Delhi High Court
Kaveri Co-Operative Group Housing ... vs Union Of India And 3 Others on 10 May, 1991
Equivalent citations: AIR1991DELHI217, ILR1992DELHI100, 1991RLR323, AIR 1991 DELHI 217, (1991) 2 RRR 332
Author: B. N. Kirpal
Bench: B.N. Kirpal, D.K. Jain
ORDER B. N. Kirpal, J.
1. This judgment will dispose of a bunch of writ petitions which have been filed by different Group Housing Societies challenging the decision of the Government of India dated 20th Jan. 1990 whereby certain guidelines have been laid down regarding the procedure to be followed by the Delhi Development Authority (respondent No. 3) in the matter of allotment of land to such Societies in Delhi.
2. Briefly stated the facts are that prior to 16th July, 1983, for some period of time, the Registrar Co-operative Societies (respondent No. 4) (hereinafter referred to as Registrar) was not registering any Group Housing Society under the provisions of Delhi Co-operative Societies Act, 1972. The reason, presumably, was that there was little chance of these Societies being able to get land for construction.
3. Most of the land in Delhi having been frozen at the instance of the Government or the DDA as a result of large scale acquisition of land. It was for the DDA to decide to allot the land for the purposes of construction of houses or flats. As and when land became available construction activity was either undertaken by the DDA itself or land was allotted to an individual or Co-operative Societies. We are informed at the bar that the practice which has been followed by the DDA under instructions of the Union of India is that 60% of the land which is available for construction of residential units is constructed upon by the DDA itself and 40% of the is allotted to different Group Housing Co-operative Societies. One of the norms which has been laid down by the DDA for making allotment of land to Co-operative Societies is that the said Society should not have less than 60 and more than 300 members.
4. On 16th July, 1983 a public notice was issued by the Delhi Administration to the effect that the Administration had decided to re-open the registration of Group Housing Societies. Those Societies which had membership between 60 and 300 persons and who did not own any residential property and were residents of Delhi could be registered. The application for registration was to be accepted in the office of the Registrar between l8th July, 1983 and 17th Aug. 1983 on a prescribed form to be available from the office. Vide press note dated 17th Aug. 1983 this period of registration was extended from 17th Aug. 1983 to 30th Aug. 1983.
5. Large number of persons, thereafter, formed Group Housing Co-operative Societies and applied for registration with the Registrar. Out of over 2600 Societies which applied 1406 Societies were registered. The Societies had to apply and obtain registration by satisfying all the provisions of the Delhi Co-operative Societies Act and the rules framed there under. This postulated the scrutiny of the application forms by the office of the Registrar who granted registration only if, at least prima facie, the Societies had fulfillled the prescribed rules and regulations and were eligible for registration.
6. On 13th March, 1984 the Registrar issued a public notice in all the leading newspapers of Delhi. This public notice was as follows:
"DDA has now intimated that they would not now consider allotment of land to Group Housing Societies registered in 1983-84.Those Societies who have closed their membership and desire to seek land through DDA are requested to submit their membership list and other documents to the Office of the Registrar, Co-operative Societies on prescribed pro forma available with the office from 20th March, 1984 onwards."
The effect of this was that those Societies, namely, 1406, who had got themselves registered were then required to submit their final membership list to the Registrar. They were also to submit other documents on the prescribed pro forma. Such list was to be supplied on or after 20th March, 1984. There was no time limit stipulated for the submission of such list. It seems that the Registrar must have realised that there could not be an indefinite period during which such list could be submitted. On 13th May, 1985 another public notice was accordingly issued in which it was stated that so far out of 1406 registered societies only 652 societies had submitted their list in the prescribed pro forma for onward transmission to DDA for the purpose of allotment of land. This public notice informed the balance 754 societies that they could submit their final membership list in the prescribed pro forma within 30 days of the issuance of the notice failing which it would be presumed that societies were not pursuing their main objective. This dead-line of 30 days with effect from 13th May, 1985, which was fixed by the public notice, was then extended to 31st July, 1985 vide another public notice dated 2nd July, 1985.
7. The effect of the aforesaid three public notices dated 13th March, 1984, 13th May, 1985 and 2nd July, 1985, therefore, was that those societies who wanted land to be allotted to them from the DDA were required to submit their final list of membership along with other relevant documents and affidavits to the Registrar and the Registrar, thereupon after verification, would transmit the said documents to the DDA for the purposes of allotment of land.
8. At the time when the aforesaid public notices were issued the Central Government formulated Delhi Development Authority (Disposal of Developed Nazul Land) Rules,1981. These rules were promulgated by the Central Government under the relevant provisions of the Delhi Development Act, 1957. At the time when the aforesaid public notices were issued the said rules were not in operation. Before proceeding further it will be relevant to set out two of the Nazul rules, namely, R. 6(vi) and R. 2 1.
Rule 6(vi): Subject to the other provisions of these rules the Authority shall allot Nazul land at the pre-determined rates in the following cases namely
(vi) to co-operative group housing societies, co-operative housing societies, consumer co-operative societies and co-operative societies of industrialists on "first come, first serve basis"
Rule 21 : Nazul land of such size, as the authority may, from time to time, decide with the approval of the Central Government may be allotted on lease-hold basis, at predetermined rates to such co-operative societies, registered under the Delhi Co-operative Societies Act, 1972 (35 of 1972), as are specified in clause (vi) of Rule 6, subject to an undertaking given by such society that it shall use such land for its bona fide purposes or business only.
9. After the issuance of the aforesaid public notice dated 13th March, 1984, out 1406 societies, 652 societies submitted their list of members. After public notice dated 13th May, 1985, 239 more societies submitted their lists and after the last public notice of 2nd July, 1985 about 400 and odd societies submitted their lists.
10. After the lists had been received by the Registrar from the various societies, correspondence was exchanged between the Registrar and some of the societies. This was with regard to the verification of the lists of members which had been submitted by the societies. The exercise was being undertaken in order to see that members of the societies fulfilll the criteria or the eligibility condition for being made members of the societies and for consequential allotment of a flat. The lists so submitted were approved by the Registrar at various points of time. Some of the lists which were received earlier were, in fact, approved later and vice versa. We shall advert to this aspect presently.
11. On 20th January, 1990 the aforesaid office memorandum containing guidelines regarding the procedure for allotment of land was issued. These guidelines were issued by the Government of India and the said memorandum is as follows:
"The undersigned is directed to refer to the minutes of the meeting held in this Ministry on 23rd October, 1989, circulated to all concerned by our O.M. of even number dated 13-11-1989 and to convey the approval of this Ministry to the procedure outlined below in the matter of allotment of land to Group Housing Societies in Delhi.
(a) The date of seniority for allotment of land for a co-operative group housing society will be date on which the papers of the Society have been found in order and approved by the office of the Registrar, Co-operative Societies, Delhi Administration.
(b) In case where part approvals have been accorded by the office of the Registrar, Co-operative Societies on different occasions, the last date of approval will be relevant for the purpose.
(c) There the date of approval is the same in the case of more than one Society, their inter se seniority will be in order of the average age of their members in the descending order. Thus the society with a higher average age of the members will rank senior.
(d) Land will be offered by DDA for allotment in minimum lots in a given location or area. Any approved Society will be free to apply. In case the number of Societies who apply is more than what can be absorbed in the land offered, the allotment will be decided by the order of seniority as determined above.
These instructions are issued as clarifications to Rule (vi) of the DDA (Disposal of Developed Nazul Land) Rules, 1981, and may be brought into force with immediate effect."
The effect of the aforesaid memorandum was that a seniority list of the societies was prepared according to the date of approval of the final list by the Registrar. The DDA had been given the land by the Central Government in the project called 'Dwarka Project' at Papan Kalan for allotment to various co-operative group housing societies. On the basis of the aforesaid memorandum dated 20th Jan, 1990 a seniority list of approximately 409 group housing societies had been prepared and allotment of land took place by draw of lots in respect of 260 societies. This draw took place on 17th Jan, 1991.
12. Prior to the aforesaid draw of lots most of the present writ petitions were filed challenging the aforesaid guidelines contained in the office memorandum dated 20th Jan, 1990. No interim orders were issued staying the allotment as such, but in most of the cases some interim orders were passed to the effect that an area of land should be kept reserved for the petitioner. The DDA advisably and prudently made allotment to the aforesaid 260 co-operative societies and in the allotment letter it was stated that the proposed allotment was subject to the outcome of these writ petitions. It was also stated in the letter of allotment that if it was felt necessary then as a result of the decision in those writ petitions the allotment may have to be reviewed and cancelled in which case entire amount received by the DDA shall be refunded without any interest or compensation, damages etc.
13. The contention on behalf of the petitioners, on the aforesaid facts, before us is that the criteria of making allotment on the basis of the finalisation of the list is wholly arbitrary, unreasonable and contrary to R. 6 of the aforesaid Nazul Rules. It is submitted by the learned counsel that the only principle for allotment which has to be adopted is the principle laid down in R. 6 of the Nazul Rules, namely, of first come first serve basis. A minor controversy has, however, arisen with regard to the interpretation of R. 6 itself. This controversy is as to whether the meaning which is to be given to the expression first come first serve would be that the societies are to be allotted land on the basis of the date of registration or is the land to be allotted to them with reference to the dates when they submitted their list of members.
14. Therefore, two questions which arise for consideration in these writ petitions are whether the guidelines issued on 20th Jan, 1990 are valid and, secondly, what is the meaning of the expression first come first serve occurring in R. 6 of the Nazul land.
15. The main principle which has been set out in the memorandum of 20th Jan, 1990 is that the seniority is to be determined with effect from the date on which the papers of the Society have been found in order and approved by the office of the Registrar, Co-operative Societies. The effect of this is that irrespective of the date when the Societies were registered, the seniority will not be determined with effect from the date of registration nor with effect from the date when the list of members were submitted, but is to be determined with effect from the date when the Registrar accords its approval to the list so filed.
16. In our opinion this criteria is unreasonable, to say the least. The effect of this principle is that the societies have been left at the mercy of the Registrar of Co-operative Societies. There may be cases, and they probably are, where full particulars may not have been supplied by the societies. But as and when verification has taken place, it must necessarily relate back to the date when the list of members was filed. There are numerous instances which have been placed before us which show that with no fault of the societies they have been relegated to a lower position in the seniority list. The most aggrieved case is that of the petitioner in Civil Writ No. 3219/ 90, namely, 'The Thiruvizha Co-operative Group Housing Society Ltd.' This Society was registered on 19th October, 1983. The list of members was received by the Registrar on 11th May, 1984. This list was sent by the Registrar to the DDA provisionally on 29th May, 1984. Thereafter the list was approved only on 15th Jan, 1990. There is no correspondence which took place between the society and the Registrar during this period, namely, between 11th May, 1984 and 15th Jan, 1990 i.e. for a period of over 5 1/2 years. By applying the guidelines of the impugned memorandum the seniority date which has been assigned to this Co-operative Society is with effect from 15th Jan, 1990. Interestingly enough the list which was approved by the Registrar on 15th Jan, 1990 was the same which had been submitted to it by the Society on 11th May, 1984. There was no change in the membership. On the other hand, there are societies where the verification was done most expeditiously. In the case of society at serial No. 91 the verification was effected within one day of the submission of the list. There are about 11 such societies where the verification was completed within 17 days of their submission of the list of members.
17. There are about 25 other group housing societies where the list was verified within a month. On the other hand, there are at least 12 other societies where the lists were verified number of years after they had been submitted even though no defects were indicated in the list originally filed. Apart from the case of 'The Thiruvizha Co-operative Society' there are instances where the delay in verifying the list of members has ranged from 3 to 5 years.
18. The only exercise which had to be undertaken by the Registrar after 17th March, 1984 was to verify whether the lists which had been submitted were in order or not. The societies already stood registered with the Registrar. It is possible that there may be a delay in completing the verification because of non-submission or defective submission of papers in respect of one or two members in a society of such, say 300 members. Is it proper and reasonable that because of a defect which is subsequently removed, the seniority of the society should be radically altered to its disadvantage? In our opinion the answer to question must be in the negative. There has to be certainty in the seniority which is to be fixed. Fixing of seniority cannot be left to the whims and fancies of any official. Of course, if a society does not give the requisite particulars which would enable the Registrar to finalise the list or approve it, then such a society would certainly not be entitled to be placed in the seniority list at all. For example, out of 2600 societies which had originally applied for registration, only 1406 were registered. Out of 1406, it is only 1291 who have filed the list of their members. In addition to 1261 societies we are informed that about 100 societies did not submit fresh list but they intimated to the Registrar that the list already submitted by them may be considered for verification. In this manner the total number of societies which would be eligible for consideration for allotment of land would be approximately 1391. We are further informed that the Registrar has already approved the list of these 100 societies who did not submit fresh list and had intimated that the original list may be accorded approval.
19. It is open to the Registrar to fix a time limit within which the defects, if any, must be removed by the society so as to enable the Registrar to grant approval. If the defects are not removed within the stipulated time, then the society can have no grievance if the approval is not accorded. But once the approval is accorded the same must relate back to the date of the filing of the list. What is the effect of approval? The effect of approval is that the Registrar recognises the correctness of the list as filed by the society.
20. At this juncture it is important to note that till the impugned memorandum was issued and prior to even the registration of the societies, the land was being allotted to the group housing societies on the basis of the seniority fixed with reference to the date of their registration with the Registrar, Co-operative Societies. In other words, the date of verification of the list of members was not a relevant criteria for fixing the date of seniority prior to January, 1990. This position was in existence even prior to the promulgation of Nazul Rules in 1981. The Nazul Rules of 1981, and R.6 in particular, merely gave statutory recognition to the practice which was already being followed by the DDA. The Nazul rules clearly stipulate that the seniority will be according to the 'first come first serve basis'. The impugned memorandum is clearly contrary to the provisions of R. 6. The memorandum of 1990 purports to clarify R. 6(vi) of the DDA Rules, 1981, but in effect it indicates it. We could have understood if the memorandum of 20th January, 1990 had sought to extend the meaning of the expression 'first come first serve' occurring in Rule 6. This is not done by the memorandum, whereas R. 6 states that land will be allotted on the basis of first come first serve. The memorandum of 20th January, 1990 provided that the land will be allotted on the basis of date of seniority to be reckoned from the date when the Registrar approves the list of members. The most amazing thing in this memorandum is that according to clauses 'C' where the date of approval is the same, then the inter se seniority is to be reckoned in order of the average age of their members in the descending order. This is a criteria for which there seems to be no justification or rationing (rationale ?).
21. Nazul Rules of 1981 have been framed by the Central Government in exercise of its statutory powers contained in S. 22 read with S. 56 of the DDA Act, 1957. The impugned memorandum is clearly contrary to statutory R. 6 of the Nazul Rules. Therefore, on this ground alone the office memorandum of 20th January, 1990, being administrative in nature, cannot be given effect to as statutory Nazul Rules, 1981 must prevail.
22. There is one more reason as to why the office memorandum of 20th January, 1990 cannot be given effect to. As already observed, prior to January, 1990 seniority was fixed on the basis of the date of registration. The DDA had also sometime in 1982 brought out a brochure in which the criteria for allotment to registered group housing societies was set out. It was mentioned in this that "allotment is being made in accordance with the seniority i.e. SNO and date of registration of the societies with the Registrar (CS) Delhi." This was, of course, subject to the filing of the list of members of verification and payment of costs. This brochure, which was released to the public, informed that the allotment is to be made according to the seniority as determined by the date of registration of the societies with the Registrar. This was in consonance with Rule 6 of the Nazul Rules. The office memorandum of 20th January, 1990, which laid down a completely different criteria, was never made public. A somewhat similar situation had arisen before the Supreme Court in the case of Sriniketan Co-operative Group Housing Society Ltd. v. Vikas Vihar Co-operative Group Housing Society Ltd., . There also the question arose with regard to the allotment of land by the DDA to group housing societies. The Government of India had taken a decision on 5th March, 1984 in which it was, inter alia, stated that for the purpose of allotment seniority of registration was to be of no relevance. The Registrar was directed to publish a notice calling upon the group housing societies to apply for Allotment which should be allotted on 'first come first Serve basis'. This position was challenged in the High Court. The challenge was successful and an appeal was filed in the Supreme Court. While upholding the decision of this Court the Supreme Court observed that the aforesaid directions of the Government of India contained in its letter dated 5th March, 1984 was never made known to the public. After taking note to this fact the Supreme Court observed as follows (at page (1684):
"It, therefore, follows that the allotment of land to the nine Co-operative Societies had been made without putting all the societies on notice as to what would be the basis on which their applications would be considered."
The ratio of the aforesaid decision is clearly applicable to the present case. In one of the public notices dated 17th March, 1984, 13th May, 1985 and 2nd July, 1985 it is stated that the seniority will be determined according to R. 6 of the Nazul Rules, but will be determined according to the date of approval of the list so submitted by the societies. Just as in Sriniketan Co-operative Group Housing Society's case (supra) the decision to allot land on the basis of 'first come first served' pursuant to the letter of 5th March, 1984 was not made known to the public and was directed not to be given effect to. Similarly, in the present case, the decision of 20th January,1990 has not been made known to the public and cannot be allowed to be given effect to. This is apart from the contention of the learned counsel for the petitioner that the decision of 20th January, 1990 cannot be given retrospective effect. The societies had got themselves registered nearly 7 years earlier and at no point of time were they informed that the seniority would be according to the date of approval of the list of members. If the date of approval is of no consequence, then it would be wholly irrelevant and in our opinion rightly so, as to when the list of members was taken up for approval and approved by the Registrar. In such an event there can be no authority of arbitrariness or neglect qua any action of the Registrar. The seniority of the societies would not be affected adversely by any action or inaction of the Registrar after the list had been submitted by the group housing societies.
23. For the aforesaid reasons, in our opinion the office memorandum dated 20th January, 1990 cannot be made applicable to the present case and the allotment of land has to be made according to R. 6 of the Nazul Rules, 1981.
24. This takes us to the next question, namely, as to what is the meaning of the expression 'first come first serve' occurring in R. 6 of the Nazul Rules. One argument before us is that first come first serve has relevance to the date of registration of societies with the Registrar, while the other contention is that first come first serve must mean the date on which the lists of members were furnished.
25. Rule 6, unfortunately, does not give any direct clue as to meaning of aforesaid expression 'first come first serve basis'. Rule 21, however, states that it is to those societies that land is to be allotted which are registered with the Delhi Co-operative Societies Act. In the present case, there is no application for allotment of land, directly, to the DDA. The only communication from the Society is to the Registrar, Co-operative Societies which is acting as an agent or a conduit to the DDA. The registration of Co-operative Societies was not being allowed because the DDA had no land available for allotment. It is only when the land became available for allotment that the Registrar, and not the DDA, issued the first public notice on 16th July, 1983 inviting applications for registration of Co-operative Group Housing Societies. The act of registration by the Group Housing Societies pursuant to public notice dated 16th July, 1983 was in effect an application by the Co-operative Societies for allotment of land from the DDA. Whereas under the Co-operative Societies Act the minimum members required for forming the Co-operative Societies should be 10, while in the notice of 16th July, 1983 the minimum members which were required were 60. This clearly shows that the applications which were invited by the public notice dated 16th July, 1983 were really in effect for registration purposes for allotment of land by the DDA at a later point of time. Therefore, the term of 'first come first serve' will apply with reference to the applications for registration which were made pursuant to the public notice of 16th July, 1983.
26. The respondents also have understood the aforesaid brochure wherein it is stated that the priority for allotment of land will be on the basis of the date of registration of the societies with the Registrar of Co-operative Societies. When the department itself has understood R. 6 in this manner, the ambiguity, if any, in the rules stands resolved. Furthermore, the very phrase 'first come first serve' basis mean that those societies who first come for allotment will get a preference over the societies who applied at a subsequent point of time. After the registration in 1983 there were no applications for allotment who were formerly invited at any point of time. What the societies were required to do by the public notices of 17th March, 1984, 13th May, 1985 and 2nd July, 1985, were only to resubmit their final list of members for verification. They were not required to come and apply for allotment. The "first come" act of the societies took place when they came to the Registrar and got themselves registered in 1983. It is that date which is relevant and no one else. We are, therefore, of the opinion that the meaning of the expression 'first come first serve' is that the seniority has to be determined with reference to the date on which the societies were registered.
27. It was sought to be contended by Ms. Issar that if we were to give the aforesaid interpretation to R. 6, then the date of registration should also not be relevant, but what should be relevant is the date of application for registration to the Registrar. In other words, in 1983 the application was made for registration and it took some time before the verification took place and registration was effected. We are not going to go into all these aspects for the simple reason that the Registrar registered the societies on various dates in 1983 or in early 1984. All the societies understood and took the date of registration to be the date communicated to them by the Registrar. It is now too late in the day for any of the societies to contend, after a lapse of 6 to 7 years, that the date of registration should be ante dated to the date when they applied for registration. Having accepted the date of registration as communicated to them the societies are stopped from contending to the contrary.
28. There is only one other aspect which requires consideration. Apart from the societies which were registered between 18th July, 1983 and 30th August, 1983 the land is also sought to be allotted to two other categories of societies, namely, those societies which were registered prior to 1979 and those societies which were registered under the 'Awas Sakar Yojana'.
29. With regard to those societies which were registered prior to 1979 petitioners can obviously have no grievance for the simple reason that R. 6 of the Nazul Rules will apply and on the basis of 'first come first serve' and the date of registration being the material date, the group housing societies which were registered prior to 1979 must get precedent over the group of societies which were registered after 17th July, 1983.
30. The position with regard to the societies registered under Awas Sakar Yojana is, however, slightly different. The societies which were formed under Awas Sakar Yojana consisted of persons who had got themselves registered for the flats under HUDCO New Pattern Scheme, 1979. These persons had been waiting for allotment of flat since 1979, but till 1990 no flat had been allotted. The Government of India, therefore, proposed that such of the registrants who had been waiting for allotment since 1979 should be allowed to form a Group Housing Society and land be allotted to them on priority basis. The reason for giving them priority was that these individual members had been standing in queue much earlier than any of the petitioners' societies had been registered with the Registrar of Co-operative Societies. What is, however, more material is that the Central Government gave a direction that the land should be allotted to such Awas Sakar Yojana societies out of 60% quota of land earmarked for DDA's own public housing programmes and not from the 40% quota fixed for Co-operative Group Housing Societies. In other words, the allotment of land to these Awas Sakar Yojana Societies, which societies came into existence long after 1983, possibly in 1990, was not given the land which could be allotted to any of the petitioners' societies. The members of these co-operative societies were entitled to allotment of flats which had to be constructed by the DDA on 60% quota of land earmarked by the DDA for its own public housing programmes. The effect of these directions was that instead of constructing flats for these registrants, it is the registrants themselves through co-operative societies, which constructed flats for themselves on 60% of the quota of the land. It is clear that such societies registered under the Awas Sakar Yojana are not similarly placed as the petitioners and, therefore, we do not find any infirmity in the decision of the respondents in that priority allotment to such societies.
31. For the reasons stated hereinabove it is clear that the allotment which has been made to 260 societies and the draw of lots which has taken place on 17th January, 1991 has to be set aside. The list of seniority which has been prepared in accordance with the impugned memorandum of 20th January, 1990 has to be quashed. We, therefore, issue a writ of mandamus quashing the list prepared by the Registrar pursuant to the memorandum dated 20th January, 1990 and we also quash and set aside any allotment made or proposed to be made pursuant to the aforesaid direction of 20th January, 1990. It will be open to the respondents to refund the money to those all the 260 societies to whom allotment had been made and who had paid the allotment money pursuant to the allotment which has been quashed by us. A writ of mandamus is further issued that if there are any societies who had filed their list and the same has not been approved till today. The said verification should be completed and the list approved or rejected within a period of three months from today. We further issue a writ of mandamus directing the respondents to allot land to the Group Housing Societies according to seniority i.e. the date of registration on the basis of fresh list to be prepared within one month on the basis of our observations in this writ petition. The names of those societies should be provisionally included in the seniority list whose verification is yet to take place and their names would be subject to deletion if the lists are rejected within the stipulated period of three months, for any reason whatsoever. Allotment, if any, to be made to such societies, whose verification is not complete, would be subject to the completion of the verification. This allotment should take place with respect to the land which was a subject matter of the draw of 17th January, 1991 and should be completed within a period of six months from today. The allotment to the societies who were registered prior to the petitioners' societies or were registered under Awas Sakar Yojana will not in any way be effected by this decision. There will be no order as to costs.
32. Order accordingly.