challenge in the manner
known to law and in the absence thereof, an action, which is otherwise in
conformity with law in force cannot be held to be per se bad.
11. Learned counsel for the petitioner could not refer to any
provision under the Haryana Registration and Regulation of Societies Act,
2012 or the Rules framed thereunder as per which there was any restriction
on the power of the Society to prescribed fee and charges for its members.
He also could not point out any illegality or impropriety in the resolution
passed by the Society and its applicability at the time when the petitioner
sought transfer of the Unit. Hence, the levy of the charge at the relevant
point cannot be hold to be bad or unenforceable.
12. Having held so, it needs to be also seen that the Government of
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Haryana had issued a notification on 22.06.2018 whereby the "Haryana
Registration and Regulation of Societies (Amendment ) Rules, 2018" were
notified. Rules 32 and 33 were thereafter added which read thus:-
"32. Fixation of transfer fee.- The Society shall not
charge transfer fee not more than ten thousand rupees in case
of sale of apartment and such society shall also modify the
bye-laws accordingly and get the modified bye-laws approved
from the District Registrar".
33. Fixation of maintenance charges.-The society
shall fix the charges on the basis of size of apartment for
maintenance of common area and facilities, as such, existing
society shall also modify the bye-laws accordingly and get the
modified bye-laws approved from the District Registrar."
13. It is thus evident that upon the notification of the amendment
and addition in the Rules, the transfer fee has been fixed under the Rules to
not exceed Rs.10,000/- in case of sale of apartment and all the Bye Laws
were required to be modified accordingly. Hence, after the coming into
force of the above notified Rules, any earlier resolution passed by the
governing body/executive body in its annual general body meeting had to be
read in conformity with the Rules. The levy of any transfer charges beyond
a sum of Rs.10,000/- after the date of notification was thus illegal. Any
amount so collected is thus unlawful in the hands of the Society and is liable
to be returned.
14. Now adverting to the submission of the respondent that the said
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amount was not a transfer fee but was a corpus fund growth, I find that the
argument is inherently flawed. Needless to mention that this corpus charge
is being levied on a new member as if the contribution for creation of the
asset is to be recovered from him. The transferee member steps into the
shoes of the old member, who had already paid the charge for creation of the
asset. Each member is liable to pay the proportionate maintenance charge
even otherwise. Thus, fresh charge cannot be levied on the purchaser each
time a unit is sold as it amounts to collection of the same charge from the
subsequent purchaser, on each transaction. It tantamounts to levy of any
arbitrary charge on a new buyer and is thus essentially a part of transfer
charge only. The nature of fees and charges and its components got
determined by Rules and the levy had to be thereafter uniform for all.
15. A mere change of nomenclature under which a charge is being
demanded even though it is principally toward the transfer fee, cannot be
sustained since any such attempt by a Society would be deemed to be a fraud
on the statute. No society can be permitted to indulge in a mischief so as to
over-reach a legislative intent aimed to curb the arbitrary decisions of the
Societies and to bring in uniformity in levy and equal treatment.
16. Under the given circumstances, I am of the firm opinion that a
demand beyond Rs. 10,000/- from a new member as transfer fee would be
illegal and cannot be validated merely because the society mischievously
fasten the charge under another head. The same being in conflict with law
would be unsustainable.
17. Needless to mention that the entitlement, if any, for claiming
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maintenance charge can only be with respect to the maintenance charge, that
may have remained outstanding against the erstwhile owner, from the
transferee of the property and that no separate charge under the garb of
maintenance charge, over and above a charge which is applicable to all other
members of the society, can be recovered from a subsequent purchaser.
18. Now adverting to the judgment appended alongwith the petition
as well as to the order of Registrar Cooperative Societies, Haryana that had
been relied upon by the petitioner. The said reliance is misplaced since the
said order as well as judgment is in relation to the Societies governed under
the Haryana Cooperative Societies Act and not under the Haryana
Registration and Regulation of Societies Act, 2012. No such provisions akin
to surcharge proceedings/recovery proceedings under the H.C.S Act existed
in the Haryana Registration and Regulation of Societies Act, 2012. Thus, the
judgment and the order have been passed by a separate authority exercising
powers under a separate special statute and the same cannot be supplanted
on the Haryana Registration and Regulation of Societies Act, 2012. The
provisions are not pari-materia and thus cannot be used even as an external
aid for interpretation.
19. In view of the above, the present petitions are disposed of with
a direction that respondent No.4-Sandeep Vihar (AWHO) Welfare and
Maintenance Society, GHS 79, Sector-20, Panchkula shall refund wherever
the amount charged is beyond Rs.10,000/- towards transfer fee including
corpus fund charge and (irrespective of the nomenclature used by them for
raising such a demand) from the date of notification dated 22.06.2018 and
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the same shall be refunded by the respondent-Society within a period of 60
days of receipt of a certified copy of this order, along with interest @ 6% per
annum from the date of collection of such charge till its actual disbursement.
20. In the event, the above said amount is not refunded in the time
frame as aforesaid, the rate of interest shall be leviable @12% per annum.
21. All the three writ petitions are accordingly disposed of.
22. All pending civil misc. application(s), if any, stand disposed of.
(VINOD S. BHARDWAJ)
08.11.2024 JUDGE
Mangal Singh
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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