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[Cites 2, Cited by 4]

Delhi High Court

Nathu Ram Jain vs Registrar Cooperative Societies And ... on 7 January, 2002

Equivalent citations: 2002IIIAD(DELHI)728, 96(2002)DLT570

Author: Manmohan Sarin

Bench: Manmohan Sarin

JUDGMENT
 

  Manmohan Sarin, J.

1. By this common judgment, the above six writ petitions are being disposed as the questions arising for consideration are common. The petitioners who claim to be members of the Shivaji Cooperative Group Housing Society Ltd., are aggrieved by the draw of lot, held on 31.12.2000, by the Society. Petitioners have filed the writ petitions to assail the same. Petitioners seek quashing of the draw of lot dated 31.12.2000 and directions for possession being taken back from those who have been allotted the flats pursuant to the impugned draw of lot. Petitioners claim to be the eligible members who have either been unsuccessful or excluded in the draw of lot held and claim to be entitled to being considered for allotment.

2. The detailed facts as disclosed by the petitioner in CW No. 3497/2001 are taken for the facility of reference. Petitioner claims to have become a member of the society in the year 1971 with seniority at Serial No. 52. The society is stated to have been allotted 2 acres of land on 15.7.1991. The society had initiated proceedings for expulsion of the petitioner on the ground of alleged default in payment under Rule 36. The petitioner was expelled by the society with the approval of the Registrar of Cooperative Societies. The petitioner's grievance is that the former Secretary of the Society misled him into believing that only Rs. 93,000/- were to be paid as against the original amount of Rs. 1,51,508/- which was claimed to be over due. The petitioner claims to have made the payment of Rs. 93,000/- as demanded, but on account of wrong information given by the Society's Secretary to the Registrar that petitioner had not paid the balance sum of Rs. 60,330/- petitioner was expelled. Aggrieved by this action, the petitioner preferred a revision petition against the order of expulsion before the Financial Commissioner. Financial Commissioner vide an order dated 30.11.2000, set aside the order of expulsion and the society was directed to raise the demand against the petitioner, who was to make the payment as per the demand. Petitioner claims to have made the payment as demanded by the Society including interest. Petitioner claims to have paid a total sum of Rs. 8,33,576/-. As per the petitioner, the respondent society illegally enrolled 22 new members and on its own conducted the draw of lot on 31.12.2000. The Society made the allotment of the flats illegally to the members but also allotted flats to some of the 22 non-members, who had enrolled in place of genuine members. The possession of flats is stated to have been delivered to some members as well as to some of the illegally enrolled new members.

3. Relevant and material facts of the remaining writ petitions are also briefly noted below:

CW No. 361/2001
Petitioner, Nathu Ram Jain claims to have become a member of the Society on 10.10.1972 and paid a sum of Rs. 6.95 lacs in all towards the cost and construction of the flat. Petitioner was expelled on 3.12.1999 with the approval of the Registrar.

Petitioner preferred a Revision Petition before the Financial Commissioner. Order of expulsion was set aside and the respondent Society was directed to provide a statement of account to the petitioner. The society demanded a sum of Rs. 54,754/-, which the petitioner paid. The Registrar also granted clearance to the petitioner's name as one of the persons in the list of 80 cleared. Petitioner claims that the draw of 31.12.2000 had been conducted by the Society on its own in violation of the directive dated 31.5.1984 of the Registrar issued under Rule 77.

CW No. 532/2001

Petitioner claims to have become member of the Society in the year 1993. Petitioner claims that he was directed by the Registrar of the Cooperative Societies to clear the dues within one month from 16.11.1999. He complied with the said direction and there was no dispute as regards the petitioner's membership. He claims to have paid Rs. 5.64 lacs towards the cost of land and construction. The petitioner was illegally expelled by the Society from membership and his case was referred to the Registrar of Cooperative Societies for approval. The Registrar Cooperative Societies vide orders dated 16.11.1999, directed the petitioner to clear the dues within one month. Petitioner duly paid the amount within the stipulated period and hence continues to be a regular and bona fide member. Petitioner paid a further sum of Rs. 38,795/- on 14.12.1995. The petitioner is aggrieved by the draw of lot conducted on 31.12.2000, where possibly petitioner was not successful. The draw is assailed as illegal and without jurisdiction and in contravention of the directive dated 31.5.1984 issued by the Registrar.

CW. 637/2001

Petitioner claims to have become the member in June 1986 and was granted membership No. 333. The petitioner claims to have been illegally expelled by the Society along with 20 other members. The petitioner challenged the same in a Revision Petition before the Financial Commissioner along with others. On the Society giving No Objection before the Financial Commissioner of admitting the petitioner among other defaulting members, subject to payment of remaining dues together with interest, within the stipulated period, the expulsion of the petitioner and others was set aside. The petitioner was called upon to pay the amount within 15 days, which he did. Petitioner assails the action of the Society in enrolling 22 members and holding the draw on its own in violation of the directive of 31.5.1984.

CW. 2074/2001

Petitioner claims to be a regular member of the respondent society. The petitioner claims to have been illegally expelled by the respondent Society by raising wrong demands. The expulsion proceedings were dropped by the Registrar Cooperative Societies vide the order dated 3.12.1999 as the petitioners had cleared all its dues. The petitioners even paid the balance amount on 16.11.1999 making a total sum of Rs. 7,15,017/-. The petitioner's name was however wrongfully not included in the list of 80 members cleared by the Registrar of Cooperative Societies on 3.10.2000. Petitioners' name it appears was withheld on account of non-completion of the formality of not filing the affidavit. The petitioner's name despite dues being cleared and expulsion proceedings having been dropped was not forwarded. The petitioner assails the draw of lot held on 31.12.2000 as being in violation of the directive of 31.5.1984.

CW No. 4258/2001

Petitioner claims to have become member of the Society on 6.6.1969. The expulsion proceedings were initiated under Rule 36 against the petitioner. The Registrar Cooperative Societies was however pleased to drop the same against the petitioner vide order dated 3.12.1999, since the petitioner had cleared the entire outstandings. The Registrar of Cooperative Societies had also cleared the petitioner's name on 16.11.2000 and sent the same duly approved for allotment of flat. The petitioner assails the draw of lot held on 31.12.2000, where his name was wrongfully excluded. The draw is assailed as having been held in violation of the directive of 31.5.1984.

4. From the foregoing narration, it would be seen that the petitioners fall in the category of either persons who were unsuccessful in the draw of lot held on 31.12.2000 or whose names were wrongfully excluded or not sent. The petitioners' basic case is that the draw of lot dated 31.12.2000 has been conducted by the Society in violation of the circular/direction issued by the Registrar of Cooperative Societies on 31.5.1984, under Rule 77 of the Delhi Cooperative Society Rules.

5. The directive required the membership of each and every society to be verified once again prior to the allotment of flats. It was directed that allotments of flats shall be done by the DDA through draw of lots. The draw of lots was to be held by the DDA in consultation with the office bearers of the Society and the Registrar of Cooperative Societies. The time and place of draw was required to be intimated to the Society and the Registrar. The draw was to be held in the presence of the office bearers and the members of the Society were to be invited. The said directive also prescribed the manner in which the verification of the membership was to be done.

6. The submission of the petitioners is that in the instant case the society on its own held the draw of lot on 31.12.2000, without the draw being conducted/held by the DDA or the list of members being verified by the Registrar of Cooperative Society. The allegation is that the 22 members who were not eligible as per the petitioners and whose names had not been approved by the Registrar of Cooperative Societies were included in the draw of lots.

7. Counter affidavit has been filed on behalf of the Registrar of Cooperative Societies and Delhi Development Authority. Mr. R.N. Bhardwaj appearing on behalf of Administrator, Shivaji Cooperative Group Housing Society Ltd. adopted the reply filed by the Registrar of Cooperative Societies as the reply on behalf of the Administrator also. In the reply the Registrar has stated that the draw of lot held by the Society was in violation of the Directive dated 31.5.1984. It is also stated that Civic Authorities have been informed not to provide basic amenities. It is admitted that the draw of lot was not conducted by the DDA in the presence of the office bearers of the Society and the nominee of the Registrar of Cooperative Societies. Some of the members whose, names were included in the draw of lot were not those whose names had been cleared by the Registrar of Cooperative Societies but were newly enrolled members. Learned counsel for the petitioner also placed reliance on a decision of a learned Single Judge of this court in CW No. 4019/98 titled Ashwani Kapoor v. DDA and Ors. reported at Volume . Learned counsel has also placed reliance on a decision of a learned Single Judge of this court in Sushila Devi Bhaskar v. INCHB Society Ltd. and Ors. reported at 1991 Volume 45 DLT 518, in support of the contention that the cooperative societies in the allotment of land act as a medium for government action as an intermediary between the public and the State. This is to buttress the argument that the involvement of the State functionary such as DDA has to be there in the draw of lots. In view of the foregoing discussion, and the admitted position that the draw of lot had not bene held by the DDA and without the approval of the list of members by the Registrar of Cooperative Societies, there is no option, but to quash the draw of lot and direct a fresh draw of lot in accordance with the Directive dated 31.5.1984. Ordered accordingly. The Administrator and the Society shall take consequential action as required for obtaining possession of the flats, if already handed over.

8. Before parting with these batch of writ petitions, it may be noted that during the course of hearing an opportunity of submissions was also provided to Mr. S.K. Dubey, who is the counsel for the petitioner in CW No. 3375/2001 and was prior to the appointment of the Administrator, representing the erstwhile Managing Committee of the Society. Mr. S.K. Dubey sought to urge that the erstwhile Managing Committee of the Society had challenged the order of suppression and the appointment of the Administrator and the hearing of the present petitions should be done Along with the hearing of CW No. 3375/2001, challenging the appointment of the Administrator. It was put to Mr. S.K. Dubey that the issue of validity of supersession of the Managing Committee was a different one and the present issue of the validity of the draw of lot could be considered de hors and independently of the question of supersession of the Managing Committee. Mr. S.K. Dubey attempted to urge that this was a case where members were habitual and persistent defaulters.

9. Be it may, the question for consideration in this writ petition is that the challenge to the draw of lots, which has been held in violation of the Directive dated 31.5.1984. Request of Mr. Dubey was therefore declined.